The ACRU Blog

A headline among today's MSNBC news entries reads, "Immigrant rights groups rally across the U.S." The story beneath the headline notes that some of the participants in the rallies will decline to wear T-shirts they donned last year, which bore the message, "We're illegal. So what?" Cooler heads have apparently concluded that this particular slogan was, for a variety of reasons, imprudent.

The MSNBC story also notes that a number of rallies will highlight how "families are being torn apart" by law enforcement raids and the deportation of parents found to have entered the country illegally.

In this story, as in so many others like it, one key fact goes unmentioned: The number of immigrants who enter the country legally. This group needs to be pushed into the shadows because its existence belies both the analytical and sentimental thrust of the illegal immigrant amnesty movement (by whatever euphemism "amnesty" may be called).

The main analytical thrust of the movement is that illegal entry is the only practical solution for foreign nationals who want a better life in the United States. The figures tell a different story. According to a September 2005 Working Paper by the Department of Homeland Security Office of Immigration Statistics, from 1990 through 2003, our country had roughly 12.7 million legal immigrants. In other words, in just that period of a little over a decade, the United States had more legal immigrants than the entire estimated population of illegal immigrants. The notion that illegal immigration is the only choice is, therefore, sheer baloney. Illegal immigration is like illegal anything else -- it is virtually never a product of necessity and virtually always a product of selfishness.

The main sentimental thrust of the amnesty movement -- at least if today's rallies are any indication -- is that children who have done nothing wrong will be hurt by the deportation of their illegal parents. In the first place, as a factual matter, this hardly need be the case; the parents can take their children with them (and if they maintain the "strong families" we are constantly being told illegals have, they will). But even were it otherwise, the blame for damage to children lies not with those who enforce the law but with those who took the gamble that they could get away with breaking it.

For years when I was a prosecutor, I heard at sentencing that the defendant shouldn't have to go to jail because that would harm his kids. Occasionally this was true. But it is not up to the law, nor society generally, to remedy for criminals what they knowingly jeopardize for themselves. People know when they make methamphetamine that they might get jailed. They also know that when they sneak into the country they might get deported. The time to have thought about their families was when they decided -- unlike the millions and millions of legal immigrants who will never face this problem -- that the law wasn't that important.

Just obey the rules. We're not asking that much.

The facts for this piece come from an article, but not the legal conclusions, in The Wall Street Journal on 21 April. It noted that $40 million was spent on all races for the state Supreme Courts across the country, but of that, $6 million was spent on a single race for an open seat in Wisconsin.

The two candidates for this position were, in alphabetical order, Linda Clifford and Annette Ziegler. Clifford was a proponent of the concept of "a living constitution," meaning the same thing in Wisconsin that that concept means on the US Supreme Court, namely that the judges could read new meanings into existing language. They would do this based on their personal understanding of the ethos of the times.

The term used in many Wisconsin newspapers during the race was that Clifford believed in a "flexible constitution." It should be no surprise that Linda Clifford was closely associated with the ACLU in Wisconsin, and with Planned Parenthood. She also had no prior experience as a judge.

Annette Ziegler was a sitting judge on the Washington County Circuit Court, with an established record. By contrast to her opponent, Ziegler believes in strict construction, that the proper business of a judge is to interpret the laws and the constitution according to original intent. She believes that a judge should follow and apply the law, not write new law from the bench.

Due to serious campaigning and fund-raising, and against a tide of media bias, Ziegler defeated Clifford by a significant margin of 58% to 42%. The people of Wisconsin chose a judge who would obey the law, not rewrite the law.

A common tactic of the ACLU when it loses a point in the political process is to use the judicial process to trump democracy, when the people fail to see the wisdom of the ACLU position. The same tactic has reared its ugly head in Wisconsin, where allies of the ACLU have mounted a legal challenge to prevent Judge Annette Ziegler from taking her seat on the Wisconsin Supreme Court for the ten-year term she has just won in last fall's election.

The Wisconsin Democracy Project (WDP), which is a left-leaning ally of the ACLU, as one might gather from its name, has filed a complaint with the Wisconsin Judicial Commission, which hears complaints against judges at any level. That Commission has the power to recommend a reprimand, censure, suspension or removal from office. The final decision-maker in all such cases would be the Wisconsin Supreme Court itself, without Judge Ziegler participating, of course.

The gravamen of the complaint by WDP was that Judge Ziegler violated conflict of interest requirements by not noting that her husband was a director of a Savings and Loan, in cases before her involving that S&L. The charges both here and before the State Ethics Committee, which has no authority to discipline judges, came directly from the campaign of Linda Clifford, during last year's election campaign in which Ziegler won handily.

The ACLU in Indiana has just filed suit against the state's Bureau of Motor Vehicles on behalf of a tree-hugger who doesn't like religion. Does that sound unfair? Here are the facts, from an article in the Journal Times in Fort Wayne, Indiana. (There is some irony in the fact that the article came to the Indiana newspaper from the Los Angeles Times, and has a distinct liberal bias as a result.)

Mark Studler is the ACLU's chosen plaintiff. He normally gets, for a special fee of $40, a pro-environment specialty plate. But when he found out that there was another plate "that he felt also qualified as a specialty plate" and which bore the motto, "In God we trust," he objected that it did not have a fee associated with it. The ACLU then filed suit against this "discrimination."

The article failed to mention that "In God we trust" is the national motto of the US, that it appears on our currency and many other places, and that it first appears in the fourth stanza of the national anthem, "The Star-Spangled Banner." It also fails to note that the motto has received constitutional approval in several cases, including in the Supreme Court.

The position of Indiana is that this is not a "specialty plate" like 79 others for special groups and purposes. Instead, it is an alternative standard plate, the other Indiana plate being one with a pastoral scene on it. State officials note that more than 540,000 citizens have chosen to use the plate with the national motto, which is more than 10% of all Indiana plates that have been issued for cars and trucks. This is one and a half times as many as ALL of the 79 specialty plates that have been issued.

Since it would be legal for Indiana to issue all its plates with the national motto on it - for reference see the "Live free or die" case from New Hampshire in the US Supreme Court - it seems obvious that the state can issue 10% of its plates this way. Neither the ACLU nor the reporter seemed aware of the New Hampshire case.

My colleague John Armor notes below ("ACLU Gets It Dead Wrong in Indiana") that our friends at the American Civil Liberties Union have sued Indiana, alleging that the state's failure to charge a fee for a license plate bearing the national motto, "In God We Trust" constitutes discrimination, since the state does charge a fee for other "specialty plates."

John points out that the "In God We Trust" plate is not really a specialty plate, but is one of two standard plates the state issues without a special charge. This would seem to be enough to dispose of the ACLU's complaint. Still, there is reason to hope the ACLU will not come out as badly as seems likely:

If it prevails, perhaps the next lawsuit should be brought by the ACRU, seeking to have the ACLU return to sender all of the oodles of money it receives bearing the same indigestable motto.

Smith v. Texas, No. 05-11304, was decided by the US Supreme Court on 25 April, in a sharply divided 5-4 decision. The convicted murderer was arguing against his death penalty sentence in accord with the theories of the ACLU's Death Penalty Project.

As usually happens in such cases, the Justices supporting the ACLU position fail to describe the facts of the crime. The facts appeared only in the Dissent by Justice Alito, joined by the Chief Justice and Justices Scalia and Thomas:

Mr. Smith was a former employee of a fast-food restaurant. He took "some friends" to the restaurant. As the staff was closing up, he got inside by asking to use the phone. "The teenage shift manager, Jennifer Soto, let him in and greeted him with a hug."  He then followed her into the office, demanded the combination to the safe, beat her with his gun until the handle broke. He shot her in the back. Then he got a knife from the kitchen, inflicted numerous "torture wounds" and then "slit her throat."

At trial, the judge proposed jury instructions on "mitigation" about Mr. Smith's low IQ and childhood problems that were not sufficient under a recent US Supreme Court decision. Mr. Smith's counsel did not ask for a curative instruction, because that would have involved jury focus on the viciousness of this murder.

The Supreme Court reversed Smith's death penalty once, and remanded the case to the Texas criminal appeals court. It reviewed the case and reinstated the death penalty, because his counsel had not preserved the issue for review. The US Supreme Court then reversed again, and forced a new penalty phase hearing for this murderer.

The bottom line is that the ACLU wants to have a murderer like this retried again and again, until possibly he avoids the death penalty altogether. That is not the view of the American people. And that is not the view of four current Justices on the Court.

On the same day, two other Texas murderers, with similar histories of viciousness, also had their death penalties reversed by the Court on the same 5-4 votes between the Opinions and the Dissents.

John Armor performs a crucial service with his three recent blog entries about liberals' use of the courts to counteract democratic self-rule (see John's article today about the Supreme Court opinion in Smith v. Texas, and his two articles about the "ACLU Against Wisconsin"). Ostensibly, the articles have different subjects: The article about the Texas case discusses adjudicating capital punishment, and the articles about Wisconsin discuss efforts by allies of the losing candidate (and of the ACLU) effectively to reverse the outcome of a judicial election. In fact, the articles bring great insight to the same pernicious development, i.e., the role of liberals in building and then using an increasingly politicized judiciary to achieve policy outcomes they can't sell at the ballot box.

It is of course true that courts are empowered to strike down measures enacted by the electorate, or the elected branches, when they violate the Constitution. But fidelity to the principle of majority rule -- which is, after all, the cardinal principle of democracy -- requires courts to act with great restraint in the exercise of that power. One thing restraint means is that judges cannot simply declare that the Constitution ordains their own preferences. To allow such a thing is to replace the rule of law with the rule of taste. It is also to invite into the law one of the principal sources of its destruction: instability. When people don't know from one term of Court to the next what the law requires or forbids, then law has lost one of its most valuable qualities. More importantly, it has lost one of the primary qualities that defines it as "law" to begin with.

The imperative of judicial restraint is the cornerstone of the argument for originalism -- that is, the argument that the Constitution must be interpreted in accord with its original meaning as the Framers understood it. Often this is portrayed by ACLU-types as mere nostalgia for an irrelevant, 18th Century past. In order to accommodate change, they argue, the Constitution must be seen as "living" or "flexible." But the Constitution was never intended to accommodate change in the ACLU-approved sense. It created the Executive and Legislative branches to do that. And there is a crucial reason for this distinction: When the policy du jour is adopted by the political branches, it can get "un-adopted" at the next election. But when it is adopted as part of the Constitution -- something only the courts can declare -- the next election will do you no good. Legislative edicts can be here today and gone tomorrow, but Constitutional edicts are, for almost all practical purposes, here to stay.

Because courts have (at least some of the time) acted with the restraint their awesome power commands, they have been called "the least dangerous branch." But as the Texas death penalty case illustrates, we are never very far away from their becoming a very dangerous branch indeed. In my next blog, I will use that case, and the capital punishment debate generally, to try to explain why this is so.

We admit it: The ACRU forgot that yesterday was "Law Day."

And my bet is that you did, too. But special thanks and kudos go out to Rush Limbaugh, who just brought this oversight to our attention, as well as that of millions of his listeners.

In 1958, President Dwight D. Eisenhower proclaimed May 1 to be Law Day, in order to draw attention to both the principles and practice of law and justice in America. Here is the text of his Proclamation:

WHEREAS it is fitting that the people of this Nation should remember with pride and vigilantly guard the great heritage of liberty, justice and equality under law which our forefathers bequeathed to us; and

WHEREAS it is our moral and civic obligation as free men and as Americans to preserve and strengthen that great heritage; and

WHEREAS the principle of guaranteed fundamental rights of individuals under the law is the heart and sinew of our Nation, and distinguishes our governmental system from the type of government that rules by might alone; and

WHEREAS our government has served as an inspiration and a beacon light for oppressed peoples of the World seeking freedom, justice and equality of the individual under law; and

WHEREAS universal application of the principles of the rule of law in the settlement of international disputes would greatly enhance the cause of a just and enduring peace; and

WHEREAS a day of national dedication to the principle of government under law would afford us an opportunity better to understand and appreciate the manifold virtues of such a government and to focus the attention of the World upon them;

NOW, THEREFORE, I, DWIGHT D. EISENHOWER, President of the United States of America, do hereby designate Thursday, May 1, 1958 as Law Day - USA. I urge the people of the United States to observe the designated day with appropriate ceremonies and activities, and I especially urge the legal profession, the press, and the radio, television and motion picture industries to promote and to participate in the observance of that date.

IN WITNESS WHEREOF, I have hereunto set my hand, and caused the Seal of the United States of America to be affixed.

DONE at the City of Washington this Third Day of February in the Year of our Lord Nineteen Hundred and Fifty-eight, and of the Independence of the United States of America the One Hundred and Eighty-second.

(Signed)
DWIGHT D. EISENHOWER By the President

JOHN FOSTER DULLES Secretary of State

The White House
February 3, 1958

Of course, the spirit of Law Day is also a guiding principle of the American Civil Rights Union. Our goal, in all we do, is to "remember with pride and vigilantly guard the great heritage of liberty, justice and equality under law which our forefathers bequeathed to us," and "to preserve and strengthen that great heritage."

Please join us in (belatedly) recognizing Law Day and in renewed commitment to America's Founding principles. And be sure that next year we will not only remember this important date, but will celebrate it appropriately.

The Supreme Court's overturning of the death sentence in Smith v. Texas is an apt example of how activist judges subvert popular will (see my previous post on this subject). The point here is not that the majority opinion is incorrect on the merits, although it is for the reasons ably stated by the four dissenters. The point is to illustrate how, little by little, and under the pretense of restraint, major issues of public policy are being decided by the courts instead of by the elected branches.

No fair reading of the record in Smith v. Texas leaves any doubt that the defendant committed the crime. Nor does it leave doubt that the jury had a reasonable opportunity to assess supposedly mitigating factors from the killer's childhood. (I shall defer for the moment the question whether alleged instances of abuse that happened decades in the past, if at all, can mitigate responsibility for a calculated murder of the kind at issue in Smith). Nonetheless, the Court reversed a death sentence provided for by Texas law -- a sentence that had twice been imposed by unanimous juries. It did this on the stated theory that the particular language of the mitigation instruction might have been insufficient to alert the jury to its prerogative to impose a sentence of less than death.

That at least is what the majority opinion purports to do. What it actually does is take yet another step toward abolishing the death penalty wholesale. It does this, not by stating forthrightly that this is the object of the game, but by adopting another finespun procedural hurdle that, while leaving the death penalty on the books, helps to make it impossible to actually execute anyone.

This method of attacking the death penalty features a dishonesty borne of necessity. The dishonesty is obvious -- it's hardly honest to represent to our citizens that "we do too have a death penalty" knowing that, as a practical matter, it can never be carried out. The necessity of this tactic is only slightly less obvious. The reason that liberal courts (and death penalty "moratorium" supporters like the ACLU and the ABA) are reluctant to announce the real agenda is that the real agenda cannot be sold to the public.

The public's view of the death penalty is not in doubt. According to the most recent comprehensive Gallup poll on the subject (conducted a year ago), 65% support capital punishment, while only 28% oppose it. Notwithstanding the fact that 63% believe an innocent person has been put to death within the last five years, 60% believe the death penalty is applied fairly. Fully 64% believe that it deters murder. And while 21% believe it is imposed too often, 25% say it is imposed with about the right frequency, and 51% -- a majority -- say it is not imposed enough.

Accordingly, it's no wonder that liberals and their allies on the courts soft-peddle their goal of outright abolition, and prefer the far shrewder strategy of stealth abolition. The public is less likely to become alarmed, or moved to action, when the abolitionist agenda can operate in obscurity, chip-chip-chipping away a bit at a time, as in Smith v. Texas.

The liberal, activist judges of the late 1960's and 1970's learned that being too obvious may feel good, but has its downsides (e.g., the election of Richard Nixon and his appointing to the Court Justices Lewis Powell and William Rehnquist). They are wiser now, and more clever. Unfortunately for the rest of us, this makes them, not the least dangerous branch, but more dangerous than ever.

An AP story posted on MSNBC late this afternoon carries the following exchange -- of sorts -- between the Majority Leader of the Senate and the President concerning the Iraq war funding bill that the President vetoed yesterday:

"[Mr. Bush called] the original bill unconstitutional for directing war operations 'in a way that infringes upon the powers vested in the presidency.'

"Outside the White House, Senate Majority Leader Harry Reid bristled at that claim. 'We are not going to be submitting our legislation to somebody at one of the law schools to look for its constitutionality. We have an obligation, under the terms of the Constitution, to legislate,' he said. 'That's our job.'"

So the position of the Majority Leader of the United States Senate is that the whether a proposed bill affecting the President's Article II powers as commander-in-chief is, or is not, constitutional, is no concern of his.

And I was just saying that the judiciary is the most dangerous branch! Gads, I take it all back.

The Virginian-Pilot reports today that Virginia Beach, which had instructed its police that, except in limited circumstances, they were not to inquire into the immigration status of persons they arrested, has now changed course. The Pilot article begins as follows:

VIRGINIA BEACH - "City police will begin asking all people from another country about their immigration status if they are arrested, even on misdemeanor charges, and taken before a magistrate.

"The change, announced at a news conference Tuesday by Chief of Police Jake Jacocks Jr., represents an about-face for Beach police and comes after public outrage over a car crash March 30 that killed two Beach teenagers.

"Alfredo Ramos, charged with aggravated involuntary manslaughter in the deaths, admitted he is in the country illegally and that he had been drinking before the crash. Ramos had [four] previous alcohol-related convictions, all misdemeanors. The city's policy had prohibited police from asking foreigners their immigration status except in felony cases.

"Jacocks said he arrived at the decision to change the two-year-old policy after meeting this week with federal immigration authorities. The policy change 'is effective right now,' he said."

Unfortunately, "right now" comes too late for the teenage girls.

There are two other noteworthy items about the Pilot story. First, it recounts that a person identified as an "Hispanic leader" said that this was not a happy day for Virginia Beach. It is unclear how happy the day was when the girls met their fate, or whether the "leader" has an opinon about that. Second, the story is accompanied by an interactive (and therefore unscientific) poll asking readers whether they approve of the change in policy. Result: 6% disagree with the change, 94% agree.

Yesterday, May 1, was supposed to be a banner day for rallying support for "immigration reform." ("Immigration reform," incidentally, is one of those phrases that belongs in the Dictionary for the Politically Incorrect, since its actual meaning is concealed behind its lofty appeal for "reform." Its actual meaning is: changing immigration law so that illegal immigrants reap rewards for their disregard of the rules).

But I digress. The mainstream media has had little to say about the May 1 rallies. Indeed, the only article I have seen about it is one posted on the MSNBC news site, titled, "L.A. to probe police force at rally." Evidently, for MSNBC, the only important story to emerge from yesterday's events was that the police might have used "inappropriate force." (This notwithstanding that, a few inches down the page, the article quietly reports that "[t]he skirmishes at MacArthur Park, west of downtown Los Angeles...resulted in about 10 people being taken to hospital for treatment of injuries including cuts...None of the injuries was believed to be serious").

In fact, the major story about the illegal immigration rallies is this: They were a flop. As the MSNBC story discloses in its fifth paragraph, "Turnout nationwide for the May Day marches on Tuesday was light compared to a year ago. Los Angeles brought out about 25,000 people, only a fraction of the 650,000 who rallied last year. In Chicago, where more than 400,000 swarmed the streets a year earlier, police officials put initial estimates at about 150,000. Organizers said fear about raids and frustration that the marches have not pushed Congress to pass reform kept many people at home. They said those who did march felt a sense of urgency to keep immigration reform from being overshadowed by the 2008 presidential elections."

Some observations.

First, out of a crowd of 25,000, 10 were taken to the hospital, all for non-serious injuries. Assuming that all 10 were innocent bystanders and not one provoked a fight with the police (an unrealistically generous assumption), 10 out of 25,000 is not what one would call a police riot.

Second, fear of raids and frustration about Congressional inaction could not possibly account for the dramatic decease in participation. There was at least as much chance of a "raid" last year, and anger about Congressional inaction would prompt more participation, not less.

Third, if the amnesty movement were gaining traction, there would scarcely be a "sense of urgency" to keep it from being "overshadowed" by the 2008 elections. To the contrary, it would be an important issue in those elections.

The upshot is that the excuses for The Big Flop don't add up. I suspect -- although I can't prove -- that there is a very different reason the rallies ran out of gas. Pro-amnesty organizations are discouraged that people have started to catch on to the costs of illegal immigration. This is happening none too soon, but better late than never.

In one of yesterday's entries ("The Most Dangerous Branch, cont'd"), I argued that the courts are chipping away -- when they are not discarding wholesale -- policy judgments properly left to the elected branches. The particular focus of my entry was a case my colleague John Armor had mentioned, Smith v. Texas. There, the Supreme Court, by a one-vote margin, overturned for the second time a death sentence that a unanimous jury had imposed for a particularly grisly murder. I argued that the Court's decision said less about the the propriety of the jury instruction on mitigation (which was the majority's ostensible focus) than it did about the courts' -- and especially the Supreme Court's -- increasing inclination simply to paste into the Constitution the social and legal policies it prefers.

Among the policies currently in vogue, at least with the Court's liberals, is a strain of deep skepticism about the death penalty. As I noted, this skepticism persists notwithstanding that the death penalty enjoys overwhelming public support -- slightly better than two-to-one -- and has been part of American law virtually since the founding. And it's not just that the death penalty enjoys broad support among voters; it's that historically, it has enjoyed even broader support among judges. Our country has had 112 Supreme Court Justices, and of that number, only three -- Brennan, Marshall and Blackmun -- have taken the view that the death penalty per se violates the constitutional ban on cruel and unusual punishment. One would think that a margin of 109 to 3 would be enough to inspire something resembling a sense of modesty among the death penalty skeptics currently on the Court. But one would need to think again.

The principal argument now made against the death penalty is that it has resulted in the execution of innocent people. That, indeed, was the overarching theme among the Court's liberals when they dissented in a case called Kansas v. Marsh, No. 04-1170, June 26, 2006. It is therefore well worth reading Justice Scalia's concurring opinion in that case, which constitutes the most devastating critique of the we're-executing-innocents argument I have ever seen. Not surprisingly, much of Scalia's discussion is devoted to explaining that, so far as the actual facts show, we have not, in the modern era and probably for decades before then, executed a single innocent person. I excerpt below a few paragraphs from Justice Scalia's opinion (footnotes omitted):

"[T]he dissenters' [attempt to encumber] the death penalty...with unwarranted restrictions neither contained in the text of the Constitution nor reflected in two centuries of practice under it, [is] the product of their policy views--views not shared by the vast majority of the American people. The dissenters' proclamation of their policy agenda in the present case is especially striking because it is nailed to the door of the wrong church--that is, set forth in a case litigating a rule that has nothing to do with the evaluation of guilt or innocence....

"There exists in some parts of the world sanctimonious criticism of America's death penalty, as somehow unworthy of a civilized society. (I say sanctimonious, because most of the countries to which these finger-waggers belong had the death penalty themselves until recently--and indeed, many of them would still have it if the democratic will prevailed.) It is a certainty that the opinion of a near-majority of the United States Supreme Court to the effect that our system condemns many innocent defendants to death will be trumpeted abroad as vindication of these criticisms. For that reason, I take the trouble to point out that the dissenting opinion has nothing substantial to support it.

"It should be noted at the outset that the dissent does not discuss a single case--not one--in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent's name would be shouted from the rooftops by the abolition lobby. The dissent makes much of the new-found capacity of DNA testing to establish innocence. But in every case of an executed defendant of which I am aware, that technology has confirmed guilt."

For those interested in the death penalty, it's worth reading every word of the Scalia concurrence in Marsh.

Why the Court's liberals (and liberals everywhere) are so ready to believe that the United States executes innocent people -- in the face of the evidence that we don't -- is another question, and a very important one. As I shall attempt to explain later, I believe it is because liberals view the United States as so engulfed in a history of roughshod capitalism, militarism and, of course, racism, that we have forfeited the right to moral confidence. And a country lacking justified moral confidence has a shaky claim at best on the right to execute anyone -- or forcefully to resist its foreign enemies, protect its borders, preserve its civil institutions (from traditional marriage to the Boy Scouts), defend its academic standards (from, for example, race-based admissions policies), and on and on.

Thus, in the future, I want to return to this theme. For now, I am content to note that, so far as the actual evidence shows, no, we are not executing the innocent, and the quick willingness to believe we are bespeaks a reservoir of moral doubt about America that promises nothing but trouble.

The California Catholic Daily features an article discussing the effort of the American Civil Rights Union and others to protect a private doctor's right to refuse to administer medical procedures that violates her religious convictions.

As described in the article, "Right to Refuse", a California doctor at a fertility clinic is being sued by a lesbian for that doctor's refusal to artificially inseminate her. Naturally, the ACLU and a slew of homosexual activists have lined up against religious freedom in the case, Benitez v. North Coast Women's Care Medical Group, et al, is now being heard by the California Supreme Court.

For our view, be sure to read Bill Otis's op-ed, "Another Type of Conscientious Objector."

The New York Times just reported on the find of a previously unknown letter from George Washington in May, 1787, to Jacob Morris. It was contained in a scrapbook gathered by a 10-year-old girl in 1826, and was found in a box in a mansion her descendants gave this year to the State of New Jersey.

The letter is important because it is a "new" document from the hand of Washington. Second, it refers to General Horatio Gates. Some congressmen in the Continental Congress wanted at one point to replace General Washington with Gates, because of Washington's unending series of defeats prior to the Battle of Trenton.

The main value of this short letter lies in when and where it was written, and what it says about the Constitution. Washington was readily elected President of the Philadelphia Convention in 1787, because all the factions present there respected him. From that place he sent this letter. Its second paragraph says,

"The happiness of this Country depends much upon the deliberations of the federal Convention which is now sitting. It, however, can only lay the foundation -- the community at large must raise the edifice."

Washington was a man of deeds, not words. He led by example. He spoke on the floor of the Convention only once, on its closing day. He favored the final amendment, to set the size of Congressional Districts at 30,000 people each rather than 40,000. His choice was followed, as it was with the decision not to limit the terms of the President. (That choice he'd expressed only privately.)

But when Washington did write, and speak, his vision was keen, and his words clear and precise. With 218 years of experience of living under the Constitution, we can see now that Washington's statement was correct. The endurance of the Constitution does not depend solely on the excellence of its design, or the wisdom of the amendments made to date.

It is an excellent design. It has survived longer as a written constitution than those of any other nation in history. And with the exception of Prohibition, installed in the Constitution and later removed as a failure, the amendments have been successful. Other nations have lost their constitutions in military coups, or legal coups when they were redefined into dictatorships.

The key to the durability of the US Constitution is not found in the courts, or in any part of the federal government. It is found in the hearts and minds of all Americans. In 218 years it is we, not our government, who have "raised the edifice" of the Constitution. But sadly, in recent decades, it is we who are tearing that edifice down, again.

George Washington warned in his Farewell Address that the Constitution "is sacredly obligatory upon all," until and unless it is changed "by the authentic act of the whole people." By that he meant it should be amended only by the people, as defined in Article V. It was not to be amended merely by the Courts, or Presidents, or Congresses, acting on their own hook.

Here is a one-question quiz, from which each of you can judge whether you are part of maintaining the Constitution, or bringing it down: If the Supreme Court hands down a decision that does not rewrite the Constitution, but obeys it, yet the decision is contrary to what you wanted in that case, will you support that decision?

That is a simple but telling question. Is the Constitution more important to you than the decision in any particular case? If you answered that first question "no," it means you are willing to sacrifice the Constitution to win a specific, political point. If too many Americans think that way, as George predicted in his letter long ago, the edifice of the Constitution is not long for this world.

The motto "Equal Justice Under Law" is inscribed above the grand entrance to the Supreme Court. Presumably these words are intended to describe what goes on inside. If the hate crimes bill adopted by the House yesterday becomes law, however, something very different will be going on.

Few people doubt that truly hideous crimes, like the murder of James Byrd (a black man chained by three white thugs to the back of a pickup truck and dragged through the streets until he died) deserve severe punishment. To me, that means the death penalty -- and at least one of Byrd's killers got exactly that, ACLU opposition to capital punishment notwithstanding.

What this shows is that we don't need a hate crimes statute to allow courts to impose punishment that will send a message. Such statutes are misguided, however, not simply because they are unnecessary, but because they eat away at the foundations of even-handed justice.

These statutes introduce identity-group politics into law, where it has no business. Its intrusion is certain to be divisive in the worst possible sense, because it sends the Orwellian message that, before the bar of justice, where all are supposed to be equal, some are more equal than others. Such legislation also Balkanizes the culture of law, telling our citizens that, depending on the politics of the moment, criminal depredations against some groups are taken more seriously by society than identical depredations against different, "less valuable" groups. We heard enough of that in the Jim Crow era. We don't need an echo of it now.

James Byrd did not deserve justice because he was a black person. He deserved justice because he was a person. For dealing with criminals and killers, that's what we know, and that's all we need to know.

In today's America, the United States Constitution is too often treated like the Queen of England - a powerless and non-binding relic of an earlier age. And just as Queen Elizabeth is in the States this week leading up to the 400th anniversary celebration of the settlement of Jamestown colony, the Constitution will occasion the obligatory nod from time to time.

But the Constitution is not like the monarchy, which long ago gave up all real authority. The Constitution, along with its Bill of Rights and other Amendments, remains in effect. Not that you would know that by the way our government leaders - including members of both major parties - so often ignore it and do what they are not constitutionally permitted to do.

So, for those of us who still think the Oath to abide by and protect the Constitution means something, we are grateful for articulate defenses of the Constitution from wherever we can get them.

Very few people are consistent when it comes to their view of the Constitution, often in word or action elevating those portions they personally favor, and ignoring or redefining what they don't. It therefore comes as a great and welcome surprise that some of the most persuasive defenders of the individual's Second Amendment right to keep and bear arms - long a bane to the political left - are prominent and liberal law professors.

I've long been grateful for the principled and correct stances of professors Akhil Reed Amar at Yale and Sanford Levinson at the University of Texas on this issue. Today, the New York Times of all places - that bastion of protecting the church of liberal orthodoxy - reports on the contributions of these and other liberal minds in helping sway the federal judiciary in recent years to take a more strictly constructionist view of the Second Amendment.

As the article explains:

The earlier consensus, the law professors said in interviews, reflected received wisdom and political preferences rather than a serious consideration of the amendment's text, history and place in the structure of the Constitution. "The standard liberal position," Professor Levinson said, "is that the Second Amendment is basically just read out of the Constitution."

But no longer, for Levinson and others:

If only as a matter of consistency, Professor Levinson continued, liberals who favor expansive interpretations of other amendments in the Bill of Rights, like those protecting free speech and the rights of criminal defendants, should also embrace a broad reading of the Second Amendment.

The recent Virginia Tech Massacre and last year's mass murder at an Amish schoolhouse in Pennsylvania have, thus far, not lead to the usual chorus of Democrats calling for aggressive (but counter-productive) gun control measures in response. They know that the courts are growing increasingly disposed to strike down such unconstitutional measures. We can thank a small but highly-influential cadre of liberal minds for this fact.

Perhaps the Constitution still warrants our obeisance, after all. The Queen must be jealous.

On 5 May, 2007, the Associated Press ran a story entitled "Local Immigration Laws Bring High Costs." It described a nationwide shakedown project by the ACLU. Only the AP missed the larger story.

The story as written, said, "Cities across the U.S. are spending hundreds of thousands of dollars defending themselves against lawsuits and other challenges to ordinances enacted to keep out illegal immigrants."

It went on to describe how at least 90 cities had considered ordinances like those of Hazleton, Pennsylvania, but that many were backing away in fear of the costs. And, those costs come in two varieties: the fees that cities pay to their lawyers to defend themselves from legal attacks by the ACLU. The second cost is that courts may order cities to pay legal fees and costs to the ACLU.

It is only between the lines of the facts in this story that readers can see the 'shakedown' project being run by the ACLU. The ACLU wants fear, not logic, to stop cities from acting to protect their own citizens from criminal and financial losses at the hands of illegal immigrants.

It is beyond the ken of the AP to recognize that it is describing a wholesale assault on American civil rights. The first right claimed by the Declaration of Independence is self-government. The most basic right guaranteed by the Constitution is "republican government." For those not up on their constitutional definitions, that means living under laws written by our elected representatives.

In simple terms even a grade school student would understand, Americans are opposed to "taxation without representation." That means that all levels of government, including cities, should tax and spend through decisions of elected representatives, not non-elected judges. That means the whole thesis of this article should be reversed.

Hazleton-type laws should be approved by the courts, not struck down. And then, fee awards should be made against the ACLU in favor of the victimized cities. That's because the ACLU is attacking the most basic right of Americans, the right to self-government.

I've just learned that Washington, D.C.'s petition for a rehearing of the Parker case in the U.S. Court of Appeals for the D.C. Circuit was denied today. This is good news. Readers will recall in this case that the D.C. Circuit overturned the decades-long ban on gun ownership in the nation's capitol on Second Amendment grounds.

However, as my colleague Peter Ferrara explained in his National Review Online article following the initial decision in March, it looks very likely that the United States Supreme Court will take the case on appeal. When it does so - beyond seriously considering the clear original intent of the Second Amendment to protect an individual's right to armed self-defense - the justices of the U.S. Supreme Court would be wise to take into account the findings of a recent study out of Harvard.

The study, which just appeared in Volume 30, Number 2 of the Harvard Journal of Law & Public Policy (pp. 649-694), set out to answer the question in its title: "Would Banning Firearms Reduce Murder and Suicide? A Review of International and Some Domestic Evidence." Contrary to conventional wisdom, and the sniffs of our more sophisticated and generally anti-gun counterparts across the pond, the answer is "no." And not just no, as in there is no correlation between gun ownership and violent crime, but an emphatic no, showing a negative correlation: as gun ownership increases, murder and suicide decreases.

The findings of two criminologists - Prof. Don Kates and Prof. Gary Mauser - in their exhaustive study of American and European gun laws and violence rates, are telling:

Nations with stringent anti-gun laws generally have substantially higher murder rates than those that do not. The study found that the nine European nations with the lowest rates of gun ownership (5,000 or fewer guns per 100,000 population) have a combined murder rate three times higher than that of the nine nations with the highest rates of gun ownership (at least 15,000 guns per 100,000 population).

For example, Norway has the highest rate of gun ownership in Western Europe, yet possesses the lowest murder rate. In contrast, Holland's murder rate is nearly the worst, despite having the lowest gun ownership rate in Western Europe. Sweden and Denmark are two more examples of nations with high murder rates but few guns. As the study's authors write in the report:

If the mantra "more guns equal more death and fewer guns equal less death" were true, broad cross-national comparisons should show that nations with higher gun ownership per capita consistently have more death. Nations with higher gun ownership rates, however, do not have higher murder or suicide rates than those with lower gun ownership. Indeed many high gun ownership nations have much lower murder rates. (p. 661)

Finally, and as if to prove the bumper sticker correct - that "gun don't kill people, people do" - the study also shows that Russia's murder rate is four times higher than the U.S. and more than 20 times higher than Norway. This, in a country that practically eradicated private gun ownership over the course of decades of totalitarian rule and police state methods of suppression. Needless to say, very few Russian murders involve guns.

The important thing to keep in mind is not the rate of deaths by gun - a statistic that anti-gun advocates are quick to recite - but the overall murder rate, regardless of means. The criminologists explain:

[P]er capita murder overall is only half as frequent in the United States as in several other nations where gun murder is rarer, but murder by strangling, stabbing, or beating is much more frequent. (p. 663 - emphases in original)

It is important to note here that Profs. Kates and Mauser are not pro-gun zealots. In fact, they go out of their way to stress that their study neither proves that gun control causes higher murder rates nor that increased gun ownership necessarily leads to lower murder rates. (Though, in my view, Prof. John Lott's More Guns, Less Crime does indeed prove the latter.) But what is clear, and what they do say, is that gun control is ineffectual at preventing murder, and apparently counterproductive.

Not only is the D.C. gun ban ill-conceived on constitutional grounds, it fails to live up to its purpose. If the astronomical murder rate in the nation's capitol, in comparison to cities where gun ownership is permitted, didn't already make that fact clear, this study out of Harvard should.

Building on my last post ("Harvard Study: Gun Control Is Counterproductive") - I thought it would be instructive to look at one particular table from the aforementioned study published in Spring 2007 in the Harvard Journal of Law & Public Policy, Volume 30, Number 2:

In every case - much like the difference between the state of Virginia, which allows even for concealed carry of handguns, and Washington, D.C., which has long banned them - the right to gun ownership corresponds with dramatically lower murder rates.

The House of Representatives has just passed a federal bill on "hate crimes," which seems headed for a White House veto, if it manages to pass the Senate. This has heightened attention to the half of the several states which also have "hate crime" laws.

There are only two things wrong with the state laws: they are useless and arbitrary. There is a third problem with the federal version. It violates the Constitution.

Every "hate crime" law is based on the commission of an ordinary crime. Attacking, harming, or killing any citizen IS a crime to begin with. Damaging someone's property, whether burning a cross on someone's lawn or any other means, is a crime. People who commit such crimes are routinely tried, convicted and punished, whether or not the jurisdiction has a "hate crime" law.

Judges have some discretion in passing sentences, and legislatures have authority at any time to increase the penalties which judges can, or must, impose. All that "hate crime" laws do is increase the penalty depending on the categories of the criminal and the victim. As if anyone murders anyone else because they love them, rather than hate them, though O.J. Simpson comes to mind.

These laws are also arbitrary, because both prosecutors and press focus on "hate crimes" against blacks by whites, but not the reverse, or against homosexuals by heterosexuals, but not the reverse. So, the published statistics on "hate crimes" are no better than the quality of the reporting, which is dubious at best.

The last point about the proposed federal law is that criminal law is a state matter. Other than crimes against federal personnel or property, the definition of what acts are criminal and what penalties should be applied, belongs to the state legislatures, not to Congress. So said Madison, Hamilton and Jay in the Federalist papers, and they were right.

The bottom line is this: "hate crime" legislation is political pandering for votes from whatever group is apparently benefited by being named as a protected group. This will continue until the vast majority of Americans realize that the reverse is true. Such laws necessarily say to most Americans that it is less important to the government and the courts if your property is damaged, or you are attacked, or a member of your family is killed.

For now, that message is being sent to the American people by the House of Representatives through the bill they have just passed.

One of the slogans of the opponents of the Farmers Branch immigration ordinances, was "Let the people vote." (See "Anti-Illegal-Immigrant Law OK'd in Texas.") Now, the people HAVE voted, 68-32, to approve the ordinances designed to discourage illegal immigrants in their town. So, the opponents are going to court to have an unelected judge tell the people and the town they have no right to make this decision.

In short, the ACLU and its allies are attacking the basic right of all Americans, to govern themselves under a "republican" government, which in accord with the constitutional guarantee means government by elected representatives. This subject will spread to many more than the 90 communities considering it so far. And the basic subject, constitutional self-government, should concern all Americans.

John Armor notes that a pro-illegal immigrant group which opposed the Hazelton-style ordinance adopted in Texas (by a vote of better than two-to-one) called itself, "Let the People Decide." Not to miss a beat, this same group is now going to court, presumably under the motto, "Let the Judges Undecide." The irony here parallels what the anti-war press has been trying to hang around the President's neck when he spoke several years ago on a destroyer donning a huge, "Mission Accomplished" sign. If you think the press is going to cover the Texas "vote-then-sue" story with anything like the zeal it covered, and continues to cover, the aging "Mission Accomplished" episode, however, you've been reading a different press.

One might inquire as to what the allegations of this lawsuit will be, now that the people have decided. I read a short article about that this morning, I believe in USA Today. The story was that the suit will claim the ordinance is unlawful because (1) immigration enforcement is a federal matter, not given over to state or local governments, and (2) the ordinance is "discriminatory."

These arguments should not long detain the courts. First, as I understand it, the ordinance does not purport to "enforce" federal law (which in the matter of immigration means deportation). It simply attaches a price to practices that encourage or facilitate breaking federal law -- practices that have local consequences and absorb local tax dollars. (And, tragically, practices that in extreme instances have cost local lives, namely the killings of a father and son in Los Angeles and two teenage friends in Virginia Beach, resulting at least in the latter case in a change in that city's previous "sanctuary"-oriented immigration policies).

Local ordinances that work in tandem with federal law are in any event neither new nor improper. For example, local ordinances banning "head shops" work in tandem with federal anti-drug laws, but no serious person (and no court known to me) has taken the view that such ordinances are illegal for doing so. A federal system of government means that there is a separate sphere of authority for state and local governments; it does not mean that those governments may not freely choose to cooperate with the aims of federal law.

The notion that the new ordinance is "discriminatory" stands on a different footing, since it's true. It does indeed discriminate. But the Constitution at no point prevents discrimination. It prevents invidious discrimination -- that is, the government's apportioning penalties and rewards based on characteristics a person cannot control, such as race, color or ethnicity.

The best that can be said of the notion that a person cannot control whether he sneaks into the country is that it is preposterous. It is true, of course, that an illegal immigrant might (and in the typical case certainly does) have a reason for wanting to by-pass the rules others have to follow, such as that he wants a quick route to a better paying job (or a better paying welfare agency, or better funded social services, etc.). But the mere existence of a reason for behavior does not give it Equal Protection significance; indeed, it does not take the legal discussion beyond the level of a truism. All conscious behavior takes root in some sort of reason. To say that it's "discriminatory" for the law to take account of a person's choosing to help himself -- rules be damned -- is to warp the concept of "discrimination" beyond recognition. It's the same as saying that we can't toss (say) an Hispanic bank robber in jail because this would be "discriminatory" toward hold-up artists.

Illegal immigrants have a choice, just as the far more numerous group of legal immigrants did and do. When a town, be it in Texas or Pennsylvania, reacts against the illegal (and selfish and costly) choice, that can constitute "discrimination" only in an alternate universe.

When James Madison penned the Bill of Rights in 1789, surely the idea of blocking local school children in Monroe, LA in 2007 from solemnizing their graduation ceremony with prayer was his intent, right? After all, he objected to official prayers, Thanksgiving proclamations to God, congressional chaplains, and worship meetings held in federal buildings while in the first congresses under the new Constitution, didn't he?

Well, no.

In fact, when Madison's good friend Thomas Jefferson - no Christian he, and often cited for support from those seeking a radical "wall of separation" between government and all things religious - did things that would make today's ACLU go berserk, Madison and the other Founders that sought to protect the states from an established national church were content.

Madison voted with Congress on December 4, 1800, to allow for the Capitol building to double as a church building - where Jefferson as president often chose to worship. Nor did he object when Jefferson began similar Christian services in the Executive Branch, both at the Treasury Building and at the War Office.

When Madison followed Jefferson into the presidency, he followed his friend's tradition of worshipping at the Capitol. And he went further, issuing several proclamations for public days of prayer, fasting, and thanksgiving.

If all this is so, then why does the ACLU object so strenuously when students at local schools wish to mark their graduation with prayer and thanksgiving to God? How on earth can the ACLU interpret the voluntary religious actions of a small school in Monroe, LA - even if led by school officials, which they aren't - as an establishment of religion?

Certainly, the Founders warned and worked against the establishment of a national church or religion under the Constitution. They did this while maintaining a highly favorable view of religious expression and worship by public officials in official settings up to the highest levels of national government. And they saw no contradiction in doing so.

So why is it that the ACLU - in the name of "religious liberty" - seeks to establish secularism all the way down to even the most local level? Who really is it, in this debate over school prayer, that is being consistent with the Constitution and intent of the Founders? Perhaps the ACLU should rethink its position, or at least come clean with its real intent, which is to overturn the Constitution and the great majority view of the people at those points it most disagrees.