A parallel of the year 2001 in 68 B.C.?

In the New York Times of today (September 30th), Robert Harris, author most recently, of “Imperium: A Novel of Ancient Rome” has compared the response to 9/11 to the response of Rome to the attack on Ostia in 68 B.C. I'm always wary of historical parallels like this one; in this instance, I think it's a good bet American democracy is safe for now. That is not to say that the new detainee legislation should be a cause for celebration. In any event, here is what Mr. Harris wrote:

Pirates of the Mediterranean

IN the autumn of 68 B.C. the world’s only military superpower was dealt a profound psychological blow by a daring terrorist attack on its very heart. Rome’s port at Ostia was set on fire, the consular war fleet destroyed, and two prominent senators, together with their bodyguards and staff, kidnapped.

The incident, dramatic though it was, has not attracted much attention from modern historians. But history is mutable. An event that was merely a footnote five years ago has now, in our post-9/11 world, assumed a fresh and ominous significance. For in the panicky aftermath of the attack, the Roman people made decisions that set them on the path to the destruction of their Constitution, their democracy and their liberty. One cannot help wondering if history is repeating itself.

Consider the parallels. The perpetrators of this spectacular assault were not in the pay of any foreign power: no nation would have dared to attack Rome so provocatively. They were, rather, the disaffected of the earth: “The ruined men of all nations,” in the words of the great 19th-century German historian Theodor Mommsen, “a piratical state with a peculiar esprit de corps.”

Like Al Qaeda, these pirates were loosely organized, but able to spread a disproportionate amount of fear among citizens who had believed themselves immune from attack. To quote Mommsen again: “The Latin husbandman, the traveler on the Appian highway, the genteel bathing visitor at the terrestrial paradise of Baiae were no longer secure of their property or their life for a single
moment.”

What was to be done? Over the preceding centuries, the Constitution of ancient Rome had developed an intricate series of checks and balances intended to prevent the concentration of power in the hands of a single individual. The consulship, elected annually, was jointly held by two men. Military commands were of limited duration and subject to regular renewal. Ordinary citizens were accustomed to a remarkable degree of liberty: the cry of “Civis Romanus sum” — “I am a Roman citizen” — was a guarantee of safety throughout the world.

But such was the panic that ensued after Ostia that the people were willing to compromise these rights. The greatest soldier in Rome, the 38-year-old Gnaeus Pompeius Magnus (better known to posterity as Pompey the Great) arranged for a lieutenant of his, the tribune Aulus Gabinius, to rise in the Roman Forum and propose an astonishing new law.

“Pompey was to be given not only the supreme naval command but what amounted in fact to an absolute authority and uncontrolled power over everyone,” the Greek historian Plutarch wrote. “There were not many places in the Roman world that were not included within these limits.”

Pompey eventually received almost the entire contents of the Roman Treasury — 144 million sesterces — to pay for his “war on terror,” which included building a fleet of 500 ships and raising an army of 120,000 infantry and 5,000 cavalry. Such an accumulation of power was unprecedented, and there was literally a riot in the Senate when the bill was debated.

Nevertheless, at a tumultuous mass meeting in the center of Rome, Pompey’s opponents were cowed into submission, the Lex Gabinia passed (illegally), and he was given his power. In the end, once he put to sea, it took less than three months to sweep the pirates from the entire Mediterranean. Even allowing for Pompey’s genius as a military strategist, the suspicion arises that if the pirates could be defeated so swiftly, they could hardly have been such a grievous threat in the first place.

But it was too late to raise such questions. By the oldest trick in the political book — the whipping up of a panic, in which any dissenting voice could be dismissed as “soft” or even “traitorous” — powers had been ceded by the people that would never be returned. Pompey stayed in the Middle East for six years, establishing puppet regimes throughout the region, and turning himself into the richest man in the empire.

(Page 2 of 2)

Those of us who are not Americans can only look on in wonder at the similar ease with which the ancient rights and liberties of the individual are being surrendered in the United States in the wake of 9/11. The vote by the Senate on Thursday to suspend the right of habeas corpus for terrorism detainees, denying them their right to challenge their detention in court; the careful wording about torture, which forbids only the inducement of “serious” physical and mental suffering to obtain information; the admissibility of evidence obtained in the United States without a search warrant; the licensing of the president to declare a legal resident of the United States an enemy combatant — all this represents an historic shift in the balance of power
between the citizen and the executive.

An intelligent, skeptical American would no doubt scoff at the thought that what has happened since 9/11 could presage the destruction of a centuries-old constitution; but then, I suppose, an intelligent, skeptical Roman in 68 B.C. might well have done the same.

In truth, however, the Lex Gabinia was the beginning of the end of the Roman Republic. It set a precedent. Less than a decade later, Julius Caesar — the only man, according to Plutarch, who spoke out in favor of Pompey’s special command during the Senate debate — was awarded similar, extended military sovereignty in Gaul. Previously, the state, through the Senate, largely had direction of its armed forces; now the armed forces began to assume direction of the state.

It also brought a flood of money into an electoral system that had been designed for a simpler, non-imperial era. Caesar, like Pompey, with all the resources of Gaul at his disposal, became immensely wealthy, and used his treasure to fund his own political faction. Henceforth, the result of elections was determined largely by which candidate had the most money to bribe the electorate. In 49 B.C., the system collapsed completely, Caesar crossed the Rubicon — and the rest, as they say, is ancient history.

It may be that the Roman republic was doomed in any case. But the disproportionate reaction to the raid on Ostia unquestionably hastened the process, weakening the restraints on military adventurism and corrupting the political process. It was to be more than 1,800 years before anything remotely comparable to Rome’s democracy — imperfect though it was — rose again.The Lex Gabinia was a classic illustration of the law of unintended consequences: it fatally subverted the institution it was supposed to protect. Let us hope that vote in the United States Senate does not have the same result.

N case appeal listed

As I speculated, the Supreme Court has given an early appeal date to the aggrieved parents in N. & anor -v- H.S.E. Western Area & ors. As was also to be expected, the appeal will be heard before a five-judge panel, comprising Chief Justice Murray, and Justices McGuinness, Hardiman, Geoghegan and Fennelly JJ. The hearing begins on October 4th; that is, next Wednesday.

A brief thought: Does the strongly pro-parent line taken a few years back in the North Western Health Board case - which involved whether a PKU test could be given to a child over its parents' objections - not imply that the present Supreme Court will be slow to affirm McMenamin J.'s decision? Not necessarily is, of course, the answer. But we probably won't have to wait too long to see what transpires.

P.S. Since my recent posts on upcoming cases in the U.S. Supreme Court, I said I'd better put something together on appeals forthcoming before the Irish Supreme Court. That's what I was doing when I was spotted the list date for the N appeal. Stay tuned.

Journalists decline to assist tribunal

Breaking news via RTE.ie:

"An Irish Times journalist has told the Mahon Tribunal that he will not assist the inquiry in identifying the source of a leak revealing payments to Taoiseach Bertie Ahern.
In evidence, the paper's Public Affairs Correspondent, Colm Keena, said he could not answer any questions about how he received information contained in a letter from the tribunal to businessman David McKenna last June.
Mr McKenna was one of 12 businessmen discovered to have made payments
totalling £38,500 to Mr Ahern in 1993 and 1994.

Earlier, tribunal chairman Judge Alan Mahon warned Mr Keena that failure to answer questions in evidence is an offence punishable with a fine of up to €300,000 and two years in jail.
Both Mr Keena and The Irish Times Editor Geraldine Kennedy have been summoned to give evidence to the tribunal, which is investigating the leak of confidential information.
At the beginning of the hearing, Mr Mahon said that he was particularly concerned by Ms Kennedy's admission in correspondence that she had destroyed a document on legal advice after receiving an order from the tribunal. The chairman also said The Irish Times had been aware of a Supreme Court injunction prohibiting the publishing of confidential tribunal information."

It has previously been decided (Re Kevin O'Kelly) that the Constitution's protection of freedom of expression does not require that journalists be allowed to decline to disclose to the courts the sources of their stories. Since then, however, we have had the European Convention on Human Rights Act 2003. This compels the courts to have due regard to decisions of the Court of Human Rights in Strasbourg. This is where it gets interesting: the Strasbourg court has held that Article 10 of the Convention necessitates that journalists should, indeed must, be allowed keep their sources secret: see Goodwin v U.K. (1996) 22 EHRR 123, and the subsequent English decision in John v Express Newspapers [2000] 3 All ER 257; [2000] 1 WLR 1931.

Keena and Kennedy (the latter having also pledged non-cooperation) have that development on their side, but breaking a court injunction is surely a different matter. According to the tv and radio news, Ms. Kennedy has claimed the newspaper was unaware of any such injunction, that the relevant documents have been destroyed and that it was effectively none of the tribunal's business, since the matters were not within its remit.

Oral arguments to be posted online in Doe challenge

On February 22, 2005 the U.S. Supreme Court denied certiorari (in the sense in which that term is used in U.S. federal courts, rather than the public law relief denoted by the term in England and Ireland) in the case of McCorvey v Hill. Thus the Fifth Circuit's 2004 opinion, including Judge Edith Jones striking comments in her concurrence, stood. Basically, the Fifth Circuit held that procedural rules meant that McCorvey, the woman known as Roe in the seminal case of Roe v Wade, could not now seek to have that decision overturned. Judge Jones critical comments on the decision Roe were therefore entirely obiter.

On the same day in 1973 that Roe was decided, the Court also decided the less well known case of Doe v Bolton. The woman involved in that case applied in 2003 (32 years after she filed the original action) to have Doe set aside. Plaintiff Sandro Cano, like McCorvey, seems to have changed her mind. On January 11, 2006, in an appeal named Cano v Baker et al., the 11th Circuit held it couldn't touch Doe. Only the court of final resort, the Supreme Court, could do so. No surprise there. Her lawyers have now brought the case to Washington D.C.; on October 6th (a week today), the Supreme Court will decide whether to hear her case.

The oral arguments made before the Court - along with interjections from the bench - will be posted online "the same day they occur". This will be a general practice from now on apparently. There would seem to be little reason why the same could not be done in Ireland. Certainly it would be desirable when the Court sits with five or more members, in which instances the case is deemed of particular general importance.

Update (2.10pm.) SCOTUS blog was there well before me, with a more detailed note on Cano's case.

More on U.S. Supreme Court's October 2006 term

By way of follow-up to last Sunday's post post on the topic, I would suggest that anyone interested in goings on at the U.S. Supreme Court, pop over to the American Constitution Society blog. There is a set of previews of various upcoming cases, on such subjects as the constitutional requirement that abortion statutes contain a health exception (Gonzales v. Carhart; Gonzales v. Planned Parenthood), employment discrimination (not mentioned in my post: Ledbetter v. Goodyear Tire & Rubber Co.), the Clean Air Act (Massachusetts v. Environmental Protection Agency), puntive damages (Philip Morris USA v Williams), and affirmative action, in the form of racially based school selection policies (Parents Involved in Community Schools v. Seattle School District; Meredith v. Jefferson County Public Schools).

The headline to the latter piece rather gives the game away as to what the writer", Anurima Bhargava, thinks should happen in the affirmative action cases: "Threatening Brown’s Promise: Supreme Court Cases from Seattle and Louisville Could Undermine Local School Districts’ Voluntary Efforts to Combat Segregation". It might be said that it is a strange place the law has got to when striking down a school selection policy based explicitly on racial criteria would be to undermine the promise of Brown v Board of Education, the world famous 1954 desegregation case. Here is the core of Bhargava's argument about the upcoming cases:

"The battle to integrate the nation’s public schools and to secure a quality education for all students has been at the epicenter of the struggle for racial equality. These cases are significant for the effect they could have on the ability of school districts to fulfill the promise of Brown v. Board of Education, particularly against the backdrop of entrenched residential segregation. Yet there is an ironic twist to these cases that bears discussion, namely the possibility that the Court might prohibit school districts from voluntarily pursuing race-conscious measures to promote integration. The Court could bar school districts from pursuing that which it has previously ordered de jure systems to do. Understood in the context of this country’s long, tragic history of racial discrimination and the continuing, widespread persistence of segregation in public schools, a Court ruling to this effect would turn the command of the Equal Protection Clause on its head."

A lot depends on how one frames the question. Lawyers are experts at framing questions in a manner that suits them. These cases are either about preventing explicit racial discrimination (without strong justificatory diversity benefits), or about the Court not meddling in states' good faith efforts to combat racial inequality, the aim of which efforts is to ensure true equality between children of all races. Both sides claim to carry the anti-discrimination baton. Let us wait and see how the Court frames the issue.

One other point. I mentioned in the previous post that the question of stare decisis (respect for precedent) would loom especially large in the Gonzalez abortion cases. The same is true in the affirmative action cases. Especially important will be the views of the relatively new justices: Chief Justice Roberts and Justice Alito. One clue I have since found as to their possible approaches comes from a June 2006 decision (Randall v Sorrell) on the issue (not important for present purposes) of campaign finance. The Court (in an opinion by Justice Breyer) held that "departure from precedent is exceptional and requires special justification". (This was in the context of rejecting a challenge to a 30 year old precedent, Buckley v Valeo 424 U.S. 1) The Chief Justice joined this part of the opinion; Justice Alito did not, arguing that the issue wasn't directly presented in the case (see pp.36-37). Admittedly it's a small clue, given that Alito J.'s holding is tied to the particular case. He certainly did not set out any general aversion to applying stare decisis in the constitutional context. His objection to even hearing the plea to reconsider Buckley is thus not firm evidence as to the latitude he will in future allow himself.

Remember too that Stenberg will - assuming that the seven surviving justices maintain their position from six years ago - be upheld unless both Roberts and Alito say otherwise. Their approach will also be potentially decisive in the Philip Morris case, for this reason: "Three justices -- Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg --have never accepted the court's decade-old ruling that imposed the first constitutional limits on awards." Clearly, should the two new justices agree, change is afoot in that area of law.


Update (2.20 pm) The Court agreed on Tuesday to hear nine further cases, some of which may be heard in December. Also, for the interested, Term previews galore.

Update 2 (6 pm) Jack Balkin, law professor at Yale, has a very interesting take, which I have only just come across. In short, it is that Bush nominated Roberts and Alito in the hope that they would not overrule Roe. Were Roe to be overruled 33 or more years down the line, the Republican political coalition might well fracture and the Republicans might lose power for a generation. (I realise the post is a year old, but it is a thought-provoking - not to mention plausible - hypothesis, nonetheless.) If Balkin is right, then there was never any prospect of Bush nominating someone like Edith Jones, who has judicially criticised Roe itself.

Update 3 (Sat. 5.25 pm.) Briefs filed in all listed cases are available on the ABA site - here.

Waghorne appointed

Well done to Richard Waghorne on his appointment as Chief Political Correspondent at the Irish Daily Mail and Ireland on Sunday. I hope he enjoys the new post; I might even now buy the Mail for the first time!

Adoption case - High Court judgment online

A little under two weeks ago, the story emerged that the High Court had granted an order that the need for the consent of a natural mother to her child's adoption could - indeed, in the best interests of the child, should - be dispensed with. The case was in fact decided on June 23rd, but the judgment was not released until September. It is now online, on the Courts Service site. The case, N & Anor v Health Service Executive and An Bord Uchtala, in a sense justifies the media description of it as a "landmark". In another sense, it highlights the (necessarily) fact-oriented nature of family law cases. General principles can be set out, but their application is peculiarly related to the endlessly variable (and varying) facts of intensely personal relationships.

The reasons why the case represents an interesting legal development is, briefly, as follows. In order to have one's child adopted, a mother must consent to the child being placed for adoption. The child is removed from the mother's physical custody, and placed with prospective adopters. The mother retains her legal position; the move is comparable to a trial separation. Before the child may be legally adopted - and its legal relationship with its birth parents severed - the mother must, by a separate and later act (freely and voluntarily, having been fully advised) consent to this second step. At all times when a child's future - as dictated by legal matters such as adotion, guardianship, custody and so on - are at stake the child's welfare (in effect, its best interests) must be "the first and paramount consideration": see s. 3 of The Guardianship of Infants Act 1964.

As stated above, the natural mother must give two separate consents at different defined stages of the adoption process. However, and this is at the core of the recent case, since 1974, the High Court - and on appeal the Supreme Court - has had the power to (at the behest of the prospective adopters) override the mother's prerogative in the second instance. In other words, the mother may agree to place her child for adoption, later change her mind - only to discover that her decision is not final. (The possibility of this happening must legally be pointed out to the mother before she signs the first consent, but that was not at issue in the recent N case.)

This position must be interpreted in light of the Constitution, which as I noted in another context the other day, has clear and strong protections for the family based on marriage. The Supreme Court came to decide that the Constitution was premised on a presumption that the child's welfare will, absent strong evidence (such as a likelihood of severe psychological damage to the child) to the contrary, be best served by being with its (married) parents, and not unrelated prospective adopters. The most important case is Re JH (An Infant) [1983] IR 375. There a child had spent a considerable time with a set of prospective adopters. It barely knew its birth parents. After the child's birth, the natural parents married. The mother had placed the child for adoption, but now withheld the crucial second consent, as she was entitled to do. The intending adopters, as they were entitled to do, asked the court to dispense with the mother's objection. The High Court (Lynch J.) allowed this, but the Supreme Court overturned this decision, and set out the italicised rule in the second sentence of this paragraph. (In case anyone goes to look at the Supreme Court judgment, I paraphrase its holding, but reasonably accurately, if recent memory serves me correctly.)

The facts in this year's N case were very similar to those in Re JH (An Infant). The natural parents married after the child's birth; the mother changed her mind and refused the second consent. The couple with whom the baby had been with for over a year applied to the court to have the mother's consent dispensed, under the 1974 legislation. The High Court (McMenamin J.) held that the child's best interests lay in having the requirement that its mother consent to the final stage of the adoptin process set aside. As I pointed out at the outset, it may well be that the facts of N are different to JH and that the decision is very closely tied to the specific circumstances. (After all, the High Court is bound to proceed on the basis of the law as set out by the Supreme Court; it wouldn't have been valid for McMenamin J. to purport to vary or disagree with Supreme Court precedent.) I wasn't in the courtroom; I haven't done more than scan McMenamin J.'s (very detailed and lengthy) ruling. But if the Supreme Court appeal goes ahead, as was indicated in the newspapers after the ruling became public, we may genuinely come to a milestone in Irish family law. The hearing and decision will presumably be this side of Christmas, given the time-sensitive nature of the matter. After all, the longer the delay, the greater the prejudice to the natural parents' case.

Are you more cat or dog?

I can't say this question ever occurred to me before, but now that it has I'm eager to know how I match up in the great feline-canine assessment.

I found this on a blog I came across while looking for something else, Betty the Sheep (see September 13th post). Legend. Other blogthings, which I found on none other than Blogthings, include:

• What Modern US President Are You Most Like?
• Are You Right or Left Brained?; and, of course, what we all wonder:
• What Color Orange Are You?

In fact, why not just check out the entire list of blogthings, if you haven't done so before.

Update 1: I just did the "Are you more capitalist or socialist?" test and it came out "40% capitalist, 60 % socialist" and told me: "You tend to be quite wary of businesses, especially big business. While you know that corporations have their place, you tend to support small, locally owned shops. As far as the rich go, you think they're usually corrupt and immoral." None of those sentences are particulalry. I have no idea which question even suggested I'd think the last one. Admittedly I didn't tick the box saying the wealthy already pay ""more than their fair share" of tax; but that's because I don't really have any settled view on that question. For one thing I don't have any relevant figures to hand. And I'm not sure what anyone's "fair" share of tax amounts to.

I think I'll stick to the ones asking what colour orange I am, and, crucially, the answer to which I eagerly await: am I more cat or dog?

Update 2: The result is in: I am 60% dog, 40% cat. Here is what the test told me: "You are a nice blend of cat and dog. You're playful but not too needy. And you're friendly but careful.And while you have your moody moments, you're too happy to stay upset for long."

Update 3 (11.45 pm.) Of modern U.S. presidents, I am most like George H. W. Bush, father of the current president. I was told: "You're considered boring by people that don't know you well. But like Bush senior, you do crazy things. Maybe you'll end up banning broccoli in your house, or puking on the Prime Minster of Japan!" I agree with the broccoli idea.

Update 4 (11.55 pm.) My Japanese name is Hoshi Gosetsuke; my Russian name is Jermija Dimitre Novikov.

Faith and Politics by John C. Danforth

John Danforth, a former U.S. Senator for Missouri, who is also an ordained Episcopal priest (and a qualified attorney, and former diplomat - a U.N. representative and envoy to Sudan, brokering the 2005 agreement that stopped the civil war in the south of that country) has a new book out called Faith and Politics: How the "Moral Values" Debate Divides America and How to Move Forward Together. There is a video on the Council for Foreign Relations site of an interview and Q&A session with him. The book, as Barnes and Noble puts it, comes from someone with "a lifetime of public service" who "has advocated for reason, moderation, and reconciliation in all matters political". Faith and Politics deplores the influence of the Christian right over politics, especially the Republican party. Danforth, as the interview makes clear, is very concerned at the collapse of the centre ground in American politics. The book makes suggestions as to how that centre might be reclaimed and become again the focus of politics. It looks like an interesting read, on a very topical issue.

Minister comments on Darfur situation

The Minister for Foreign Affairs, Dermot Ahern, made a speech at the United Nations General Assembly in New York today. He said the following (my emphasis):

"The suffering of the people of Darfur shames the world. There has been human tragedy on a massive scale, with the intimidation, rape and murder of hundreds of thousands of innocents, and the displacement of vast numbers from their homes.

I have visited a displacement camp myself. I have seen the precariousness of the lives of the people there, but also their determination to return home to a better future for themselves and their children.

The people of Darfur have three essential needs. First, humanitarian aid must be delivered safely and without restrictions. Secondly, there must be an international peace-keeping force with a robust mandate. As set out by the Security Council, it should be a well-equipped and substantial UN force. I again appeal strongly to the Sudanese Government to agree to the deployment of such a force, and to all those with influence on it to persuade it to do so. I simply cannot emphasise enough the urgency of this. Pending the arrival of a UN force, the African Union force, whose continuation I welcome, should have the resources necessary to play a more effective role.

Thirdly, long-term security can only be guaranteed by the full implementation of the Darfur Peace Agreement. Last year the World Summit defined the international community's responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity, should national authorities fail to do so. It would be a disgrace if this major advance became an exercise in empty rhetoric.

The Government of Sudan has fundamental responsibility for the safety of its own people. The international community must find ways to persuade it to live up to that responsibility, if need be including further measures against it. We cannot indefinitely stand by and watch with horror from the sidelines."

Darfur and east Asia; humanitarian intervention and grand strategy

Two articles on very important topics in the Financial Times in recent days.

Tom Lantos, the the senior Democrat on the U.S. House of Representatives International Relations Committee and the founding co-chairman of the Congressional Human Rights Caucus, today addresses the situation in Darfur, and the inaction of the world in response. Lantos sets out the position:

"Khartoum still refuses to agree to let United Nations peacekeepers take over from the AU troops when they go home. The UN Security Council voted last month to deploy 20,000 peacekeepers to replace the AU troops; the Sudanese government immediately rejected that resolution and announced that the AU had no authority to transfer its mission to the UN. Then Sudan began to fan out more than 30,000 of its troops, allegedly to bring peace and stability to Darfur and to protect civilians. Imagine if Hitler had offered to "protect" Europe's Jews. As a Holocaust survivor, I cannot think of a more despicable act than to have Khartoum send soldiers who have raped and slaughtered thousands and displaced 2m people to "protect" civilians.Evidence is mounting that the Sudanese government is positioning air and ground forces to complete the genocide in Darfur that began three years ago. There is ample reason to fear a full-scale and imminent onslaught against civilians. The US government declaration calling the situation in Darfur genocide and a growing international civilian movement raised the expectations of the helpless. But we have failed to galvanise sufficient global commitment to protect victims of genocide. The May 5 signing of the Darfur peace agreement seemed to offer a ray of hope that the darkest days were behind the innocent men, women and children of Darfur. But that agreement is now on the verge of collapse because of resurgent violence."

It seems the May 5th agreement was not worth the paper it was written on. Should the rest of the world have expected anything else? Did Western governments, including our own (the Minister for Foreign Affairs was there a few months back) really believe the Sudanese governments' assurances? No answer to that question casts the inaction to date in a particularly good light. If they did, they look naive now; if they didn't, why settle for a sop in place of action involving a chance of success?

Lantos then continues:

"Whether to end genocide in Darfur is not a choice for Khartoum to make; it is a requirement to avoid not only international condemnation and isolation, but also an imposed civilian protection regime. I was proud to author a resolution calling on George W. Bush, the US president, to take immediate steps to help improve the security situation in Darfur, with a specific emphasis on civilian protection.If Khartoum continues to reject the deployment of UN peacekeepers, an imposed civilian protection regime in Darfur should be the priority of the AU, the UN, Nato, the European Union and the US government. I will continue to push for the immediate deployment of Nato assets as part of a transitional operation to stop the atrocitieswhile the UN forces are deployed. If Khartoum persists in pursuing genocide, I support military action to neutralise those military forces employed by Sudan to attack civilians or to inhibit peacekeepers from their deployment.Khartoum must be made to understand that there will be severe consequences for a further genocidal assault on the people of Darfur. Its reaction to the Security Council resolution authorising a peacekeeping operation is no surprise. Neither is its attempt to bully the AU into submission by issuing an ultimatum for the union to reject the UN resolution or leave Darfur.Evidently, the world needs reminding that the genocide in Darfur is not just an African crisis. It is a crisis for all humanity and obliges all of us to act with urgency. Words without deeds betray the people of Darfur."

The UN resolution to which Lantos refers in the second last sentence, 1706, must be acted on. It is problematic, however, because it seems to leave external action premised on the consent of the Sudanese government. That is patently absurd. Waiting for the regime there to voluntarily agree to an intervention force in Darfur makes no sense. The Secretary General of the Kofi Annan, recommended in a report published on July 28th that the UN mission in the country be expanded into Darfur as of January 1, 2007. The time is late; but better late than never. Where the approximately 17,000 troops (Sec-Gen July 28th report, pp. 17-18) will come from is an open question. The task is potentially enormous.

On a different topic, Daniel Twining, described as a former adviser to John McCain, the US senator, and a fellow of the German Marshall Fund of the US and the Fulbright/Oxford Scholar at Oxford University, addresses American grand strategy in East Asia. The future of Asia is crucially important for the rest of the world. According to Twining:

"Conventional wisdom holds that the US is a status quo power in Asia - and that a dissatisfied China seeks to undermine the US-centric regional order. But this assumption inverts both countries' roles in a period of dynamic change. China can rest content with the status quo: its rising wealth, power and influence naturally erode American preponderance. As one Chinese analyst put it: the US, not China, stands at a strategic crossroads as a consequence of China's rise. That is why Washington - not Beijing - is pursuing the revolutionary design in Asia, cultivating new centres of power that will shape the emerging international order as much as China's ascent."

So what is Washington's "revolutionary design" for Asia? Twining's answer:

"The centrepiece of President George W. Bush's Asia policy is encouraging Japan's normalisation as a great military power - a historic break from Japan's post-1945 tradition of pacifism. Similarly, Washington's intensifying partnership with New Delhi reflects America's determination to accelerate India's rise to world power - and India's aspirations for greatness. In India and Japan, the US is fuelling the strategic ascent of countries that intend to face China as equals.The US is also cultivating the emerging regional powers of Indonesia and Vietnam. Like India and Japan, they share a historical wariness of Chinese power and an interest in countering Chinese influence in south-east Asia. Lastly, the US is nurturing a strategic community of democracies in the shadow of Chinese autocracy. America and Japan have formalised trilateral defence co-ordination with both Australia and South Korea and are exploring a trilateral strategic dialogue with India. America wants Nato to develop military interoperability with leading Asian democracies. America's Asian design is more interesting than a crude effort to contain China. Rather than a neo-conservative plot to prolong US dominance, Washington is actually diffusing its preponderant power by encouraging the rise of friendly Asian partners to help manage a future multipolar order."

Of course, such a path, he notes will face problems of its own. Increased Japanese assertiveness - or nationalism - might alarm its neighbours, such as South Korea. Australia does not want to be caught between its American military ally and its Chinese trading partner. U.S. rapprochement with India's nuclear status risks a countervailing Chinese effort to strengthen Pakistan's deterrent. Will closer relations with Viet Nam risk solidifying its government's autocratic rule? Will increasing Chinese insecurity, in order to guard against a future Chinese threat, risk exacerbating - or bringing into being - just such a threat? Of questions Twining does not (get to) canvas in his article, what of the clear danger of North Korea's nuclear status? What is America's bottom line position on Taiwan, and how does that intersect with Washington's need for China to bring some pressure to bear on the regime in Pyongyang over the nuclear question? What about Burma, described by the Bush administration as an outpost of tyranny?

Twining recommends that the U.S. "abandon its scepticism and embrace Asian regional organisations led by the Association of South East Asian Nations, which promote pluralism, enhance Japanese and Indian leadership and socialise China as a responsible neighbour" and a U.S.-South Korea trade agreement. Such steps he says "would reassure the many Asian governments that, unlike countries in some other parts of the world, want more American leadership in their unsettled region - not less". Looking at the big picture, the first necessary step (admittedly at a time when Iraq, Iran, Lebanon and so many other matters command so much time) would be a reorientation of policy based on the realisation that - given that Asia has perhaps half the world's population and a growing impact on world economics - we can be said to be entering what Twining calls "the emerging Asian century". That goes just as much for Europe as it does for America.

Does the Irish Constitution require same-sex marriage laws?

In an upcoming case, two plaintiffs, Katherine Zappone and Ann Louise Gilligan, will argue before the High Court that it is contrary to the Constitution of Ireland and the European Convention on Human Rights for the State not to recognise their Canadian marriage as valid for tax purposes. The question of same-sex marriage is controversial. Here - so far as are relevant - are the parts of the Constitution bearing on the State's role relating to marriage:

"Article 41
1. 1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
...
3. 1° The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.
2° A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that ­[...]"

It can thus be seen that Article 41.1 gives a pre-eminent position to "the Family", which it calls "the natural primary and fundamental unit group" of society. Article 41.3.1 pledges the State to "guard with special care the institution of Marriage, on which the Family is founded". The Irish courts have repeatedly held that these provisions of our Constitution, when speaking of marriage, envisaged only a legal union between one man and one woman. No court in this State has ever held to the contrary. So the claimants in Zappone and Gilligan v Revenue Commissiones et al. face the rather basic legal problem that the authroities are against. I would also suggest that the correct response by a court faced with this claim is to turn it down. The reasons are institutional: It is not for the court to pre-empt the legislative response (if any) to democratically made arguments for altering the long accepted understanding of the concept of marriage in our society. Long acceptance is not enough on its own to mean that a court must continue to apply a given interpretation of a constitutional provision but there is another point: In order to have the courts overturn previous decisions, a claimant must usually persuade the court in his or her case that the previous decision(s) are clearly erroneous, based on an outdated concept that offends an indisputable liberty, or something of that sort. Any judge would, it seems to me, be on somewhat tenuous ground to accept such an argument in relation to the problem currently under discussion. One avenue the court - and perhaps on appeal the Supreme Court - might take would be to adopt the approach taken in a similar case by the New York Court of Appeals just this past July in the case of Hernandez v Robles:

"We hold, in sum, that the Domestic Relations Law's limitation of marriage to opposite-sex couples is not unconstitutional. We emphasize once again that we are deciding only this constitutional question. It is not for us to say whether same-sex marriage is right or wrong. We have presented some (though not all) of the arguments against same-sex marriage because our duty to defer to the Legislature requires us to do so. We do not imply that there are no persuasive arguments on the other side -- and we know, of course, that there are very powerful emotions on both sides of the question."

The High Court of England addressed a very similar claim in a decision handed down on July 31st, Wilkinson v Kitzinger. Since 2005, the Civil Partnership Act has provided for same-sex partners to enter into legally recognised relationships. In Wilkinson, the court was asked to hold that this legal arrangement - extending something approaching marriage, but not the protection of marriage laws per se - offended against the Convention on Human Rights, or should be held to be contrary to the common law. (The petitioner, it seems, invoked the phrase "separate but equal", which was how the effect of segregation laws were somewhat euphemistically referred to in America in the first half of the 19th century and before: see para. 5 of judgment) Sir Mark Potter rejected both arguments. He said (para. 118-121):

"It is apparent that the majority of people, or at least of governments, not only in England but Europe-wide, regard marriage as an age-old institution, valued and valuable, respectable and respected, as a means not only of encouraging monogamy but also the procreation of children and their development and nurture in a family unit (or "nuclear family") in which both maternal and paternal influences are available in respect of their nurture and upbringing.
The belief that this form of relationship is the one which best encourages stability in a well regulated society is not a disreputable or outmoded notion based upon ideas of exclusivity, marginalisation, disapproval or discrimination against homosexuals or any other persons who by reason of their sexual orientation or for other reasons prefer to form a same-sex union.
If marriage, is by longstanding definition and acceptance, a formal relationship between a man and a woman, primarily (though not exclusively) with the aim of producing and rearing children as I have described it, and if that is the institution contemplated and safeguarded by Article 12, then to accord a same-sex relationship the title and status of marriage would be to fly in the face of the Convention as well as to fail to recognise physical reality.
Abiding single sex relationships are in no way inferior, nor does English law suggest that they are by according them recognition under the name of civil partnership. By passage of the CPA, United Kingdom law has moved to recognise the rights of individuals who wish to make a same sex commitment to one another. Parliament has not called partnerships between persons of the same-sex marriage, not because they are considered inferior to the institution of marriage but because, as a matter of objective fact and common understanding, as well as under the present definition of
marriage in English law, and by recognition in European jurisprudence, they are
indeed different."

For an example of a court that recently acceded to the argument to be advanced in Zappone and Gilligan, one need only look to the decision of the Constitutional Court of South Africa in Fourie v Minister of Home Affairs (December 1st, 2005). An interesting aspect of the decision is that the Court suspended the effect of its decision, thereby granting the constitutionally appropriate branch a year to pass the neccesary reform. The question of the application of international law to such a case was discussed at the time at Opinio Juris, although one must bear in mind the particular wording of the South African Constitution, as observed in the comments following the post in question. There was also, of course, in 2004 the decision of the Supreme Court of Massachusetts in Goodridge v Department of Public Health. The Court was divided 4-3, so it provides an interesting internal debate. (Cordy J.'s dissent, with whom two of his colleagues agreed, covers pp.23-46 of the pdf.)

Book reviews

In the August/September 2006 issue of Policy Review, Peter Berkowitz discussed With All Our Might: A Progressive Strategy for Defeating Jihadism and Defending Liberty (edited by Will Marshall, published by Rowman and Littlefield) and The Good Fight: Why Liberals — and Only Liberals — Can Win the War on Terror and Make America Great Again (written by Peter Beinart, published by Harper Collins). Not having read either book I can't comment in any detail, but Beinart comes across badly from Berkowitz's review. Marshall's book sounds slightly more useful.

In the Times Literary Supplement, Kenneth Anderson gives a sharp and thoughtful analysis of Francis Fukuyama's After the Neocons: America at the Crossroads. Also in TLS, although not in the current edition, Rosemary Righter (July 19th) has reviewed Paul Kennedy's The Parliament of Man.

In the New York Times Book Review, Michiko Kakutani excoriates Richard Posner's Not a Suicide Pact.

In the Boston Globe, Katherine A. Parker reviews The Zero, and Chris Cleave's Incendiary. Both in differing ways bring an element of black comedy to bear on the aftermath of terrorist attacks. The former is a novel centering on a man invovled in the rescue operations at the World Trade Centre who shoots himself in the head but survives suffers "gaps", which in Parker's words are "periods of time that are lost to him, or at least to the consciousness through which this story is told"; the latter a 234 page letter to Osama bin Laden from a woman whose husband and 4-year-old son were killed in the London transport bombings in 2005.

Upcoming U.S. Supreme Court cases

A recent Cato Institute conference* discussed a number of interesting cases listed for hearing before the U.S. Supreme Court in its 2006/07 term, which begins on October 2nd. This piece does likewise. (I rely significantly on the talks given by Erik Jaffe and Randy Barnett - see link below.)

Two cases challenging the 2003 federal partial birth abortion (PBA) statute, Gonzalez v Planned Parenthood and Gonzalez v Carhart, will be heard together on November 8th. The petitioners claim that the absence in the legislation of an exception allowing the use of the procedure where there is a danger to the mother’s health renders the legislation unconstitutional. Of course, it is perfectly arguable that Congress had no jurisdiction to pass the Act in the first place. This is because the Act’s declared basis is in the Commerce Clause, which is patently absurd, since the Act does not regulate commerce, and, even if PBA’s were held to be “commerce”, the Act does not regulate commerce between the states, which is all Congress is constitutionally entitled to do. The Commerce Clause should end the matter, but it will not.

Of course, the U.S. Constitution has long been held, under the Ninth Amendment (the unenumerated rights clause) to protect a right to privacy, which extends to cover freedom of personal choice as to abortion. The case of Roe v Wade (1973) was confirmed in 1992 in Planned Parenthood v Casey. Notwithstanding the central freedom to choose protected by Roe and later decisions, various states have imposed certain restrictions on legal abortion. Nebraska passed a law banning PBA, with no maternal health exception. In 2000, the U.S. Supreme Court held that this rendered Nebraska’s statute unconstitutional, in Stenberg v Carhart.

In Gonzalez v Carhart, the Court of Appeals for the Eight Circuit upheld both the ruling that the statute was unconstitutional, and a permanent injunction against enforcement of the Act: , as did the Ninth Circuit in Planned Parenthood. In the latter case, the district court had upheld the challenge on three grounds:
1. The Act placed an “undue burden” on the woman’s right to choose to terminate her pregnancy before viability. (This test derives from Casey.)
2. The Act was unconstitutionally vague, because the term “partial birth abortion” was not a recognised medical term. Accordingly, doctors had insufficient guidance as to when they would be subject to the statutory penalties, which include criminal sanctions.
3. Even on the most deferential standard of review, Congress had acted unconstitutionally in failing to grant a health exception, as mandated by Casey.
The Ninth Circuit agreed with all three grounds.

So what will the Supreme Court do now? If it upholds Stenberg, it will be striking down a federal statute on the basis of an (unenumerated) constitutional right to health. Congress has considered the matter and decided that a health exception is not required in relation to the PBA procedure. The Court, by its decisions to date, has put itself in something of a bind. In Casey, the Court invoked the doctrine of stare decisis (letting precedents stand) in the interests of certainty in the legal system. But in that instance two decades had passed since Roe, and it was at least plausible to say that citizens had placed a great deal of reliance on Roe being the law. That is not to say that Roe was itself correct, or that a strong or inflexible doctrine of stare decisis is necessarily appropriate in constitutional matters, but those are different questions.

It will be very interesting to see, for example, the decision of Justice Kennedy. This is because he was with the majority in Casey in affirming Roe, but wrote a strong dissenting judgment in Stenberg. But the decision in Casey was justified on the basis of stare decisis. It is possible that he will maintain his position that Stenberg was wrongly decided, and argue that that was a much more recent decision (of much less stature indeed) than Roe. The final interesting point to note is that Justice O’Connor, part of the majority in Stenberg, has been replaced by Samuel Alito, and there is also now a new chief justice, John Roberts. Both come to the court as avowed conservatives. Their views, if any, on the appropriate role of stare decisis will be interesting. It is perhaps in that latter respect – the approach of the court’s two new members – that the greatest importance of the upcoming cases lies, given the influence both will have in future as lifetime appointees.

Stenberg points to the Supreme Court not overturning the decisions of the Eighth and Ninth Circuit. If, however, Chief Justice Roberts and Justice Alito find themselves unable to agree with that decision, the 5-4 majority by which it was decided would vanish. The point pressed by Justices Thomas and Kennedy in Stenberg – that, even assuming that Casey should be adhered to, the decision in Stenberg was inconsistent with it – might appeal to the new justices. Or, it is possible that they could agree with Justice Scalia’s plea in Stenberg that Casey should be overruled. (Before Casey got to the Supreme Court, Judge Alito dissented from the Third Circuit's ruling: 947 F.2d 682 (3d Cir. 1991), and his reasoning was approved on appeal by the then Chief Justice William Rehnquist, who of course was in the minority in Casey.) There is, however, on past form (irrespective of what the new justices think) no majority on the Court in favour of the most sweeping move of all: overruling the bedrock decision in Roe, returning the matter to the States, and decommissioning the Supreme Court’s role as arbiter of what Justice O’Connor in Stenberg called “one of the most contentious and controversial issues in contemporary American society”.

Justice Ginsburg in Stenberg suggested, concurring with Chief Judge Posner of the Seventh Circuit that the aim of Nebraska’s legislation was “to chip away at the private choice shielded by Roe v Wade, even as modified by Casey”. Perhaps the 2003 statute was, perhaps it wasn't; I don’t know. We in Ireland are well aware of the contention attaching to the issue of abortion. We should probably be thankful that our courts never got themselves into the mess of reading a right to abortion into our Constitution. As Justice Scalia put in Stenberg:

“Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since”

The entire matter should be for elected legislators to decide, or for the people in a referendum. Our law is, however, somewhere in between, but that is another day’s debate.

There other interesting cases coming up, but since I know very little about the relevant law, I’ll just mention them, so anyone interested might be aware of them. The Court has agreed to hear two affirmative action cases, Parents Involved in Community Schools v. Seattle School District #1, et al. and Meredith v Jefferson County Board of Education, which concern the validity of explicit use of race as a criterion in schools' selection procedures. The argument over affirmative action is a contentious one, but the legal issue comes down to whether the increased diversity within schools provides sufficiently compelling justification to outweigh the prima facie breach of the Equal Protection Clause. The Meredith case involves an argument that the Court should overrule three of its own precedents, Grutter v. Bollinger, 539 U.S. 306 (2003), Regents of University of California v. Bakke, 438 U.S. 268 (1978) and Gratz v. Bollinger, 539 U.S. 244 (2003). In the Seattle School District #1 case, the Ninth Circuit (by 7 votes to 4) upheld the selection plan. Judge Carlos Bea, with the concurrence of three of his colleagues, wrote a bracing dissent, which is worth reading on its own. (see pdf. pp.59-106), which quite powerfully marshals the arguments in favour of holdings such laws contrary to the Equal Protection Clause: see in particular the quote from Mosk J. of the California Supreme Court at p.105 of the pdf.

The issue of punitive damages will be debated in Philip Morris USA v Williams, which is listed for October 31st. The Court is to review a $79.5 million punitive damages award by a jury in a case brought by a widow of a smoker. The punitive damages exceed the compensatory damages awarded by a factor of 97. The Chamber of Commerce of the United States of America has described the case as an “ideal vehicle for bringing some measure of clarity to the chaos that continues to roil punitive damages jurisprudence in federal and state courts throughout the nation.” The various courts’ disparate opinions have followed (in time and in law) the Supreme Court decisions in of North America, Inc. v. Gore 517 U.S. 559 (1996) and, more recently, State Farm Mutual Automobile Insurance Co. v. Campbell 538 U.S. 408 (2003). The background against which the case comes before America’s highest court is discussed here.

Of the 31 cases so far accepted by the Court for the 2006/07 term, a few others with important subject matters may be referenced. Environmental Defense v. Duke Energy Corp. and Massachusetts v. Environmental Protection Agency concern the Clean Air Act, but will probably be more interesting for their discussion of the question of standing. (The former will be heard on November 1st, the latter is as yet unscheduled.)

Two other cases on the docket, Whorton (Nevada Dir. of Corrections) v. Bockting and Burton v. Waddington (November 1st and 7th respectively) raise the question of retroactive application of constitutional rules of criminal procedure. X is convicted and imprisoned today, but next week B persuades the same court or (perhaps more likely) an appellate court to apply, or announce, a constitutional rule of criminal procedure that would, or might, have applied in X’s case. After the decision in B’s case, may X bring a collateral application for review of conviction/sentence and have the benefit of the rule? Whorton involves an interesting question relating to the admissibility of testimonial hearsay evidence under the 6th Amendment, and centres on the Ninth Circuit’s interpretation of the Supreme Court’s 2004 decision in Crawford v Washington.


*The fifth annual Constitution Day Conference on September 14th , recordings of which are available online (see, for 2006/07 cases, panel 4). Also under discussion were 2005/06 cases on topics such as assisted suicide and Guantanamo Bay detainees. For another discussion of upcoming cases, see this Law.com article.

The long haul in Afghanistan

Show me where the roads end, and I will show you where the Taliban begins
Lt. Gen Karl Eikenberry, U.S. commander in Afghanistan

In Sunday's Washington Post, Jim Hoagland makes a very important point: If the ordinary citizens of Afghanistan, wary after 25 years of war, dictatorship and unrest, don't believe that the NATO allies are there for the long haul, the post-Taliban project will fail. Hoagland writes:

"The biggest challenge that U.S. and NATO forces face is not on the battlefield. It lies in building confidence in the country's rural tribes and sparse urban population that Western governments will stay deeply involved in Afghanistan for a decade or longer. If Afghans do not believe that, they are unlikely to take the risks of vast social and political change being demanded of them today."

NATO capitals should therefore commit to "providing a long-term military presence and significant development funding to Afghanistan as a matter of routine and strategy, rather than as a temporary military emergency". The multinational coalition must show the Afghans that the changes (for example, its new Constitution and democratic government) brought about so far will be deepened and made durable. Let us hope this is the guiding imperative being impressed on those on the ground by those in power in Washington, London, Ottawa and Brussels. The signs, at least based on public comments, from Canadian prime minister Harper's visit there last week are hopeful. The "previous injustices, miseries innumerable disasters" (to quote from the Preamble to its Constituton) which have befallen Afghanistan, and the goal of, eventually, allowing it take its place among the nations of the world are sufficient reminders of the task at hand.

Update (Mon. Sep 25th): Although I don't agree with some of what he says, John Kerry at least makes the same broad point.

Ryder Cup: Three in a row

What a victory! If a streaker and the good grace of Paul McGinley (he conceded a putt of 30 feet on the last) had not intervened, this could have been the biggest winning margin in the competition's 79 year history. In the event, Team Europe won by 18.5 points to 9.5. This equals the record the (largely similarly composed) European team set two years ago across the Atlantic at Oakland Hills. It was a pity the event wasn't on terrestrial television, but the tv highlights at night on RTE and BBC, the excellent radio coverage on RTE Radio 1 and BBC Radio Five Live and the closeness of a friendly pub with a big screen more than made up for that. I always find golf lends itself to radio, and even more so discussion and cheering in the small pub setting. The inanities of Sky's commentary can be ignored, or forgotten.

Coming into the match, I was a little worried by all the talking up of Europe's chances. We were favourites, we were going in with a much more experienced, more together side. I was a little concerned that a motivated, not to say individually talented, U.S. team could upset the apple cart. After all, Woods, Mickelson and Furyk are higher in the world rankings than any of the Europeans. I need not have worried. Sergio Garcia, Colin Montgomerie, Paul Casey, and the wildcards Lee Westwood and (the courageous and brilliant) Darren Clarke were all towers of strength, and beacons of skill. The Americans, used to target golf, and unused (and in the case of a few of them, including, it would seem, Tiger Woods, disinclined) to team golf, had no answers. That is not to say they played all that badly. Stewart Cink, JJ Henry, Zach Johnson and a few others played well, at least in parts. But as pairs over Friday and Saturday they consistently came up short. Europe won each of the first four sessions by 2.5 to 1.5 They then went into Sunday leading 10-6 and proceeded to sweep all (bar Cink, Woods and Verplank) before them. The strength went right down through the European side. Howell, Stenson, Olazabal, McGinley, to name but a few, stood tall in what a cricket team would call the middle order and prevented any hint of final day American revival on the scale required, namely the record turnaround achieved at Brookline in 1999.

One commentator said the atmosphere was like a soccer or rugby. The chants of "Europe! clap-clap-clap Europe!" were something I rarely recall hearing on a golf course. Not like today. But the crowd was never bawdy or heckling. The American players were received with courtesy, and fairly applauded when they played well. Credit was given where credit was due. There was the occasional cheer when an American putt was missed, but that is excusable.

We should be proud. The European team played superbly, and the Irish hosts did a great job too. Roll on 2008. And bring it back here soon!