TEXAS ANNOUNCES "WORLD WAR I THEME" FOR UPCOMING EXECUTIONS

TEXAS TALK

By : Mr. Brad Livingston, Executive Director, Texas State Criminal Justice Agency (Austin)(2005-present); Former Chief Financial Officer, Texas Board of Criminal Justice (1997-2001); Former Deputy Director, Financial Services Division, Texas Department of Criminal Justice (1997-2001); Accounting Expert; Christian.

Here in Texas, capital punishment works. We are not afraid to swiftly execute offenders. Our prosecutors, judges, legislators and administrators are all on the same page on this: We don't have mercy for killers, rapists, drug dealers and thugs. So we get them out of the community in the surest possible way we can: By lethally injecting them after a couple pointless appeals.

Our State criminal justice system is the best in the Nation because Texans support it. Criminal justice doesn't work without strong backing from the community. Thankfully, our system is both effective and efficient because every Texan knows where criminals belong: Strapped to a gurney in the Huntsville death house. Here at the Corrections Department, we think like Texans. We don't forgive and forget. We inject first and ask questions later.

Capital punishment works in Texas because it brings our community together. Texans love a good execution. Although we do not hang people in public like we did in the old days, we nonetheless widely publicize our executions "21st century style." Texans can stay current with day-to-day executions by logging into our "Executed Offender" database. See http://www.tdcj.state.tx.us/stat/executedoffenders.htm. That site provides accurate information about offenders who got their judicially-prescribed dose of potassium bromide. It shows their faces. It describes their crimes. It tells you what they said before they bought the farm. It even tells you what they had for dinner before taking a mosey down the death chamber. Basically, if you want to hear about the latest about executed offenders in Texas, just click on the link and you will get the whole story. Enjoy!

We are committed to bringing Texans a satisfactory capital punishment experience that is both invigorating and entertaining. At the same time, we must note that executions are not cheap. Although the State provides executions free of charge, our capital punishment delivery system has historically operated at a loss. We recently made that fact known to Texans in a local television broadcast. To our great relief, we found that millions of Texans were willing to pay a price to watch a good execution. We even received substantial voluntary donations from private citizens. Those donations defrayed our costs. As Director of the Texas Department of Criminal Justice, I can assure you that Texas will always give you the executions you expect and deserve.

We are thankful that Texans support our criminal justice system. We also know that many Texans wish to directly participate in future executions. We have received many letters from victims' family members requesting the opportunity to push the button that releases chemicals into the offender's bloodstream. Other citizens have requested introducing some new execution methods "just to spruce things up a little bit." Still others have petitioned for larger spectator venues to accommodate all the people who want to see an offender die.

In response to these queries--and to reward Texans for their support--we have decided implement some positive changes to our capital punishment delivery system. Effective immediately, we hereby designate 2010 the year for "World War I Fun" in the Texas criminal justice department. Until further notice, we will execute offenders with vintage World War I weapons. Additionally, we will allow victims' families to directly participate in the execution for a small administrative fee. We believe that this program will bring Texans even closer together, while at the same time teaching a valuable history lesson about World War I. It will give families the chance to take personal revenge on offenders, deter future misconduct and raise funds for the State. In sum, we believe that "World War I Fun" is a "win-win" for both Texans and Texas.

But we need your support to make "World War I Fun" work. To that end, we would like to introduce the various new execution methods available under our new program. If you are a crime victim or a crime victim's relative, carefully review this information to determine which method best suits your needs and your budget. Although we wish we could allow every crime victim to choose the most expensive execution method, we must always observe budgetary constraints. For that reason, we list execution methods in ascending order of price.

1. TRENCH SHOVEL - $50 per execution

Get back at your girlfriend's murderer with this trusty old steel spade. For just $50, you can grab this vintage 1917 shovel and smash that convicted varmint to your heart's content. Notice that the shovel has a sharp edge as well as a flat surface. It also has a good heft for crushing skulls or severing arteries. At just $50 per execution, the trench shovel is an economically wise--yet emotionally fulfilling--way to exact justice on a real Texas bandit. If you wish to bring a friend (or parent) to the execution, the Texas Department of Criminal Justice will provide another shovel for just $25 more--that's a 50% discount! With two shovels, you and your friend can really give the convict a walloping. After you've finished clubbing the criminal to a bloody pulp, corrections officers will add insult to his injury by using the brain-smattered shovels to dig a grave for him out back.

2. BAYONET - $100 per execution

Cut right to the chase with a REAL World War I bayonet! You'll make a slicing impression with this genuine German antique. Your mother's killer will be trembling in his socks when he sees you coming at him with a foot-long silver blade. He'll wish he never raped and shot your mom as you thrust the shiny bayonet into his abdomen. Imagine how scared he'll be as he sits there helplessly strapped to a chair as you slash and stab him to death. You can do anything you want with the bayonet. You can scalp the criminal. You can stab him through the top of the head. You can saw off his fingers. Hell, you could even cut open his stomach and stuff his kidneys in his mouth while he's still alive. Go ahead! Knock yourself out! Do justice! We'll even throw in rubber gloves and a wetsuit for just $50 more so you won't get your nice clothes all bloody.

3. SPRINGFIELD MODEL 1903 - $250 per execution (plus additional ammunition beyond 5 rounds)

If you prefer firearms to close-quarters weapons, then the Springfield M1903 is the choice for you. Don't get your hands dirty. Be an old-fashioned Texas marksman. Line the child rapist up in your sights, get the range right and BLAM! There goes the back of his head. As an added bonus, the Texas Criminal Justice Department will provide an ENTIRE CLIP of ammunition for your amusement; it is our way of saying "thank you" for your support. That means you can take your time with your criminal. You can fire your first shot through his shinbone. Then the next through his hand. You know, whatever you like. Give him a nice gutshot and ask him how he likes it now. But if you do not finish the convict off in five rounds, you must pay $10 per additional bullet. Despite the cost, we are certain that all you Texas sharpshooters out there will really appreciate going round for round on a scumbag with a Springfield. Go for it! Ready, aim, fire!

4. MUSTARD GAS - $500 per execution

Maybe you liked chemistry in high school. Maybe you'd rather use science on a punk than a gun or a knife. If this fits your bill, then Texas Corrections has the solution for you: A genuine mustard gas grenade. For just $500, you can REALLY make a bank robber squirm by tossing some lethal chemicals directly into an airtight container. You can watch him squeal like a pig as he tries to hold his breath. But you'll just laugh, because the mustard gas will burn away his skin at the same time. That'll teach him to touch little girls at the playground! At the same time, you'll learn why most countries outlawed mustard gas after 1918! For the more adventurous citizens out there, mustard gas is the way to go. In Texas, we don't just shoot 'em, beat 'em or stab 'em. We gas 'em, too!

5. MAXIM MACHINE GUN - $1000 per execution (includes 250-round ammunition belt)

If you're a marksman but prefer rapid fire, don't settle for a single shot. Get behind this VINTAGE 1911 Maxim machine gun and UNLOAD into a child molester with a full belt. Learn how the machine gun changed the face of warfare as you demonstrate what 250 30-caliber bullets can do to a Mexican gangster tied to a chair. Have fun with it! Hold down that trigger and roar! Let the machine gun do the talking. Cut the bastard in half if you want to. We regret that the Maxim costs more than other execution methods. It is difficult to find working models that do not jam. Additionally, it takes time to set up the Maxim and calibrate it; this thing weighs a lot. Your $1000 contribution helps defray all these costs. And believe us: Once you squeeze the trigger on this baby, you'll say: "It was worth every dollar!" So what are you waiting for? RAT-A-TAT-TAT, bitches!

NOTE: If the Maxim jams at any time before you complete your 250-round belt, we pledge to refund your $1000 contribution pro rata ($4.00 per round) depending on how many rounds remain in the belt. We also pledge to lend you a Corrections Officer's service pistol to administer a final shot to the offender free of charge.

6. FLAMETHROWER - $2000 per execution

It's time for an old-time Texas barbecue! Take fiery revenge on your wife's lover by toasting him like a stuck hog. For just $2000, we will give you an ORIGINAL 1918 flamethrower with a full tank. Don't mess around with shovels or pistols. Burn the sumbitch alive! Light up the starter, twist on the fuel flow and reduce him into a pile of ashes. Don't worry: He won't turn into ashes before he struggles in vain to escape the flames. Torch him! If you really want to make him regret what he did, don't hose him down right away. Shoot a fireball above his head first. Make him sweat. Then shoot another burst to his left, then his right. Finally, give him just a little scorch. Make him live for a while with peeled-off skin. See how he likes being a victim now. See how fun flamethrowers can be? Nothing says "Ouch" like a full-body burn. And you can only give a full-body burn with a flamethrower. So get in there and start cookin'!

7. BIG BERTHA - $5000 per execution

For Texans who have some money to spare, why not blast a criminal to smithereens? Chances are the offender changed your life forever. Chances are he stole something from you that you can never replace. You probably want to make his life as empty as yours, don't you? If this is the way you feel, BLOW HIM AWAY WITH A BIG BERTHA ARTILLERY GUN! When you pull the firing cord on this baby, there won't be anything left of the man who ruined your life. There won't be anything to bury. Nobody--and no body part--walks away from a 16-inch, 2100-pound high explosive direct hit. When you really just can't stand criminals, nothing says "I hate you" more than landing a Big Bertha shell on his head. For just $5000 (credit available), the Texas Corrections Department will set up a secure firing range, as well as the VINTAGE 1908 "Big Bertha" artillery gun. It will load the weapon, place the offender downrange and allow you to say "FIRE!" before pulling the firing cord. Then, via closed-circuit television, you can watch in slow-motion as the shell falls on the offender. One moment he is there. The next moment he is gone. We will even give you a complimentary DVD recording so you can watch the moment as often as you like for the rest of your life.

In closing, I would like to personally thank Texas for its commitment to criminal justice. Here at the Department of Criminal Justice, I can assure you that we will continue to make executions accessible to the public in a way that is both emotionally satisfying and economically sensible.

Thanks again for your support.

BEYOND A REASONABLE DOUBT : WHY IS IT SO HARD TO GRASP?

AN ESSAY

Legal doctrine abounds with verbal formulae. In law school, students memorize these shibboleths. They are the “magic spells” that allow them to “correctly” analyze any fact pattern. They rarely get a chance to reflect on what these “spells” mean from a grammatical perspective, or even whether they are prudent. Rather, law school students act under immense time pressure; they can do little but learn the formula and move on the next one. I doubt that many lawyers ever really ponder famous “legal formulae,” either. But since leaving the profession, I think about them all the time. And I see that there is nothing intrinsically prudent or sacred about them. They are merely administrative tools intended to bring illusory order to the nebulous disorder of human experience.

Everyone knows the phrase “beyond a reasonable doubt.” It appears all the time in movies, plays and even rap songs. Jay-Z named his debut album Reasonable Doubt. It has a mythical ring to it; it sounds appealing, even majestic. But does anyone really understand it? What is it? People assume that lawyers and judges understand it. They even think that it leads to the truth. Yet this is error. “Beyond a reasonable doubt” is an invention. It is a good invention because it seeks to protect individual liberty from wrongful criminal conviction. But it remains invention. It does not magically entitle judges and lawyers to find the truth.

“Beyond a reasonable doubt” is a “standard of proof” that governs criminal trials in the United States. In 1970, the Supreme Court famously held that the Constitution’s Due Process Clause requires every State government to apply the standard in every criminal trial. In re Winship, 397 U.S. 358 (1970). Unless the State proves “every fact necessary to constitute the crime charged beyond a reasonable doubt,” said the Court, it denies the defendant Due Process. Id. at 364 (emphasis added). This is hopeful language. After all, “beyond a reasonable doubt” means that a jury must indulge virtually every inconsistency in the evidence in the defendant’s favor. If there is a “tie,” it goes to the defendant—and individual liberty. It forces the government to put all “reasonable doubt” to rest about the defendant’s guilt before it can take away his liberty—or life.

But today I am not writing about constitutional law. I wrote about the law on this subject as a law student. “Beyond a reasonable doubt” interests me now because it impinges upon much larger concerns, like reason, truth, evidence and belief. Unlike many other legal doctrines, this one deals with facts: What do we believe about someone? What “actually happened?” More importantly, how “certain” must we be before we condemn someone to prison or death? And because “beyond a reasonable doubt” is a “verbal formula,” it has grammatical weaknesses. Lawyers do not think about these things. They just look to see what courts said about past cases.

What is the real issue, then? The real issue is evidence at trial. The State seeks either to imprison someone or execute him. It charges him with a crime, a written definition encompassing certain “bad behavior.” To convict him, it must put forward evidence proving that his conduct falls within the written definition. The prosecutor, jury and judge were not there to see this alleged “bad behavior.” There might be rumors about it. Perhaps there are witnesses; perhaps not. For better or worse, those called upon to decide a defendant’s fate must evaluate evidence to formulate the “truth” about “what actually happened.” No juror actually sensed or perceived the alleged event. They must engage in second-hand observation and decide whether something happened. Evidence gives them sensory fodder with which to judge “the truth.” They might hear a witness’ account or see a video recording. They might hear about footprints, or bloody gloves or even confessions. Yet they might also hear that witnesses have an interest in condemning the defendant, or that they have poor eyesight, or that they were distracted, or that the police coerced a confession. All these things constrain their Herculean task: To decide “the truth,” even if they were not there to perceive it.

Yet juries cannot simply speculate on the evidence. “Beyond a reasonable doubt” is an attempt to prevent juries from simply “imagining” things about the defendant. Rather, it forces them to look solely at the evidence. Remarkably, many courts over the centuries have not understood this, let alone the “everyday folk” who comprise juries. As recently as 1994, the Supreme Court dedicated an entire opinion struggling to explain what “reasonable doubt” actually means. Victor v. Nebraska; Sandoval v. California, 511 U.S. 1 (1994). There, the Court said that “reasonable doubt” does not mean “merely possible doubt,” but rather doubt that, “after consideration of all the evidence, leaves the jury with an abiding conviction, to a moral certainty, that the charge against the defendant is not true.” Id. at 8 (quoting Commonwealth v. Webster, 59 Mass. 295, 320 (1850)). It also said that “reasonable doubt:” “[W]ould cause a reasonable person, in one of the graver and more important transactions in life, to hesitate before accepting certain facts as true…it is doubt that, after full and fair consideration of the evidence, leaves you with and abiding conviction, to a moral certainty, that the accused committed the crime charged…you may be convinced beyond a reasonable doubt yet be fully aware that possibly you may be mistaken…you may find a defendant guilty upon the strong probabilities of the case, provided they are strong enough to exclude any doubt of his guilt that is reasonable…it is an actual and substantial doubt.” Victor v. Nebraska, 511 U.S. at 18.

Did the Court really need to spend so much time on the question? After all, it would have been easier to simply look at the phrase from a grammatical perspective. “Beyond” is a preposition that implies “movement past” a particular point. It implies linear motion: One moves along a path; one reaches a point on the path; one moves beyond the point. Anything before that point is not “beyond” the point. A jury can only convict a defendant if it decides that the evidence moves beyond “reasonable doubt” about his guilt. That is the magical point on the path. The evidence must move “past reasonable doubt” in order for the State to condemn the accused.

This is the point at which the Supreme Court should have considered “reasonable doubt.” The word “reasonable” appears everywhere in the law. Unfortunately, very few courts apply a consistent definition. In many cases, judges simply use the word to impose their own standards on certain behavior, namely, standards demanding steady living, hard work and “contribution to society with regard to the property rights of others.” Yet this “normalizing” definition really misses the point. After all, “reasonable” derives from “reason,” specifically, the human capacity to find truth through the senses. A person is “reasonable” if he believes only what his eyes, ears, nose and skin nerves tell him. It is “reasonable” to believe that snow fell last night if one awakes to see the ground covered in snow. It is verifiable. It is possible to infer the fact that snow fell while you slept from the fact that you see snow on the ground now. It is based on perceptible evidence. But it is not “reasonable” to believe that God exists, because no one sees God. Well, some people say they do, but do “reasonable people” believe them? No, they don’t. “Reasonable people” believe in their senses. They are empirical. They doubt anything that their senses do not perceive. For a person who trusts reason, “truth” is a matter of perception. If the person is not there to perceive an event, he listens to what others say about it, looks at physical residue concerning the event, then decides what “reasonably happened” based on things that can be perceived. This is “reasonable thinking.”

Reasonable doubt, then, is any doubt warranted by perceptible evidence. It rules out all speculation. It is purely evidence-based. The Supreme Court did not need to introduce extraneous concepts like “hesitancy” and “important life decisions” in order to explain “reasonable doubt.” It should merely have said that “reasonable doubt” refers solely to sensory evidence. It is doubt that arises from things we perceive. As long as the evidence permits us to doubt something, we have “reasonable doubt.” Doubt is not “reasonable” if we simply “imagine” it. And if we have “reasonable doubt” in any way, we have not moved “past” or “beyond” reasonable doubt. This is the grammatical way to understand the formula “beyond a reasonable doubt:” If we have it, we are not beyond it. We must acquit the defendant. But if we don’t have it and merely imagine it, we are beyond it. That means we must convict him.

I write all this because I think many lawyers and judges merely learn verbal formulae without seriously considering what the words mean. It is one thing to mouth phrases in order to score points on a test. It is quite another to genuinely ponder what those phrases mean in both grammatical and philosophical terms.

“Beyond a reasonable doubt” is a compelling phrase for several reasons. For one, it reinforces the law’s commitment to “reason” above all else. There is no faith in the law. Spirit is irrelevant. There is only body, property, the senses and “tangible things.” Reason can govern these things; yet it is banal. After all, there is nothing remarkable or spiritually uplifting about arguing over who saw what and who owes whom what dollar amount. These are the concerns of both reason and the law.

Second, “beyond a reasonable doubt” represents the law’s attempt to sort out facts. Courts have an immensely hard time doing this because facts are elusive. No matter what courts say, facts are never determinate. Facts merely represent belief based on second-hand evidence. When courts compose long “fact sections” in their opinions, they do not recount “exactly what happened.” They are merely reciting what the court below them “believed” after applying an arbitrary standard. Put simply, courts do not like talking about facts. Facts are messy. And in the end, they are arbitrary. Once one court believes a fact, it is almost impossible to alter that fact on appeal. This has nothing to do with “truth.” It has everything to do with “administrative convenience” and “interpretation.” Judges don’t reopen factual disputes because they inevitably degenerate into “he said she said” wars long after the event. Judges get to say: “OK, this is what happened,” even if their version is not really true. Interpretation is power: The power to announce the truth, even if untrue.

Reason can help us answer many questions about our existence. I trust it in all situations in which it is valid. I think it is valid in criminal law, because criminal law addresses matters to which reason applies: External behavior that can be “directly perceived” or “inferred.” It does not involve faith or belief; at least, in should not. “Beyond a reasonable doubt” is a good standard in criminal trials because it forces juries to apply only their reason, not their passions or their prejudices. Sensory evidence produces belief or doubt in the mind. When it produces doubt in a criminal case, the defendant must go free. In this sense, the standard favors liberty. As long as jurors understand what the words “reason” and “beyond” mean, they should never have a problem understanding the “beyond a reasonable doubt” standard.

But perhaps this is exactly the problem. After all, jurors—like all human beings—do not always use their reason at times when they should. Perhaps it is too much to expect that people will always be reasonable.

TURNING THE TABLES ON THE EXECUTIONERS

AN ESSAY

During my break from writing this week, I have had time to read some interesting history. I am always searching for historical material to flesh out my satires and inspire essays that link modern-day problems to ancient precedents. I found a good one in the story of Simon Fraser, 11th Lord Lovat (1667-1747), a Scottish Baron who had the honor to be the last man beheaded at London's Tower Hill.

I have studied capital punishment at length. I think it measures a society's moral progress. You can tell how advanced--or barbaric--a society is by investigating three things: (1) Does its government kill its own citizens "by law?"; (2) If it does, how does it "officially kill" them? and (3) If it does, how many does it kill every year? For over a year now, I have cataloged which countries (and US States) allow capital punishment. I have also investigated which methods they use to execute people. It is a grim business, but I think it reveals a lot about human societies and their claims to "civilization." Capital punishment, after all, is the ultimate government action vis-a-vis the individual. Government can take many things from you. It can take all your property, your dignity, your self-respect, your money, your liberty and even your children. But it can't take anything more than your life.

Yet it impossible to talk about capital punishment without talking about history. Throughout the ages, capital punishment and brute political power have gone hand in hand. Political power uses law to advance its own purposes, not in order to vindicate abstract principles like justice or right. Victorious governments execute rebels and others who commit "treason" against them. In this sense, capital punishment masquerades as a "legal sanction," when in fact it is merely an exercise in raw, arbitrary political power. The strong man kills the weak one who opposes the "establishment." The strong man deploys judges to cover up the killing with official-sounding legal gobbledygook.

But law doesn't fool me. Law is supposed to speak against killing our neighbors, not kill them itself. I have profound difficulty believing legal rhetoric that justifies capital punishment when the same legal rhetoric condemns common, intentional homicide. If intentional homicide is "wrong" when a citizen commits it, how is it different when a State officer does the same to a citizen? There is a glaring inconsistency here. And this inconsistency persists because governments have always claimed a power to kill their own citizens. In my view, blind tradition is no reason to keep foolishness alive in our time.

In all my studies about capital punishment, I routinely run across ironic tales that expose these philosophical inconsistencies. Simon Fraser's story is a perfect example. Fraser was sentenced to die because he conspired with Jacobite rebels during their attempt to overthrow King George II in the 1740s. He "had to die" because he threatened to dislodge those with political power. He lost, so he "had to die." If he had won, he probably would have executed the losers. It had nothing to do with principle; it was about power.

In any event, Fraser went to Tower Hill. Huge crowds gathered to watch his head roll off the block. The government built wooden scaffolds to accommodate the overflow crowd. They wanted to see this "traitor" die. But before the headsman struck, a scaffold collapsed, killing 20 bloodthirsty spectators.

I laughed when I learned this. I found it ironic that men and women died while waiting to watch an execution. They paid for their perverse desire to watch the government ritually kill someone. Something turned the tables on them. They thought the law supported them against the "traitor," but they died, too. Victorious political power might have killed Lord Fraser, but some other power killed the spectators who prepared to celebrate his death.

In my view, this shows that executions do not prove that the government is "right" about anything, even if the condemned person is guilty. No matter what legal arguments the King's judges and prosecutors made to justify Lord Fraser's death in law, they could not prevent "innocent" spectators from dying, too. In short, government had power to order Lord Fraser to die, but it had no power to prevent the spectators from dying. Thus, the government's own claim to "power over life and death" appeared pitifully limited.

In principle, then, government is not "naturally right" when it kills its own citizens. It has simply arrogated the power to execute people "by law" because power creates law. There is nothing in nature that entitles government to put citizens to death. All the procedures, trials, rules and rhetoric underlying modern capital punishment are mere inventions, not a priori truths.

There is not much I can do to dislodge power. I just like to think that government should aspire to something better than the crude, human urge for revenge against "trespassers." I have written before than men will always kill each other. Men are emotional animals. They have individual weaknesses, passions, idiosyncrasies and even delusions. Yet government is supposed to be better than the individual men who compose it. Just because men constitute government does not mean that government must mirror all men's weaknesses. To the contrary, government has a unique power to stand on principle and dignity, even when individual men cannot. To my mind, there is no substance to the argument that "government can kill because men can kill." Rather, I believe that government has a unique opportunity to insist on behavior that transcends human weakness. Principles might not work for individual men, but governments can demand them.

Law should mean something more than mere power. Lord Fraser's story reveals power at work through law. Yet his story also reveals that neither law nor power can control everything, despite their claims to the contrary. While power might have ordained Lord Fraser's death, it did not ordain the spectators' deaths. No legal solemnity or argument killed the spectators. Law may have justified Lord Fraser's death with florid rhetoric and even legal citations. But its pretentious reasoning could do nothing to justify--or prevent--the spectators' deaths.

In short, power has limits. But power acts as if does not. I love stories that reveal those limits, chastising those who adhere to power. The spectators at Lord Fraser's execution confidently took their seats on the scaffold to behold "their" power at work on a man "their" law had condemned. They felt justified in exercising "their" power. But they wound up dying, too, even though the "law was on their side." They didn't "deserve to die;" but apparently--to quote The Unforgiven--"deserve's got nothing to do with it."

What sweet, maddening irony. The history of power--and capital punishment--abounds with stories like this. In the end, you get the impression that no one is right, no matter who dies and who invokes law to justify death.

GEARING UP FOR TROY DAVIS

Today I'm taking a break from posting so I can study the Troy Davis case. Earlier this week, the United States Supreme Court issued an "extraordinary" order directing a lower Federal court to review a convicted death row inmate's claim that he is "actually innocent." To untrained ears, it may sound strange to call such an order "extraordinary." After all, if the man is innocent, it is hardly "extraordinary" to save him from execution. But we're talking about law here, not humanity or even common sense. Once written, positive law muddles a question; even the most ordinary, obvious things suddenly become "extraordinary" and "unprecedented." Justice, as ever, has nothing to do with it. You learn how to forget justice in law school.

It is also "extraordinary" for the Supreme Court to do anything at all during the sleepy summer recess, let alone intervene to save potentially innocent black men from southern lethal injection tables. Supreme Court justices have more important things to do in the summer, like go on safaris and watch operas. After all, they work hard from October to June. They need some down time. All that talk about collateral estoppel and jurisdiction is exhausting.

Justice Antonin Scalia wrote a dissent to this "extraordinary" order. In essence, he wrote that the Constitution poses no barrier to a State executing an "actually innocent man," as long as he receives a "full and fair trial on the merits." After all, the words "innocent" and "execution" don't appear in the Constitution. And we need some finality in our justice system; we can't just free people who say they're innocent, even if all the State's witnesses recant their testimony and there's no direct physical evidence linking the defendant to the crime. Actual innocence, in other words, does not save you from "legal guilt." It doesn't matter how tainted the legal process might be; once a jury speaks--even on the basis of admittedly false testimony and perjured facts-- you're pretty much done.

Yes, you read it right. And yes, you might even wonder whether satire is even necessary in these circumstances.

But satire is necessary. It is necessary to combat foolishness like this. It is necessary to illustrate how counterintuitive the law can really be. That is why I am taking my time to grasp Justice Scalia's latest ode to positive law and procedure. Tomorrow, I plan to castigate this madness with vigor.

Moments like these make me realize that I will never exhaust the satirical well. As long as people like Justice Scalia breathe, I will have ample opportunity to mock callous absurdity.

MORALITY FIRST : MALE HOMOSEXUALITY IS DISGUSTING AND MUST BE STOPPED AT ALL COSTS

By : Dr. G. Strong Wacker, M.D., M.P.H.; Commissioner, The National Board for Family Health (1998-present); Physician (Urological Reconstruction & Urethral Science); Member, The Morality First League for Equal Protection Under Law (1993-present); Theater-Goer; Amateur Florist & Gardener; Senior Coordinator, Zac Efron Fan Club (San Francisco Branch)(2006-present).

In 2004, President George W. Bush made a concerted effort to ban gay marriage. Although Congress did not amend the Constitution to forever prohibit men from marrying men, he made his point. In fact, Americans cared so much about the marriage issue that they reelected him President that very year. Put simply, Americans know that male homosexuality is morally wrong. Bush won reelection because he publicly declared that no male would ever make vows to another male.

But stopping gay marriage did not end the debate. George W. Bush may have saved the country from gay marriage, but he did not save the country from male homosexuality. We believe that we must prohibit all male homosexuality, not just homosexual marriage. It is not enough to stop two men from combining their finances to cheat the Internal Revenue Service. Nor is it enough to stop two men from exchanging rings and swearing fidelity to each other. No, we must go further. As a society, we must say what we all feel: “Male homosexuality is disgusting and must be stopped at all costs, no matter who dies.”

As a society, we have a right to stop disgusting behavior. Our deepest moral impulses empower us to outlaw disgusting things, including public defecation, slovenliness and grime. When behavior arouses our disgust, we have a right to suppress it. When behavior smells bad, we must punish it. After all, it is disgusting. It makes us pinch our noses, recoil and cry out: “Yuck!” No one deserves to live around foul odors and disgusting behaviors. Indeed, bad smells and immorality form the basis for all our criminal law. Male homosexuality, like public defecation, slovenliness, fraud and theft, is both disgusting and immoral. We just don’t like it. We must remove its stink from our midst, just as our earliest ancestors removed decaying carcasses from their settlements.

We don’t like male homosexuality for many reasons. First, the idea of two men groping and fondling each other makes us uncomfortable. It is just not right. It looks disgusting, too. If it appeals to you, there is something very, very badly wrong with you. Second, male homosexuality presents a public health hazard. Homosexuals are disease-ridden, promiscuous, dissolute, lustful infiltrators who spread pestilence and death through our communities. Third, male homosexuals defraud our society by wasting their reproductive capacity on furtive pleasures. Rather than commit themselves to fatherhood and childrearing, they abandon themselves to aesthetic preening, perverted flirtation and “fun.” This costs our community live births and future citizens. Fourth, male homosexuality harms children. Homosexuals ritually rape children every day; if we care about our children, we must act to stop the homosexual menace. Fifth, homosexuals have untold political influence. According to United States Supreme Court Justice Antonin Scalia: “[Those] who engage in homosexual conduct tend to…have high disposable income [and] they possess political power much greater than their numbers, both locally and statewide.” Romer v. Evans, 517 U.S. 620, 645-646 (Scalia, J., dissenting).

Put simply, homosexuals are devious, dangerous, disgusting, harmful to children, insolent, irresponsible, wasteful and seditious. We must act now, before it is too late. Our children and our sensibilities demand swift action.

Tradition justifies our effort to stamp out homosexuality. Justice Scalia is a brilliant jurist. We take heart in his legal pronouncements concerning the homosexual menace. He has written at length about government’s traditional right not only to criminalize homosexuality, but also about society’s basic right to hate homosexuals as part of our “moral heritage:” “[] I had thought that one could consider certain conduct reprehensible—murder for example, or polygamy, or cruelty to animals—and could exhibit even ‘animus’ toward such conduct.” Romer v. Evans, 517 U.S. 620, 644 (Scalia, J., dissenting). Justice Scalia correctly equates homosexuality with murder, polygamy and cruelty. He knows what he is talking about; he went to Harvard Law School and he has served on the United States Supreme Court since 1986. According to Justice Scalia, homosexuality is just as morally wrong as killing your neighbor or torturing a dog. As a society, we have a right to condemn such abominable outrages. We have always had a right to condemn murder, just as we have always had a right to condemn male homosexuality.

In many ways, male homosexuality is more despicable than murder. After all, some murders offend us less than others. For example, we do not condemn a man who kills his wife’s lover in a jealous rage as much as we condemn a man who carefully plots his wife’s death with equanimous efficiency. Murder does not always arouse our deepest disgust; sometimes we even look with sympathy on the killer. Male homosexuality, on the other hand, is irretrievably disgusting. Nothing mitigates anal sex between two men; it is categorically disgusting. It is so revolting that no reasonable person could ever forgive it or look upon it with sympathy. The mere idea of two naked men kissing is simply nauseating. Murder does not always arouse such deep, rancid disgust. In that light, male homosexuality deserves our strongest condemnation.

Female homosexuality, on the other hand, presents a different question. Lesbians are beautiful to behold. I feel no disgust whatsoever when I think about two naked women caressing one another. In fact, I would very much like to join in any amorous adventures between two beautiful women. Unlike male homosexuals, lesbians pose no public health hazard. They do not spread pestilence and death. They do not rape children, nor do they have unlimited resources with which to overthrow the government. They do not waste their reproductive potential; lesbians can always get pregnant at some later date.

Put simply, lesbians are neither immoral nor disgusting. On the contrary, they are beautiful, especially when they allow men like me to join them in erotic contact. I speak for every American when I say that lesbian sex is neither dangerous nor unhealthy, provided that the lesbians in question are good-looking and would allow me to join in. I would not mind looking at two hot lesbians having sex; indeed, thinking about it arouses me to some extent. There is nothing wrong with that. It is not immoral.

I am certain that Justice Scalia would agree with me about lesbians. There is nothing in our moral tradition that recoils from lesbian sex. Our moral tradition recoils from ugly penises and anuses, not appealing breasts and vaginas. Males smell. Females do not. I would not mind looking at lesbian sex. For that reason, lesbianism presents no danger to society or our children. Lesbianism is not immoral.

Only male homosexuality is immoral. It is both dangerous and unhealthy. I would not want to look at it. We have a traditional right to hate it. For these reasons, we must stand fast against male homosexuals. We must heed Justice Scalia’s advice. We must defend against their disproportionate political influence. If we relax our stance toward male homosexuals for even a moment, they will take over Congress and legalize child rape. If we relax our stance toward male homosexuals for just one moment, they could infect our entire society with venereal diseases, canker sores, rickets, scabies, herpes, cooties and parasites. If we care about morality, health and reproduction, we must sound the alarm on male homosexuality. Stopping gay marriage is not enough. That is why we, the Morality First League for Equal Protection Under Law, are committed to stopping all homosexual immorality, no matter who dies. Tradition supports us. Justice Scalia supports us. Male homosexuals are no better than murderers, polygamists and animal torturers. Plus they smell and I would not want to watch them have sex.

We cannot be tolerant when so much is at stake. It may be 2009, but male homosexuals are just as immoral and dangerous today as they were in 1500. In 1500, governments burned male homosexuals because they honestly recognized how dangerous they were. We must not allow “progressivism” to blind us to those dangers. We must merely remember that male homosexuality is disgusting. No matter how fashionable it may be to “understand” male homosexuals, we cannot forget that they engage in smelly, abominable conduct that we have a right to hate. And by “understanding” male homosexuals we play directly into their hands. As Justice Scalia pointed out, they are politically powerful. As soon as we ease the pressure on them, they will overthrow the government and institute Federal policies subsidizing child rape and debauched all-male nude beach parties. Put simply, we must stand firm against this menace. We cannot afford to be tolerant with immoral deviants, especially when—as Justice Scalia told us—they have high disposable income and disproportionate political influence.

In sum, we have a political, moral and medical duty to stamp out male homosexuality because it is disgusting. Thinking about it makes me uncomfortable and nauseous. I would probably vomit if I stumbled across two men having sex. We must implement laws that correspond to our basic moral feelings. We must outlaw male homosexuality because it arouses my disgust, just as public defecation does. Like public defecation, male homosexuality smells and presents noxious public health hazards. If we care about health, morality and our children, we must take every measure necessary to suppress male homosexuality. Tradition demands no less. Our children expect no less. We must act now before homosexual conspirators topple the government and transform the United States into a vast disco Empire led by shirtless go-go dancers.

Yet we must spare lesbians. There is nothing immoral about them. I really like to look at them. I even think about them quite a lot in my spare time.

DELINQUENCY : A POWERFUL WORD

AN ESSAY

Power interests me because it pervades our lives. In many cases, we do not even perceive oppressive power relationships because they are everywhere. We accustom ourselves to them. We subject ourselves to them, even unconsciously. Most conspicuously, we live under certain public powers. There is overt public power, as when government cracks down on protests or visibly executes a condemned man. There is also subtle public power, as when tax collectors privately pursue individuals who do not have money to pay their tax bill. Government holds its power over us by threatening legal compulsion: Either we obey rules or it inflicts pain on our bodies and property. This is how public power operates.

But all exercises in public power pale in comparison to the ingenious methods designed to serve private power. As pervasive as government power may be, it still knows boundaries. Despite some glaring exceptions throughout our history, government must always act according to some legal authority that derives from a written, public source. Furthermore, government agents must abide by certain constitutional restrictions when impacting citizens’ bodies, liberty and property. These constitutional restrictions incidentally enforce “governmental decency” on State actors. In short, there are certain things that government simply cannot do. Not so with private actors.

Private power is far more pervasive than public power. The law cannot be everywhere all the time. In fact, the Constitution expressly and impliedly keeps government out of certain spaces and decisions. See, e.g., U.S. Const., Amendments III (no soldiers in private homes), IV (no unreasonable searches or seizures), V (no compelled self-incrimination or land seizures without just compensation), IX (unenumerated rights), XIV ("Due Process liberty," including freedom from "arbitrary government action"). The Constitution also prohibits government from directly regulating men’s minds, thoughts, opinions, beliefs or conscience. See, e.g., U.S. Const. Amendment I. But private power knows no such restrictions. It can freely enter men’s homes, appeal to their conscience and affect their decisions, no matter how intimate. While private power does not always carry legal force, it can deploy the law when it must. It is no exaggeration to say that the law serves private power, not the other way around.

What is private power? Power itself is a nebulous concept. Generally, it refers to one man’s or group’s authority over another man or another group. This, in turn, does not necessarily mean legal authority. It is much broader than that. Power includes the power to impinge on a person’s conscience, to make him feel guilty, to make him change his behavior or to make him feel obligated in any sense. In essence, power subjects: It impresses the object with a sense of “smallness” compared to the person who applies the power. It enforces obedience, as the employer cows the employee. Power is multifaceted. It appears in every context. But there is one prominent commonality in all this variety: Power always involves inequality. Without inequality in advantage, wealth, money or even sexual appeal, power could not break its objects into submission. When it comes to power, there are strong parties and weak parties. The weak party needs something the strong party has. As such, he must modify his behavior to adhere to the strong party’s requirements.

Yet power operates in far subtler ways than naked oppression. After all, if power is too oppressive, its subjects revolt, just as a dog will abandon its master if he is too heavy-handed. Power does not just dominate in a petty or brutish way; it also pervades lives. Consider the employee who awakes every morning knowing that he must appear at his job. Power pervades his life; he needs the paycheck to feed himself and his family. He does not question how he gets it; he surrenders to power and follows its commands. It is unconscious. He does not revolt against it; it is not petty. Power might inspire resentment, but not enough to make him question its basic authority. Resentment or not, power pervades his life and channels his decisions. Or consider the debtor who struggles to pay back his creditor. He lives his economic life knowing that he must fork over a good amount of his earnings to a stronger party who can hurt him if he does not. Power overshadows the debtor’s life as it did the employee’s. It constrains his thoughts and actions. It makes decisions for him. It impacts his freedom. It weakens his will. It subjects him to a “more powerful” decisionmaker. Why? Because he needed something he did not have before. To get it, he surrenders to private power. He pays as much with his soul as he does with his money.

Debt interests me for the same reason that power does. After all, debt relationships express power. Debt is incident to power. If power expresses a relationship between strong and weak parties that includes subtle mental controls, debt is a perfect example. Creditors are strong; they have something the debtor needs. Debtors, by contrast, are weak. They surrender both their souls and their money to get what the creditor has. Even if the debtor takes something worth comparatively little, the creditor relishes his power over the debtor by demanding far more in return. For example, creditors might loan $25,000 to a debtor. In return, the debtor must pay back $37,500 in two years. If he does not, the creditors have a legal right to seize anything the debtor owns to make good the debt. If the debtor succeeds in paying back the creditor, he gets nothing; he merely eludes the pain the creditor might have inflicted had he defaulted. And he actually enriches the creditor in the process. For creditors, it is a win-win situation: If they do not make a profit on the debtor, they can take what they want from him. If they do make a profit, well, who can argue with success? Yet the debtor lives under pressure. He either must enrich the creditor or lose everything. In this sense, we see classic inequality at work: Debtors and creditors face unequal burdens and owe unequal obligations to each other. And only the debtor lives in fear of legal compulsion. The creditor is the one with the real power—the power to force another to give him something or suffer for failing to deliver.

How does power describe its subjects? Language expresses power in an extremely subtle way, for only the powerful have the authority to choose prevailing words. They have the authority to label their subjects with concepts and epithets. They have the authority to channel both meaning and morality against those who defy them. On this point, consider the word creditors use to describe debtors who neglect their obligations: Delinquents. Creditors use the word in a very matter-of-fact way. They send a letter: “The balance due on this account is now delinquent.” The debtor feels morally bad about this result. He feels scolded. And he knows that the creditor now has power to do even more harm. Power functions best when it constrains its subjects’ minds with guilt, shame and obligation. Power uses the word “delinquent” to evoke these negative moral feelings in the “bad” debtor.

But why exactly “delinquent?” What does “delinquency” have to do with repaying money used for some forgotten commercial purchase? After all, etymologically speaking, “delinquency” delivers a strong moral rebuke. According to Webster’s New World College Dictionary (4th Ed.), “delinquency” stems from the Latin word “delinquentia,” meaning “to leave undone or to commit a fault.” True, the concept involves “leaving something off” or “omitting to do something.” But it also includes a strong moral element. It does not just mean neglect; it means neglect that makes the person morally blameworthy. The definitions bear out this interpretation. “Delinquency,” according to Webster, means not just “1. failure or neglect to do what the law or duty requires,” but also “3. a fault or misdeed.” More to the point, “delinquency” broadly refers to “thorough badness” or even “outlawry,” as we hear in terms such as “perpetual delinquent” or “juvenile delinquent.” Referring to this definition, Webster says that “delinquency” can also mean “behavior…that is antisocial or in violation of the law.” Id. at Definition 4.

In this grammatical light, we see that a “delinquent” is unsalvageable. When we label someone a “delinquent,” we condemn in strong moral terms. A “delinquent” is not just someone who forgets to pay something once in a while. He is a brigand, an outlaw, an irretrievable criminal. He is not just a person who forgets to send in a check for $45.12 every month; he is by nature “antisocial,” commits “faults or misdeeds” and invariably acts “in violation of the law.”

Power consciously controls language in these circumstances. It consciously chooses the word “delinquency” to apply to debt because it wants debtors to feel bad about neglecting their obligations to their superiors. But does failing to pay a bill really render the debtor an “outlaw?” Isn’t this going a bit too far? We all neglect things from time to time. Life submerges us with picayune tasks every day. It is understandable that we might pass one over now and then. From power’s perspective, it is all right to pass over some tasks, but not tasks in which power has an interest, such as a loan payment. You are not an outlaw if you forget to pick up your daughter at school one day, but you are an outlaw if you miss your car payment. Power wants debtors to feel bad about neglecting particular obligations, not all obligations. Specifically, power appeals to the debtor’s conscience when it stands to gain from the debtor. Thus, power cares only for itself; it uses morality and language to enforce obligations that provide benefit. In the abstract, it does not care about “obligation.” It cares only about obligations from which it can derive personal enrichment.

I do not like this at all. We all have a right to use language to express ourselves. No one has authority to selectively alter a word’s meaning to assert his own material dominance over another person. Yet this is precisely what private power does with the word “delinquency;” and no one really seems to notice. Private power has hijacked this word in order to crush its subjects into moral dejection. Why? Because it knows that morally guilty and shameful people are more likely to be obedient and to hand over what it wants. Although morality has very little to do with private commercial dealing, private power injects morality into commercial dealing because it provides additional assurance that it will make a profit. In a strange way, too, it uses morality to remind its subjects who is boss. After all, bosses don’t feel guilt or shame; they are the ones who inflict those feelings on their underlings. Guilt and shame—along with all moral feelings—flow downward. People feel guilty and shameful when they fail to adhere to a standard imposed from above. There is nothing "above" power; power is “the above.” Only those under power can feel guilt and shame. And they are effective weapons to compel allegiance.

Private power is “above” us everywhere. When we actually feel morally bad when we receive “delinquency” letters, we know we’re subjects. Unlike public power, private power does not just impact our bodies and property. It also impacts our deepest moral feelings. That is real, abiding power. That is the kind of power against which revolt is impossible. By comparison, public power and the law are clumsy, imperfect weapons. Private power, on the other hand, is so pervasive and so subtle that is virtually invisible. It influences minds and emotions, not just pocketbooks. And private power prefers it that way: Private. Why attract attention when you don’t need to?

TAZERS : LEGAL, BUT WRONG

AN ESSAY

Two weeks ago, a Texas highway officer stopped a 72-year-old great-grandmother for driving 60 miles per hour in a 45 speed limit zone. See video at http://www.youtube.com/watch?v=cdDdwxJyZZI. The officer asked the woman to sign a ticket promising that she would appear in court to answer the charge. She refused. The officer ordered her out of her car and violently shoved her onto the roadside. Naturally, she became upset. He raised his voice and threatened to “taze” her unless she complied with his orders. She continued to refuse. Finally, after trying to return to her car, the officer fired his tazer into her body, causing her to shriek and collapse to the ground. As she writhed in pain beneath his feet, the officer shouted: “Get down! Get down! Or you’re going to get tazed again!”

Thanks to the officer’s decisive action, the dangerous suspect surrendered. Well, she really did not have a choice because her muscles were unresponsive. The officer cuffed her and took her into custody. She was charged with speeding and resisting arrest. She suffered no physical injury. When the officer’s dashcam footage made the news, however, the Sheriff’s Office quickly rallied to his defense. A police captain said he acted “properly at all times” and that “no one suffered injury.”

Tazers have generated debate for as long as they have existed. Law enforcement hails them as a revolutionary means to subdue violent, resisting offenders. Liberals call them inhumane, degrading weapons intended to humiliate and subjugate citizens. Law enforcement stresses that tazers “do not cause permanent injury” and are thus “safer than nightsticks” or other bygone restraint methods. Liberals point to the grotesque spectacle that ensues when 50,000 volts of electricity flood through a human body, rendering it instantly limp and motionless. For the liberals, the question is not efficacy. It is dignity and humanity. For law enforcement, the question is crime control and “officer safety.”

I fall on the liberal side in this debate. Nobody likes crime, but no one can suggest that law enforcement should have a free hand in adopting any methods necessary to control it. After all, our Constitution would mean nothing if, as a society, we decided that we wanted to control crime “by any means necessary.” Our Bill of Rights proceeds on the assumption that unchecked government power represents a threat to individual liberty. Government power is most dangerous in the hands of the Executive branch, and that includes the police forces. Without constitutional guarantees securing our bodies, property and dignity, the police could freely detain, question, torture, humiliate, degrade and coerce us at will, all in the name of some nebulous “crime prevention.” We tolerate Executive power only on the understanding that we retain rights against it as individuals. Among those rights is the right to reasonable, dignified treatment by executive officers.

Tazers represent a “means” to enforce the law. For Machiavellians, “means” mean nothing as long as they effectively achieve the desired “ends.” When it comes to crime, the “ends” are compelling: Stopping criminals and enforcing the law. But what means are permissible to effectuate these goals? Machiavelli would have praised Hitler for his commitment to crime control. His police forces knew no boundaries in their efforts to suppress crime. They were highly successful because they had every “means” at their disposal to investigate and prosecute “offenders.” But this example exposes the deep moral flaws in Machiavellian thinking. Means do matter, at least in a constitutional democracy with claimed commitments to lasting principles such as dignity, equality and justice. In America, we have always defined ourselves against tyrants with unrestrained power over citizens. Tyrants employ every means necessary to maintain dominance and control over their subjects. In this sense, Americans have always been deeply suspicious of Machiavellian thinking in government because tyrants read Machiavelli. In our constitutional order, means matter as much—if not more—than the ends.

Tazers bring these age-old issues into focus. Many States now authorize the police to use tazers in order to suppress dangerous or resistant crime suspects. Proponents cite medical evidence that the tazer’s electric charge—while substantial and fearsome to behold—only temporarily shuts down muscle function, leaving the subject uninjured. The subject experiences massive pain for an instant, then it vanishes. Many States embrace tazers because they do not cause “permanent injury.” Many States even reference reports that “old” restraint methods are actually more dangerous because they can potentially cause “permanent injury.” For these States, tazers offer a way to completely subdue suspects without causing injury or placing officers in harm’s way. These States focus on the objective benefits that flow from tazers. They focus on the “ends” that tazers achieve. On paper, it looks good. Tazers are “legal.” They are “modern.” They are “effective.”

But what about reality? Tazers do more than merely “subdue suspects.” They represent a massive, overwhelming intrusion of governmental power onto the body of the individual citizen. Consider the power dynamic in a typical citizen-police confrontation involving a tazer. In most cases, the citizen is unarmed and upset about being accused of a crime. The officer, by contrast, has a gun, wears an official uniform and threatens to employ a futuristic-looking electrical device to render the suspect totally powerless in an instant. Even if the suspect has not committed a serious infraction, the officer holds all the authority. Furthermore, he has the raw, technological means to enforce his will over the suspect. When he says: “Step back,” he has the power to enforce compliance and punish defiance by sending a 50,000-volt shock through anyone petulant enough to question him. Thus, the officer has all the cards. If the suspect does or says something he does not like, he can employ his technological advantage to utterly break the suspect’s physical and emotional capacity to defy him. All the tazer videos show this dynamic at work. The officer seems to relish his ability to reduce his antagonist to utter subjection. Even when the suspect goes down and begins wailing like an injured pig, he continues shouting and even threatens to “taze him again” unless he complies with his every command.

Is this rational law enforcement? Or mere power play?

Tazers are frightening devices. They do more than merely “allow” police to “control” unruly crime suspects. They arm executive officers with a devastating weapon that breaks individual citizens’ will and reduces them to compliant, screaming children. In my view, this is too much. I do not like government action that impinges deeply upon the dignity of the individual, whether or not they are crime suspects. When a police officer shoots an unarmed suspect with a tazer solely to punish him for willfulness or resistance to orders, I see tyranny, not legitimate “crime control.” No matter what benefits the State claims from tazer use, I cannot bear the spectacle of citizens reduced in an instant to a shrieking quarry. It bothers me to know that government can do this to its own citizens in a constitutional democracy. “But it does not injure them,” say the tazer defenders. Perhaps not. But tazers certainly inflict pain, indignity and humiliation on them for daring to question a police officer’s authority, even if it is misplaced. In my eyes, that is too much power for an executive officer to possess. It is not about crime control. It is about governmental conduct. And dignity matters to me.

Sadly, most people disagree with me. They wonder why I have sympathy for crime suspects. They also wonder why I care about some worthless criminal’s dignity. Even the Supreme Court disagrees with me. In case after case, they reject constitutional challenges alleging “arbitrary” police conduct. The Court says that you have a “liberty interest” to be free of “arbitrary police action” that “shocks the conscience” because such action “offends the decencies of civilized conduct.” See, e.g., Sacramento v. Lewis, 523 U.S. 833 (1998). But the Court whittles away that hopeful language by requiring challengers to show that the police “intended to cause harm unrelated to the legitimate object of arrest.” In tazer cases, the police will never admit that they intended to cause you harm; in fact, they will simply say they did not cause you “harm” at all, because tazers “do not cause permanent injury.” Your writhing agony after being hit by 50,000 volts does not qualify as “harm,” because it was not “permanent.” This is the mischief to which hypertechnical legal argument can lead.

For me, dignity means more than the legal abstractions our Supreme Court is willing to define in law. I defend everyone’s dignity against governmental intrusion because I believe in the principles that animate our constitutional order. In my view, that order reflects the primacy of the individual against government action. And in police-citizen confrontations, government action grossly overpowers individual autonomy. In unfair fights, I favor the underdog. I think anyone who believes in the individual over the government should think the same thing. In my eyes, zapping people with tazers because they refuse to comply with intimidating police orders is wrong and unfair, whether it is “legal” or not. Tazers allow government to physically and emotionally break individual citizens into abject submission with a single trigger pull. I do not like that idea.

There are so many things in our society that are “legal but wrong.” I place tazers in that category. What do I mean by this? To understand what I mean, I return to the tension between “ends” and “means.” Legislatures—and the citizens who elect them—can choose to make certain things “legal.” In so doing, they democratically enshrine certain value judgments concerning what “ends” must be achieved. Many State legislatures have decided that tazers admirably advance the governmental interest in “crime control.” They made tazers “legal” without really reflecting on the “means” they chose to accomplish their purpose. Yet there is a different source for “right” and “wrong;” it does not flow from the legislature, or even the Constitution. Legislatures make things legal or illegal; they do not make things “right” or “wrong.” In many cases, legislatures make things legal that are also good. But they also make things legal that are wrong. Tazing people is wrong but legal. It is wrong for government officers to zap citizens into utter submission, whether or not they suffer “permanent injury.” It is wrong to inflict scorching pain on citizens, even if it is “temporary.” It is wrong to inflict pain on citizens merely for being willful or for questioning the basis of governmental action. It is wrong for government officers to use tazers to childishly assert dominance over citizens. No matter what legitimate goals tazers serve, I think they are the wrong means to achieve them.

I am fully aware that law enforcement proponents will heatedly disagree with my views on this subject. They are welcome to disagree with me. I understand that some people value crime control more than others, and that some people believe that criminal suspects do not deserve dignity or respect from government. I know there are people who do not really care whether government violates a person’s dignity as long as that person is “a criminal” or somehow “blameworthy.” I believe the contrary. In my view, dignity and respect are absolute governmental obligations in our constitutional order. They are principles that go beyond mere expediency. They apply whether the subject is a murderer or a saint. And they should prevent government from adopting certain methods to effectuate otherwise legitimate goals.

My response to the law enforcement apologists is this: Once we allow increased government intrusion onto the bodies of individual citizens, what’s next? We allow tazers. They allow officers to inflict pain and degradation on people who have not been convicted of any crime. Why? “Because we want to control crime,” they say. Yet that is a broad mandate. What fearsome methods might we also permit to effectuate that goal, as long as we move “incrementally?” What about a tazer that stops the heart “temporarily?” What about a tazer that causes “temporary memory loss?” These are significant deprivations, no matter whether they are “permanent” or “temporary.” A suspect could claim: “Government stopped my heart,” and no one would care. That is profoundly troubling.

If we do not take a stand for individual dignity at some point, there is no logical end to potential governmental intrusion upon us. If we do not make dignity a meaningful principle, we all degenerate into lawyers arguing about whether something is “legal,” even when we know it’s wrong.

YOU CAN'T BREAK A CONTRACT? OH YES YOU CAN

AN ESSAY

Yesterday I satirized AIG’s Financial Products Executives for receiving colossal bonuses from government bailout money despite their active roles in ruining the economy last year. Two days ago, the New York Times revealed that AIG executives received over $165 million in manager bonuses. Although that amount pales in comparison to the $150 billion allotted to rescue AIG, it is the insolence that offends. At a time when most Americans struggle to find work in a toxic economy, these rapacious executives award themselves huge bonuses with government money intended to help the weak. It is something akin to stealing welfare money to buy a yacht. Yet here we see the institutional problems associated with the government bailout plan. We have given out so much money to so many private companies. Obviously we cannot account for all of it. And private companies are private companies; we cannot rightly be shocked that some executives will “take a little extra for themselves.” For wealthy corporate leaders, money is the ultimate temptation. Put them in a room with money and they will not keep their hands off.

But I do not write today simply to criticize rich corporate people. I enjoy doing that, but I recognize that it can easily descend into shrillness. Rather, I want to address a more troubling legal aspect to this bonus boondoggle: The contract issue.

Who allowed AIG executives to receive their bonuses at a time like this? Did anyone consider how bad it looks to hand government bailout money to wealthy executives, especially the ones who created the problem in the first place? Why is government allowing this? Yesterday, President Obama reacted to the outrage over the bonuses by swearing to stop the payments. But a different administration spokesman said he could do nothing to stop the payments, because AIG was “contractually obligated” to pay them. Lawrence Summers, Obama’s Director of the National Economic Council, said: “We are a country of law. There are contracts. The government cannot just abrogate contracts. Every legal step possible to limit those bonuses is being taken by Secretary Geithner and by the Federal Reserve system.” In other words, as wretched and tasteless as the bonuses may be, the government could do nothing, because these executives signed contracts with AIG last year, and now AIG must pay the bonuses. After all, according to Mr. Summers, we are a “country of law,” and a “country of law” does not intervene to break promises made between two private parties.

I beg to differ. Our “country of law” enforces contracts between private individuals by sovereign grace. Courts may weigh legal fineries in order to determine who owes whom what. Indeed, scholars and jurists have penned endless tomes concerning the ornate technicalities of individual contractual obligation. But in the final analysis, a judge’s words mean nothing without the sovereign’s sword to enforce them. For example, a company may promise to deliver 40,000 tons of steel in return for another company’s promise to pay $40,000,000. If the selling company fails to deliver, the aggrieved buyer can go to court and sue for contract breach. He may obtain a judgment entitling him to money damages or specific performance. In other words, the law fully supports the buyer’s position. But once the judgment issues, it falls to the sovereign to force the seller to pay money or deliver the goods. If the sovereign says: “I will not enforce this judgment,” the buyer has no remedy. In this example, we see that contract law means absolutely nothing without brute executive force. In reality, the executive overwhelmingly enforces legal decrees involving contracts because it wants people to feel assured in their bargains. Yet that does not change the fact that the executive retains the final discretion whether to enforce a contractual obligation. After all, the law deals with compulsion. No one feels compelled to do anything unless a stronger party puts a gun in his face or twists his arm with sufficient strength. The executive has the guns and the arm-twisters. Without it, courts mean nothing.

Mr. Summers said: “There are contracts. The government cannot just abrogate contracts.” Yes it can. If President Obama really wanted to, he could stop the payments to AIG’s executives. True, he would face enormous opposition from lawyers and jurists, but as a practical matter, he has the power to interfere with private contracts. Courts would rule in the executives’ favor. If AIG refused to pay the bonuses, the executives could sue AIG for breach; and they would win. After all, the law favors vested contract rights; and vested contract rights favor those with superior bargaining power. But after the executives win, they would have to turn to the executive to force AIG to pay. Here, President Obama (or his State law counterpart: The Governor of New York) could intervene. He could order the Sheriff to stand down and refuse to enforce the Court’s judgment against AIG. At that point, the executives would probably try to sue the executive on constitutional grounds. They would argue that the President’s action deprived them of “property” without Due Process under the Fourteenth Amendment, or that the State Governor’s action “impaired the Obligation of Contracts” under Article I § 10. The Supreme Court would probably agree with the AIG executives, since Chief Justice Roberts and his Republican majority invariably support business and contract rights. Again, however, the Court would have to turn to the executive to enforce its long-winded legal reasoning. Do you think the executive would take action against itself? Of course not.

This is not as radical a position as it sounds. There is precedent to support a President’s refusal to heed the Supreme Court’s conclusions. In 1832, the United States Supreme Court held unanimously that President Andrew Jackson could not relocate the Cherokee Nation to Oklahoma from its ancestral home in Georgia and Tennessee. Worcester v. Georgia, 31 U.S. 515 (1832). The Court reasoned that the United States entered into a treaty with the Cherokee, and the treaty forbade such territorial incursions. The President said: “John Marshall made his decision; now let him enforce it!” Jackson sent an army into the Cherokee Nation and evicted the natives from their homes. The Supreme Court’s judgment had no practical effect, even though the law favored the Cherokee. This example shows how a determined executive can utterly ignore judicial pronouncements, even if he acts contrary to law. Again, we see that law depends on force, and only the executive controls State-sanctioned force. If the executive wants to ignore the law, there is little the other branches can do. Congress could try to impeach the President. But impeachment has less to do with the law or the Constitution than with political favoritism. If the President has enough allies in Congress, he will not face impeachment. Andrew Johnson faced impeachment in 1867 because a Republican majority in Congress detested his Reconstruction Policy. Bill Clinton faced impeachment in 1998 because a Republican majority in Congress did not like him as a person and because he was a Democrat. Neither President committed a gross infraction against the Constitution; politicians in Congress simply did not like them.

President Obama enjoys immense support in Congress. Nancy Pelosi and the Democrats would never take action against him if he intervened to stop bonus payments to AIG’s executives. In fact, such a move would be entirely consistent with the President’s mission to “clean up Wall Street.” The AIG executives would whine and moan and wave the Constitution in the air. But Presidents must think beyond the law. President Obama is trying to rebuild trust in an economy that nearly destroyed itself through avarice. Men like the AIG executives are prime suspects in this meltdown. While those executives technically hold enforceable rights to bonuses under established contract law, this is a case in which the law stands at odds with historical circumstances. If contract law simply functions “according to plan” in these circumstances, the men responsible for destroying the economy—and triggering the bailout—will actually receive a windfall at taxpayer expense. In other words, these men would not have gotten any bonuses if AIG collapsed last year, but because they acted wrongly, they prompted a government bailout. And now the bailout lets them get their bonuses. This is a perverse result; but it is also the legal result. I argue that the President has discretion to set aside “normal legal procedure” when “normal legal procedure” would fatally undermine public confidence in the entire system. This is precisely such a case.

Process-minded legal theorists will undoubtedly disagree with this approach. They will argue that legal rules—especially contract rules—can never be relaxed, no matter how ridiculous (or even ironic) their consequences. Contract rules are intended to provide predictability and reliability in commerce, and if the government denies their effect in one case, then commercial men will never again take chances because they will never know whether the State will uphold their bargains. In this case, they would say that AIG must pay the executives’ bonuses because “bargains are bargains,” and our economy depends on confidence that the law will honor every private bargain. Process theorists would likely agree that it looks terrible to pay bonuses to men whose conduct caused the economic crisis, but they would say that maintaining faith in legal process is more important than averting a perverse result.

I do not eschew legal process. It plays an essential role in our constitutional order. But I venture that blindly following legal rules in every circumstance is more dangerous than making prudent exceptions when real crisis beckons. Today, we find ourselves in a unique moment. Never before has government so massively intervened to prop up private enterprise. This is a new adventure for government, and it will not succeed unless the People have faith in its purposes. If the economy collapses, neat contract rules will mean nothing. To that extent, maintaining public trust in government action should be the President’s foremost concern. The public rightly loses trust when it sees scoundrel executives taking government money to pay for their bloated bonuses. Although the executives may have contractual rights to their money, honoring those rights may do more harm than good to the overall recovery effort. I argue that maintaining public trust in the recovery effort takes precedence over private contract rights in these limited circumstances. If the recovery effort fails, everyone loses. But if the government stops AIG executives from receiving their bonuses in this unique case, only those few men lose money they do not even need. Balancing those harms against each other, I conclude that the President should refuse to enforce the executives’ contractual claims for bonuses. I am strengthened in my conclusion that the executive has even greater discretion because the AIG managers would not even have been in the position to receive bonuses if the government had not supplied the bailout money to pay them. He who pays the piper calls the tune, and in this case, that means the government can impose some restrictions on pre-existing contract rights.

There is nothing sacred about contract rights. Government compels private parties to adhere to their contractual obligations because that is the most efficient policy for society, not because some magical force animates private promises. Commerce functions best when people do what they promise. But there is nothing intrinsically good or noble about contracts. They function by sovereign grace, not a priori principle. Thus, there is no fundamental truth to the assertion that “contracts are contracts.” Contracts are valid only to the extent that the executive is willing to enforce legal decrees. And the executive has many duties beyond enforcing private contract judgments. Today, the executive confronts a massive financial crisis that threatens countless Americans. It is attempting to redress that crisis through bold, general action. That general action will inevitably impact some specific rights.

President Obama should not miss the forest for the trees in this situation. He can deny effect to these executives’ contracts without undermining faith in contract law as a whole. I think most Americans would understand his reasons if he did exactly that. Permitting the executives to benefit from government bailout money in this case sends a far worse social message than interfering with a particularly unjustifiable private bargain. After all, these bargains would have meant nothing if the government had not supplied the money to honor them. In that light, can the executives really complain that the government modifies those bargains?

These scoundrels are still getting their massive salaries. They still have homes, high-paying jobs and nice things. That is a whole lot more than most people have as they struggle to cope with this crisis. Frankly, their whining about “contract rights” falls especially flat when I consider just how many other advantages they enjoy. In a crisis like this, government must make exceptions that will anger a few private interests. That does not mean the government does not care about the law. In fact, sometimes a government best preserves faith in the law by refusing to apply it in cases in which it arouses public disgust. This is exactly such a case.

SUPREME COURT INVALIDATES CIVIL RIGHTS AMENDMENTS

NEWS FLASH

WASHINGTON, D.C. – Reason, Commerce, Justice & Free Beer has just learned that the United States Supreme Court has issued a dramatic opinion striking down the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution. In Sons of the South v. United States, No. 08-1762, the Court, 5-3, per Justice Antonin Scalia, held that the so-called “civil rights amendments” are invalid because the States did not properly ratify them. “Our Constitution prescribes a specific procedure for ratifying amendments. In the aftermath of the Civil War, aggressive northern radicals illegally coerced southern legislatures to ratify amendments. Because the North procured ratification by duress, the amendments cannot stand,” he wrote. Legal scholars call the ruling “significant.”

Sons of the South v. United States originated as a claim by the descendants of slaveowners who argued that the federal government seized their ancestors’ property without just compensation. In 2003, lead plaintiffs James A. Longstreet IV of Virginia and James T. Pickett III of Georgia, brought their action in the Federal District Court for the Eastern District of Virginia. In their complaint, they charged that: “The Federal government conspired to and did deprive former Confederate States of their ability to fairly consider the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution, with the result that countless southern slaveowners lost their property without just compensation.” The plaintiffs argued further that: “Article V of the Federal Constitution provides that at least three-quarters of every State legislature must pass constitutional amendments after passage by two-thirds of both houses of Congress. By force, fraud and coercion, the Federal government induced hostage southern State legislatures to ratify amendments that abolished slavery, guaranteed voting rights to negroes and promised ‘Due Process’ and ‘Equal Protection’ to every ‘person’ in America. No reasonable southerner would ever have voted for these amendments. This represents a naked Federal power grab. If the Court allows these amendments to stand, it sends a message that American citizens have no right to fairly consider changes to their fundamental charter. These amendments stand for duress and compulsion. And they must be reversed.”

United States District Judge Clarence B. McFarlane, appointed by President George W. Bush in 2002, agreed with the Plaintiffs and declared the amendments invalid. He ordered slavery restored, and directed the Federal government to pay $500 billion compensation to the descendants of slaveowners who lost their property following ratification of the Thirteenth Amendment in December, 1865, plus interest. “It would have outraged our Founders to know that the Federal government forced States to accept changes to the Constitution without knowing, voluntary consent thereto. On the record before me, it appears beyond doubt that the Federal government installed military governors in conquered Southern States, filled their State houses with Federal cronies and forced resistant southern representatives to pass these amendments at gunpoint. It would eviscerate the voluntary nature of our federal system to allow such a lawless procedure to gain the force of constitutional law.”

On appeal, the United Sates argued that every Southern State “knowingly and voluntarily” ratified the amendments. The United States Court of Appeals for the Fourth Circuit, sitting en banc, reversed the District Court and concluded: “Whatever historical evidence appellees may have submitted to show duress in the ratification procedures surrounding these amendments, we hold that any aggrieved slaveholders have long since waived any right to contest their validity. From a practical standpoint, since 1865, our Federal government has proceeded on the assumption that the Thirteenth, Fourteenth and Fifteenth Amendments are sound. Virtually all significant legislation since that date draws its constitutional authority from these amendments. To hold them invalid would cast the entire Federal administrative state into chaos. Although we sympathize with appellees’ plight—and our opinion should in no way be construed to disparage this Court’s great respect for all property rights—we simply refuse to reverse 140 years of history for practical reasons.”

Longstreet and Pickett appealed the Court of Appeals’ ruling in 2007. The United States Supreme Court agreed to hear arguments. In January 2008, the Court heard oral arguments. Justice John Paul Stevens recused himself from the case in a public statement. He explained: “I fought for the North in the Civil War. I fought against slavery and secessionism. My heart still beats for the North and my home State of Illinois—the land of Lincoln. I simply cannot be impartial when considering the issues involved in this case. I morally loathe any person who contends that slavery has a place in our American order.”

During oral arguments, Chief Justice John G. Roberts, Justice Antonin Scalia, Justice Samuel A. Alito and Justice Clarence Thomas favorably questioned Sons of the South’s attorneys. At one point, Roberts remarked: “Your historical research is impeccable. It looks pretty clear that the North really did force southern legislatures to adopt these amendments.”

Scalia voiced similar praise: “You know, it was implicit in the Founding that slavery should remain undisturbed. The word is not even mentioned in the original Constitution. The South had a legitimate reason to leave the Union in 1860 because it tacitly understood that the Federal government would not move against slavery based on assurances made in 1787. I mean, slavery was the core of the southern economy. Why would you ever join a government that had the power to totally wipe out your economy?”

Alito said: “What gets me is how much needless legislation has flowed from these amendments. You have the Civil Rights Acts, the Voting Rights Act, even the Americans with Disabilities Act. These acts consume enormous judicial energy and they cost businesses billions. There is nothing in the Constitution that promises ‘equal protection’ or ‘voting rights,’ especially when it comes to State power. You’ve got the Fifth Amendment protecting Due Process from Federal intrusion, but nothing in the original document binds the States except Article I, §10; and that says nothing about slavery. The States joined this Union on the understanding that they could police themselves. These amendments destroyed that understanding. Sure, you might argue that the Declaration of Independence implies a sort of ‘equality’ principle in American government. But the Declaration is not our governing document; the Constitution is. And I think the Framers constructed the amendment procedure in order to prevent precisely the kind of federal coercion that you’re alleging. Amendments should not pass unless everyone voluntarily consents to them. That apparently didn’t happen here, right?”

Thomas said: Nothing. He just nodded and muttered to himself: “When is lunch?”

Several justices spoke vehemently against Sons of the South. Justice Ruth Bader Ginsburg was visibly angry when she said: “You’re asking us to reinstitute slavery? Are you insane? Did you know it is 2009? What planet are you from, sir?”

Justice David Souter remarked: “Look, there may have been some coercion in order to get these amendments passed. But it had to be done. The country just went through the bloodiest war in its history. Slavery caused it. The Constitution had a fundamental flaw and it had to be corrected in order to secure America’s place in the modern world. Every other European country had abolished slavery long before 1865. These amendments dramatically improved our constitutional order. It may have made life more complicated by guaranteeing new rights for all our citizens, but isn’t liberty supposed to advance under our Constitution? If we invalidate these amendments, we step back two centuries.”

Justice Stephen Breyer almost lost his composure while responding to appellants’ arguments: “Do you have any idea what you’re saying? Without the Fourteenth Amendment, there is no protection from State action. You could have the KKK come knocking at your door and the State would be powerless to stop it. And without the Fourteenth Amendment, there is no right to marry, no right to procreate, no right to vote and no right to educate your children. Do you have any idea what will happen to the country if we strike down this amendment?”

Only Justice Anthony Kennedy maintained a relatively neutral stance at the argument. He said very little. “Obviously the Constitution would mean very little if strong States could compel weak States to ratify amendments that would undermine the weak States’ economies and values. On the other hand, uprooting the Thirteenth, Fourteenth and Fifteenth Amendments would dismantle Federal power as we know it. I think the Federal government is much stronger than it should be. Still, I hesitate before taking any action that could result in confusing administration. How would you recommend dealing with the administrative burdens that your argument will inevitably cause?”

After more than a year, the Court rendered its opinion. Justice Scalia wrote for Chief Justice Roberts, Justice Scalia, Justice Thomas and Justice Alito. “Today, we end an era of Federal usurpment,” began Justice Scalia. “While we recognize that our Nation has come far in the years since the Civil War, we cannot countenance amendments to our Constitution procured by force. To allow the Thirteenth, Fourteenth and Fifteenth Amendments to stand is to sully the voluntary nature of our Federal system. We hold them invalid.”

Below, we print important passages from Justice Scalia’s opinion:

“This case is not about the morality of slavery or equality under law. This case is about power and procedure. Our Constitution limits power by spreading it evenly between the branches of the Federal government and between the States and the Federal government. Any action that impinges upon this careful power distribution threatens to undermine our Republic’s very foundations. The Constitution keeps power balanced between strong and weak States, as well as between the Federal government and the States. That is why the Framers made it exceedingly difficult to amend the Constitution.

“Constitutional amendments represent an overwhelming democratic consensus that the Nation should travel in a new direction. The Framers assured consensus in amendments by requiring supermajorities both in Congress and in every State legislature. In essence, they assured that the fundamental charter would not change simply because one party gained a temporary majority. Rather, they guaranteed that the Constitution would not change unless virtually everyone agreed to the proposed changes. These measures protect the rights of the minority as much as they allow for reasonable, democratic change. And they imply that only voluntary, informed consent to constitutional changes will prevail.

“Here, appellants provide compelling evidence that the North undermined the voluntary spirit behind the amendment procedure. The record discloses a calculated northern effort to intimidate, coerce and browbeat southern State legislators to ratify the Thirteenth, Fourteenth and Fifteenth Amendments. We observe that these Amendments were passed in 1865, 1868 and 1870, respectively. At that time, Federal troops occupied half of all States eligible to vote on the amendments. By Congressional act, the Federal Congress installed military governments in occupied southern States. Soldiers forced compliance with federal edicts. They stood guard in State houses. They threatened to shoot legislators who did not vote ‘yes’ on the amendments. When legislators spoke out against ratification, they were imprisoned, removed from office and replaced with northern puppets. These amendments passed because the North forced the defeated, war-weary South to comply at gunpoint.

“In short, this ratification procedure was not voluntary. As a matter of constitutional law, we hold that Article V requires voluntary supermajorities in both houses of Congress and every State legislature. It would mock our constitutional system to sanction hostile amendments procured by force or fraud. Just as force or fraud in contract formation invalidates the contract, so too does force or fraud in Article V’s amendment procedure invalidate the amendment. Here, we are convinced that the North unfairly used force to compel Southern legislatures to adopt the Thirteenth, Fourteenth and Fifteenth Amendments. We therefore hold the amendments void.

“The United States argues that Article V imposes no ‘voluntariness’ requirement on constitutional amendments. It tells us that the text simply requires that both the Senate and House of Representatives pass the proposed amendment by a two-thirds majority, and that three-quarters of State legislatures pass the proposed amendment by a majority vote. They point out that Congress passed each amendment by the requisite two-thirds majority, while every State passed the amendments by the requisite majority vote.

“We fail to see how this is significant. The United States did not contest appellants’ evidence that Federal troops compelled Southern legislators to ratify the amendments. If we accept the United States’ argument, we certify coercion and duress in constitutional law. We refuse to do so. We repeat our holding that Article V requires not just supermajorities in Congress and the State legislatures, but also verifiably voluntary consent to the proposed amendments. Any other rule would sanction lawlessness by federal agitators. We rebuke in the strongest possible terms the conduct of federal occupation forces during the Reconstruction era. They substituted force for fairness, and arbitrariness for procedure. Our Constitution does not tolerate brute force. It is a Constitution of legal principle, not powerful men. Without voluntary consent to the provisions housed in our fundamental charter, liberty means nothing.

“The United States further argues that even if there were flaws in the ratification procedures between 1865 and 1870, southern slaveholders long ago waived any right to contest them. A waiver is an intentional relinquishment of a known legal right. In these circumstances, we are unwilling to say that the slaveholders waived their rights to contest ratification because they never had a fair opportunity to exercise them. Northern occupation forces suppressed any effort to voice opposition to the amendments. Slaveowners who resisted the amendments were imprisoned or fined. In such a climate, it was impossible to waive because the North forbade the underlying rights. Waiver only applies when there is a reasonable possibility to assert the underlying right. In this case, disgruntled slaveowners had no reasonable possibility to assert their rights because northern military governors ruthlessly punished any attempt to do so. On that basis, we conclude that waiver does not apply. We further conclude that the slaveowners’ legal rights passed to their heirs. Appellants here have proven their ancestry to bona fide slaveowners and therefore have standing to press their forebears’ rights.

“We note that our opinion will significantly change our Nation’s legal landscape. We make several observations in this regard, and we order certain injunctive relief. At the outset, we express a collective sense of relief as federal judges because we will no longer need to consider whether the Fourteenth Amendment applies to constrict State governments. No longer will federal courts entertain claims that State action ‘deprives citizens of life, liberty or property without Due Process of law.’ This was a horrendously uncertain doctrine, and we are glad to abolish it. Further, we are glad that we no longer must contend with racially charged claims that State action deprives black citizens of ‘Equal Protection of the laws.’ Now, there is no more Fourteenth Amendment. States may freely discriminate on any basis, whether by race, ancestry, sex, sexual orientation, wealth, mental illness or marital status. No longer will federal courts lend a sympathetic ear to bitter minorities who feel they are being treated unequally. Without the Fourteenth Amendment, federal courts will have no basis to hear such nonsense. Additionally, there will no longer be claims for employment discrimination, sexual harassment or police brutality. The Fourteenth Amendment undergirded all these claims, and now it is gone. Federal judges will now have a much easier workload; and there will be far fewer dumb cases to hear, especially the ever-repeating ‘He-fired-me-because-I’m-black,’ or ‘He-arrested-me-because-I’m-black’ scenarios. Never again will federal judges be forced to sit through such unfounded, time-consuming racial venting.

“By invalidating the Thirteenth Amendment, we restore slavery to the United States. We believe this is a prudent choice. Our Framers intended to preserve slavery in the Constitution. Our federal Union would never have emerged if the Northern States had not assured the Southern States that they could retain slavery. Without slavery, the southern economy would have been worthless. Our Constitution specifically protects property rights against Federal encroachment. See Amendment V (“No person shall…be deprived of life, liberty or property, without due process of law.”). Furthermore, State laws in the South specifically allowed for property in slaves. The Thirteenth Amendment, however, summarily deprived every slaveowner of property without due process. No southern slaveowner had a chance to contest this sweeping federal encroachment. And in light of the historical evidence suggesting federal coercion in the amendment ratification process, we are energized in our conclusion that slaveholders suffered an immense historical wrong. Our entire social order depends upon stable property rights. If the Federal government can seize property by forcing State legislatures to comply with unjust constitutional commands, where is liberty? We restore slavery because we believe that property is the essence of American liberty.

“We are confident that the American people will respect our decision. Americans must be safe in their property rights, and they must be safe in the knowledge that their Constitution will not change unless every State has a fair chance to voluntarily consent to amendments. We are also confident that the American people will welcome our principled stand against bloated Federal powers and intrusive Federal courts. Now, neither the Federal Congress nor the Federal courts will have constitutional authority to interfere in State prerogatives concerning criminal law, race relations, employment or ‘fairness.’ No longer will arrogant Federal judges lord over State practices as roving ‘due process monitors.’ Our ruling will reassure States that they may rule themselves as they please, as long as they do not violate the explicit commands housed in Article I, § 10.

“From an administrative perspective, we order Congress to establish a Slavery Compensation Board (“SCB”) through which the descendants of slaveowners may seek fair market compensation, plus interest, for the unconstitutional losses caused by the Thirteenth Amendment. We further order the SCB to establish procedures to return the descendants former slaves to a condition of servitude. We leave it to the SCB to promulgate evidence requirements under which the descendants of slaveowners may prove their claims. Only those descendants truly entitled to compensation for lost slaves—and new slaves—may petition the SCB. We will not tolerate fraudulent attempts to obtain compensation or free slave labor.

“We express no judgment on the morality of slavery. As mentioned, this case is not about abstract justice or administrative convenience. This case is about constitutional procedure. The North abused constitutional procedure by enacting the Thirteenth, Fourteenth and Fifteenth Amendments. No length of time can cure that injury. That is why we take a principled stand today to correct it. As a substantive matter, we hold that the North abused property rights by forcing the South accept amendments that wrested slaves from law-abiding owners without compensation. The South never voluntarily consented to these amendments. As jurists, we do not express opinions about whether slavery is ‘naturally wrong.’ We merely follow written law; we do not write our subjective notions of ‘right’ or ‘wrong’ into the Constitution. Here, we observe that Article V clearly requires voluntary consent to constitutional amendments. We need no further basis to hold that the Thirteenth, Fourteenth and Fifteenth Amendments cannot stand. Any other result would disparage the fundamental, mutual consent between Federal and State authority upon which our Republic depends for continued strength.

For the foregoing reasons, we conclude that the Thirteenth, Fourteenth and Fifteenth Amendments to the United States Constitution were not properly ratified under the procedures enumerated in Article V. The amendments are therefore void. The judgment of the Court of Appeals for the Fourth Circuit is hereby REVERSED, and this case is REMANDED with instructions to reinstate the order of the District Court for the Eastern District of Virginia, McFarlane, J.

“It is so ordered.”

Following the ruling, Federal agents announced that President Obama is the property of one Mr. T. Jeff Tarrelton of Pine Nut, Arkansas. “My great-great-great-granddaddy owned that negro’s great-great-great-great-granddaddy. So I’m a comin’ back to get what’s mine,” said Mr. Tarrelton.

No claim has yet been made on Justice Thomas.