Wednesday, January 23, 2008

Justices: Some Animals Are More Equal Than Others

Justices Broaden Immunity for Officers - New York Times:

Justice Kennedy said the majority had failed to adhere to longstanding principles of statutory interpretation, including the rule that “a single word must not be read in isolation, but instead defined by reference to its statutory context.”

He said the majority had mistakenly focused on the word “any” in the phrase “any other law enforcement officer,” when it was clear from the context that Congress was discussing only customs and revenue seizures.

"Federal law enforcement officers are immune from lawsuits for mishandling, losing or even stealing personal property that comes under their control in the course of their official duties, the Supreme Court ruled on Tuesday in a 5-to-4 decision.

The case was brought by a federal prison inmate, but the ruling was not limited to the prison context. It was an interpretation of the Federal Tort Claims Act, which applies to federal employees’ liability for damages and generally waives immunity from being sued.

The statute has numerous exceptions that preserve immunity in particular situations, however. The exception at issue in the case provides that “any officer of customs or excise or any other law enforcement officer” will be immune from suit for “any claim arising in respect of the assessment or collection of any tax or customs duty or the detention of any goods, merchandise or other property.”

The question was the meaning of the phrase “any other law enforcement officer.” Did Congress mean to confer blanket immunity for property-related offenses on the part of any federal law enforcement officer? Or was the immunity limited to officers engaged in tax or customs work?

The answer was sufficiently ambiguous that of the 11 federal circuits of appeals to address the issue, six had interpreted the exception as applying broadly to all officers, and five had read it narrowly to apply only to property seizures connected to revenue or customs enforcement.

The Supreme Court majority, in an opinion by Justice Clarence Thomas, chose the broad interpretation. When Congress enacted the law in 1946, “it could easily have written ‘any other law enforcement officer acting in a customs or excise capacity,’ “ Justice Thomas wrote, adding, “We are not at liberty to rewrite the statute to reflect a meaning we deem more desirable.”

The swing vote was cast by Justice Ruth Bader Ginsburg, who in closely divided cases can almost always be found with Justices Stevens, Souter and Breyer. She did not write separately to explain her position.

Beyond the holding in the case, Ali v. Federal Bureau of Prisons, No. 06-9130, this first 5-to-4 decision of the current term was notable in several respects.

Justice Anthony M. Kennedy wrote a dissent that was signed by the three other dissenters, John Paul Stevens, David H. Souter and Stephen G. Breyer. In the court’s last term, Justice Kennedy voted with the majority in all 24 of the 5-to-4 decisions.

The plaintiff, Abdus-Shahid M. S. Ali, was being transferred from a federal prison in Atlanta to one in Inez, Ky., and left two duffle bags of personal property to be shipped. When he received the bags, religious articles, including two copies of the Koran, were missing.

Valuing the missing items at $177, Mr. Ali filed suit, appealing to the Supreme Court after the federal appeals court in Atlanta had dismissed his case in the decision that the justices affirmed

His position on Tuesday meant that the swing vote was cast by Justice Ruth Bader Ginsburg, who in closely divided cases can almost always be found with Justices Stevens, Souter and Breyer. She did not write separately to explain her position."

I have to ask, because this is so out of character, if the plaintiffs religion swung this decision. Suppose we were talking about missing copies of the Torah, or a missing menorah?

How is it that the only missing items were religious articles?

What about the right to be secure in your property and person?

Is this the escape clause to the first amendement?

I don,t have to ask, "Says who?"

Monday, January 21, 2008

Historical Narratives Matter

Debunking the Reagan Myth - New York Times

I'm sorry to say that in this case Paul Krugman just doesn't get it.

There is a lot more to history than conservative or liberal narratives. In fact there is an American narrative that both progressives and conservatives tap into. Alexis De Tocqville noted, “The American learns to know the laws by participating in the act of legislation; and he takes a lesson in the forms of government from governing. The great work of society is ever going on before his eyes and, as it were, under his hands.” A sense of dynamism and entrepreneurship are deeply embedded in the American view of ourselves and the world.

The citizen of the United States is taught from infancy to rely upon his own exertions in order to resist the evils and the difficulties of life; he looks upon the social authority with an eye of mistrust and anxiety, and he claims its assistance only when he is unable to do without it.

Reagan's failures had more to do with the limits of the tools his conservative ideology allowed him to use, than the goals he championed. We are not required to disbelieve in the sovereignty of the people because Reagan believed in it. Believing that the least government necessary to accomplish the popular will is best, doesn't make us less progressive. It was the unwillingness to admit that too little government can harm as well as too much, the refusal to recognise that markets don't solve all problems, the refusal to pay the nations bills as they come due, while raising working peoples taxes and mortgaging their future, that divides the progressive from the failures of his agenda.

THE most natural privilege of man, next to the right of acting for himself, is that of combining his exertions with those of his fellow creatures and of acting in common with them. The right of association therefore appears to me almost as inalienable in its nature as the right of personal liberty.
American voters want to be enabled, not taken care of. Empowered, not tracked, channeled,or directed. They want to be the ultimate deciders. Reagan offered these things, while his opponents offered to tweak the system. He failed to deliver these things because his ideology's tools, tax cuts and deregulation weren't appropriate to the task.
con·cept: January 2008