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March 13, 2006

Solomon Amendment Hysteria Continues Unabated...

Today's DimWittery alert is brought to you courtesy of the Solomon Amendment. Who knew one little law could generate so much fear, loathing and paranoia? Certainly not the half-vast editorial staff. Our snarky (but usually astute) itinerant Eskimo typing pool were likewise taken by surprise:

The most alarming thing [Ed. note: if, indeed, the appearance of common sense can be said to be alarming] about Rumsfeld v. FAIR, then, has nothing to do with gay rights. Indeed, while those who wanted to cast the case as another tedious instance of the neverending litigation in Conservative Hardnoses v. Wimpy Liberal might think the setback on that front is the only reason to be upset about this decision, much scarier is the court's explicit declaration that Congress could—since the question of recruitment has to do with the military, and when it comes to the military Congress's power is mighty and well-nigh unquestionable—force colleges to allow military recruiters on campus, whether or not there was any Spending Clause nexus involved.

Oooh. Lions and tigers and bears - oh my! Loathe to be outstripped in the rush to blind hysteria, the Harvard Crimson waives the bloody shirt:

Even if Harvard had chosen to forfeit over $400 million in federal funds this week in order to preserve the Law School’s nondiscrimination policy, Congress still could have forced the school to let military recruiters on campus.

Mein Gott im Himmel! The sound of the Bu$Hitler's jackboots - eet ees everywhere!

The Solomon Amendment, initially passed by Congress in 1994, gives schools a choice: take federal funds and let military recruiters on campus, or forgo the money to protest the “don’t ask, don’t tell” policy.

But according to Supreme Court Chief Justice John G. Roberts Jr. ’76, in an ruling issued Monday, Congress doesn’t even need to give the schools a choice.

Harvard and other law schools require that employers sign nondiscrimination pledges—which include sexual orientation—as a condition for gaining access to the schools’ career placement offices. The military has refused to sign such pledges because it prohibits openly gay and lesbian individuals from serving.

Roberts wrote that Congress’ enumerated powers—those expressly delineated in the Constitution—give it the right to force universities to open their doors to military recruiters even if the universities don’t take federal funding. Among those enumerated powers listed in the Constitution, and cited by the court, are the powers “to raise and support armies” and “to provide and maintain a navy.”

“Congress’ power in this area ‘is broad and sweeping,’ and there is no dispute in this case that it includes the authority to require campus access for military recruiters,” Roberts wrote.

He also said that even though the power to raise an army is subject to limitations, Congress has broad powers in such matters.

“‘[J]udicial deference...is at its apogee’ when Congress legislates under its authority to raise and support armies,” Roberts wrote.

In other words, the nation's law schools are at the mercy of... [shudder] the law. And not even nine unelected jurists will step in to protect us from legislation passed by our elected representatives, unless of course it conflicts with the Constitution.

The horror! Overwhelmed by the implications of this shocking development, Brain Brian Doherty engages in a bit of unintentional reductio ab absurdum at his own expense:

And what, really, would such an obviously absurd and impossible proposal as reconsidering McCullough v. Maryland's version of "necessary and proper" get us? Well, for one, a country in which it wouldn't be a clear implication of a Supreme Court decision that it would be perfeclty [sic] all right for the federal Congress to demand that military recruiters be allowed to enter any private property at will.

Indeed, I can't see any particular reason under this decision's logic why the Roberts court would then not unanimously uphold a requirement that military recruiters can enter your store, apartment complex, or home to make their case, whether you want them there or not. (I suppose the Third Amendment might apply, but recruiters don't have to be soldiers, and merely entering your home to talk to you for a spell probably doesn't constitute "quartering.") After all, for reasons unclear from the Constitution itself, the court must place its "deference at the apogee" when Congress is trying to raise an army.

I am not sure at what point it became manifestly clear that while there was indeed something in Mr. Doherty's cornflakes, it was more likely to have been a controlled substance than a military recruiter. The Necessary and Proper Clause finding from McCullough essentially maintains that Congress has the power to act in ways consistent with its enumerated powers (in other words, a law must be rationally related to the objective and not forbidden by the Constitution, but does not need to be the only way to achieve a given outcome). This theory, promulgated by Justice Marshall, is a much more forgiving standard and was in direct opposition to Thomas Jefferson's view that "The constitution allows [Congress] only the means which are 'necessary,' not those which are merely convenient for effecting the enumerated powers," It was Marshall's view that such a strict standard would make Congress' enumerated powers all but worthless.

Unexplained (and mysteriously unmentioned) in both Doherty's and the Crimson's analyses is that it would first require an act of Congress to bring about their worst nightmares. Plainly said, our leaders on Capitol Hill would have to pass a law mandating that all campuses (or in Brian Doherty's nightmare on Reason Street) your friendly neighborhood bedroom, must admit military recruiters on pain of... what?

Execution? Pelting with rotten eggs? Public scorn and mockery? Under exactly what scenario do they imagine our patriotic Congressmen and women would enact such a draconian measure?

Ah... but they could, you see. It's a bad scary thought, isn't it? One is almost tempted to call it left-wing scare tactics, but the half-vast editorial staff wouldn't want to be accused of engaging in partisan polemics.

Second up in the head-scratching department was this essay from the otherwise-admirable Howard Bashman, who we are sure, when he is not attempting a lukewarm defense of embattled legal academicians, is a veritable buffet of manliness:

Notwithstanding the 8–0 trouncing that FAIR's arguments received at the hands of the Supreme Court, it strikes me as a bit unfair to argue that the outcome calls into question the professional qualifications of those liberal law professors who devised and backed the Solomon Amendment litigation. To begin with, before the Supreme Court ruled, FAIR's arguments had achieved victory in both the 3rd Circuit and in a federal district court in Connecticut. FAIR deserves credit for choosing the 3rd Circuit as the forum in which to litigate the initial challenge to the Solomon Amendment, based on that federal appellate court's reputation as moderate to liberal on First Amendment issues. Second, notwithstanding its ultimate loss in the Supreme Court, FAIR has caused a great deal of additional attention to be focused on the existence of the "Don't Ask, Don't Tell" policy, which may cause many people who had never considered the policy to question its necessity. In fact, even in defeat FAIR may help undermine the policy, as law students who do not believe the policy is justified will now have easier access to military recruiters, allowing those students more readily to join the military and seek from within to overturn support for the policy. FAIR's most significant achievement in the litigation resulted from a concession by the solicitor general at oral argument, in response to questioning from Justices Ruth Bader Ginsburg, Anthony Kennedy, and Antonin Scalia, recognizing that vocal and enthusiastic protests of on-campus military recruiters can occur without violating the Solomon Amendment. The Supreme Court's opinion mentions that concession, giving FAIR a small victory in the midst of an otherwise total defeat. For FAIR and its supporters, the Solomon Amendment case was being litigated as a matter of principle, and often litigating for a principle, instead of being able to compromise, results in an unmitigated loss. And sometimes losing 8–0 is preferable to losing by just a single vote. Yet to say that the law professors supporting FAIR are unqualified to instruct the next generation of lawyers or determine litigation strategy overlooks what FAIR actually accomplished earlier in the litigation and in the court of public opinion. FAIR may have lost the case, but the battle over the principle at stake continues.

We are not sure whether it was the Spousal Unit's lamentable failure to provide us with our accustomed Mimosa early Saturday morning or Mr. Bashman's words which nearly caused our fluffy little head to explode. In any event, we found ourselves really quite distressed.

This argument encapsulates everything the HVES finds distressing about the modern practice of law. In the abstract, we find the topic fascinating. In real life however, we find advocacy all too often clouds the impartial application of law.

While mental agility can be a virtue, there is a point at which the truth becomes prostituted in the service of individual ends and open mindedness begins to take on the aspect of the Kama Sutra as 'advocates' adopt increasingly contorted, illogical, or indefensible positions to justify their actions. Advocacy itself, not the essential rightness of the claim or upholding the rule of law, has become the justification for too many lawyers, and this is a justification I utterly reject.

This end-justifies-the-means mindset, in turn, leads to fevered accusations of plots within plots within plots as advocates seek any means available to bring about a desired end and become frustrated at "backwards" jurists who have the nerve to insist that ideas and words have objectively-discernable meaning and perhaps the law is the law, even if it goes against your client's interests:

The fiendish members of this plot took the backward view that judges ought to try reading the actual verbiage penned by our Founding Fathers instead of haring off to nations like, say... France in search of a hand-rolled Gauloise and a Derrida primer (the better to deconstruct the Commerce Clause whilst staving off that annoying sense of anomie that comes from eating one too many confits).

I started to go off on yet another rant about this, but found I had been preempted by Paul at Right Side of the Rainbow, who said it better than I could ever hope to:

Mr. Bashman is right, though. Professional qualifications weren’t the problem here. This was the problem: a lot of people, including these law professors, think of the law as just politics by other means. In other words, these professors concerned themselves not with the legal question of what the law is, but instead with the political question of what the law ought, in their opinion, to be. In this view, the text of the law, including the Constitution, has no fixed meaning; elections are without consequence; the courts are an alternative to Congress; and you and I cannot know from day to day what the law says or the identity of the lawgiver. If law is politics, it will suffer from the vagaries and capriciousness of politics and from the whims of the politicians, including the robed ones.

No society has ever guaranteed absolute justice in the abstract, nor could it. (Ask three of your friends to articulate the abstraction from which we should proceed.) But American society has endeavored to guarantee the next best thing: justice under law. To have justice under law, policymakers must be identifiable and accountable; policymaking must reach a terminal point; and the law that results must be construed according to the ordinary meaning of its terms. To have justice under law, litigants must know that the question to be put to them will be a legal one — i.e., “What does the law say?,” and not a political one, i.e., “What should the law say?”

Even I, a non-lawyer, knew these law professors would lose, for the law here is clear (and clearer still following the Chief Justice’s lucid opinion). What’s more, I’m glad they lost, although not because I disagree with them on the merits of the underlying policy question. Rather, I’m glad they lost because I do not want to live in a society with no post-political judicial forum. There can be no promise of justice under law for anyone in such a society.

Yes, sir. That is, indeed, equal protection of the law.


Posted by Cassandra at March 13, 2006 07:24 AM

Comments

Indeed, I can't see any particular reason under this decision's logic why the Roberts court would then not unanimously uphold a requirement that military recruiters can enter your store, apartment complex, or home to make their case, whether you want them there or not.

The constitution allows that the military can "enter your store, apartment complex, or home" to drag you into military service whether you want them to or not, much less "to make their case" if congress so chooses. It's called the draft.

It's surprising the number of leftist who support the harsher of the two and would be awash in cries of BusHitler if congress even thought about the lesser.

Posted by: Masked Menace© [TypeKey Profile Page] at March 13, 2006 11:43 AM

I'm surprised at Bashman's remarks, but not overly. The tactical planning necessary to get your argument before the Black Nine is quite worthy of his backhanded kudo's to the profs. Perhaps more of FAIR's members would have allowed their names to be released publically had they known that their lost cause was really a wake up call for liberals to join the military and "change it from within."

Posted by: spd rdr [TypeKey Profile Page] at March 13, 2006 11:44 AM

*sigh*

I probably should not have posted this.

More and more often I find my mind drifting away in the morning when I should be writing. I ran out of time and didn't really get to part of what I meant to say. I did, also, mean to take on something else Mr. Bashman said because it annoyed me. I may have read into it more than he meant to say.

And something you said last week to, but I'm still thinking.

Perhaps after lunch.

Posted by: Cassandra [TypeKey Profile Page] at March 13, 2006 11:52 AM

I note that most of the arguments I've heard against the recruiters seem to mischaracterize the "Don't ask, Don't tell" policy as one the military has formulated, when, after all it's Congress that sets those rules...

Why don't they direct their ire at the Congresscritters instead?

The policy itself has always seemed unworkable. I take it as a given that the proper functioning of the military is paramount to playing "social engineer", but it might be simpler to just disregard sexual orientation in favor of a "zero-fraternization" policy, as we already have units where males & females serve together (with an unfortunate amount of diddling going on as it is)...

Amazing though that at Yale, where military recruiters are persona non grata, they can have a grade-school-educated Taliban minister as a "student". Well, they ARE asshats, after all! :)

Posted by: JohnW [TypeKey Profile Page] at March 13, 2006 01:24 PM

I think it's more complicated than that, unfortunately. There are a whole lot of issues, short of people outright having sex, that crop up when you throw people who are sexually attracted together in close quarters.

That, to all intents and purposes, is what we're talking about, all the time: in the shower, in the barracks, in the bedroom, you name it. To look at human nature and blithely say that there will be no problems and nothing predjudicial to good order and discipline when you are dealing with a pyramidal organization composed of primarily young, healthy people with strong sex drives contradicts everything I know about people and, not coincidentally, everything I have observed about humans and people in the military for most of my 46 years.

Are there people who can withstand temptation? Absolutely. Don't doubt that for one instant.

And there are many, many more who cannot and do not. I know. My husband has them in office hours all the time. There are guys in the military who cheat on their wives with female juniors all the time - they screw anything on two legs and it's a discipline issue, DACOWITS to the contrary. There are females who cry sexual harassment or discrimination at the drop of a hat because they are viewed as a protected class the military has to make special arrangements for. This causes problems for the organization as a whole.

Now we want to introduce another situation just like that and airily say, "Oh, they'll all behave" - no problemo - in the name of social engineering.

I have no problem with gays. I know too many fine people who I would trust with my life to believe worse of them than I would of my hetero friends.

I don't think they are one whit better - nor worse - than heteros. I think they're human. I don't understand how two sexes - and that's what we're talking about - can eat, sleep, shower together, fight and die side by side, and still take orders, live that intimately, and sexual harassment claims will not go up, rape claims will not go up, abuse claims will not go up. The dirtbags and the hosers who want out of the military (and sadly there are some) will not use these things to skate? People who are human will not fall in love despite rank? Sickos who don't like gays won't prey on them?

C'mon. Human nature doesn't change because we layer arbitrary rules on top of it.

Posted by: Cassandra [TypeKey Profile Page] at March 13, 2006 01:43 PM

We integrated the military despite concern for discipline and those that would prey on the minority. Admittedly, sex wasn't involved. I have always thought the homosexual issue was different because of the sexual attraction issue. If my wife were in a foxhole with me, orders be damned, I'm covering her back. Any other "lover" would do the same.

But now that we have lots of male/female interactions, even in combat and semi-combat situations, I don't know whether the policy makes much sense. They are there already, if they "don't tell."

But, as I've been told before, I don't have experience with that culture, so what do I know.

Of course, the Solomon Amendment litigation was really stupid. I am surprised, though, that it was 8-0.

Posted by: KJ [TypeKey Profile Page] at March 14, 2006 10:41 AM

We integrated the military despite concern for discipline and those that would prey on the minority. Admittedly, sex wasn't involved.

Yep. Just prejudice.

And so there was really no other consideration, and therefore the benefits far outweighed the drawbacks. And there are still some very real issues in the military around integration, but overall it works, really really well. A net positive, not just for minorities I think, but for society. But it has created some very real problems for the military to be honest and one of them is that blacks (to name just one issue) are underrepresented by choice in the combat arms. It's a dirty little secret no one likes to talk about. Contrary to all the hype you hear from Congressional DimWits like Charles Rangel, whites and Hispanics are the ones who volunteer to die in combat. They are the cannon fodder that gets ground up when we decide to go to war. Put that in your pipe and smoke it, Jesse Jackson.

I don't pretend to have all the answers KJ. I just sit up here like a big old know it all and pose snarky questions. I would be the first to admit that on an individual level, don't ask don't tell is unfair to gays.

Then the question must be asked: what is the objective here: individual equity or a smoothly-functioning military? Life is full of tradeoffs. Why don't we let people with asthma join? My son could play halfback in soccer (do you have any idea how much running that entails?) on a Select team, yet the military wouldn't touch him with a 10-foot pole.

Waaaaaaaaaaaaaaaah!!!!! It's not fair!!!!

Get over it. It's life. Large orgs make rules so they can function smoothly. Sometimes they result in inequities to individual persons.

Posted by: Cassandra [TypeKey Profile Page] at March 14, 2006 01:02 PM

> To have justice under law, litigants must know that the question to be put to them will be a legal one — i.e., “What does the law say?,” and not a political one, i.e., “What should the law say?”

The law does, in fact, have precisely the historical basis for asking the latter question -- it's called "Jury Nullification" -- and it does have its place in history, having been a large part of establishing the freedom of the press, killing slavery as an institution, and prohibition as a law.

The primary significance of this is that each case is an individual one, with no bearing whatsoever on any other case, past, present, or future. In each case, it is up to the jury itself to decide if there is any reason for the law to be nullified.

The lawyers and the politicians, of course, hate this concept, since it takes power out of their hands and puts it where it belongs, in the hands of the people, in the form of the jury. They've even gone so far as to not only overtly lie to a jury, but also to attempt to squelch the activity by prosecuting someone for not expressing their disbelief in the law being judged before hand (Kriho), despite never being asked about it.

More is available for the curious at www.fija.org.

Posted by: OBloodyHell [TypeKey Profile Page] at March 14, 2006 01:33 PM

Jury nulification has nothing to do with this conversation. This was a civil, and constitutional question, not unjust (and sometimes unconstitutional) uses of the criminal law. The solomon amendment case was never capable of a jury trial. It was just a question of law.

Posted by: KJ [TypeKey Profile Page] at March 14, 2006 09:59 PM

> To look at human nature and blithely say that there will be no problems and nothing predjudicial to good order and discipline when you are dealing with a pyramidal organization composed of primarily young, healthy people with strong sex drives

... stuck into inherently dangerous situations.

I've never been in a truly life-threatening situation, but I've been told it makes the sex drive go through the roof if the opportunity presents itself.

...and with a mixed-sex/sexuality group, this wouldn't be utterly expected to represent a problem?

The only counter-argument about this is that the Israelis have clearly been dealing with the same-sex aspect of it for decades, and have managed. Whether it's *optimal* in a situation such as ours, is another matter.

Posted by: OBloodyHell [TypeKey Profile Page] at March 15, 2006 02:04 PM

> Jury nulification has nothing to do with this conversation.

Thank you for your input.

Useless though it is, and incorrect though it may be.

Thank you.

The point is that jury nullification (the correct spelling, BTW) is the constitutional mechanism for "altering the law" to fit circumstance. The jury itself is there to judge both the law, as well as this application of it.

A jury does not need to justify its findings. The individual is "not guilty" and that is that.

The problem is that this is anathema to the way liberals work. They don't want to *convince* people that they are right. They want to flat out TELL people that they are right. Hence using "the courts" to define the law rather than the proper process which already existed.

Further, the 12-man jury, properly applied, could be used to fix the overall legal problem we're in with regards to far, far too many laws -- 12 men on a jury means that, with jury nullification, any law which at least 90% of the people don't agree with will be disallowed... and, if 90% don't think something should be law, then it probably has no business being law in the first place.

Posted by: OBloodyHell [TypeKey Profile Page] at March 15, 2006 02:23 PM

> Jury nulification has nothing to do with this conversation.

Thank you for your input.

Useless though it is, and incorrect though it may be.

Thank you.

The point is that jury nullification (the correct spelling, BTW) is the constitutional mechanism for "altering the law" to fit circumstance. The jury itself is there to judge both the law, as well as this application of it.

A jury does not need to justify its findings. The individual is "not guilty" and that is that.

The problem is that this is anathema to the way liberals work. They don't want to *convince* people that they are right. They want to flat out TELL people that they are right. Hence using "the courts" to define the law rather than the proper process which already existed.

Further, the 12-man jury, properly applied, could be used to fix the overall legal problem we're in with regards to far, far too many laws -- 12 men on a jury means that, with jury nullification, any law which at least 90% of the people don't agree with will be disallowed... and, if 90% don't think something should be law, then it probably has no business being law in the first place.

Posted by: OBloodyHell [TypeKey Profile Page] at March 15, 2006 02:24 PM

If jury nullification is relevent to Solomon, where is the jury?

Posted by: Masked Menace© [TypeKey Profile Page] at March 15, 2006 06:27 PM

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