Friday, 11 July 2003

Junking Footnote Four

Alex Knapp links to an excellent Randy Barnett piece at NRO explaining how Justice Kennedy’s decision in Lawrence v. Texas departs from the court’s post-New Deal attitude toward civil liberties. The teaser:

The more one ponders the Supreme Court’s decision in Lawrence v. Texas, the more revolutionary it seems. Not because it recognizes the rights of gays and lesbians to sexual activity free of the stigmatization of the criminal law — though this is of utmost importance. No, the case is revolutionary because Justice Kennedy (and at least four justices who signed on to his opinion without separate concurrences) have finally broken free of the post-New Deal constitutional tension between a “presumption of constitutionality” on the one hand and “fundamental rights” on the other. Contrary to what has been reported repeatedly in the press, the Court in Lawrence did not protect a “right of privacy.” Rather, it protected “liberty” — and without showing that the particular liberty in question is somehow “fundamental.” Appreciation of the significance of this major development in constitutional law requires some historical background.

If you’re as big a fan of the Institute for Justice as I am, you’ll know that this is a Big Deal for liberty—on par with their efforts to get the Court to revive the privileges or immunities clause.

Words? We don't have to look at no steenking words!

Eugene Volokh reports on what may be the most disgusting appellate court decision since Plessy v. Ferguson. Apparently the Nevada state supreme court has decided it can elide parts of the Nevada Constitution it finds inconvenient when promoting its activist agenda. I’ve seen some absolutely contortionist legal reasoning in state supreme court decisions before (most notably, the Tennessee supreme court’s behavior in deciding the so-called “tiny towns” cases in the mid-1990s), but never in modern times have I seen a decision so absolutely horrible I thought impeachment was warranted. Until today.

You can read more on the story in the Las Vegas Review-Journal, and at Rick Henderson’s blog. Glenn Reynolds is rather unimpressed as well.

Lies by anonymous sources

If there’s a common thread in the various “Bush lied” stories about the war, it is that the initial, wildly overoptimistic reports were generally based on interviews with anonymous sources. For example, in last month’s Washington Post semi-retraction of its reporting on the events that lead to Pfc. Jessica Lynch’s capture, the paper describes its initial reports as follows:

Initial news reports, including those in The Washington Post, which cited unnamed U.S. officials with access to intelligence reports, described Lynch emptying her M-16 into Iraqi soldiers. The intelligence reports from intercepts and Iraqi informants said that Lynch fought fiercely, was stabbed and shot multiple times, and that she killed several of her assailants.

“She was fighting to the death,” one of the officials was quoted as saying. “She did not want to be taken alive.”

Now, assuming the initial reports weren’t written by Jayson Blair or someone seeking to emulate his behavior at the New York Times, these “unnamed U.S. officials” must exist. More importantly, the reporters who quoted them know who they are. A full and honest accounting of events, whether in the Post and elsewhere, ought to identify who these officials are.

The practice of the media taking information on background in important stories has become disturbingly widespread. If newspapers want their reports that rely on anonymous sources to be trusted, there must be some clear sanction for dishonesty by people speaking on background—just as there is when the source is not anonymous (namely, damage to the credibility of the source). A journalist’s responsibility to the truth, and to her readers, must outweigh any obligation of anonymity to a source who has clearly lied or deceived the public.