Seeing the juvenile death penalty overturned today was good in a number of ways—the reading of the constitution that says the 8th amendment is malleable is plausible to me—but the 5th amendment reading other people are putting forward is not. Already there are calls to overturn the death penalty altogether on constitutional grounds. These, however, are not plausible.

I should be happy with today’s ruling, but I’m not. Most of the people calling for a complete overturn of the death penalty have apparently not read the constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The references to international law are a bit galling as well. I looked at the opinion and Kennedy did limit those references and stated that they had no legal weight. If so, why mention them? I'm with Scalia: if the Justices want to indulge their curiosity, fine. Just keep it out of their opinions.

Via Karen at Dark Bilious Vapors, there’s this item from David Brooks on how the U.S. uses soft power:

But if there is one soft-power gift America does possess, it is this tendency to imagine new worlds. As Malzahn goes on to note, “In a country of immigrants like the United States, one actually pushes for change. ... We Europeans always want to have the world from yesterday, whereas the Americans strive for the world of tomorrow.”

Stephen Sestanovich of the Council on Foreign Relations wrote an important essay for this page a few weeks ago, arguing that American diplomacy is often most effective when it pursues not an incrementalist but a “maximalist” agenda, leaping over allies and making the crude, bold, vantage-shifting proposal – like pushing for the reunification of Germany when most everyone else was trying to preserve the so-called stability of the Warsaw Pact.

As Sestanovich notes, and as we’ve seen in spades over the past two years in Iraq, this rashness – this tendency to leap before we look – has its downside. Things don’t come out wonderfully just because some fine person asks, Why not here?

But this is clearly the question the United States is destined to provoke. For the final thing that we’ve learned from the papers this week is how thoroughly the Bush agenda is dominating the globe. When Bush meets with Putin, democratization is the center of discussion. When politicians gather in Ramallah, democratization is a central theme. When there’s an atrocity in Beirut, the possibility of freedom leaps to people’s minds.

Not all weeks will be as happy as this one. Despite the suicide bombings in Israel and Iraq, the thought contagion is spreading. Why not here?

Victor Davis Hanson does a good job of describing how we should respond to the EU in the future: dial down the rhetoric, wish them well, all the while severing our ties to them. On every major issue in recent years—going back decades, really—we’ve differed with them. We’ve also been subsidizing their defense and providing them a perch from which to snipe at us.

Rather than wishing them ill, we should disentangle ourselves from them and allow them to stand on their own two feet, and live with the consequences of their decisions:

The United States should ignore all this ankle-biting, praise the EU to the skies, but not take very seriously their views on the world until we learn exactly what is going on inside Europe during these years of its uncertainty. America is watching enormous historical forces being unleashed on the continent from its own depopulation, new anti-Semitism, and rising Islamicism to Turkish demands for EU membership and further expansion of the EU into the backwaters of Eastern Europe that will bring it to the doorstep of Russia. Whether its politics and economy will evolve to embrace more personal freedom, its popular culture will integrate its minorities, and its military will step up to protect Western values and visions is unclear. But what is certain is that the U.S. cannot remain a true ally of a militarily weak but shrill Europe should its politics grow even more resentful and neutralist, always nursing old wounds and new conspiracies, amoral in its inability to act, quite ready to preach to those who do.

We keep assuming that Europeans are like Britain and Japan when in fact long ago they devolved more into a Switzerland and Sweden—friendly neutrals but no longer real allies. In the meantime, let us Americans keep much more quiet, wait, and watch—even as we carry a far bigger stick.

Book four in the Fifty Book Challenge is Give Me a Break, by 20/20 co-anchor John Stossel, who’s arguably the most well-known libertarian in America. As you’d probably expect from a book by a TV journalist, it’s not a hard read and largely autobiographical in nature. If you’re looking for a book to gently introduce someone to libertarian ideas, Stossel’s book may be ideal: less doctrinaire than Boaz’s Libertarianism: A Primer and lacking the serious liability of What It Means to be a Libertarian—Charles Murray’s public reputation. If you’re already familiar with libertarian ideas and Stossel’s journalistic career, there’ll be little new for you here, but it’s an entertaining read nonetheless.

There are several good posts at Opinio Juris about the “legality” of the Iraqi war. For me the issue is rather simple: our constitution has an enumerated power that allows Congress to declare war for whatever reason they choose, and no treaty would change that (it would amount to amending the constitution via treaty).

Being international lawyers, the people at Opinio Juris take a more nuanced view. Julian Ku has a couple of posts (here and here). Chris Borgen responds here.

One point they touch on is the legality of the war in Kosovo. This strikes me as a good point to raise: the Kosovo war was popular among many people that oppose the current war in Iraq and they justify it through a fig leaf of multilateralism via Nato. This seems very dishonest to me, since we’ve heard all of the garbage from the transnationalists that the UN is the only body that can “authorize” war, though they never authorized the actions in Kosovo.

(I figure if Eric Muller can do it, so can I…)

Howard Dean’s upcoming whirlwind tour of flyover country attracts some pub from the AP’s Emily Wagster Pettus, last seen here at Signifying Nothing looking for state legislators dumb enough to show at a Council of Conservative Citizens function (in the end, none were). Let’s play “spot the inconsistency in Howard’s message”:

Dean said today Democrats need to appeal to working-class whites and blacks in the South.

He will speak at a $75-a-ticket Democratic dinner at 7 p.m. Tuesday at the Clarion Hotel in Jackson.

Way to broaden the party’s base, Howie!

I’m not unsympathetic to Dean’s arguments, although I have to say that on the issues the Mississippi Democrats are “right” on—things like civil liberties, abortion rights, and even (gasp) raising taxes to fix this state’s massively clusterf-cked budget*—their legislative caucus doesn’t have the cojones to stand up and be counted. Instead, they waste everyone’s time with idiotic Republican-lite shit like cracking down on sales of cold medicine, and slather on a good helping of smoke-filled room politics† just to make it more embarrassing. Not to mention that back in 2001 you couldn’t find a white Mississippi Democrat without a foot in the grave—William Winter doesn’t count, so you don’t get to trot him out—who lifted a finger to get rid of the Southern Cross on the flag.

In short: wanna sell me on the Mississippi Democratic Party? Start acting like Democrats who have gerrymandered yourselves into safe seats for life, instead of Republicans who have gerrymandered yourselves into safe seats for life, because in a contest between real Republicans and fake ones I’ll take the real ones (see Musgrove, Ronnie). I’ll even let you keep Bennie Thompson, just so long as you promise to never put me in his district.

This is my entry in today’s OTB Traffic Jam.

Will Baude explains the problem with the Court’s pseudo-jurisprudence on race and the Bill of Rights more generally:

Yesterday, the Supreme Court decided that separating prisoners on the basis of race, even for 60 days, ought to be subject to strict scrutiny (although it is as yet unclear whether they mean Adarand-strict or Grutter-strict). [emphasis mine]

This isn’t particularly surprising, since the Court rarely (never?) says racial classifications are subject to anything other than strict scrutiny—whatever the heck that means.

More in line with my pet peeves, readers are invited to comment on whether or not any standard of review other than “rational basis” (i.e. “we’re not going to do anything about it so long as the legislature or executive goes through the motions of justifying its action”)—heightened scrutiny, strict scrutiny, imminent lawless action, Lemon, whatever—is functionally equivalent to “we’ll strike it down if five of us are in the mood on that particular day.” For added Bonus Cool Points, pick any five cases where the court applied “strict scrutiny,” apply “heightened scrutiny,” and tell me if you get a different outcome in any of the cases.

Good ole Howard Dean is working his way up the “red state” ladder with a visit to Kansas before coming to Jackson on Tuesday.

Free advice for the Deanster: I know you wanna be the candidate for guys with Rebel flags and gun racks in their monster trucks, but Jackson’s a bit more of a pistol-in-the-waistband, low-rider and gold chains kinda town. But if you wanna get down with your Nascar-lovin’ homeys, there’s always the possibility of a side-trip to Brandon. Just don’t expect any of the Rankin County folks to pay $75 for the pleasure of your company.

Both Jeff Goldstein and James Joyner aren’t particularly upset that the Supreme Court passed up an opportunity to overturn Alabama’s law prohibiting the sale of sex toys. Mississippi is one of two other states having such laws; apparently the early eighties saw a binge of women getting off with dildos, so the legislature (presumably not wanting competition in the “being dildos” department) decided to intervene.

The left half of the blogosphere is rather worked up by some comments from Power Line’s John Hinderacker, quoted as follows (I didn’t bother watching the video, so YMMV) in regards to the “mainstream” of the Democratic Party:

The whole mainstream of the party is engaged in an effort that is a betrayal of America, what they care about is not winning the war on terror…I don’t think they care about the danger to us as Americans or the danger to people in other countries. They care about power.

Not to put too fine a point on it, but isn’t this exactly the same thing we’ve been hearing about the Bush administration and Republicans from the Kos/Moore/MoveOn left for the past four years? That is, when they’re not calling Bush stupid. Goose, gander, and all that. (Update: As if on cue, Greg Wythe—no Deaniac or Sorosite by any stretch of the imagination—demonstrates exactly this sentiment himself saying “the only thing Republicans are consistent about is the quest for power alone.”)

Meanwhile, Jeff Jarvis has the cojones to call out The New York Times and the rest of the media for hyping the blue state-red state myth:

I’ll argue instead that it is big media who have, to use your words, accelerated “a general polarization of the nation into people, right and left….” Who is trading on the notion that we are suddenly a land of red v. blue but big media? Except for the oddities of the electoral college, as you know, our political maps would more accurately show us to be a nation of urban vs. exurban. Or I could be really difficult and contend that the close votes in the last two presidential elections actually indicate that we are getting closer. Big media have made division the key narrative of the age.

Readers are invited to tie together these two disparate thoughts as they see fit. There might even be a lesson in it, somewhere.

(Yglesias puts his post in the “Carter series,” and thus so will I.)

James Joyner has a great post on the “valedictorian” that planned to assassinate President Bush. The AP neglected to mention that he graduated from a Saudi-backed Islamist school. I think I’ve heard of those before….

Although I don’t really buy the arguments of the “keep Terri Schiavo alive” brigade, Dean Esmay thinks her parents have a fairly strong case; read their side here. Unfortunately, I can’t find anything on Michael’s side except this statement from 2003 before Florida’s legislature got involved. The truth being a three-edged sword, take both with a rather large grain of salt.

I won’t pretend this is an easy issue, but I tend to think—whatever its other faults—the legal system does a better job of deciding these things than the court of public opinion or grandstanding politicans do, and the judiciary remains unconvinced of the merits of Ms. Schiavo’s parents’ case.

Mitch Townsend disagrees with Cathy Young’s suggestion that Thomas E. Woods’ Confederate apologia The Politically Incorrect Guide to American History has been excessively fêted in conservative circles, asking “Where’s the outrage?” On the other hand, Eric Muller still has plenty of outrage to spare.

Radley Balko has a brief interview with ex-congressman Bob Barr up at The Agitator. When in Congress, Barr was always a bit of a putz when it came to the War on Some Drugs, but in many other areas he was a strong champion of civil liberties. Anyway, it’s short, so it won’t kill you to read it if you’re at all interested.

Yearrrrrrgh!

This has got to be the quote of the day from Sunday’s Clarion-Ledger:

Tunica farmer Nolen Canon believes President Bush’s plan to slash farm subsidies could be the final straw in driving some farmers out of business.

You know, if you can’t figure out how to run your business in the black without getting $4.3 million in government handouts over a nine-year period, you probably don’t deserve to be in business in the first place.

Fortunately, I’m blessed with not having to live in Europe and face the possibility of living under a constitution that exceeds 500 pages. Here’s a review from the Telegraph:

George W. Bush is a good Protestant, but I doubt if he has read the European Constitution. Why should he, indeed, since he is lucky enough to live in a country that will not be ruled by it? No reason at all, unless, as is rumoured, early drafts of the speech he will make in Brussels next week commit him to saying what a wonderful thing it is.

It is natural for Americans to like the sound of the word “constitution”. They have the best one ever written in a single document. It consists, in the copy I have before me, of 12 pages, 11 if you exclude the list of the men who signed it. There are also amendments added over the past two centuries: they amount to another nine pages. If President Bush tucked himself up with it at his famously early bedtime of 9.30, he could finish it well before 10.

I should be surprised if the State Department, the Washington faction keenest on turning Mr Bush into a Euro-enthusiast, has encouraged him to go to bed with a copy of the European Constitution. My copy, published by TSO (note that the former name Her Majesty’s Stationery Office has quietly been relegated), is 511 pages long. I do not claim it would keep Mr Bush up all night – in fact, I guarantee that, if he tried to read it, he would still be asleep by 10 – but it would wake him and the First Lady up with a start as it slipped from his nerveless hands and crashed, all 2lb 8oz of it, on the floor.

If he did spend 20 minutes with the document, however, the President would see that it was not what is normally meant by a constitution. Rather than confining itself to the division of powers by which a country should be governed – head of state, parliament, judiciary, what’s local and what’s national – it lays out scores of pages telling people how to run their lives. It supports positive discrimination, outlaws the death penalty in all circumstances, commits itself to high public spending, compulsory consultation with trade unions about changes at work, “the exchange of youth workers”, “fat-free breakfasts”, “distance education” and “the physical and moral integrity of sportsmen and sportswomen” (I made one of these up). And it imposes all these on nations that have their own governments and electorates.

Even when she’s right on the larger point about President Bush’s appointment of minorities, she’s so intolerable in the way she states it that it physically hurts me to agree on the larger point. If she didn’t have a nice rack there would be a bounty on her head.

Back from an unofficial hiatus, I ran across an excellent article from The Economist ($) that goes into some detail on anti-Americanism:

So what explains France’s reputation for anti-Americanism? The main answer is that it is proclaimed bombastically by so many of those in France who strike political attitudes. They do this partly because of the rivalry between France and America, based on their remarkably similar self-images: the two countries both think they invented the rights of man, have a unique calling to spread liberty round the world and hold a variety of other attributes that make them utterly and admirably exceptional. Jealousy also plays a part. America is often better than France at activities that the French take great pride in, such as making movies or even cooking—at least if popular taste is the judge. And French politicians are not blind to the value of criticising someone else in order to divert attention from their own failures: French anti-Americanism tends to rise when France has just suffered a setback of some kind, whether defeat at the hands of the Germans, a drubbing in Algeria or the breakdown of the Fourth Republic.

Not many countries share all these characteristics, but several have some of them. Take Iran, where political diatribes, religious sermons, rent-a-mob demonstrations and heroic graffiti regularly denounce the Great Satan and all his doings. Anti-Americanism is central to the ideology of Iran’s ruling Shia clerics. Yet Iranians at large, like the French, are not noticeably hostile to America. The young in particular seem thoroughly pro-American, revelling in America’s popular culture, yearning for its sexual freedoms, some even hoping for an American deliverance from their oppression. Whether the affection runs deep is another matter: pro-Americanism among the young is a form of anti-regime defiance that might evaporate quickly if their country were attacked.

Yet why should the clerics bang on so relentlessly about the United States when the British were just as deeply involved in the overthrow of Mohammed Mossadegh’s regime in 1953, when Iraq under Saddam Hussein posed a much greater threat, and when, recently at least, America has shown itself ready to get rid of the Baathists next door and pave the way for a Shia-led government in Iraq? The main explanation, as in France, is rivalry. Iran’s theocratic regime has clear ambitions to be a leader not just of the Middle East but of the entire Muslim world. America, now avowedly bent on spreading democracy across the region, is in the way.

The points about Iran are well-taken. If we go after Iran, some day, it had better be articulated as something that’s in our self-interest, rather than flowery rhetoric about spreading democracy. I support the flowery rhetoric, but it’s not enough to sell an invasion on. We need to go in expecting that we will get little or no gratitude for liberating a people, and that we are likely to receive bile instead. The cause may be humiliation due to needing an outside power to free them, or it might be because Europe is allied against us again. Either way, I doubt gratitude will be forthcoming in the short term. A couple of decades, maybe.

No well-developed thoughts on this one (yet), but there’s a bit of a go-around arising from comments by some on the right that former president Jimmy Carter is increasingly on “the other side.” Alex Knapp seconds Matthew Yglesias’ complaint that this is beyond the pale:

[I]t says something about this country that we’ve allowed discourse to slide to the point where anyone who disagrees with a position is automatically branded a traitor.

On the other hand, the Baseball Crank writes:

There’s a critical distinction here that the critics on the Left, most notably Yglesias—who’s posted on this three times now without addressing the distinction—need to grapple with. And that is this: giving speeches and the like here at home is, indeed, just “political disagreement.” It may help us or it may hurt us, but it is just speech. But that’s not what Hinderaker is talking about, although you’d never know from reading Yglesias. What he’s talking about is traveling around the world, meeting with foreign leaders and taking positions contrary to those of the United States or rendering assistance directly to hostile forces and regimes.

This is, of course, a recurring theme in conservative criticisms of a number of liberals—besides Carter’s many trips, prominent examples include John Kerry’s famous meeting with the North Vietnamese and the trip Kerry and Tom Harkin took to meet with Daniel Ortega in the 1980s. Jesse Jackson is also a master at this. To say nothing of Jane Fonda and Ramsey Clark. (I can’t think offhand of conservative examples of the same; I’m sure you can find some, but the practice has been far more pervasive on the Left, and not only because we’ve had mostly Republican presidents since the dawn of the modern Left in 1968). Time and again, whether they be legislators, state officials, ex-leaders, or private citizens, we’ve seen the spectacle of people on the Left sitting down with hostile heads of state and assuring them that the United States does not present a united front against them. They, in turn, often use such meetings for propaganda purposes, including for the purpose of telling their own people that the United States is not going to help them.

Of course, trivializing the idea of treason by applying it to Carter’s actions—a tactic of folks like Ann Coulter and the freeper nation—isn’t a good idea, but I think it’s reasonable for Americans to expect their current and former elected officials to not actively undermine U.S. diplomatic efforts while overseas, just as I think Germans would be (rightly) offended if former chancellor Helmut Kohl went to the United States and tried to undermine German diplomatic efforts. Indeed, such efforts when undertaken by U.S. citizens are technically illegal, although the law has rarely been enforced.

James Joyner caught this nugget from Ms. Coulter at CPAC today:

Oddly, the woman who calls everyone who disagrees with her on international affairs a “traitor” and idiotic comments by college professors “treason,” is a big supporter of the Confederate flag. Even divorced from its civil rights era racial connotations, the flag represents treason against the Union in the most literal sense.

The Hill reports that Harold Ford, Jr. will be running for the Democratic nomination in the open-seat race for Bill Frist’s seat in the Senate in November 2006. While the article suggests that Ford’s rather controversial family may be a handicap, he’s generally stayed out of the shadow of uncle John Ford’s sleaze and his father’s alleged corruption.

James Joyner suggests that Tennessee has a “rather deep” bench of potential Republican opponents, but social conservatives like Van Hilleary, who make up most of the House delegation, haven’t fared all that well in statewide races; in recent years, successful Republican candidates have been in the moderate wing of the party, like Frist, Lamar Alexander, Don Sundquist, and Fred Thompson, and it doesn’t look like there are many of those on offer. Despite Tennessee’s generally conservative outlook, it’s a state that’s willing to elect moderate Democratic politicians like Phil Bredesen and (in his pre-veep life) Al Gore in statewide races by fairly comfortable margins, so it seems to me that Ford has a pretty good shot, particularly if the inept Hilleary gets the GOP’s nod.

By the way, Mike Hollihan has gotten a sneak peak at the campaign poster:

I don’t always agree with Stephen Bainbridge, but he has a point about Paul Krugman’s latest missive:

Mr. Dean is squarely in the center of his party on issues like health care and national defense. (Link)

Which is precisely the Democrats’ problem. In their party, being what the Economist’s Lexington called “a moderate governor of one of the most left-wing states in the union,” qualifies you as a centrist. There’s a big difference between being a centrist in Vermont (or Manhattan or LA) and being a centrist in, say, Missouri.

Of course, that cuts both ways; a Republican at the center of his or her party (Thad Cochran? Bob Taft?) is going to be well to the right of the centrist voter in many states, and certainly would not be the same thing the media would label a “moderate” Republican (someone like Arnold Schwarzenegger, John McCain, or Christie Todd Whitman). Howard Dean may well be at the center of his party (or at least the “Democratic wing” of it, as he would put it), but that doesn’t make him a political moderate like fellow Democrats Martin Frost, John Tanner, and Joe Lieberman.

Nice to see the appellate courts still wasting time on claims of reporters’ privilege; it’s only been 33 years since Branzburg v. Hayes after all. And, if we’re really lucky, this means the stupid Valerie Plame business will be settled once and for all… of course, I’ve said that before. (þ: OTB)

Mike Hollihan looks at the motley collection of felons and other miscreants hanging around Shelby County’s halls of government today and wonders where the scandal is.