The Big Picture and the Closeup

Judge Feldman tried to draw comfort from the fact that Windsor did not employ the magic phrases “intermediate scrutiny” or “heightened scrutiny.” I would liken that comfort to saying that it’s anybody’s game with two out at the bottom of the ninth inning when the score is 20-0.

So I think there’s a good case to be made that the accrediting associations are state actors. And if I’m right about that, then it would be hard for accrediting associations to do what Penn Professor Peter Conn suggests, and de-accredit schools that require faculty to pledge a belief in the literal inerrancy of Scripture.

Due process is flexible, in light of the circumstances. But what kind of meaningful trial could U.S. citizen and terror suspect Anwar Awlaki have received if the government were allowed to kill him first, and try him afterwards? Once you concede Awlaki had a due process interest in his life – and one always has a due process interest in one’s life – then a post-deprivation trial must by definition have failed the due process test. That test never yields a result where the amount of due process owed to the private citizen is zero, both before and after deprivation of the due process interest. That’s why death penalty appeals are so long and tortuous: if you don’t get it right before you execute the defendant, there is no opportunity to correct it.

I’m not suggesting there is no social utility to the attorney-client privilege. The client certainly has a need to consult counsel in confidence. But what about when there is no client anymore? There is no one then to embarrass, no one to prosecute, potentially no one left whose ox could be gored.

As St. Paul trenchantly put it, “What I would, that do I not; but what I hate, that do I.” And this was a saint talking, and he was using present tense. A saint whose deeds were imperfect even as he spoke, he typified us all. We are all mixed bags. The regulator, however, cannot make a mixed choice. The regulator must assign the label of good or bad character to each applicant.

The CIA operates in stealth; it is associated with some of the worst abuses of power in recent American history, including assassinations, coups, and torture; it has military capabilities. Congress needs to be firmly in control of its relationship with such an agency. The Constitution demands no less.

Same-sex marriage and public acceptance of legal equality for LGBT folk has broken out of the beachhead phase; defenders of inequality have turned to erecting enclaves for discrimination like the failed “religious freedom” law in Arizona. Marijuana legalization is still in the beachhead phase. We’ll know it’s broken out when enclaves start being built against that. But redoubts almost never hold.

But if trying a case in highly diverse Jersey City has taught me anything, it’s that those multi-colored young diners sitting in that McDonald’s, swigging (yes) Coke, are really our kids, our heirs and our successors. And our system won’t change much as they come into their inheritance. Nothing to fear.

There can be no such thing as “constructive treason.” It must be the real thing. And the facts of the Edward Snowden case highlight why the Framers’ narrowing of the definition is important.

We never seem to have met a privacy right we did not seek to nullify, usually in the sneakiest way. We have set the law of warfare back a century by rendering the fundamental design of the Geneva Accords a dead letter, not just for us but for all the Western powers who have joined in our mideastern wars. We refuse to join treaties basic to the preservation of life and safety on this threatened planet. Instead of protecting the news reporters who throw light on our shortcomings, we are engaged in unprecedented attempts to disempower them and silence dissent by prosecuting leaks. And we fail, time and again, to fix the problems that so recently melted down international finance. Where is that vaunted commitment to the rule of law when we need it?