Figment of imagination: There is no constitutional right to privacy. Call a national referendum to settle the issue

An interesting editorial written by 5th Circuit Judge DeMoss for the Houston Chronicle. Arguing that the US Constitution does not encompass a right to privacy, DeMoss does, nevertheless acknowledge the possibility of the existence of such a right being retained by the people. Full text available here:

Alito and Factual Claims of Innocence

Senator Feingold presented Judge Alito with a hypothetical scenario during the SC nomination hearings. Suppose a defendant was found guilty of capital murder and sentenced to death in a procedurally perfect trial. Further assume that at some point down the road the defendant produces evidence establishing his actual innocence. Does that person have a constitutional right not to be executed based solely on actual innocence?

Alito: The person would first have to avail himself or herself of the procedures that Congress has specified for challenging convictions after they've become final. [...] Well, then the person would have to, as I said, file a petition. And if it was an initial petition, it would fall into one category. If it was a second or a successive petition, it would fall into another category and the person would have to satisfy the requirements the Congress has set out for filing a second or successive petition. [...] Well, I have to know the specific facts of the case and the way it works its way through the legal system. The rules here are complicated. [...]

Seems to me like the answer to that question should unquestionably be yes, an innocent person does have a constinutional right not to be executed. Granted, a factually innocent person must follow the procedures set forth by Congress to overthrow his conviction, but I find quite troublesome Alito's inability to articulate an innocent person's constitutional right not to be executed.

Exactly How Intelligent Is This Intelligent Designer?

While watching an interesting Discovery Channel documentary a few days ago, it dawned upon me that about 99% (I may be wrong about this figure, but it is certainly more than 90%) of the of Earth's species have become extinct.

Here's what I don't understand (and maybe one of those ID fans out there could explain this one to me): why would a designer, who is, and I quote, "intelligent," go through all the trouble of making all these species disappear? Why not go directly to the present day species?

John Roberts, Rehnquist and the Salaries of Federal Judges

Following in the footsteps of his predecessor, Chief Justice John Roberts continued the tradition of filing an year-end report on the federal judiciary. The main part of the report deals with the salaries of federal judges. Indeed, reading the Chief Justice's comments would make one wonder, my God, how could these judges be paid so little? Consider the following excerpts:

"A more direct threat to judicial independence is the failure to raise judges' pay. If judges' salaries are too low, judges effectively serve for a term dictated by their financial position rather than for life. [...]

Chief Justice Rehnquist wrote often about the need to raise judicial pay, going so far as to say in his 2002 Year-End Report that he felt at risk of "beating a dead horse." Despite his entreaties, however, the situation has gotten worse, not better. [...]

If Congress gave judges a raise of 30 percent tomorrow, judges would - after adjusting for inflation - be making about what judges made in 1969. This is not fair to our Nation's federal judges and should not be allowed to continue. Unfortunately, judges do not have a natural constituency to argue on their behalf. They do not serve a particular group, and courts, by their very design, often have to render unpopular decisions. Judges must rely on the Congress and the President to increase their pay."

But exactly how much does a federal judge make? It seems that John Roberts left this unimportant detail out of his analysis. A district court judge makes about $165,000 per year, plus the security of a lifetime appointment. Circuit Court judges and associate justices make several tens of thousand more. Granted, if a federal judge were to enter private practice, she would be earning a lot more. But the current salary situation certainly is not as bleak as John Roberts makes it to be.

ID on Trial

In November of 2004, the Dover Area School District announced that 9th grade biology teachers would be required to read a statement discrediting evolution to their students. That statement included the following passage:

"Because Darwin’s Theory is a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. [...] Intelligent Design is an explanation of the origin of life that differs from Darwin’s view. The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves."

Three days ago, after a six week trial, Federal District Court Judge Jones rightly declared the school's ID policy unconstitutional.

Litigation under the Establishment Cause of the First Amendment can be convoluted and complex. Here I only attempt to provide a cursory outline of several representative cases that contextualizes Judge Jones's recent rebuke of intelligent design.

The introduction of religious education into public schools was rejected by the Supreme Court as early as 1948 (Illinois ex rel. McCollum v. Board of Education). Moreover, in this case, Justice White specifically rejected the proposition that "historically the First Amendment was intended to forbid only government preference of one religion over another, not an impartial governmental assistance of all religions."

Next, in 1962, the Supreme Court struck down a State of New York practice that required each school day to begin with students, albeit on a voluntary basis, reciting a prayer. Echoing the statement quoted above from the 1948 decision, the Court emphasized that the First Amendment's prohibition against the establishment of religion operates regardless of whether the government's action can be viewed as favoring all religions: ''Neither the fact that the prayer may be nondenominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause." Moreover, beginning the school day with readings from the scriptures (Abington School Dist. v. Schempp), as well as a 1-minutes silence period for meditation or prayer (Wallace v. Jaffree) were likewise deemed unconstitutional practices under the Establishment Clause of the 1st Amendment.

More recent to our times, the Supreme Court in 1987 struck down Louisiana's balanced teaching program. In effect, the program required equal teaching time for creation science and evolution science, thus discreting evolution at every turn by counterbalancing it with creationism. Particularly noteworthy was the Court's assessment of Louisiana's legislative intent: "The preeminent purpose of the Louisiana legislature was clearly to advance the religious viewpoint that a supernatural being created humankind.''

Over the years, the Supreme Court developed a certain methodology for addressing Establishment Clause issues. Most prominent is the Lemon Test, articulated by Chief Justice Burger in 1971. Under the Lemon Test, for legislation to pass constitutional muster, it must meet three conditions: the statute must have a secular legislative purpose, its principal or primary effect must be one that neither advances nor inhibits religion, and the statute must not foster an excessive government entanglement with religion.

Realizing that one test might not fit all scenarios, Justice O'Connor articulated the endorsement test, a direct outgrowth of the Lemon Test. The endorsement test precludes government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred.

After providing this brief legal landscape, I think it becomes clear that the recent decision in the Dover case could not have been any different. Intelligent design is nothing more than creationism with a scientific makeover. ID holds that some organisms are so complex that they could not have come into existence without being designed by some designer. But who is this designer? Ridiculously enough, it has been suggested that the designer could be a space alien or some time-travelling cell biologist. We might as well resort back to ancient myths, some of which envisioned the Earth resting on the back of a giant turtle.

Even the most prominent of the ID "scientists" will admit they believe the designer to be God. What they suggest is a supernatural explanation for the origin of life, which is not testable and therefore not science. Once you begin to attribute effects to supernatural causes, you've found your answer and that's all there is to it. It's supernatural. It's the working of the master intelect. It's the doing of the diety or the super-advanced, omnipotent giant octopus. Chapter closed. Say good bye to further inquiry or progress.

At least the guys in Kansas were a bit smarter and changed the definition of science to include supernatural causes. As James Randi points out, "there is nothing as determined and furious as a thwarted religious zealot…"

5th Circuit and the Death Penalty

In a recent 5th Circuit decision, In Re: Marvin Lee Wilson, a three-member panel of the Court denies Petitioner's Motion to File Successive Application for Writ of Habeas Corpus despite the fact that Wilson, in the Court's own words, "has made a prima facie showing of mental retardation." The 5th Circuit denies "Wilson’s present motion for authorization because it is time-barred and because he has not demonstrated the sort of “rare and exceptional circumstances” that would justify equitable tolling of the limitations period."

Here's what I don't understand: In Atkins v. Virginia (2002), the Supreme Court held that the Constitution prohibits the execution of the mentally retarded. If the execution of the mentally retarded is thus unconstitutional, then how could the 5th Circuit invoke AEDPA's one year statute of limitations and deny Wilson's motion despite Wilson having made a prima facie showing of mental retardation?

Here's another way to look at this blundering 5th Circuit decision. In Roper v. Simmons (2005), the Supreme Court, like in Atkins, yet again invoked the evolving standards of decency that mark the progress of a maturing society to conclude that the execution of offenders under 18 violates the 8th Amendment and represents cruel and unusual punishment. I think we can all agree that if Wilson was under 18 at the time of the crime, he would not be executed, regardless of whether his appeals were timely or not. Why should mental retardation be any different?