The Long View 2005-03-30: Death & Taxes

Memento mori.

Death & Taxes

For reasons I find mysterious, the 11th Circuit has agreed to review the Terri Schiavo case once again. No doubt the situation will be resolved by the time you read this.

As some commentators have long forecast, the political Left of the Democratic Party is continuing to put sunlight between itself and the cultural Left, the better to make itself relevant again. Hillary Clinton has been doing that on abortion, and now we have this report:

PINELLAS PARK, Fla. (AP) - As Terri Schiavo entered her 12th full day without food or water, the Rev. Jesse Jackson prayed with her parents Tuesday and joined conservatives in calling for state lawmakers to order her feeding tube reinserted.

I regard the liberation of the prolife position from the conservative ghetto as a good thing, but it seems to be associated less with a new refinement of the moral sense than with a general willingness to abandon principle. On that, right and left are at one, as we see in William Kristol's editorial in The Weekly Standard (April 4), "Evolving Standards of Decency." In that piece, he notes that the US Supreme Court recently made a novel interpretation of the Eighth Amendment. Because moral standards had changed since the Amendment was enacted, the Court reasoned, the execution of persons who committed murders as juveniles must now be considered "cruel and unusual punishment," and therefore constitutionally impermissible. That decision was widely condemned in conservative circles, including The Weekly Standard, but Kristol nevertheless says this:

Last week, federal judges chose to dismiss, out of hand, extraordinary legislation passed by the U.S. Congress and signed by the president, which asked the federal courts to take a fresh look at the case. The federal judges chose not to explain why "evolving standards of decency" might not allow Terri Schiavo to be kept alive until the case was argued in federal court.

The federal judges did not "choose" to overlook evolving standards of decency. The issue did not come up. All that Congress did was allow Schiavo's parents access to the bottom of the federal judicial system. No special rights were created, and the ordinary rules applied for granting an injunction. Nothing that any of the courts have done was an abuse of discretion, much less a monstrosity like Roe v. Wade.

* * *

If you want to see an example of a court rising above principle in the way that Kristol seems to want, you need look no further than this story about another death-penalty case: Colorado Court Bars Execution Because Jurors Consulted Bible.

That holding was even weirder than you might suppose. The general rule is that the jury room is a black box, in which jurors may apply whatever reason or unreason seems good to them. Juries can and do ignore the judge's instructions; proof that they did so is generally not grounds for overturning a jury decision. The minority on the Colorado court had it right:

In the decision on Monday, the dissenting judges said the majority had confused the internal codes of right and wrong that juries are expected to possess in such weighty moral matters with the outside influences that are always to be avoided, like newspaper articles or television programs about the case. The jurors consulted Bibles, the minority said, not to look for facts or alternative legal interpretations, but for wisdom.

So why did the majority hold as it did? No doubt anti-religious bias was a factor, but any argument would have sufficed. This was a death penalty case, a life issue, which makes it the sort of matter in which the judiciary has proven itself willing to exercise power beyond the limits of the legitimate authority of the courts.

This is an abuse that is gradually poisoning the whole of American constitutional law. It would be no less toxic in the context of the Schiavo case that it was in Griswald v. Connecticut.

* * *

Speaking of cluelessness, one notes the editorial in today's New York Times by former US senator Bill Bradley, A Party Inverted.

The piece begins by characterizing the Republican Party as a stable pyramid that the Democrats would do well to imitate, so I assumed that I was about to read yet another argument for why the Democratic Party should embrace conservative cultural issues in order to broaden its popular base. As I continued reading, however, I discovered that was not at all the sort of pyramid that the author had in mind:

You've probably heard some of this before, but let me run through it again. Big individual donors and large foundations - the Scaife family and Olin foundations, for instance - form the base of the pyramid. They finance conservative research centers like the Heritage Foundation, the Cato Institute and the Intercollegiate Studies Institute, entities that make up the second level of the pyramid...The ideas these organizations develop are then pushed up to the third level of the pyramid - the political level. There, strategists like Karl Rove or Ralph Reed or Ken Mehlman take these new ideas and, through polling, focus groups and careful attention to Democratic attacks, convert them into language that will appeal to the broadest electorate...then there's the fourth level of the pyramid: the partisan news media. Conservative commentators and networks spread these finely honed ideas...At the very top of the pyramid you'll find the president.

Look, far be it from me to dissuade the George Soroses of the world from subsidizing a new class of policy wonks in the splendor to which they aspire, but this analysis is a bad misreading of the past 15 years. The Republican Party got where it is today on issues that its policy infrastructure generally dislike and certainly did not invent, and with the help of new communications technology that the Party did not foresee and does not control. Actually, the big difference between the parties is that the Democrats were too chummy with the big liberal foundations, whose policies had little support outside academic circles. The Republican Party has its own incubus in the form of institutionalized libertarianism, but that's another story.

President Bush's numbers are dropping now precisely because he is returning to the platform on which he was elected, more or less, in 2000, which was constructed by the likes of the American Enterprise Institute and the Heritage Foundation. The Democrats should not try to replicate those institutions.

* * *

Glancing from the Culture War to the Terror War, consider this report from Joel C. Rosenberg

One Arab Christian leader tells me that based on his research with churches and ministries throughout the Islamic world, he now believes more than 1.5 million Muslims worldwide have trusted Christ since 9/11. Such numbers are difficult to verify, but the trend is clear.

Let us amend that statement to say that such numbers are intrinsically impossible to verify, but it is important on many levels that the matter is even being discussed.

* * *

So you want examples of judicial tyranny? Well, here's some tyranny for the freelancers of the world:

Commuters from out of state who take cars, trains and buses to jobs in New York have long grumbled about having to pay New York State income tax. A ruling handed down on Tuesday by the state's highest court found that the growing ranks of telecommuters from out of state must also pay...The programmer, Thomas L. Huckaby, had argued that since he worked only a quarter of the time in Queens, he should pay New York tax on only a quarter of his income. But the court ruled that because the source of Mr. Huckaby's income was in New York - and because he was in Tennessee as a matter of personal convenience, and not because his employer needed him to work there - he must pay tax on his full income...Peter L. Faber, a lawyer for Mr. Huckaby, said that ambiguity would make the rules hard to navigate. "Basically, if you never come to New York, they won't tax you," he said. "But the implication is that if you come to New York for a minimal amount of time, they will."

As the dissent in this opinion points out, this taxation doctrine is novel. Even as I write, someone is thinking of a way to get this theory before a federal court, where it is unlikely to prosper. What concerns me is that, at intervals, I will visit Manhattan to have lunch with editors. Could one cheeseburger too many make me liable for the New York City income tax?

Copyright © 2005 by John J. Reilly

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