July 2004
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Month July 2004

Seattle G&S Society’s production of HMS Pinafore

Friday I saw the Seattle Gilbert and Sullivan Society’s production of HMS Pinafore, along with a short ballet called Pineapple Poll. The latter is a modern creation by Sir Charles Mackerras, weaving together Sullivan’s music from the G&S canon and Gilbert’s The Bumboat Woman’s Story.

Both were brilliantly done. Pineapple Poll was performed by Spectrum Dance Company, with the lead role of Polly Pineapple danced by the stunning Meredith Webster. And Pinafore was simply the best rendition I’ve seen yet. Christine Goff’s stage direction led to a much more interactive combination between a play and opera. Characters looked at each other, instead of being singing props rooted to points on stage. Traditional jokes were augmented with some modernist fun — during “Never mind the why and wherefore” a loud cell phone ringtone is followed by Sir Joseph Porter pulling a gigantic phone out of his uniform to answer the call.

This year is the 50th anniversary for the Seattle Gilbert and Sullivan Society, and in a fun nod to history, this year’s Pinafore production closed with the 1887 “Rule Britannia” ending, originally performed in commemoration of Queen Victoria’s Golden Jubilee. The production was fun and well done, excelling the previous production in 1996. And it’s running for another week, don’t miss it!

Marriage Protection Act and the next chapter in right-wing intolerance

Well, it sure didn’t take Hostettler long to pass his jurisdiction stripping bill, HR 3313 EH. The bill reads simply: “No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C or this section.” Naturally, Section 1738C is the DOMA provisions:

No State, territory, or possession of the United States, or
Indian tribe, shall be required to give effect to any public act,
record, or judicial proceeding of any other State, territory,
possession, or tribe respecting a relationship between persons of
the same sex that is treated as a marriage under the laws of such
other State, territory, possession, or tribe, or a right or claim
arising from such relationship.

So, in theory, HR 3313 EH would remove all jurisdiction from Article III courts in suits relating to same-sex marriage or the constitutionality of laws pertaining to it.

If I were a betting man, I’d say that the MPA won’t fly. The Senate may not pass it (in fact, Frist is being a bit coy about whether the bill will even be considered by the Senate). And even if the Senate passed it, the MPA itself could be ruled unconstitutional by the Court. Given the Court’s current stance on judicial supremacy, it’s unlikely that Rehnquist and others would allow Congress to eviscerate all methods of judicial review (see previous post).

So, if it won’t become law, MPA’s utility rests wholly in two factors: (1) creating the appearance of “progress towards victory” for the conservative right, presumably to bolster the electoral chances of Republican candidates and to “get out the vote” in conservative districts; (2) tying up Democrats from furthering their agenda by forcing Congressional Democrats to fight a defensive action.

The bigger issue, after MPA fails or is found unconstitutional, is the spirit of intolerance and desire to win at all costs displayed by the religious right. Not to mention a complete lack of respect for diversity. Republican Representative Steve Pearce, for example, is quoted in today’s Boston Globe saying that “gays and lesbians should be allowed to marry, but if they want to marry they will have to marry men and women.” Uh….right.

Maybe it’s just election year theatre, but maybe not. One suspects that the more radical faction of the conservative right couldn’t care less about maintaining separation of powers, and certainly doesn’t care about tolerance in a liberal democracy. And the Constitution itself seems to be OK, so long as they can use it to run the country in their own image. If it comes down to a conflict between the Constitution and their agenda, the radical right will stick to their goals, and to hell with the Constitution. And that’s where we need to draw the line….Thus far, and no farther. Mess with the basic forms of representative democracy and liberal society, and you’ve gone too far.

Recent airline flight “scares”, vigilence vs. paranoia, and the value of learning about Islam

There’s been a lot of discussion lately about Annie Jacobsen’s article on Women’sWallStreet.com, concerning her terrifying flight from Detroit to Los Angeles. In the article, she describes how 14 Middle Eastern men acted in ways she and the other passengers considered scary and suspicious. Ultimately, Jacobsen ends up questioning “whether the United States of America can realistically uphold the civil liberties of every individual, even non-citizens, and protect its citizens from terrorist threats.”

This is indeed a weighty question, and not easy to answer. But it’s worth asking, as well, whether we’re entirely too scared, and too willing to curb our own rights. Because all of the evidence suggests that nothing really happened on Northwest Airlines flight #327. The 14 Middle Eastern men turned out to be Syrian singer Nour Mehana and his band, headed to San Diego to play a gig at the Sycuan Casino and Resort.

Sometimes, as Jacobsen implies, terrorists might in fact disguise themselves as musicians, sure. But sometimes, Middle Eastern men who are carrying violin cases might just turn out to be musicians. There are terrorists out there in the world, and it’s important to be vigilant. But sometimes, we believe behavior is “suspicious” because we’re simply unfamiliar with it. Jacobsen, and several other posts about similar “scares,” felt it was suspicious that the men serially went to the bathroom several times during the flight. Others have felt it suspicious that Middle Eastern men come onboard with long, rolled cloth tubes.

In these cases, it appears that the “suspicious” behavior or objects were related to prayer. Muslims pray 5 times a day: dawn, midday, late afternoon, sunset, and late night. On Jacobsen’s flight, the timing of boarding and departure would have meant that the Muslims on the flight would be needing to make their midday prayers after boarding, and their late afternoon prayer shortly before arrival. Before prayers, Muslims will be seen performing ablutions (i.e., washing hands and face, and if possible, more extensive preparations). During the prayer itself, the worshipper must orient themselves as closely as practicable to Mecca (the practice of qiblah). This can be difficult to do sitting in an airplane seat, so Muslims praying while traveling will frequently use the restroom for ablutions and stand at the rear of the airplane so they are free to orient themselves towards Mecca. And normally, Muslims will travel with a prayer rug — rolled into a tube for carrying. This rug is used whenever possible for the prayer, but isn’t strictly required (if I recall correctly, it’s more important to do the prayer than it is to skip it because you can’t roll out your rug and kneel). The “little red book” consulted by one of the men in Jacobsen’s story is obviously the Koran, used during the prayers themselves (which involve the recitation of one or more surahs, or verses). For those interested, here’s a detailed description of Salat, or Islamic prayer.

My point is simply this. Sure, we have to be on the lookout for situations which are amiss when traveling. Vigilance is critical to safety and security. But in order to detect truly suspicious behavior, our knowledge of “normal” behavior needs to be strengthened. We need to recognize Muslim prayer when we see it. We need to know more about people and cultures which are generally unfamiliar to Americans.

I don’t mean to minimize the possible dangers of future hijackings, or of terror in general. But I am saying that it’s insane to twitch every time someone of Middle Eastern descent moves a muscle on an airplane flight. If the people on Annie Jacobsen’s plane knew a little about Islam, perhaps they wouldn’t have spent four hours frozen in terror at the sight of some Middle Eastern musicians praying to Mecca, while on their way to play the evening show. And maybe they wouldn’t be so riddled with fear that they’re ready to give up their civil liberties so easily.

The quickest way to lose your job…

…appears to be saying nice things about Michael Moore. In the space of a week, Linda Ronstadt and Whoopi Goldberg have both been fired from their respective gigs for praising Michael Moore and Fahrenheit 9/11. I don’t know what to say, but I’m pretty sure this isn’t what the Founding Fathers meant when they wrote about freedom of speech.

Model rocketry today…

Went to launch rockets with some friends from work today, out at 60 Acres Park in Redmond. We had a wide assortment of rockets and motors (up to F class, the G motors hadn’t arrived), and a waiver from the FAA to allow shots up to 2500 feet.

My stock Mongoose two-stage kit flew beautifully the first time, but ignition of the second stage partially melted the upper stage fin assembly. Consequently, on its second (and final) flight, upon second stage ignition it took off horizontally, crossed the creek and road, and ended up in a tree in “no trespassing” territory. Oh well.

My friend Bill’s video camera rocket took a great movie of its own launch, and he’ll have it available on the web soon.

We had a great day, firing everything from small A-class kits to a large Patriot with F-class motors, an original Saturn V kit, a Gemini rocket, and a Mercury which had….guidance problems. A lot of fun. Makes me want to qualify to fly composite and larger motors…

More on jurisdiction stripping as a policy mechanism

After my post this week on DeLay and Hostettler’s trial balloon on “jurisdiction stripping” as a tactic in the fight to ban gay marriage, I did a bit of research. Naturally, the history of Congressional jurisdiction modifications is complex, and unresolved. In a nutshell, there are arguments on both sides, stemming from the Jurisdiction Clause of Article III, Section 2:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Proponents of Congressional control over jurisdiction read the last sentence as indicating that Congress can make laws both positive and negative regarding the jurisdiction of Article III courts. Opponents of Congressional control range from claiming that Congress may only make procedural, not substantive, regulations concerning jurisdiction, to those who admit that Congress can legislate jurisdiction, but only if such restrictions do not themselves violate other provisions of the Constitution.

The case law is slight. Decisions appear to be minimalist, ducking the sticky overall question. The broadest statement by the Court on jurisdiction limitation is perhaps United States v. Klein, decided in 1871. Chief Justice Chase wrote:

It seems to us that this is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power.

The court is required to ascertain the existence of certain facts and thereupon to declare that its jurisdiction on appeal has ceased, by dismissing the bill. What is this but to prescribe a rule for the decision of a cause in a particular way? …. Can we do so without allowing one party to the controversy to decide it in its own favor? Can we do so without allowing that the legislature may prescribe rules of decision to the Judicial Department of the government in cases pending before it?

We think not; and thus thinking, we do not at all question what was decided in the case of Pennsylvania v. Wheeling Bridge Company. 27 …. No arbitrary rule of decision was prescribed in that case, [80 U.S. 128, 147] but the court was left to apply its ordinary rules to the new circumstances created by the act. In the case before us no new circumstances have been created by legislation. But the court is forbidden to give the effect to evidence which, in its own judgment, such evidence should have, and is directed to give it an effect precisely contrary.

We must think that Congress has inadvertently passed the limit which separates the legislative from the judicial power.

It is of vital importance that these powers be kept distinct. The Constitution provides that the judicial power of the United States shall be vested in one Supreme Court and such inferior courts as the Congress shall from time to time ordain and establish. The same instrument, in the last clause of the same article, provides that in all cases other than those of original jurisdiction, ‘the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make.’

Congress has already provided that the Supreme Court shall have jurisdiction of the judgments of the Court of Claims on appeal. Can it prescribe a rule in conformity with which the court must deny to itself the jurisdiction thus conferred, because and only because its decision, in accordance with settled law, must be adverse to the government and favorable to the suitor? This question seems to us to answer itself.

Klein upholds a broad understanding of separation of powers, and specifically that Congress may not direct the outcome of a case or class of cases by prescribing rules of decision. More broadly, Klein would suggest (but does not state) that Congress may not impair the Court’s ability to be the arbiter of Constitutional interpretation and construction.

In practice, the Court has upheld a small number of Congressional restrictions on jurisdiction (out of many attempts: 60 bills were proposed from 1953 to 1968 alone). One of the most important is perhaps Felker v. Turpin, in which the Rehnquist Court upheld Title I of the 1996 Antiterrorism and Effective Death Penalty Act, limiting state prisoners from bringing successive habeas corpus petitions unless their petitions are approved by the U.S. Court of Appeals. Title I of the AEDPA was upheld because the Court believed that it did not repeal the Court’s authority to hear habeas petitions, since original petitions may still be heard. In essence, the Court said that Congress may shape jurisdiction as it sees fit until a threshold is crossed where ALL judicial review of a class of cases is prevented.

This seems to be consistent with the current Court’s take on separation of powers: the democratic process as expressed by the legislative branch is to be given maximum latitude whenever possible, up until it threatens the ability of the other branches to exercise their enumerated powers.

Thus, one might expect that certain types of jurisdiction stripping to enforce gay marriage bans might be upheld by the Court, and not others. The good news for opponents of DeLay and Hostettler’s tactics is that the Court is unlikely to look kindly upon Congressional actions which prohibit ALL judicial review of the subject. The Court seems likely (based on track record) to allow procedural restrictions on what subordinate courts are allowed to hear, but history would seem to suggest that it will brook little interference on its own rights to determine constitutionality.

This is another situation where the classical liberal/conservative analysis of the Court isn’t very useful. The Rehnquist Court has been a strong advocate of judicial supremacy and the Court’s right to be an arbiter, even in situations where one would imagine that a majority of justices would politically align with those trying to limit their power on specific issues.