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GEORGE WASHINGTON’S LETTER EXTOLLING THE VIRTUES OF THE CONSTITUTION GOES UP FOR SALE IN NEW YORK

The four-page letter above, written by George Washington to his nephew Bushrod Washington on November 9, 1787, goes on sale December 4 at Christie’s auction house in New York City. It was penned a few days after Washington returned from the constitutional convention in Philadelphia and contains sentiments from Washington on the ratification process, then underway. "If . . . the Union of the whole is a desirable object,” he writes in an orderly penmanship, “the parts which compose it must yield a little in order to accomplish it.” Christies estimates the final sale of the 224 year old letter will be somewhere between $1.5 and 2.5 million.

ARGENTINA BECOMES THE FIRST LATIN AMERICAN COUNTRY TO DECLARE THAT LAWS BANNING GAY MARRIAGE VIOLATE CONSTITUTION
The story puts Argentina’s high court in direct conflict with the Catholic Church in a country where 88 percent of the people are Catholic.


CANADA GREETS PRINCE CHARLES, ITS FUTURE KING, WITH INDIFFERENCE
The country’s constitution (which, like Great Britain’s, is not a single document but an amalgamation of different acts and traditions) provides the role of head of state to the British monarchy, though most royal constitutional and ceremonial roles are carried out by the Governor General, who serves as the “Queen’s representative.”


SRI LANKA RELEASES PUBLISHER, CONTINUES TO HOLD JOURNALIST CONVICTED OF WRITINGS THAT “CAUSE COMMUNAL DISHARMONY”
The publisher of North Eastern Monthly was released because the editor was considered the culpable party for columns that were deemed to have incited ethnic violence. Last May, President Obama had singled out the same editor, J. S. Tissainayagam, for praise on World Press Day. Tissainayagam was convicted in September of this year for writing columns that criticized the Sri Lankan Army’s treatment of the terrorist group known as the Tamil Tigers. At the time of Tissainayagam’s conviction under the country’s Prevention of Terrorism Act, the prosecutor argued that “the Constitution gives freedom of the press but that doesn’t allow anybody to spread false information to spur ethnic violence.” Below are the excerpts from Tissainayagam’s columns that prompted his prosecution:

Providing security to Tamils now will define northeastern politics of the future It is fairly obvious that the Government is not going to offer them any protection. In fact it is the state security forces that are the main perpetrator of the killings.
July 2006, North Eastern Monthly

With no military options Government buys time by offering watered-down devolution Such offensives against the civilians are accompanied by attempts to starve the population by refusing them food as well as medicines and fuel.
November 2006, North Eastern Monthly


IRAQ AGAIN IN DANGER OF STALLING ELECTIONS; THIS TIME, THE SUNNIS ARE THE OBSTACLE
Just when the Kurds had lifted their objections (see our two earlier posts on this subject below), now Iraq's Vice President, Tariq al-Hashimi, a Sunni, has stepped up to veto the January elections, essentially because the rules threaten to limit the number of Sunni seats in what will surely be a Shiite-majority Parliament. Prime Minister Nouri-al-Maliki, a Shiite, declared that the veto was "a dangerous threat to the democratic and political process." Any delay in the elections will likely throw the planned US withdrawal of troops off schedule.


MEXICO MOVES CLOSER TO A CONSTITUTIONAL BAN ON ABORTION
The proposed amendment to the Mexican constitution declaring that life begins at conception must now be passed by both houses of Congress, then sent to the state legislatures for a majority approval. Advocates say that they have the necessary votes to pass it through Congress and since more than half of Mexico's 32 states already have state laws banning abortion, it seems likely to pass there as well, becoming law.

Of federalism, the death penalty, and a sensational Connecticut murder story…

IS IT OUR POLITICS THAT MAKES US THE MOST MURDEROUS OF WESTERN NATIONS?

A recent edition of The New Yorker contained a sobering piece on America’s history of violence. The piece, by Jill Lepore, which is in the form of an extensive book review, was written before the murderous rampage at Ford Hood in which thirteen died, but it makes for compelling reading especially in light of those events. If convicted, Hasan will almost certainly face capital punishment. (see our story froma few days ago below). Should he? Is there a societal benefit to killing him? Hasan’s story contains some unique qualities – his radical Muslim identifications, his status in a profession of trust within the military -- which may defy generalization, but any time that the state asserts its power to kill, some of the same questions arise.

Lepore begins her piece with a detailed description of a particularly grizzly 2007 murder in the town of Cheshire, Connecticut. I happen to live in Connecticut, so this is a shocking tale with which I am very familiar. It is an unusual murder story in that the victims are white, upper middle class and their killing was particularly brutal. The perpetrators broke into the home of a prominent doctor, tied him up in the basement and beat him unconscious with a baseball bat. They then tortured the rest of his family through the night, raping the doctor’s wife and one of his young daughters. In the morning, after one of them took the wife off to withdraw $15,000 from an ATM, he returned her to the home where he strangled her, doused the house with gasoline and set it afire, killing both girls. Only the doctor, whom they had left for dead, survived. Surely if anyone deserves to die at hands of the state it is those who committed these most heinous crimes. (The trial of the two men accused of the acts begins in January).

But the death penalty is not first on Lepore’s agenda. Working from the inspiration of the books she is reviewing, she first addresses the most plaintive of questions raised by this lurid tale, “why?”

Between the convulsive emotional response to a single murder and an elusive general theory of murder lies another kind of contemplation: the study of the murderousness of nations. The United States has the highest homicide rate of any affluent democracy, nearly four times that of France and the United Kingdom, and six times that of Germany. Why? Historians haven’t often asked this question. Even historians who like to try to solve cold cases usually cede to sociologists and other social scientists the study of what makes murder rates rise and fall, or what might account for why one country is more murderous than another. Only in the nineteen-seventies did historians begin studying homicide in any systematic way. In the United States, that effort was led by Eric Monkkonen, who died in 2005, his promising work unfinished. Monkkonen’s research has been taken up by Randolph Roth, whose book “American Homicide” (Harvard; $45) offers a vast investigation of murder, in the aggregate, and over time. Roth’s argument is profoundly unsettling. There is and always has been, he claims, an American way of murder. It is the price of our politics.

Monkkonen’s last work, which remained unfinished at his death, was called “Homicide: Explaining America’s Exceptionalism.” In it, the author pointed to four distinctively American themes as encouraging our penchant for violence: mobility, federalism, slavery, and tolerance. Lepore describes Monkkonen’s theory: “Mobility breaks social ties; federalism is a weak form of government; slavery not only rationalized a culture of violence among white Southerners (where the murder rate has been disproportionately high, as it has, and remains, in many of the so-called law-and-order states) but also infected American culture; and American judges and juries have historically proved less willing than their European counterparts to convict murderers, tolerating, among other crimes, racial murders and killings by jealous spouses.” By a “weak” form of government, the author means a limited government, reluctant to intrude, a quality which most Americans see as one of the strengths of our system, but it is a system that thrives on limiting, not extending, government’s hand and that goes for criminal prosecution as well as for taxation.

Working forward from Monkkonen, Lepore then cites Gary LaFree, (“Losing Legitimacy: Street Crime and the Decline of Social Institutions in America”) whose work asserts that the crime rate correlates, roughly, with trust in government. For instance, LaFree says that during the Vietnam era, which was characterized by a loss of respect for elected officials, the crime rate rose. Randolph Roth, the author who has tried to pick up where Monkkonen left off, promote this theory. He has determined that four factors relate directly with the murder rate: faith in government and enforcing just laws; trust in the sincerity of legitimately elected officials; bonding among social groups based on race, religion, or political affiliation; and confidence that the social hierarchy allows for respect to be earned without recourse to violence. When these attitudes are widely held, there is little murderous violence. When they are not, the society resorts to violence.

Now, just because two phenomena correlate in time does not mean that one causes the other. (The Yankees seem to always win worlds championships when Democrats are in power, as PJP participant Ari Fleischer wrote in an Op-ed for the New York Times recently, but that is hardly enough evidence for a Republican Yankee fan to switch parties). Still, if you play out this theory, as Roth does, the implications are startling. Democracy requires a kind of healthy skepticism. But if a high American murder rate is a by-product of such distrust must the more vigorous democracies always suffer so? Roth even connects his theory to the presidency. The statistics make it clear that in the twentieth century, murder rates have declined when the presidency is occupied by a liberal or centrist leader, he writes, “and they have risen during the terms of presidents who presided over political and economic crises, abused their power, or engaged in unpopular wars.” The murder rate also appears to follow Presidential approval ratings.

As Lepore points out, sensational crimes often prompt legislative activity. California’s “three-strikes and you’re out law” was the idea of Mike Reynolds, a Fresno photographer whose 18 year old daughter was murdered. Last year, after the Cheshire murders, the Connecticut assembly doubled and tripled mandatory penalties for second- and third-time offenders. (Those accused of the crimes had multiple burglary convictions, but no history of violent crime.)

In 1784, the Yale senior class debated whether the death penalty was “too severe & rigorous in the United States for the present Stage of Society.” Apparently the conclusion was that it was not because here we are 225 years later and capital punishment remains a part of Connecticut law, as it has consistently been since 1642.

During the nineteenth century, the governor of Connecticut twice asked the legislature to eliminate the death penalty, but the legislature refused.When serial murderer Michael Ross was killed by lethal injection in 2005 he became the first to be executed in Connecticut since 1960. Paradoxically, earlier this year, the Connecticut legislature voted to abolish the death penalty, but Governor Jodi Rell, a Republican, vetoed it.

In September of this year, St. Martin’s Paperbacks issued a sensational book called “In the Middle of the Night” in which author Brian McDonald used extensive interviews with one of the alleged perpetrators to tell the story of the Cheshire murders. Apparently he also used handwritten notes in which the accused incongruously closed each entry with a “happy face.” Probably because of the horrific nature of these crimes, St. Martin’s has been careful to limit publicity for the book and while Amazon is selling it, it also includes a “customer discussion” page in which dozens of people implore viewers not to buy it since it violates the judge’s pre-trial gag order and otherwise seeks to profit from the crime. The author uses his own website to admit that the book is poorly written (reviewers have slammed his previous titles for their shoddy prose), then also proudly defends his first amendment rights by publishing a link to an editorial that criticizes those who argued that the Cheshire Library should not include McDonald’s book on its shelves. McDonald and the editorial-writer are wrong to think that the first amendment comes into play here since neither Congress nor any other government body has passed a law “abridging” McDonald’s “freedom of speech.” Certainly community libraries should have the power to determine what they choose to put on their shelves and no one wanting to read this book will find it difficult to get a copy. Of course the very fact that such “true crime” investigations are so popular – there are dozens of examples of best-selling books from this genre -- may be yet another sign of Americans’ lust for violence.

TB

AMBASSADORIAL SIDE BENEFITS?

“The idea that an oil company was participating in the drafting of the Iraqi Constitution leaves me speechless...[In effect, the company] has a representative in the room, drafting."

Feisal Amin al-Istrabadi, an Iraqi official, in a story in The New York Times, November 12, 2009. He is speaking about reports that Peter Galbraith, a former United States Ambassador who was serving as an unpaid advisor to the Kurdish regional government, helped forge language in the Iraqi constitution that provided for significant autonomy for the Kurds, including claim to all oil revenues tapped in their region. At the time, Mr. Galbraith was being paid by DNO, a Norwegian oil company, from which he stands now to earn hundreds of millions of dollars.

UPDATE: Obama's Two-Front Dilemma

This past weekend, the Obama administration scored a victory in Iraq when it helped broker a deal over political divisions in the northern province of Kirkuk. As described in our post “Obama’s Two Front Dilemma” below, the debate over Kirkuk appeared to be putting Iraq on the path to a constitutional crisis and threatened the planned draw-down of American troops there as well as their re-deployment to Afghanistan. The Iraqi constitution requires that a new election be held before the end of January, 2010, but the questions over who could vote and what choices would be offered to voters had created a stalemate over Kirkuk.

Arabs and Turkmens in Kirkuk argued for following voter registration lists from five years ago, while Kurds pushed to adopt voter rolls from 2009 which reflected the larger numbers of Kurds who had moved back to Kirkuk since the fall of Sadaam Hussein. The agreement was to use the 2009 list, while allowing the United Nations to conduct a post-election in depth study of any claim of fraud over the validity of the new voters.

In a key sign of Iraqi political maturity and stability, the election will also permit voters to pick from individual office-seekers. In the past, voters could only choose from a list of ethnically-defined parties. Upon victory, the party leadership would then choose who would get to hold the office. In the war-torn Iraq of 2004-2005 that protected the candidates from being targeted for assassination by insurgents, but severely limited the exercise of democracy.

"THIS AIN'T NO THINKIN' THING"

"What makes Armey an effective advocate is how he uses his status as a learned professor and a plain-spoken man to deliver the message his audiences want to believe: that various Democratic initiatives are not just wrongheaded policy but also flagrant violations of the Constitution and affronts to traditional American values. In his telling, the Constitution is elevated to something like a sacred religious text, written by Christian believers, possibly divinely inspired and intended to be read in the most literal way. It contains solutions to any civic problem faced by modern Americans, including those brought about by the tangled health care system. To Armey, the Constitution is not a “living document” — a phrase he mocks at rallies, to laughs and great applause — and is in fact so straightforward and speaks so directly to this era that it’s reasonable to wonder why we need the nine justices of the Supreme Court to interpret it.

At the Harley dealership [where he was speaking to a large crowd of conservative activists], he emphasized that everyone must stay focused on the polestar, the nation’s essential document. “What should be your guide?” he said, pausing for a beat before shouting out the answer. “The Constitution. This ain’t no thinkin’ thing.”

From "Dick Armey is Back on the Attack", New York Times Magazine, Sunday, November 8, 2009

WHY OBAMA IS BEING SO CAREFUL IN WHAT HE SAYS ABOUT HASAN

If Major Nidal Malik Hasan, the Army psychiatrist who is alleged to have been the shooter in the horrific killings of 13 at Fort Hood last Friday, is convicted of these crimes, it is likely that he will face the death penalty. Texas is by far the most prolific capital punisher among the fifty states; roughly forty percent of those executed since the Supreme Court reversed the ban on capital punishment in 1976*, have been killed in the Lone Star state. But Texas’s history will likely be proven irrelevant here. Hasan will not be tried under Texas law or before a Texas court; as an army officer whose alleged crimes were committed on the army’s largest base, he will almost certainly be tried in a military court under the uniform code of military justice (UCMJ).

There are six people on the military death row now, all of them convicted of murder and all incarcerated at Fort Leavenworth, Kansas. In recent days, only one has been poised to take the needle (military executions are by lethal injection), the other five holding onto the hopes for a re-trial or appeal. It turns out that a holding pattern has proved a good policy for the convicted. Several of those on death row now have been there for upwards of ten years while the last military execution was in 1961, forty-eight years ago.

Hasan will be tried before a panel of superiors – the 12 people sitting in determination of his fate must by UCMJ stipulation outrank him – and if the panel awards a sentence of death, that fate must be affirmed by no one less than the president of the United States. Until 2008, when President George W. Bush signed a death sentence for serial murderer Private Ronald A. Gray, President Dwight Eisenhower was the last chief executive to confirm a death sentence in a capital case tried in military court. But at the last moment, even Gray received a stay of execution, joining the others who await their fates in the appeals process.

Though there are many Democrats whose personal attitudes about the death penalty would make it hard, if not impossible, for them to sign such an order, President Obama has made it clear that he favors capital punishment in cases “so heinous, so beyond the pale, that the community is justified in expressing the full measure of its outrage.” Still, he has to be careful what he says. It is this ultimate life and death authority and his role as “commander-in-chief” that makes it very hard for Obama to speak candidly about his attitudes on this case. If he should base his reactions on his outrage at the suspected killer’s affiliations and obvious guilt, he may very well squelch the chances for a conviction by subjecting the panel to what in military justice is called “command influence,” or the burden imposed on a military court when those of superior rank express their attitudes about a case under trial.

TB

*In 1972, the Court, in Furman v Georgia, found the death penalty unconstitutional for violating the eighth amendment prohibition on “cruel and unusual punishment,” but four years later it let stand state laws providing for capital punishment in cases with aggravated circumstances. With that, the short-lived American death penalty moratorium was over.