Roman Declarations of War

Recently, I've been reading The History of Diplomatic Immunity, by Frey and Frey. Their section on Ancient Rome describes the final act of the declaration of war:

"The third stage, the indictio belli, took place on the thirty-third day when a messenger formally declared war and then hurled a magical spear, which had been dipped in blood or pointed with iron, into the land of the enemy to counteract his power. . . . As the Romans extended their power beyond the Latin communities, certain parts of the fetial ceremony became difficult to enact. . . enemy land into which the spear was to be thrown was often either remote or inaccessible. The Romans surmounted the latter difficutly by adopting a curious legal fiction. They had a prisoner of war purchase a piece of land in the Circus Flaminius district and then declared that land hostile territory. The fetials [diplomatic priests] could then cast the spear into it."

This curious example of territoriality is hardly unique in the area of diplomatic law. For instance, there is a longstanding legal fiction that embassies are part of the sovereign soil of their home countries. This fiction serves to limit the power of the surrounding country to enter or to enforce their local laws. Thus, the US embassy in Saudi Arabia can serve alcohol, allow women to work with men, etc. In both cases, the fiction of sovereignty is granted essentially for diplomatic convenience. In the case of the fetial ceremony, it saves the time and effort of travel. In the case of modern embassies, it provides diplomats with a "safe" environment from which they can conduct diplomacy without fear of intimidation or undue discomfort from the host state.

Both examples are pretty strange; the guest countries do not actually weild any power in that territory except by the grace of the host country. But the fetial ceremony is particularly odd because it conveys sovereign status onto soil that belongs only to a citizen of the foreign state. The citizen is made a symbolic representative of the state to which he belongs. His property is foreign soil.

My guess is that the fiction was only valid for this purpose. But what if it weren't? What if a foreign sovereign's property were actually the sovereign soil of his host country--would that make a difference in other areas of law? Let's examine it in the Roman context:

In-home protections against the government were pretty strong, so it wouldn't particularly matter whether a foreigner's home were on foreign soil--representatives of the state (soldiers, presumably) wouldn't be permitted to enter even if it were Rome's sovereign territory. However, in the event that someone broke this rule, it would presumably be an act of war. This would effectively be an extension of the idea that persecuting the citizens of a country can be a justification for going to war (kind of like the so-called "passive personality" principle of jurisdiction). In this case, it would protect the real property of the foreign citizen in addition to his bodily integrity.

Other possible implications: taxation might be affected if the area bore crops. Presumably only the sovereign country could tax the land (although the host country could, I guess, enact some sort of tax on crops traveling off the property). Another area might be emminent domain, which (if such a concept existed at the time) would not apply to territory owned by foreigners. And crimes committed within the house would be under the jurisdiction of the sovereign state. These rules are essentially the same as the current rules for treatment of embassy property.

You're an ancient Roman lawyer representing a foreign citizen. What other implications might this symbolic doctrine have?

George W. Bush Commemorative Coin

Today, the U.S. Mint announced the production of the new George W. Bush commemorative coin. The coin, celebrating the President's many achievements in office, will appear in decorative proof versions as well as in mass circulation.

The initial value of each coin is Pi dollars, although, like all US currency, this value will decrease substantially with time. In an unusual move for the US Mint, the coins will be legal tender only for citizens of the United States and Poland. Citizens of other countries will still be able to purchase US debt in larger denominations, like the new $1 Trillion bill, which was created especially for this purpose.

In an press release that accompanied the announcement, the Mint said it hoped the new "W" dollars would simplify and improve our monetary system. Said the statement, "We hope that these coins will do for our economy what the President has done in every area under his control."

Can I be President?

A recent article by Gabriel Chin (http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1157621#PaperDownload) suggests that John McCain cannot be president because he is not a "natural born citizen" under the United States Constitution. This article contradicts the opinion of Laurence Tribe and Theodore Olson, who have concluded that McCain can be President, either because his birthplace, the Canal Zone, was under exclusive U.S. jurisdiction, or because he obtained citizenship by statute in 1937.

Obviously this discussion is irrelevant. No one is going to kick McCain out of the race because he isn't a US citizen; the courts are not going to touch this with a ten-foot pole. But it does present an intriguing question: Can I become President?

I was born in Riyadh, Saudi Arabia, to two American citizens. Because my parents are American, I was born a US citizen. Because my father was not a Saudi citizen, I am not a Saudi citizen, nor am I a citizen of any other country.

I had always been told that I could not be President because I was not born within US territory. However, an alternative interpretation of "natural-born" would include those who were born as US citizens, excluding only those who become citizens through naturalization. The recent discussion appears to follow this model.

The text of the constitution isn't clear on this issue, although "natural-born citizen" does seem to read most logically as "becoming a citizen naturally," rather than by operation of naturalizing process. Nor is the purpose exactly clear. One might think that being born to American parents would be enough to ensure that one is not under the allegiance of a foreign power, or that one knows America quite well. On the other hand, the founding generation might well have wanted to keep the nation out of the traitorous fingertips of those of us who, despite being born as US citizens, were raised and brainwashed in Saudi madrassas.

(Note to FBI readers: Actually, I went to a British school known as "The Puffin School," and my most traiterous impulse is a tendency to spell the shade "grey" instead of "gray.")

So, what do we think? Absent practical considerations (electability; my tendency to make cutting jokes about Pennsylvanians), can I become President?

The Louisiana Rejoinder

Not entirely sure what to think of this yet, but Louisiana Governor Bobby Jindal has quickly figured out a second possible punishment for sex offenders -- forced castration.

The bill that he signed today provides that

on a first conviction of aggravated rape, forcible rape, second degree sexual battery, aggravated incest, molestation of a juvenile when the victim is under the age of 13, or an aggravated crime against nature, the court may sentence the offender to undergo chemical castration. On a second conviction of the above listed crimes, the court is required to sentence the offender to undergo chemical castration.

Two problems immediately pop up. First, the general "wow, this is overbroad" argument. There's no provision to deal with Romeo and Juliet situations, nor to deal with issues surrounding the mentally retarded, who may often fall into the same mental age range as the victims and who, in some cases, are actually the victims of the abuse but are considered the perpetrators under law because of their chronological age. Something more narrowly tailored might have been intelligent.

Second, it's unclear to what degree the chemical castration will actually prevent perpetrators from getting erections -- what good does it do to make them infertile if they can still get it up? Moreover, what happens if/when the chemical treatment wears off? (Interesting article written in 2001 on repeat sex offenders who had already had chemical castration.) Large doses are needed to tamp down male sexual desire, and even then they sometimes don't work. The chemicals do, however, give significant medical side effects on a regular basis.

And, of course, these arguments set aside two general criticisms of sex offender laws: (a) they actually do very little to deter what are often irrational crimes and (b) they reflect an inaccurate popular perception that sex crimes are usually performed by strangers.

I'm not in principle opposed to sex offender laws, and castration does seem a reasonable punishment, if reasonable is defined as "seems right to an average person." But this sort of law, while it may appeal to our sense of justice and vengeance, doesn't really have any rational, calculated thought behind it, and that worries me.

On a lighter note, another historical article reports on castration:

The controversial "Chemical Castration Bill" was accepted into law yesterday. This now provides for chemical castration as the standard punishment for each and every crime or infringement upon the law. It is being hailed as the best determent for crime ever. "I believe it to be an idea whose time has come," said Senator Dale Bumpers from Arkansas. "The American people are finally fighting back against criminals."

Polling on Kennedy

Given yesterday's decision in Kennedy, I'm interested in whether US popular opinion tracks with the states' alleged "evolving standards of decency." My guess is no.

I'd like to put a poll in the field to gauge whether people believe the death penalty should be available for a variety of crimes. This data doesn't appear to exist except for "murder," loosely defined.

Does anyone here know about how to hire pollsters? Equally important, does anyone know how much it costs, and how to get funding? I'm talking to a couple of conservative groups to try to get some money, but I don't have ballpark numbers. I'm thinking I'd need about 1000 nationwide responses, which I would guess means making about 5,000-10,000 calls.

Child Rape and Devolving Standards of Decency

For those of you who haven't seen it yet, the Kennedy decision came out today. It is available here:

http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-343.pdf

Justice Kennedy wrote the opinion. Justice Alito wrote a dissent, joined by Justices Roberts, Scalia, and Thomas.

I don't have time to comment on this extensively at the moment, and we've discussed many of these issues already on this blog. I will say that if we're going to have the death penalty in this country at all, it's puzzling to me that we don't apply it to child rape. I suppose some people feel that murder is substantially worse than child rape, so as to excuse killing the perpetrator of one but not the other. I just don't see it. It's difficult to compare such egregious acts, but to my mind at least SOME murders that are still constitutionally eligible for the death penalty are less morally bankrupt than child rape. The protection of children is, after all, a universally recognized moral precept. In fact, while many of us can probably imagine being driven to murder by extraordinary circumstances, I suspect the vast majority of people cannot imagine being driven to commit the type of atrocity seen in Kennedy.

Of course, it is always possible that the next step will be to prevent the execution of criminals convicted of only one homicide, without aggravating factors. This is already effectively the law in many jurisdictions. I would argue that this is essentially a matter of efficiency--we simply can't afford to match our murder rate with our execution rate. But someone, right now, is writing a brief arguing that it's because we've evolved past killing murderers. Will the Court take their rationale so far? I wouldn't have thought so before this morning.

The majority commits many of the errors Mr. Pollard and I discussed in our previous posts. They use the "evolving standards of decency" argument, based at least in part on a state law "consensus" that is largely of their own creation. And they completely ignore the fact that "evolving standards of decency" can create more, rather than less punishment, see, e.g., Sexual Harrassment. Thus, they continue the one-way ratchett of 8th Amendment Jurisprudence.

Justice Roberts voiced this concern at Oral Arguments, and the other Justices make a half-hearted attempt at arguing the point. But it's hard not to think that the Majority Justices are just substituting their own standards of decency for those of the rest of the citizenry. Do we really imagine that the majority of citizens in this country are against executing child rapists? If not, where are these "evolving standards" coming from? I submit that they are largely the product of the Court itself.

But perhaps I am not giving the Court enough credit. Maybe our laws have become so complicated that they have actually come to life, and are evolving on their own.

Apocalyptic campaigning

University of Arkasas Professor Accused of Racism, Bites Back

Apparently, Richard Peltz has been telling his classes that he would give black students an extra point on their final exams if they scored as high as white students. If he wants to rail against affirmative action, that's fine by me. If he wants to complain that some of his friends didn't get into good law schools because unqualified black students took their spots... fine. But when he starts saying things like an extra point for blacks if they can defeat the bell curve and score as high as their white counter-parts, I believe that departs from the realm of free speech and crosses into the territory of termination from his tenured professorship for cause.

Ironically enough, Peltz is the one suing! He's suing some former students. He's suing the W/ Harold Flowers Society, the state's black lawyers association. He's suing everyone he can think of! Certainly, there was some outrage over Peltz's comments. If, in fact, Professor Peltz did outline a scheme under which he would give "an extra point" to black students who did as well as white students on his exams, then he has not doubt clearly violated his responsibilities as a professor and placed the University of Arkansas at risk for lawsuits - by black or white students - alleging a violation of the Equal Protection Clause. Some noted First Amendment scholars have come to Peltz's defense, essentially arguing that whatever Peltz said constitutes free speech.

Stepping back, the posture of this whole case is terribly strange: If Peltz prevails in his case against the students, it will arguably result in a chilling effect on campus speech! Students may be forced to abstain from taking collective action to speak out against professors who have breached their duties to the University and possibly run afoul of their contractual obligations.

I am a staunch supporter of the First Amendment. But this, my friends, is an inappropriate vehicle in which to address First Amendment concerns. Professor Peltz isn't a martyr for the cause of free speech. His case isn't one that deserves anyone's time or energy. He's an idiot who, on the basis of his STUPID blacks get a bonus scheme (ostensibly because of their inherent mental inferiority), set himself up for reprisals and termination. And now he's the one suing, purely to cover his ass. So hats off to you, Professor Klan.. I mean... Peltz.


Read the FULL ARTICLE here.