"Bang 'em": How the death penalty reduces us to the level of criminals

Even if I favored the death penalty, I'd feel a little bit sick at the display that occurred in a Philadelphia court today:

"Walk back into this courtroom and say: 'Bang 'em, bang 'em.' "

Using the words uttered by convicted cop killer Eric DeShann Floyd against him and codefendant Levon T. Warner, a Philadelphia prosecutor today asked the jury to return two death sentences for the 2008 shooting of Police Sgt. Stephen Liczbinski.

In an impassioned 35-minute speech to the Common Pleas Court jury of seven men and five women, Assistant District Attorney Jude Conroy argued that Floyd and Warner forfeited their right to life on May 3, 2008 when they advanced their long criminal careers to include bank robbery and the killing of a pursuing police officer.

He then turned to the jury and told them to return the double death penalty "not out of vengeance" but because "it's what the law requires and it's what justice demands."

But Conroy is clearly asking the jury to act out of a sense of vengeance, and it's silly to pretend otherwise. For most people that'll be ok: Floyd and Warner are cop killers -- if anybody deserves the death penalty, it's these two guys.

Maybe I'm just a namby-pamby, though, but even in these circumstances I don't want the state being quite so gleeful in its pursuit of the death penalty. That's an awesome power given to prosecutors, juries and the courts, and if that power must be used, well, is it too much to ask that it be used soberly?

Instead, prosecutor Conroy used the exact same words of death that cop-killer Floyd used, in order persuade the jury to impose a death penalty. It's pretty damning proof that the death penalty reduces the justice system -- and the society it serves -- to the level of murderous criminals.

Why civilian agencies can't help counterinsurgency succeed in Iraq

This isn't probably all that widely known, but a key aspect of the counterinsurgency doctrine Gen. David Petraeus helped develop back in his Fort Leavenworth days -- before he became a celebrity superhero in Iraq, and now Afghanistan -- is this little point: The military can't do it alone.  The American government's civilian agencies -- ranging from Treasury to (seriously) the Department of Agriculture -- all have a vital role to play in helping win over a secure the population where the insurgency is taking place.

This doesn't happen as well as it should -- at least, that's what military types say with a fair amount of frequency. But part of the reason that may be the case is this: where political types back home in Washington are frequently willing to write blank -- or, at least, very big -- checks to fund military efforts abroad, they're stingier when it comes to those civilian agencies. Here's a story in today's Washington Post:

Beginning in September, the State Department will take over all police training in Iraq from coalition military forces, and it has proposed replacing its current 16 provincial reconstruction teams spread across the country with five consular offices outside Baghdad.

But since planning for the transition began more than two years ago, costs have skyrocketed and the money to pay for them has become increasingly tight. Congress cut the State Department's Iraq request in the 2010 supplemental appropriation that President Obama signed late last month; the Senate Appropriations Committee and a House subcommittee have already slashed the administration's $1.8 billion request for fiscal 2011 operations in Iraq.

The State Department has signaled in recent weeks that it will need up to $400 million more than initially requested to cover mushrooming security costs, but lawmakers seem in no mood to acquiesce.

"They need a dose of fiscal reality," a senior Senate aide said, speaking on the condition of anonymity amid ongoing negotiations over the State Department funding.

I'm all for fiscal reality -- and I'm a fan of efforts to impose that reality upon America's efforts abroad. Still: Does anyone think that Congress would be so stingy if Petraeus was asking for this exact money, for the exact same reasons, and in the exact same "oops we miscalculated" context? It's extremely doubtful.

The defense establishment has long been extremely talented at attracting funding and resisting even modest cuts to the growth of its budgets. But there's a double-edged sword to that success: The military on its own cannot -- and should not -- bear the only burden of achieving America's aims abroad. But it may be the only institution that's given the fiscal latitude to do so.

The Weekly Standard doesn't want "our" Muslims talking to "their" Muslims

America'ssmiling face to the Muslim world?

Imam Feisal Abdul Rauf, the man behind the so-called Ground Zero mosque, is apparently set to take a State Department trip to "to help people overseas understand our society and the role of religion within our society.” John McCormack of the Weekly Standard responds with confusing pugnaciousness:

If the purpose of the junket is to "help people overseas understand our society"--and not to help Rauf raise the $100 million for his mosque--wouldn't it make sense to send someone representative of the vast majority of Americans who oppose the Ground Zero mosque? Perhaps the State Department could send someone--maybe Juan Williams or Rich Lowry or Abe Foxman or Bill McGurn or Neda Bolourchi or Sarah Palin or Rod Dreher or Christopher Caldwell or Bill Kristol--to explain to the people of the world that Americans aren't bigots but simply find it offensive and insensitive to build a mosque two blocks from the site of a horrific Islamist terrorist attack?

This is simply brain-dead.

The purpose of the trip is clearly to do the "soft power" work of making the United States seem, to Muslims abroad, like a nice place with nice people trying to make a nicer world. It only makes sense that the U.S. might send emissaries who can relate, culturally and linguistically, to the target audience -- it makes more sense, after all, than putting Karen Hughes in front of a crowd for the purpose of looking completely out of touch.

There's only on Muslim, Neda Boloruchi, on McCormack's list. Just about everybody else on the list tends to buy into the whole "clash of the civilizations" stuff that sees not radical fundamentalist jihadist Islam as the problem -- but Islam itself. Why in the hell would you send Bill Kristol to present America's smiling face to the Muslim world? I admire Rod Dreher in a lot of ways, but he's also the last person for the job.

My guess is that McCormack isn't serious. He can't possibly be. He's just engaged in some political point scoring, some "why don't they send a real American blah blah" stuff that goes down well with the sort of demagogery the Standard is indulging in these days, but which should never be mistaken for the thoughts of anybody who would ever have to be responsible for the fallout of their suggestions.

Obama, Gibbs, Ungrateful Liberals and the Art of Politicking

President Obama on Monday:

"We have spent the last 20 months governing. They spent the last 20 months politicking," Obama said of Republicans. With three months to go before the election, Obama all but said "bring it on": "They've forgotten I know how to politick pretty good."

Back in Washington, his spokesman Robert Gibbs:

The White House is simmering with anger at criticism from liberals who say President Obama is more concerned with deal-making than ideological purity.

The press secretary dismissed the “professional left” in terms very similar to those used by their opponents on the ideological right, saying, “They will be satisfied when we have Canadian healthcare and we’ve eliminated the Pentagon. That’s not reality.”

Of those who complain that Obama caved to centrists on issues such as healthcare reform, Gibbs said: “They wouldn’t be satisfied if Dennis Kucinich was president.”

All I can say is: Way to motivate the base, guys. Part of politicking is making sure your side is motivated to get out and support your candidates. Attacking the people most likely to support your candidates -- particularly in terms that sound like this -- isn't actually a very effective way to do that.

Conservatives Against Philanthropy: Are Bill Gates and Warren Buffett Socialists?

They're wearing red. That can't be a coincidence.

I confess I don't get this reaction to the June story in Fortune about how Bill Gates and Warren Buffett are trying to persuade other billionaires to leave half their estates to charity:

As it turns out, however, the writer, senior editor-at-large Carol Loomis, struck a raw nerve with Fortune readers. Most were outraged – regarding the philanthropy plan as grandstanding that would do nothing to create jobs or to address horrific problems, including runaway government spending, the spiraling deficit, and the near-comatose state of the economy. As Fortune notes in its July 26 issue, “When Carol Loomis reported on Warren Buffett and Bill and Melinda Gates’ plan to pledge half of their wealth away, the comments – nearly 500 of them – came in fast and, literally, furious.”

According to Fortune’s own tally, the comments ran 2-to-1 against Buffett and Gates. The included 36 percent of who readers described the philanthropy plan as “a publicity stunt/dangerous/the work of socialists” and another 26 percent who said the money that Buffett, Gates, and the other billiionaires were proposing to spend on charity should be spent in other ways – to pay off the U.S. debt, to help individuals, or reinvested in the creation of new businesses and job opportunities.

Any number of readers wrote in to urge Buffett and Gates to remember that they were supposed to be capitalists. As one put it, “For all their vast wealth, these people don’t have a clue about how economies flourish and fail. Don’t GIVE your money away. That’s called putting it in a bottomless pit. INVEST IT. Create some badly needed jobs by creating something called BUSINESSES with that capital.”

This is why I'm confused: Conservatives have typically sought to defuse allegations that they're heartless moneygrubbers by saying that they're not against helping poor or needy people, exactly -- they just think it's the job of communities and churches and private charity, not the state. But if they're now so critical of private individuals actually giving their money to charity, what's left?

Is the Ayn Randization of the business community becoming complete? Is the only virtue to build yourself and your profit? Is altruism morally suspect in this universe?

A conservative friend suggests that some of the response is less "anti-charity" than a reaction against the kinds of charity Gates and Buffett are supporting. (Buffet has, quietly, used his philathropical reach to try to expand access to abortion.) And their efforts do seem aimed at more than feeding the hungry and healing the sick -- they want to use their billions to transform societies. From the Fortune article, a description of a dinner where several billionaires told their stories of philathropy:

The charitable causes discussed in those stories covered the spectrum: education, again and again; culture; hospitals and health; the environment; public policy; the poor generally. Bill Gates, who found the whole event "amazing," regarded the range of causes as admirable: "The diversity of American giving," he says, "is part of its beauty."

But it's not as though Gates or Buffett have the power to compel other rich people to give to charity -- much less determine which philanthropies those rich people choose to fund. So statism -- usually the bugaboo of capitalist-conservatives -- seems to be absent from the equation. How the effort equates to "socialism," I'm at a loss to understand.

As it happens, today's New York Times has a front-page story about India -- that economic up-and-comer whose growth sometimes seems to come at the expense of America's -- and the debate there over whether the poor have a right to eat. Even with the availability of more good-paying jobs than ever before, there are still many, many Indians in poverty: 421 million. Which happens to be more people than exist in the United States, rich or poor.

The point here is not to disparage capitalism. It may have some warts, but it has also created more wealth -- and lifted more people out of poverty -- than any other force in history. So Gates and Buffett's critics are right to an extent: Start some businesses and put some people to work! You know what? That can easily be done with the billions of dollars each man will still have, even after their sizable philanthropic donations. It's not an either-or question.

The critics seem more than a little  foolish when they suggest that two self-made billionaires don't understand economics. They're also guilty of narrow thinking. As India shows -- and American history demonstrates -- there are places the market cannot reach and people the market cannot help, even in the most vibrant of economies. (There are places it probably shouldn't reach, but that's another discussion.) Conservatives usually seem to know this, which is why they've advocated private charity as a solution to such ills. To see them now sneer at altruism is weird and a little unsettling.

Federalist 30-36: This Government Was Made For Taxin'. And That's Just What It'll Do.

The farther I read into the Federalist Papers, the more I'm convinced the Tea Partiers only know about half their history.

Back up: I didn't start reading the Federalists with the aim of debunking the Tea Partiers. But it's impossible to read historical documents about the nature of governance in America when there's a coalition of folks out there who so strongly identify with those historical personages.

Their narrative, I believe, goes something like this: America was born, essentially, in a tax rebellion. And the Founding Fathers then created a limited government in order to avoid oppressing the people either with burdensome taxes or directly tyrannical rule. And maybe, just maybe, if the tax burden gets too large -- well, maybe, Americans have the right to resort to rebellion again.

Like I said: I think that's only partly right. Because the Federalist Papers -- the documents we most use, aside from the Constitution itself, for insight into the Founders' thinking -- seem to favor a rather more expansive vision of government than the Tea Party narrative would suggest.

I already mentioned this theory back in Federalist 15. But it's' greatly reinforced by reading Alexander Hamilton in Federalist 30 through 36.

Why? Because those chapters are about the topic nearest and dearest to the hearts of Tea Partiers: Taxation.

And get this: Hamilton was arguing that the power to tax was a central reason -- maybe the central reason -- the Constitution needed to be passed. And not just any power to tax: Unlimited power to tax.

This kind of goes against the narrative we hear lately, but there it is in Hamilton's own words: Without unlimited power to tax, the government will be a weak and ineffective thing.

How is it possible that a government half supplied and always necessitous, can fulfill the purposes of its institution, can provide for the security, advance the prosperity, or support the reputation of the commonwealth? How can it ever possess either energy or stability, dignity or credit, confidence at home or respectability abroad? How can its administration be any thing else than a succession of expedients temporizing, impotent, disgraceful? How will it be able to avoid a frequent sacrifice of its engagements to immediate necessity? How can it undertake or execute any liberal or enlarged plans of public good?

Now, Hamilton was speaking from some experience here: A reason the Articles of Confederation were considered to have failed was that the Congress under the articles couldn't raise its own money -- it had to ask the states, essentially. And the states weren't always forthcoming. That left the United States unable to expeditiously pay its debts from the Revolutionary War.

Here's where honesty compels me to note, though, that Hamilton's call for unlimited power of taxation -- and I'm serious here: he wanted it to be unlimited -- didn't seem to be in the service of creating a welfare state, but rather to pay for the common defense. (Federalist 34: "The expenses arising from those institutions which are relative to the mere domestic police of a state, to the support of its legislative, executive, and judicial departments, with their different appendages, and to the encouragement of agriculture and manufactures (which will comprehend almost all the objects of state expenditure), are insignificant in comparison with those which relate to the national defense.")

But unlimited power is, of course, unlimited power. And that's what Hamilton was arguing for. Here he is in Federalist 31:

As the duties of superintending the national defense and of securing the public peace against foreign or domestic violence involve a provision for casualties and dangers to which no possible limits can be assigned, the power of making that provision ought to know no other bounds than the exigencies of the nation and the resources of the community.

As revenue is the essential engine by which the means of answering the national exigencies must be procured, the power of procuring that article in its full extent must necessarily be comprehended in that of providing for those exigencies.

As theory and practice conspire to prove that the power of procuring revenue is unavailing when exercised over the States in their collective capacities, the federal government must of necessity be invested with an unqualified power of taxation in the ordinary modes.

This, of course, was horrifying to the antifederalists. And -- not to drive the point home with too much earnestness -- it was horrifying to them in a way that today's Tea Partiers would find very familiar. Here's "Brutus" writing in Antifederalist 32:

We may say then that this clause commits to the hands of the general legislature every conceivable source of revenue within the United States, Not only are these terms very comprehensive, and extend to a vast number of objects, but the power to lay and collect has great latitude; it will lead to the passing a vast number of laws, which may affect the personal rights of the citizens of the states, expose their property to fines and confiscation, and put their lives in jeopardy. It opens a door to the appointment of a swarm of revenue and excise collectors to prey upon the honest and industrious part of the community, [and] eat up their substance. . . .

If you're a Tea Partier, that sounds like a fairly accurate description of what happened, I suppose.

But the antifederalists were wrong, to some extent. They were concerned, it seems, with preserving a fair measure of state sovereignty -- "state's rights" you might say -- and their biggest worry about the Constitution's grant of unlimited power to tax was that it would, over time, deprive the states of their power to tax. It hasn't really worked out that way.

In the end, Hamilton rejected every suggested limitation to restrict Congress' power to tax. The only real check, he suggested, was the voters themselves -- and their ability to send to Congress wise people who would understand how to balance the needs of government against the income of its citizens.

There is no part of the administration of government that requires extensive information and a thorough knowledge of the principles of political economy, so much as the business of taxation. The man who understands those principles best will be least likely to resort to oppressive expedients, or sacrifice any particular class of citizens to the procurement of revenue. It might be demonstrated that the most productive system of finance will always be the least burdensome. There can be no doubt that in order to a judicious exercise of the power of taxation, it is necessary that the person in whose hands it should be acquainted with the general genius, habits, and modes of thinking of the people at large, and with the resources of the country. And this is all that can be reasonably meant by a knowledge of the interests and feelings of the people. In any other sense the proposition has either no meaning, or an absurd one. And in that sense let every considerate citizen judge for himself where the requisite qualification is most likely to be found.

Two-hundred years later, the only question I can ask is: How's that working out for ya?

Now that Proposition 8 has been struck down, will gay marriage become the law of the land?

That's the central question of my Scripps Howard column with Ben Boychuk this week. My take:

Whether the Supreme Court strikes down gay-marriage bans may depend entirely on the attitudes and disposition of Justice Anthony Kennedy, who tends to be the swing vote on controversial issues. Reading his 2003 opinion in Lawrence v. Texas -- the ruling that struck down laws making homosexual sex a crime -- it's difficult to see how state bans on gay marriage will survive.

It is true that Kennedy, in his 2003 ruling, was careful to state that decriminalizing such sexual practices did not require formal government recognition of gay relationships. But the logic of that ruling is compelling in the context of gay marriage.

The logic was this: To use the law to set apart homosexual conduct "demeans the lives of homosexual persons," and thus is at odds with the guarantees of liberty provided by the U.S. Constitution.

Kennedy was right then, and he would be right now to say the same thing about gay-marriage bans.

Such a ruling would invariably bring cries of "judicial activism" from the right, but it's entirely appropriate for the courts to get involved. Since at least the late 1960s, the right to marry has been considered a "fundamental right" under the U.S. Constitution --and nobody seriously contests that. Fundamental rights, it should be noted, cannot and should not be contravened by legislative action or statewide referendums. They simply exist.

Walker correctly realized this in his ruling. Gay couples, he wrote, "do not seek recognition of a new right. To characterize (their) objective as 'the right to same-sex marriage' would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy -- namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages."

If the Supreme Court follows its own precedent, it will agree. And that will be a good thing.

Ben obviously has a different take on things, about which I can say little more than what I have. I do have to take issue, though, with one of his remarks:

Marshalling one-sided testimony from social scientists led Walker to conclude: "Gender no longer forms an essential part of marriage," "parents' genders are irrelevant to children's developmental outcomes" and, incredibly, "the evidence shows same-sex marriage has and will have no adverse effects on society or the institution of marriage."

Here's where it must be noted that if the testimony in the case seems "one-sided," it's because the Proposition 8 proponents who argued the case at trial barely bothered to put on a case. They called just two witnesses, one of whom -- David Blankenhorn -- wasn't a researcher, exactly, but a pundit. (From Prop 8 on Trial: "He has never written a peer-reviewed article on the effects of same-sex marriage nor, by his own admission, studied any of the legal cases in which the United States Supreme Court has declared marriage a fundamental right.") I think it's fair to say that Ben is just about as qualified as Blankenhorn to make the pro-Prop 8 case -- and Ben, despite being widely read and a great writer, isn't qualified at all to testify as an expert witness.

Qualifiactions aside, though, he wasn't exactly a stellar witness for his side:

Under cross-examination by David Boies, an attorney for challengers of the ballot measure, Blankenhorn admitted he knew of no study that showed children reared by gay couples fared worse than those raised by heterosexual parents.

Blankenhorn also conceded that same-sex marriage would probably "improve the well-being of gay and lesbian households and their children."

Further down our column, Ben complains that Judge Walker "simply asserts" that voters based their decisions based on moral disapproval. But the pro-Prop 8 attorneys basically tried to assert their way to legal victory in this case. That's not the fault of Walker, nor is it the fault of gay marriage advocates. And it's hard to avoid the conclusion that the pro-Prop 8 lawyers barely put on a case defending the Constitutionality of a gay marriage ban because, well, they didn't have much of a case to make.