CHRISTMAS MUSINGS….

 ORIGINALISM.  It’s interesting that the proponent of legal originalism, Supreme Court Justice Scalia, a Roman Catholic, so strongly favored “original intent.” Respectfully, his church saw the expansion of doctrine well beyond early Christianity –e.g., the Papacy, or unfolding of church doctrine on everything from celibacy to the Trinity to just war.   Given evolving church doctrine, why didn’t Justice Scalia embrace what was arguably a similar unfolding of Constitutional interpretation?

FOREIGN AID:   Many citizens believe this country overspends on foreign aid.   Surveys appear to show that many estimate the US spends upwards of 20% of the Federal budget for foreign aid.   However, if columnist Michael Gerson is the right, foreign aid – including international development and global health – represents less than 1% of the Federal budget.   He argues that such assistance has usefully combated disease and destabilization, saving more than 1 million lives, mainly young children.

IMPEACHMENT?   Author Cass Sunstine has researched the where/when of impeachment in America.  Bottom line: impeachment has been traditionally a partisan affair.  Mr. Sunstine offers various definitions and rationale for impeachment.

SURVEILLANCE: Jennifer Granick has written an interesting book about American spies.  Today, she comments, many Americans probably approve current rules and policies – “we have nothing to hide.”  However, she warns of dangers to individual rights if targeting supports the political objectives of a given administration.   The dangers of abuse are manifest, she says, since approximately one in four Americans has some form of a criminal record.   It boils down to the old question – how to balance democracy, the rule of law, and civil liberties.

FLAWED TRIALS.  The June 2017 decision of the US Supreme Court in Weaver v. Massachusetts alarms some civil libertarians.  The Court seemingly made it more difficult for defendants to gain relief from convictions after flawed trials.  To persevere, the complaining party must prove prejudice.   That can occur in two ways: [1] by showing that, absent the error, there was reasonable probability of a different outcome; or [2] demonstrating that counsel’s error rendered the trial fundamentally unfair.  Critics deplore the Weaver decision as unfairly tweaking the concept of “structural error.”   [That is an error violating Constitutional guarantees that define a fair criminal trial].  Such structural errors are so dangerous that they defy harmless error analysis and historically trigger reversal.  However, Weaver seems to require the offended party to object to that error at trial.   The Catch-22:   Prejudice stemming from this type of error is nearly impossible to prove: How can anyone show – well after the fact – that violation of a basic right affected the outcome?

HAIR SAMPLES: The NACDL CHAMPION magazine discusses the zigzag history of hair sample evidence.   For decades, FBI analysts claimed they could tell whether certain hairs came from a given person.  However, the National Academy of Science has stated that there’s no scientifically accepted formula about the frequency with which particular characteristics of hair are distributed in the population.    Between 2009 and 2013, DNA testing exonerated three men serving lengthy prison sentence whose convictions rested, at least in part, on microscopic hair analysis.

MARIN PROTOCOL:  Interestingly, few accusers seem to take a lie detector test prior to going public, accusing prominent individuals of sexual misconduct.   Of course, it’s wise to keep such results private unless and until they appear to confirm the accuser’s story.   And certainly, the reliability of polygraphs is an open question.   However, lie detector tests may gain increased dependability from something called the Marin Protocol:   If several individuals take a lie detector test and reach the same result, there’s a cumulative effect of increased reliability.

BEETHOVEN’S BIRTHDAY.    December 15 is celebrated as the birthday of Beethoven, the famous composer.  Right to life advocates claim that – had prenatal data been available centuries ago – he would have been aborted for significant birth defects.