'Nuff said

(Taking context-optional note of thought-provoking quotes)

'I don’t even have to read the briefs, for Pete’s sake.'

-- U.S. Supreme Court Justice Antonin Scalia (right), in a just-published interview with California-Hastings Law Professor Calvin Massey, about which we also posted here. (2008 photo credit) Scalia spoke in explanation of the scope of questions that he deems easily decided by his originalist approach to constitutional interpretation. In the Justice's words:

'We don’t have the answer to everything, but by God we have an answer to a lot of stuff ... especially the most controversial: whether the death penalty is unconstitutional, whether there’s a constitutional right to abortion, to suicide ....'

Read On! Unlikely Allies

(Read On! ... occasional posts on writing worth reading)

Is she or isn't he?

That conundrum's central to a new diplomatic history of Franco-American relations during the late 18th century revolution by which erstwhile colonists drove Britain out and established the United States of America. As told by our colleague Joel Richard Paul (below left), the tale is rich, and not just for its rich insights into how states form, and how they conform (or not) to international law. The title, Unlikely Allies: How a Merchant, a Playwright, and a Spy Saved the American Revolution (2009), promises much -- and Joel, who's Professor of Law and Associate Dean for International and Graduate Programs at the University of California Hastings College of the Law in San Francisco, delivers on that promise.

► The spy is the s/he of the story: Charles-Geneviève-Louis-Auguste-André-Timothée d'Eon, a Captain of the Dragoons who helped King Louis XVI keep confidential some of her/his father's embarrassing state secrets. Successful completion of that task led, by twists and turns, to d'Eon's secret dealings with others -- dealings that laid groundwork by which the French eventually provided the American rebellion money, arms, and troops that were essential to its ultimate success. Without spoiling the ending, suffice it to say that the story of this spy -- known at various times and places as the Chevalier or the Chevalière, d'Eon -- is a rollicking yarn.

Equally captivating are the book's portraits of 2 others whose derring-do set the stage for a diplomatic coup typically attributed to Benjamin Franklin. (Taking implicit issue with articles like the one here, Joel demonstrates that Franklin did not arrive in Paris until after much of the hard work had been done.) The 2 are:

► Silas Deane, a Connecticut merchant sent to Paris even before the Declaration of Independence was signed. Deane was instructed to use trade as cover for his true task of persuading France to aid the Americans.

► Pierre-Augustin Caron de Beaumarchais, the writer of Le Barbier de Seville and other comédies, who, with the covert OK of official France, provided munitions to the rebels.

These character studies not only enrich understanding of the times, but also serve as an important reminder that happenstance and idiosyncrasy often affect the course of history.

Also significant are the many passages in Unlikely Allies that provoke thought on issues still current in international affairs. For example:

► The long reluctance of the French sovereign to aid independence abroad, lest the rebel spirit be roused at home (as, indeed, it soon was, in a Revolution that cost Louis XVI his head);

► The duplicity and intrigue that underlie much of the information that's branded "intelligence";

► The consequences of a terrorist attack committed upon the initiative of an anti-British pyromaniac; and

► The French Foreign Minister's refusal of an invitation to join Spain in attacking Portugal, about which Joel writes:

A preemptive war would 'soil oneself with a notorious injustice, which would be invincibly repugnant to the feelings and principles of the two monarchs.' ... The argument for preemptive war was as tempting as it was dangerous. A wise leader would never commit his country to a foreign war in the name of preemption when no imminent threat existed.

(pp. 113-14) The passage resounds with echoes of post-9/11 debates about the U.S.-led invasion of Iraq, a fact that underscores the contemporary significance of this superb historical account.

California's worst & best $-saving ideas

Worst idea for addressing California's budget crisis (a particularly acute symptom of global economic meltdown) (prior post):
Cut off all funding for the state's oldest law school, the University of California, Hastings College of Law, San Francisco. As posted here and here, Governor Arnold Schwarzenegger -- no particular friend of education budgets ever since he took office from a voter-recalled governor in 2003 -- gets a very loud raspberry for that one.

Best idea for addressing California's budget crisis:
"Eliminat[e] capital punishment, which is rarely carried out anyhow," and "would save the state $125 million a year." (Prior IntLawGrrls posts on California capital punishment here, here, here, here, and here.) Applause for this idea to John Van de Kamp, formerly the state's Attorney General and Los Angeles County's District Attorney. Himself once a candidate for Governor of California, Van de Kamp ended his Los Angeles Times op-ed calling for death penalty abolition with words pointed squarely at the man who now holds that seat:

A courageous governor facing an unprecedented budget crisis would take this step and use the taxpayer money saved to preserve some of the vital services now on the chopping block.

Marriage in California

The California Supreme Court yesterday unanimously denied a petition for extraordinary relief that would have removed the anti-same-sex marriage initiative from the November 2008 ballot (here is the Court's marriage cases site).
The National Center for Lesbian Rights (NCLR) argued in its petition that the initiative, which would strip same-sex couples of the right to marry, is such a significant change in the California Constitution that it constitutes a revision, not a mere amendment, to the Constitution and therefore requires a more deliberative democratic process before being presented to voters. (credit for images) If passed, the measure would strip a fundamental right from a specified minority – which is just the sort of majoritarian action that courts, not electorates, are best positioned to reckon with. Donna Ryu, a clinical professor of law at the University of California, Hastings College of Law, wrote an amicus letter in support of the NCLR that garnered the signatures of many California law professors (including me – and our Legal History Blog colleague, Mary Dudziak). Unfortunately, the Court did not address the merits of the petition.
For me, having recently moved into the democratic chaos of California, this issue has more resonance than most. First, the extended oral argument triggered media coverage and lengthy commentary (Hastings ran a live feed of the hours of argument in a room open to the public, followed by a panel of professors analyzing the case). Then the release of the momentous decision brought dozens of ecstatic phone calls and celebratory emails from family-law professors and friends who support same-sex marriage rights. On the first day of same-sex weddings, City Hall in San Francisco was as tranquil and joyful a place as I’ve ever seen.
But it’s being part of a California lesbian family that makes me feel as if history -- and marriage -- have been thrust upon me, like it or not. Everyone has asked, “so, are you getting married now?!” Yes, I think we are, but I can’t help but be startled by the question. Perhaps I should have spent more time preparing for this moment of liberation; instead, I was figuring out how to build a relationship in spite of legal and political obstacles -- and developing a healthy skepticism about marriage as an institution. From Harriet Jacobs, Incidents in the Life of a Slave Girl (p. 302):

Reader, my story ends with freedom; not in the usual way, with marriage.

(Cross-posted at Legal History Blog)