I should have 800 things to cover -- 801 -- but all I can think about is a piece Ava and C.I. have planned for next week at THIRD. And it just hit me, that article needs to go up Sunday -- for the last day of Women's History Month. If we can't pull together an edition for THIRD next week by Sunday, we need to step back and let Ava and C.I. publish their piece as the only article at THIRD that week. That sometimes happens but I think Jim prefers a full edition.
Diana also released the video below today.
Diana Ross is a legend, a hero, a singer, an actress, a fashion trend setter, a mother and so much more. And, if you didn't already guess, the piece that they're planning is about Diana Ross.
Let's get that woman her flowers.
Your book provides a sustained critique of originalism and textualism, which now seem to be the prevailing methods of constitutional and statutory interpretation on the court. You warn that these methods “will not help achieve the goals of those who write statutes or those who wrote and adopted the Constitution.”
Who did you write this book for?
I wrote the book for lawyers who are interested and people who aren’t lawyers. Lots of people, if you read the papers, think that the court is reaching decisions they don’t like. Others do like them, but many do not. And then they blame politics, and they say the court is political.
That is not my view. Perhaps their candidacy was supported by people who have political views, but what they were supporting was the nomination and election or appointment of a judge who would think this is the right way to go about a deciding constitutional or statutory case. And that right way has more and more become a kind of literalism — a kind of textualism, a kind of originalism.
[Antonin] Scalia said that consisted of looking for meaning in the text: Ascribe to the text the meaning that it has borne from its inception, and reject judicial speculation about the drafters’ extra-textually derived purposes, the desirability of the fair readings, the anticipated consequences. In other words, don’t look at consequences. Don’t look at purposes. Look at text.
Now, that’s a very seductive theory. Why? Because it makes two important promises. Promise one is that the job even in the Supreme Court will be simpler, and there will be a single answer. Second, the promise is that the judges will not be able to substitute — or less able to substitute — their own views of what is good for the law.
I’m trying in this book to show the reader something. I am not writing as a professor. I am not writing as an academic or scholar. I’m writing as a practicing judge, and I’ve had a different experience than they’ve had. I want to show them what it is like to try to interpret words in the Constitution, words in the statutes, according to either the textualist theory, where we just look at the words, or use a more traditional method.
The more traditional method being — yes, of course, start with the words. If the word in the statute is “carrot,” that does not mean “fish.” But go on. Why did someone write those words? What was the purpose? What are the consequences [of a proposed interpretation]? Will they further that purpose? And [are the values] consistent with the values that are written — democracy, human rights — into our own constitution?
As you mentioned, the promise of originalism is very seductive. It offers the appearance of a democratically legitimate, empirically grounded method for answering hard constitutional questions. If we’re trying to figure out what a constitutional provision means, why not consult the people who wrote it, and the people who were affected by it at the time?
You have a very stark warning for people who may be drawn to this notion. You describe originalism as inherently “regressive” — writing that it “will not permit modern solutions to modern problems” and that it “consigns us to a set of views and values that predominated during a period when many groups of people today were not equal citizens.”
When the founders were thinking about and writing the words of the Constitution and protecting certain basic rights in the Constitution, women were not really part of the political process. They didn’t have a right to vote, and there was slavery, and the slaves weren’t part of [the political process either].
In the 1860s, after the Civil War, they wrote words designed to protect some people, but the theory of who is part of this community — America, which precedes through democratic means — was quite different then than it is now.
And to say, “What happened then, what people thought then, what the reasonable person thought those words meant then” — well, that will overlook lots of changes designed to further the value of protecting basic civil rights, because the world has changed.
We used to have this argument [in front of students] a lot —Scalia and I — and we were good friends. They saw that we liked each other. I would say, “Nino, the world has changed. George Washington didn’t know about the internet.” And Nino would say, “I knew that. Good point.”
And then he would say that this method — what I think of as traditional, I think involves purposes, consequences, values and sometimes much more — he’d say, “It’s too complicated. Maybe you’re the only one who can do it.”
And I would say to him: “Yes, but we if we adopt your method, your method of interpreting the Constitution, or the statutes, we will have a Constitution that no one wants.” Because the world does change, not necessarily so much in terms of values, but certainly in terms of the facts to which those values are applied. And that I think is the real argument — taking very seriously what they want, and saying — through example, not through a theory that a law professor has made up, but through example — showing that this textualism or this originalism just won’t work.
The majority thought in Dobbs there would be fewer cases — we will turn the abortion matter over to the states, and they will legislate or Congress will legislate and it won’t be decided by the courts. That’s what they wrote. That’s what they thought.
But Tuesday, there will be cases on abortion in the Supreme Court. Many states have many different abortion laws now, and I suspect that many of them will be decided in the court where the words will matter, where it will be more complicated than ever, and if you think it’s going to be simpler, I have a bridge in New York City I’d like to sell you.
"Iraq snapshot" (THE COMMON ILLS):
Here is what special rapporteur Francesca Albanese found:
- Israel committed "at least three" of the five acts listed in the Genocide Convention in Gaza
- Genocidal attacks were "approved and given effect" following statements that showed "genocidal intent" by Israeli military and government officials
- Israel treated the civilians of Gaza and its infrastructure as "terrorist" or "terrorist-supporting"
- By doing so, Israel transformed "everything and everyone into either a target or collateral damage, hence killable or destroyable"
"This resolution must be implemented. Failure would be unforgivable," Guterres said in a statement.
French Ambassador and Permanent Representative Nicholas de Rivière welcomed the adoption of the resolution, stressing that “it was high time” that the Security Council act.
“The adoption of this resolution demonstrates that the Security Council can still act when all of its members make the necessary effort to discharge their mandate,” he said.
“The Security Council’s silence on Gaza was becoming deafening, it is high time now for the Council to finally contribute to finding a solution to this crisis,” he continued, noting that it is not yet over and that the 15-member body will have to remain mobilised and immediately get to work.
“It will have to, following Ramadan, which finishes in two weeks, [the Council] will have to establish a permanent ceasefire,” the ambassador added, stressing also the importance of the two-State solution.
Israel has cancelled a meeting in Washington after the US declined to veto a UN Security Council resolution calling for a ceasefire in Gaza.
The resolution, which also called for the release of all hostages, followed several failed attempts at similar measures since the 7 October attacks.
Israeli Prime Minister Benjamin Netanyahu accused the US of having "abandoned" its previous policy.
While promising at least a pause in the war, the resolution has been criticised by some analysts for being more symbolic than substantial in its ability to bring an end to the war. Nancy Okail, the president of the US-based think tank Center for International Policy, told Al Jazeera’s Ali Harb that while the resolution is significant, it is “still very late and still not enough”.
Is the resolution binding?
All UNSC resolutions are considered binding, in accordance with Article 25 of the UN Charter which was ratified by the US.
However, the US has described the Monday resolution as non-binding. US ambassador to the UN Linda Thomas-Greenfield said Washington fully supported “some of the critical objectives in this non-binding resolution”. On the same day, US State Department spokesperson Matthew Miller told reporters: “It is a non-binding resolution”.
This has been contested by other UN officials and Security Council members. China’s UN ambassador Zhang Jun said that Security Council resolutions are binding.
Deputy UN spokesperson Farhan Haq added that UNSC resolutions are international law, “so to that extent they are as binding as international law is”.
The Anadolu Agency reported that Pedro Comissario, Mozambique’s UN ambassador, said “all United Nations Security Council resolutions are binding and mandatory”.
If a UNSC resolution is not followed, the council can vote on a follow-up resolution addressing the breach and take punitive action in the form of sanctions or even the authorisation of an international force.
The most important flaw in the Council’s text is that it calls for a ceasefire only “for the month of Ramadan.” This most important of Muslim holidays began on March 11, so the demand for a ceasefire is only for about two weeks. And while it does demand that the immediate halt lead to a lasting ceasefire, two weeks is still a much too-short time.
Other problems reflect deliberate obfuscation of language. The demand that all parties treat “all persons they detain” in compliance with international law clearly refers to the thousands of Palestinian detainees Israel is holding, many in administration detention without even the pretense of legitimate legal procedures, whom international law requires to be immediately released. Their detention violates a host of those laws, but by not naming them directly, diplomatic wrangling always threatens to deny them their rights.
And in the paragraph focusing on the catastrophic humanitarian situation across Gaza, the Council’s demand for “lifting all barriers to provision of humanitarian aid at scale” should be a clear and straightforward message to Israel that it must open the gates, end its rejection of goods on the spurious grounds of potential “dual use,” replace its deliberately complex and time-consuming inspection processes and more. But that reference to “lifting all barriers” is hidden in a long sentence within a reference to an earlier resolution. The first part of the sentence merely “emphasizes” the need for more humanitarian aid and protection for Palestinian civilians. And in UN diplo-speak, especially in the Security Council that actually has the right to enforce its resolutions, “emphasizing” something ain’t even close to “demanding” that it happen.
Israel was still not pleased, of course. Prime Minister Benjamin Netanyahu immediately announced his delegation, expected in Washington tomorrow to discuss Tel Aviv’s planned escalation against Rafah, will stay home instead.
But even if the resolution is not all it should be, its passage (14 in favor, the U.S. abstained) still represents a powerful global rejection of the U.S.-backed Israeli assault against Palestinians in Gaza, and an important expression of support for the South African-led intervention at the International Court of Justice designed to prevent or stop Israeli genocide and to hold Israel accountable for its crimes. Importantly, and despite U.S. Ambassador Linda Thomas-Greenfield’s false claim following the vote, all decisions of the Council, as stated in Article 25 of the UN Charter, are binding on Member States.
That puts a big obligation on the U.S. and global movements for ceasefire, massive escalation of humanitarian aid, and resumption of funding UNRWA. Left to its own devices, the Council will almost never move to enforce its own decisions. That responsibility, that obligation, lies with our movements—and, in the UN context, with the General Assembly. The legacy of the South Africa anti-apartheid movement, especially through the 1970s and 80s, and into the early 1990s, shows that model. The U.S. and Britain over and over again vetoed resolutions in the Security Council for sanctions against apartheid South Africa. Over and over again the General Assembly passed the resolutions—for banking, trade, and other sanctions, for arms embargoes and much more. Eventually, public pressure against Washington and London forced a pull-back, and eventually, reluctantly and grudgingly, those governments gave in, stopped vetoing the Council resolutions and started abiding by the calls of the Assembly. It all played a huge role in ending South African apartheid.
AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman.
We turn now to Gaza, where aid groups say famine is imminent after five months of U.S.-backed attacks by Israel. The head of the U.N. Palestinian aid agency, UNRWA, says Israel is now denying access to all UNRWA food convoys to northern Gaza, even though the region is on the brink of famine. UNRWA chief Philippe Lazzarini wrote on X, quote, “This man-made starvation under our watch is a stain on our collective humanity.” On Saturday, U.N. Secretary-General António Guterres traveled to the Rafah border crossing.
SECRETARY-GENERAL ANTÓNIO GUTERRES: A long line of blocked relief trucks on one side of the gates, the long shadow of starvation on the other. That is more than tragic. It is a moral outrage. … It’s time to truly flood Gaza with lifesaving aid. The choice is clear: either surge or starvation. Let’s choose the side of help, the side of hope and the right side of history.
AMY GOODMAN: For more, we’re joined by Alex de Waal, the executive director of the World Peace Foundation at Tufts University and author of Mass Starvation: The History and Future of Famine. His new piece for The Guardian, “We are about to witness in Gaza the most intense famine since the second world war.”
Alex, welcome back to Democracy Now! Describe what’s happening, at a time when Israel is now preventing the largest aid umbrella in Gaza, UNRWA, from delivering aid to northern Gaza, where famine is the most intense.
ALEX DE WAAL: Let’s make no mistake: We talk about imminent famine or being at the brink of famine. When a population is in this extreme cataclysmic food emergency, already children are dying in significant numbers of hunger and needless disease, the two interacting in a vicious spiral that is killing them, likely in thousands already. It’s very arbitrary to say we’re at the brink of famine. It is a particular measure of the utter extremity of threat to human survival. And we have never actually — since the metrics for measuring acute food crisis were developed some 20 years ago, we have never seen a situation either in which an entire population, the entire population of Gaza, is in food crisis, food emergency or famine, or such simple large numbers of people descending into starvation simply hasn’t happened before in our lifetimes.
AMY GOODMAN: How can it be prevented?
ALEX DE WAAL: Well, it’s been very clear. Back in December, the Famine Review Committee of the Integrated Food Security Phase Classification system — and that is the sort of the ultimate arbiter, the high court, if you like, of humanitarian assessments — made it absolutely clear — and I can quote — “The cessation of hostilities in conjunction with the sustained restoration of humanitarian access to the entire Gaza Strip remain the essential prerequisites for preventing famine.” It said that in December. It reiterated it again last week. There is no way that this disaster can be prevented without a ceasefire and without a full spectrum of humanitarian relief and restoring essential services.
AMY GOODMAN: Can you explain what the IPC is? And also talk about the effects of famine for the rest of the lives of those who survive, of children.
ALEX DE WAAL: So, the IPC, which is short for the Integrated Food Security Phase Classification system, is the system that the international humanitarian agencies adopted some 20 years ago to try and come to a standardized metric. And it uses a fivefold classification of food insecurity. And it comes out in very clearly color-coded maps, which are very easy to understand. So, green is phase one, which is normal. Yellow is phase two, which is stressed. Orangey brown is phase three, that is crisis. Red is four, that is emergency. And in the very first prototype, actually, of the IPC, this was called famine, but they reclassified it as emergency. And dark blood red is catastrophe or famine. And this measures the intensity. There’s also the question of the magnitude, the sheer numbers involved, which in the case of Gaza means, essentially, the entire population of over 2 million.
Now, starvation is not just something that is experienced and from which people can recover. We have long-standing evidence — and the best evidence, actually, is from Holland, where the Dutch population suffered what they called the Hunger Winter back in 1944 at the end of World War II. And the Dutch have been able to track the lifelong effects of starvation of young children and children who were not yet born, in utero. And they find that those children, when they grow up, are shorter. They are stunted. And they have lower cognitive capacities than their elder or younger siblings. And this actually even goes on to the next generation, so that when little girls who are exposed to this grow and become mothers, their own children also suffer those effects, albeit at a lesser scale. So, this will be a calamity that will be felt for generations.
AMY GOODMAN: What are you calling for, Alex de Waal? I mean, in a moment we’re going to talk about what’s happening in Sudan. It’s horrifying to go from one famine to another. But the idea that we’re talking about a completely man-made situation here.
ALEX DE WAAL: Indeed. It is not only man-made, and therefore, it is men who will stop it. And sadly, of course, even if there is a ceasefire and humanitarian assistance, it will be too late to save the lives of hundreds, probably thousands, of children who are at the brink now and are living in these terrible, overcrowded situations without basic water, sanitation and services. A crisis like this cannot be stopped overnight. And it is a crisis that is not just a humanitarian crisis. It is fundamentally a political crisis, a crisis of an abrogation of essentially agreed international humanitarian law, and indeed international criminal law. There is overwhelming evidence that this is the war crime of starvation being perpetrated at scale.
AMY GOODMAN: Alex de Waal, we’re going to turn now from what’s happening in Gaza. We’ll link to your piece, “We are about to witness in Gaza the most intense famine since the second world war.”
Gaza remains under assault. Day 172 of the assault in the wave that began in October. Binoy Kampmark (DISSIDENT VOICE) points out, "Bloodletting as form; murder as fashion. The ongoing campaign in Gaza by Israel’s Defence Forces continues without stalling and restriction. But the burgeoning number of corpses is starting to become a challenge for the propaganda outlets: How to justify it? Fortunately for Israel, the United States, its unqualified defender, is happy to provide cover for murder covered in the sheath of self-defence." CNN has explained, "The Gaza Strip is 'the most dangerous place' in the world to be a child, according to the executive director of the United Nations Children's Fund." ABC NEWS quotes UNICEF's December 9th statement, ""The Gaza Strip is the most dangerous place in the world to be a child. Scores of children are reportedly being killed and injured on a daily basis. Entire neighborhoods, where children used to play and go to school have been turned into stacks of rubble, with no life in them." NBC NEWS notes, "Strong majorities of all voters in the U.S. disapprove of President Joe Biden’s handling of foreign policy and the Israel-Hamas war, according to the latest national NBC News poll. The erosion is most pronounced among Democrats, a majority of whom believe Israel has gone too far in its military action in Gaza." The slaughter continues. It has displaced over 1 million people per the US Congressional Research Service. Jessica Corbett (COMMON DREAMS) points out, "Academics and legal experts around the world, including Holocaust scholars, have condemned the six-week Israeli assault of Gaza as genocide." The death toll of Palestinians in Gaza is grows higher and higher. United Nations Women noted, "More than 1.9 million people -- 85 per cent of the total population of Gaza -- have been displaced, including what UN Women estimates to be nearly 1 million women and girls. The entire population of Gaza -- roughly 2.2 million people -- are in crisis levels of acute food insecurity or worse." ALJAZEERA notes, "The number of people killed in Israel’s war on Gaza has increased to 32,414, according to the enclave’s Health Ministry. Israeli attacks in Gaza have also wounded at least 74,787 people since October 7." Months ago, AP noted, "About 4,000 people are reported missing." February 7th, Jeremy Scahill explained on DEMOCRACY NOW! that "there’s an estimated 7,000 or 8,000 Palestinians missing, many of them in graves that are the rubble of their former home." February 5th, the United Nations' Phillipe Lazzarini Tweeted:
The Al Amal Hospital in Khan Younis, in southern Gaza is "out of service" after the Israeli military forced medical staff to evacuate the facility, Palestine Red Crescent Society (PRCS) warned on Tuesday.
“The occupation forces forced the hospital teams to evacuate and closed its entrances with earthen barriers,” the organization said in a statement on X.
At least 27 PRCS staff and six patients were evacuated from the hospital, with help from the United Nations Office for Humanitarian Affairs. The bodies of two people who had been killed inside the hospital were included in the evacuation.
[. . .]
Remember: Hospitals are protected civilian objects under international humanitarian law. It is illegal, with few exceptions, to attack hospitals. A hospital can lose its special protected status only if it is used by an armed group for acts that are “harmful to the enemy.”
But, even if a hospital loses its special status, the wounded and sick inside are still protected by the principle of proportionality. A warning must be given, and time for safe evacuation, before carrying out an attack.
Remember, that is only one hospital being attacked in Gaza by the Israeli government currently.
Regarding the Israeli governments attacks on hospitals, THE NATIONAL reports:
Palestinians held a funeral on Monday for a Red Crescent volunteer killed by Israeli forces at Al Amal Hospital in Khan Younis, the organisation has confirmed.
Ameer Abu Ayesha, 23, was killed on Sunday while working at the besieged hospital.
Colleagues were unable to bury him during the siege. His body was later removed from the hospital as Israeli forces ordered staff and displaced civilians inside to evacuate.
The organisation said Israeli tanks blocked the gates to the hospital and ordered people inside the complex to strip naked and leave the building.
Staff at Australia’s national broadcaster warned that its coverage of the war in Gaza relied too much on Israeli sources and used language that “favoured the Israeli narrative over objective reporting”, internal communications reveal, shedding new light on bias claims that convulsed the outlet.
In a summary of a meeting on the Australian Broadcasting Corporation (ABC)’s coverage of the war, staff detailed concerns that coverage displayed pro-Israel bias, such as by accepting “Israeli facts and figures with no ifs or buts” while questioning Palestinian viewpoints and avoiding the word “Palestine” itself.
The three-page summary, which Al Jazeera obtained via a freedom of information request with the ABC, is undated, but its contents correspond with a meeting of 200 staff that was held in November to address concerns about the broadcaster’s coverage.
While the broad thrust of concerns aired at the meeting was reported by Australian media in November, the document contains extensive detail about staff’s complaints and previously unpublicised examples of alleged pro-Israeli bias.
“We’re worried the language we’re using in our coverage is askew, favoring the Israeli narrative over objective reporting. This is evident in our reluctance to use words such as ‘War crimes’, ‘Genocide”, ‘Ethnic cleansing’, ‘Apartheid’ and ‘Occupation’ to describe the various aspects of the Israeli practices in Gaza and the West Bank, even when the words are attributed to respectable organisations and sources,” staff said in the document, which is signed “Concerned ABC journalists and staff” and addressed to “managers and colleagues”.
“Meanwhile, we’re quick to use ‘terrorist’, ‘barbaric’, ‘savage’ and ‘massacre’ when describing the October 7th attacks. Similarly, we regularly quote sources referring to highly contested claims made by Israel, but not those made by Palestinians and their supporters.”
- Truest statement of the week
- Truest statement of the week II
- A note to our readers
- Gaza
- TV: X-MEN '97
- MADAME WEB -- The Autopsy (Stan, Ava and C.I.)
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- Cranky Carville
- 2024 passings
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- Book List
- Tweet of the week (political)
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