Law

Law Blogging:

Southern Appeal today links to this opinion which treats the nature of "substantive due process violations." Since this is my objection to the case against our Marine, as well as the other case mentioned in the comments, I thought I would post the link for those of you who enjoy reading legal documents.

Well, it's enlightening, even if not enjoyable. In this case, the government was found to have acted properly, but the author clarifies the lines around a violation of this type.

Substantive due process
involves the exercise of governmental power without
reasonable justification. Dunn. It is most often described as
an abuse of government power which "shocks the conscience."
Rochin v. California, 342 U.S. 165 (1952).

Now the military system works differently from the civilian system, and those of you unfamiliar with the way it works will find a thorough explanation in the comments at BlackFive's site. I think that this principle, because it is Constitutional law, applies to the UCMJ as well as to the civilian code. Even if it does not, though, it explains my objection. I find the charges to be shocking and unconscionable.

I have no objection to charging someone in a case like this, so long as the charges filed are restrained to reflect an honest reading of the facts. I object to the attempt to "gun up" charges, which is not the way the system is supposed to work. It seems to me an abuse of the power entrusted by the government. It's not clear from the articles on the topic whether the abuse is the fault of the Art 32 officer, or of the Marine who made the charges originally, or both. It's also true, again, that this principle may not apply to the UCMJ for techincal reasons of which I'm not aware. As a general principle, however, it explains my anger and sense of unfairness.

On another topic, Reason magazine explores the roots of gun control laws in America. This is a particularly fascinating article, as it deals with a remarkable period of American history -- Reconstruction -- when a lot of things were happening that we've largely forgotten. By coincidence, it also deals with a number of "substantive due process violations," when government officials were using their power in shocking ways.

Hat tip for the last: the Geek with a .45.