Fire Hydrant of Freedom
Politics, Religion, Science, Culture and Humanities => Science, Culture, & Humanities => Topic started by: Crafty_Dog on April 14, 2009, 02:54:10 PM
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Video Link Here:http://governor.state.tx.us/news/press-release/12227/
AUSTIN – Gov. Rick Perry today joined state Rep. Brandon Creighton and sponsors of House Concurrent Resolution (HCR) 50 in support of states’ rights under the 10th Amendment to the U.S. Constitution.
“I believe that our federal government has become oppressive in its size, its intrusion into the lives of our citizens, and its interference with the affairs of our state,” Gov. Perry said. “That is why I am here today to express my unwavering support for efforts all across our country to reaffirm the states’ rights affirmed by the Tenth Amendment to the U.S. Constitution. I believe that returning to the letter and spirit of the U.S. Constitution and its essential 10th Amendment will free our state from undue regulations, and ultimately strengthen our Union.”
A number of recent federal proposals are not within the scope of the federal government’s constitutionally designated powers and impede the states’ right to govern themselves. HCR 50 affirms that Texas claims sovereignty under the 10th Amendment over all powers not otherwise granted to the federal government.
It also designates that all compulsory federal legislation that requires states to comply under threat of civil or criminal penalties, or that requires states to pass legislation or lose federal funding, be prohibited or repealed.
HCR 50 is authored by Representatives Brandon Creighton, Leo Berman, Bryan Hughes, Dan Gattis and Ryan Guillen.
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Transnational strategies to eviscerate the Second Amendment via the UN:
http://www.youtube.com/watch?v=i6pLjDmgMwA
With Harold Koh at the State Department this is going to get REALLY bad!
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By RANDY E. BARNETT
In response to an unprecedented expansion of federal power, citizens have held hundreds of "tea party" rallies around the country, and various states are considering "sovereignty resolutions" invoking the Constitution's Ninth and Tenth Amendments. For example, Michigan's proposal urges "the federal government to halt its practice of imposing mandates upon the states for purposes not enumerated by the Constitution of the United States."
Corbis
Suffragettes celebrate the 19th Amendment, 1920.
While well-intentioned, such symbolic resolutions are not likely to have the slightest impact on the federal courts, which long ago adopted a virtually unlimited construction of Congressional power. But state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution.
Article V provides that, "on the application of the legislatures of two thirds of the several states," Congress "shall call a convention for proposing amendments." Before becoming law, any amendments produced by such a convention would then need to be ratified by three-quarters of the states.
An amendments convention is feared because its scope cannot be limited in advance. The convention convened by Congress to propose amendments to the Articles of Confederation produced instead the entirely different Constitution under which we now live. Yet it is precisely the fear of a runaway convention that states can exploit to bring Congress to heel.
Here's how: State legislatures can petition Congress for a convention to propose a specific amendment. Congress can then avert a convention by proposing this amendment to the states, before the number of petitions reaches two-thirds. It was the looming threat of state petitions calling for a convention to provide for the direct election of U.S. senators that induced a reluctant Congress to propose the 17th Amendment, which did just that.
What sort of language would restore a healthy balance between federal and state power while protecting the liberties of the people?
One simple proposal would be to repeal the 16th Amendment enacted in 1913 that authorized a federal income tax. This single change would strike at the heart of unlimited federal power and end the costly and intrusive tax code. Congress could then replace the income tax with a "uniform" national sales or "excise" tax (as stated in Article I, section 8) that would be paid by everyone residing in the country as they consumed, and would automatically render savings and capital appreciation free of tax. There is precedent for repealing an amendment. In 1933, the 21st Amendment repealed the 18th Amendment that had empowered Congress to prohibit the sale of alcohol.
Alternatively, to restore balance between federal and state power and better protect individual liberty, the repeal of the income tax amendment could be folded into a new "Federalism Amendment" like this:
Section 1: Congress shall have power to regulate or prohibit any activity between one state and another, or with foreign nations, provided that no regulation or prohibition shall infringe any enumerated or unenumerated right, privilege or immunity recognized by this Constitution.
Section 2: Nothing in this article, or the eighth section of article I, shall be construed to authorize Congress to regulate or prohibit any activity that takes place wholly within a single state, regardless of its effects outside the state or whether it employs instrumentalities therefrom; but Congress may define and punish offenses constituting acts of war or violent insurrection against the United States.
Section 3: The power of Congress to appropriate any funds shall be limited to carrying into execution the powers enumerated by this Constitution and vested in the government of the United States, or in any department or officer thereof; or to satisfy any current obligation of the United States to any person living at the time of the ratification of this article.
Section 4: The 16th article of amendment to the Constitution of the United States is hereby repealed, effective five years from the date of the ratification of this article.
Section 5: The judicial power of the United States to enforce this article includes but is not limited to the power to nullify any prohibition or unreasonable regulation of a rightful exercise of liberty. The words of this article, and any other provision of this Constitution, shall be interpreted according to their public meaning at the time of their enactment.
Except for its expansion of Congressional power in Section 1, this proposed amendment is entirely consistent with the original meaning of the Constitution. It merely clarifies the boundary between federal and state powers, and reaffirms the power of courts to police this boundary and protect individual liberty.
Section 1 of the Federalism Amendment expands the power of Congress to include any interstate activity not contained in the original meaning of the Commerce Clause. Interstate pollution, for example, is not "commerce . . . among the several states," but is exactly the type of interstate problem that the Framers sought to specify in their list of delegated powers. This section also makes explicit that any restriction of an enumerated or unenumerated liberty of the people must be justified.
Section 2 then allows state policy experimentation by prohibiting Congress from regulating any activity that takes place wholly within a state. States, of course, retain their police power to regulate or prohibit such activity subject to the constraints imposed on them, for example, by Article I or the 14th Amendment. And a state is free to enter into compacts with other states to coordinate regulation and enforcement, subject to approval by Congress as required by Article I.
Section 3 adopts James Madison's reading of the taxing and borrowing powers of Article I to limit federal spending to that which is incident to an enumerated power. It explicitly allows Congress to honor its outstanding financial commitments to living persons, such its promise to make Social Security payments. Section 4 eliminates the federal income tax, after five years, in favor of a national sales or excise tax.
Finally, Section 5 authorizes judges to keep Congress within its limits by examining laws restricting the rightful exercise of liberty to ensure that they are a necessary and proper means to implement an enumerated power. This section also requires that the Constitution be interpreted according to its original meaning at the time of its enactment. But by expanding the powers of Congress to include regulating all interstate activity, the Amendment greatly relieves the political pressure on courts to adopt a strained reading of Congress's enumerated powers.
Could such a Federalism Amendment actually be adopted? Stranger things have happened -- including the adoption of each of the existing amendments. States have nothing to lose and everything to gain by making this Federalism Amendment the focus of their resistance to the shrinking of their reserved powers and infringements upon the rights retained by the people. And this Federalism Amendment would provide tea-party enthusiasts and other concerned Americans with a concrete and practical proposal by which we can restore our lost Constitution.
Mr. Barnett is a professor of constitutional law at Georgetown University and the author of "Restoring the Lost Constitution: The Presumption of Liberty" (Princeton, 2005).
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"In response to an unprecedented expansion of federal power, citizens have held hundreds of 'tea party' rallies around the country, and various states are considering 'sovereignty resolutions' invoking the Constitution's Ninth and Tenth Amendments. For example, Michigan's proposal urges 'the federal government to halt its practice of imposing mandates upon the states for purposes not enumerated by the Constitution of the United States.' While well-intentioned, such symbolic resolutions are not likely to have the slightest impact on the federal courts, which long ago adopted a virtually unlimited construction of Congressional power. But state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution. An amendments convention is feared because its scope cannot be limited in advance. The convention convened by Congress to propose amendments to the Articles of Confederation produced instead the entirely different Constitution under which we now live. Yet it is precisely the fear of a runaway convention that states can exploit to bring Congress to heel. ...[A] Federalism Amendment would provide tea-party enthusiasts and other concerned Americans with a concrete and practical proposal by which we can restore our lost Constitution."
--Georgetown University professor of constitutional law Randy Barnett
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"It really is difficult to imagine how people who have entirely given up managing their own affairs could make a wise choice of those who are to do that for them. One should never expect a liberal, energetic, and wise government to originate in the votes of a people of servants." --French political thinker and historian Alexis de Tocqueville (1805-1859)
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"One of the most important events of our lifetimes may have just transpired. A federal agency has decided that it has the power to regulate everything, including the air you breathe. Nominally, the Environmental Protection Agency's announcement ... only applies to new-car emissions. But pretty much everyone agrees that the ruling opens the door to regulating, well, everything. According to the EPA, greenhouse gases include carbon dioxide -- the gas you exhale -- as well as methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride. It is literally impossible to imagine a significant economic or human activity that does not involve the production of one of these gases. Don't think just of the gas and electricity bills. Cow flatulence is a serious concern of the EPA's already. What next? ... Whether or not global warming is a crisis that warrants immediate, drastic action (I don't think it does), and whether or not such wholesale measures would be an economic calamity (they would be), the EPA's decision should be disturbing to people who believe in democratic, constitutional government. ...[T]he EPA has launched its power grab over all that burns, breathes, burps, flies, drives and passes gas."
--National Review editor Jonah Goldberg
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"How did it happen? How did our national government grow from a servant with sharply limited powers into a master with virtually unlimited power? In part, we were swindled. There are occasions when we have elevated men and political parties to power that promised to restore limited government and then proceeded, after their election, to expand the activities of government. But let us be honest with ourselves. Broken promises are not the major causes of our trouble. Kept promises are. All too often we have put men in office who have suggested spending a little more on this, a little more on that, who have proposed a new welfare program, who have thought of another variety of 'security.' We have taken the bait, preferring to put off to another day the recapture of freedom and the restoration of our constitutional system. We have gone the way of many a democratic society that has lost its freedom by persuading itself that if 'the people' rule, all is well." --former Arizona senator Barry Goldwater (1909-1998)
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Cross referencing this excellent read here:
http://dogbrothers.com/phpBB2/index.php?topic=1840.0
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The Second and Tenth Amendments
In what amounts to a serious Second and Tenth Amendment challenge to federal authority, the Montana Legislature passed and its Democrat governor signed a law which specifies that guns which are produced, sold and maintained within the state are exempt from federal regulations.
Essentially, Montana is setting up a Tenth Amendment challenge -- as soon as the first arrest is made for purchasing a gun without the user submitting to federal mandates such as background checks, licensing and registration, the state will assert its Tenth Amendment rights under our Constitution.
Other states are preparing similar legislation, but I would suggest one of them take the Tenth Amendment challenge a major step forward.
Let's see a state pass a law requiring that any and all federal authorities who wish to carry a firearm within the boundary of said state, must be in possession of a "right to carry" permit issued and authorized by that state's governor.
And speaking of "right to carry," in my home state of Tennessee, legislators are considering a bill to allow duly authorized carry permit holders to keep their weapons on their person in restaurants which serve alcohol (not to be confused with bars), similar to surrounding states.
The statists are protesting that doing so will undoubtedly lead to tragedy. However, one would be hard pressed to find any incident in any year when an authorized holder of a carry permit committed a felony with their weapon. By contrast, in the latest year of record, there were 13,470 fatalities involving alcohol-impaired drivers.
Now that is a tragedy. Perhaps they should not allow alcohol in bars...
Of course, this whole debate on federal versus state gun regulations and concealed carry permits is a straw man. Personally, my right-to-carry permit is the Second Amendment...
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"Hold on, my friends, to the Constitution and to the Republic for which it stands. Miracles do not cluster and what has happened once in 6,000 years, may not happen again. Hold on to the Constitution, for if the American Constitution should fail, there will be anarchy throughout the world." --U.S. Senator Daniel Webster (1782-1852)
Obama keeps shredding the Constitution
"Barack Obama's vision of America is one in which a President of the United States can fire the head of General Motors, tell banks how to bank, control the medical system and take charge of all sorts of other activities for which neither he nor other politicians have any expertise or experience. The Constitution of the United States gives no president, nor the entire federal government, the authority to do such things. But spending trillions of dollars to bail out all sorts of companies buys the power to tell them how to operate. Appointing judges to the federal courts -- including the Supreme Court -- who believe in expanding the powers of the federal government to make arbitrary decisions, choosing who will be winners and losers in the economy and in the society, is perfectly consistent with a vision of the world where self-confident and self-righteous elites rule according to their own notions, instead of merely governing under the restraints of the Constitution." --Hoover Institution economist Thomas Sowell
GOVERNMENT
"Given how congressional leaders have abdicated their responsibilities, perhaps it's not surprising that the secured creditors who challenged the Obama-imposed Chrysler merger deal were too polite to note that the president lacks statutory authority to intervene in the car industry. 'Even assuming that TARP provides the Treasury Department with authority to provide funding to the Debtors,' they said, it is neither fair nor legal to let unsecured creditors such as the United Auto Workers get more of their money back than creditors who by statute have a superior claim. But for a president who tramples on the Constitution in his rush to save companies from the consequences of their own bad decisions, the bankruptcy code is no obstacle." --columnist Jacob Sullum
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The truth in the Thomas Sowell quote of what is happening now is sickening. We justify our accelerating ignorance of constitutional limits on federal power by pointing to a slippery slope tradition of all recent administration doing the same and court opinions in place that uphold most of it. We can expand the powers of the federal government simply because of a 53% majority that for the most part didn't know what the were voting for or against. It used to take a grueling, nationwide amendment process to do that.
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By Jack Hoogendyk
Guest Opinion
Michigan, through its Department of Environmental Quality (DEQ) is one of only two states in the union that regulates wetlands with a state agency rather than through the U.S. Army Corps of Engineers.
This has been a problem, because the state guidelines are much more strict than the federal guidelines. Additionally, the DEQ has proven to be arbitrary and capricious in its decision making and has often caused long, unnecessary delays in approving permits.
While the concerns about over-regulation by a state agency are valid, they may be rendered moot by recent efforts in Congress.
U.S. Sen. Russ Feingold has introduced a bill with 23 sponsors including Senators Carl Levin and Debbie Stabenow.
Senate Bill S787 is titled, “To amend the Federal Water Pollution Control Act to clarify the jurisdiction of the United States over waters of the United States.”
Notice they start the description with the words “pollution control.” That makes it sound caring and good, doesn’t it?
The fact is, this legislation will put ALL surface waters in the United States of America under congressional jurisdiction.
The bill language has a couple of key phrases in it. The first changes the definition of what is under congressional jurisdiction. Ever since the Commerce Clause of the Constitution and several test cases in the Supreme Court, Congress has had jurisdiction over navigable waters. The meaning of that word has been argued, but according to precedent and legal definition, navigable includes anything you can get a canoe down, or anything that is connected by water to the same.
No matter, because under S787, the word navigable is stricken, which means now ALL surface water is under congressional jurisdiction.
Additionally, in case there were any question of state’s rights, the bill also states that this applies to interstate and intrastate waters. That means there is no state sovereignty over waters within that state’s boundaries.
And, if you have any doubt as to what the congressional definition of “waters” is, they spell that out, too. It includes, “all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.”
The bottom line is this: Congress is taking over all the water.
If the Obama administration and Congress are anything like this state’s governor and her administration, you will see free trade and commerce come to a virtual standstill. Manufacturing, especially, will come to a screeching halt.
Water is an essential resource in the manufacture of virtually any consumable or durable good. Without ready access, manufacturers will be stifled in their attempts to create new products for market and the jobs that go with them.
Jack Hoogendyk is a former state legislator and executive director of CIVPRO, a nonprofit property rights organization based in Michigan
Now mind you Michigans DEQ water quality standards are much stricter than the EPA . So this isn't about pollution this is about controll over the states and manufacturing.Also this will then enable the feds to start draining the great lakes and pumping the water else where which every Michigander is opposed to except the sellout obamites levin and stabenow.
Boyo
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I wish he had mentioned the role of FDR's court-packing scheme in all of this:
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By JEFF ROWES
The growing dispute between conservatives and liberals over the Supreme Court nomination of Sonia Sotomayor obscures a more troubling point of agreement: The government should almost always win.
Many conservatives who think of themselves as proponents of limited government would be surprised to discover that conservative judges begin their constitutional analyses in almost every context by placing a thumb firmly on the government side of the scale. It's called "judicial deference." Many liberals, who take pride in being "empathetic," would be surprised to learn that liberal judges also subscribe to judicial deference.
The practical result is that judges of both persuasions almost never enforce any constitutional limit on the power of government to regulate property and the economy. Given that the vast majority of law concerns these two areas, the real crisis in constitutional law is not judicial "activism" but judicial passivism.
It all began in the late 1930s, when the Supreme Court opened the floodgates for New Deal economic regulation. In essence, conservatives have adopted the big-government agenda of that era. The liberal-conservative consensus explains why nomination fights focus on a few "culture war" issues such as gay marriage or guns. Liberals and conservatives squabble over these esoteric questions because there is such harmonious accord on everything else.
The time-honored justification for judicial deference is that when courts refuse to enforce property rights and allow economic liberties to be trampled by legislatures they are showing respect for the democratic process. But this notion is not faithful to the duty of the judiciary. The Constitution's framers understood that legislatures are as much nests of vice as of virtue. That is why they went to such lengths to define the limits of government, set forth our rights broadly, and create an independent, co-equal branch of government to protect those rights.
The absence of meaningful constitutional limits on the power of government over property and the economy has had consequences that should cause both liberals and conservatives to rethink the wisdom of sweeping judicial deference. For example, last fall Congress enacted the Troubled Asset Relief Program, putting hundreds of billions of dollars at the personal discretion of the secretary of the Treasury. This grant of authority -- which violates the basic constitutional duty of Congress to control the purse laid out in Article I, Section 8 -- transformed the secretary into the most powerful unelected official in American history. Such power, once acquired, is rarely relinquished.
None of this would have been thinkable, much less possible, without the longstanding refusal of the Supreme Court to enforce clear constitutional boundaries on the elected branches.
In another example, America has become a patchwork quilt of laws serving special interests because courts refuse to protect economic liberty. In 1950, only one in 20 trades required a license. Now it is more than one in four (according to recent research of Morris Kleiner published by the National Bureau of Economic Research), and the clamor by industry groups for more licensing grows unabated.
Special interests love licensing because it restricts competition and thus drives up the prices they can charge. None of this would be possible if judges simply struck down licensing laws as an insult to the constitutional right to earn an honest living secured by the due process clause of the Fifth Amendment and the "privileges or immunities" clause of the 14th Amendment.
Bad government is usually the result of runaway government. And runaway government is usually the result of government exceeding its constitutional prerogatives. Because they have a far stronger stake in the integrity of checks and balances on government power than in the culture war, conservatives and liberals should declare a truce over "activism" and reflect on the need to take the whole Constitution seriously.
Judges should be neither active nor passive, neither aggressive nor deferential. In a word, they should be engaged -- engaged in protecting constitutional rights to property and economic liberty, because these areas of the law have the most impact on our daily lives.
Mr. Rowes is an attorney at the Institute for Justice in Arlington, Va.
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By DARCY OLSEN
By any reading of the man, George W.P. Hunt -- Arizona's first governor -- was a progressive Democrat. He favored creating an income tax, extending the right to vote to women, and passing compulsory education laws. But when it came to drafting a constitution that would bring Arizona into the union as the 48th state, "Old Walrus," as he was called for his weight of about 300 lbs and his handlebar mustache, presided over a convention in 1910 that banned nearly all government subsidies to private business.
Hunt would probably be amazed at what's happening in Arizona today, as the old battles are once again being fought -- this time in the state Supreme Court, which is taking up a lawsuit to determine whether cities can give subsidies to private companies.
Arizona's founders banned gifts to private companies as the result of bitter experience. In the closing decades of the 19th century, local governments borrowed money to force-feed private railroad development. Pima County outside of Tucson, for example, took out $300,000 in bonds in 1882 for a railroad that promised to build some 100 miles of track. The money was spent but the railroad dissolved after a mere 10 miles of track was constructed. The bonds were worthless, but taxpayers were still on the hook for the money.
This time around it's shopping malls and the like, and the preferred subsidy is tax rebates rather than bonds. But the result is the same. Local governments are foisting the cost of private development onto taxpayers as private companies promise that with just a few tax dollars they will create a wealth of new jobs.
People aren't buying it, and there's a revolt underway against government subsidized megaprojects. In November, voters elected mayors in Mesa, Scottsdale and Tempe who promised to fight taxpayer subsidies. In Phoenix, voters have elected three candidates to the city council who oppose wooing developers with taxpayer money. And it is in Phoenix where the biggest fight is taking place.
Two years ago, the city signed a contract with developer Thomas J. Klutznick, who is building an outdoor mall. The city has to rebate to him $97.4 million in sales taxes over the next 11 years, in return for which it gets 200 parking spaces for commuters catching a municipal bus. The mall, called CityNorth, will be home to an Ann Taylor Loft and other retailers, as well as residential apartments that are already being rented. Arizona Republic columnist Laurie Roberts summed up the deal earlier this year by noting the city will spend about $487,000 for each commuter parking spot. "Wouldn't it be cheaper to just chopper them in to work?" she wrote.
Nonetheless, CityNorth is the kind of project that city planners dream about as they seek to remake urban landscapes -- grand in scale as it stretches 144 acres, and grand in impact as it serves tens of thousands of residents and shoppers. City officials promise it will create a "second downtown" for Phoenix.
That second downtown will be at the expense of employers who are lured away from other cities, and give companies in the new mall a tax advantage over business outside of it. That's hardly fair, so the Goldwater Institute, a free-market think tank in Phoenix that I run, sued Phoenix Mayor Phil Gordon in state court on behalf of Meyer Turken, who owns a real estate company, and five business owners. The suit seeks to enforce the provision in Old Walrus's constitution that bans government handouts. The provision is known as the "Gift Clause."
We lost the first round in the case, but two days before Christmas last year the Arizona Court of Appeals unanimously reversed the lower court ruling and said, "We think these payments are exactly what the Gift Clause was intended to prohibit." Phoenix then took Turken v. Gordon to the state Supreme Court, which this week agreed to hear the case.
Cities across Arizona are waiting to see what the court does. This has become a fight over just how involved in the economy government should be allowed to get -- whether local and state governments should be in the business of bolstering some, but not others, with tax breaks.
Government-sponsored development isn't popular. Public Opinion Strategies polling found earlier this year that 80% of Phoenix taxpayers oppose their city's subsidies for CityNorth and agree that the developer and the retailers who move into the new mall "should pay their own way." The subsidy is also attracting opposition outside of Phoenix. Last week, Mayor W.J. Lane of neighboring Scottsdale won support from his city council to file a friend-of-the-court brief in support of our lawsuit.
New York, Maryland and 34 other states have gift clauses similar to Arizona's. Thus, Arizona's legal precedent could influence how local and state governments approach redevelopment across the country. On the federal level, any member of Congress upset with the bailouts of the auto or financial industries might want to consider proposing a Gift Clause amendment to the U.S. Constitution that would explicitly ban bailouts that benefit one company or industry.
When asked about the lawsuit, Phoenix Deputy City Manager David Krietor told a reporter that "This is a landmark case that will dramatically impact our ability to do economic development." He's right. But Mr. Krietor should be considering whether it's right for the government to "do" this at all. As his Democratic progressives came to understand in Old Walrus's day, government payouts to private businesses don't always pay off -- and often it's taxpayers who end up having to pay up.
Ms. Olsen is president & CEO of the Goldwater Institute of Phoenix, Ariz., which is litigating Turken v. Gordon.
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second post of the morning:
PatriotPost
S.C. Supreme Court Says Gov. Sanford Must Take Stimulus Cash
The long-running debate between the Republican governor of South Carolina, Mark Sanford, and the Republican-controlled state legislature came to an unfortunate conclusion Thursday as the state's Supreme Court ruled that Gov. Sanford must request the $700 billion in federal funding he had thus far refused. Sanford had argued that taking the money now would mean more debt later as the services continued but federal funds were gone. He wanted instead to pay down the state's debt with the money, if he had to take it at all. The Republicans in the legislature, however, stole a page from the Democrats' playbook and accused the governor of cheating schools out of money. After all, it's always a losing proposition to try to hold education spending steady, much less cut it, because not enough people see that as education spending has gone through the roof over the last 40 years, the quality of education has gone down. Regardless, Sanford will not appeal the decision but lamented the missed chance to show other states "a different way than simply taking this money and spending it."
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Third post of the day:
I began read a book today (author's name is East Euro so I fear to assay spelling it from memory) and he referenced Aristotle's concept of man pursuing happiness.
Now where have we heard that phrase before?
Does anyone have any input on the Aristotlean concept and its influence on our Founding Fathers?
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Third post of the day:
I began read a book today (author's name is East Euro so I fear to assay spelling it from memory) and he referenced Aristotle's concept of man pursuing happiness.
Now where have we heard that phrase before?
Does anyone have any input on the Aristotlean concept and its influence on our Founding Fathers?
Men are what they are because their characters, but it is in action that they find happiness or the reverse.” --Aristotle
I read it in 1998 so I wouldn't currently be able to contribute to a discussion on it but Nicomachean Ethics by Aristotle probably contains the ideas you are looking for.
You should start a book club :-D
You might find these helpful
http://en.wikipedia.org/wiki/Nicomachean_Ethics
http://en.wikipedia.org/wiki/Eudaimonia
http://www.eudaimonia.com/
1. The translation of "eudaimonia" should be compatible not only with Aristotle's theory but also (at first blush) with theories which identify eudaimonia with a life of pleasant amusements, a life devoted to the acquisition of wealth, a life devoted to the pursuit of honor, a life of public service in which one exercises civic virtues, and so on. The translation should make plausible the claims which Aristotle says everyone accepts about eudaimonia: that it is that for the sake of which a human being does everything that they do, that it is not pursued for the sake of some further goal, that the life of someone who is eudaimon is a pleasant life, etc.
2. "Eudaimonia" in Greek - Literally 'having a good guardian spirit', the Greek term "eudaimonia" has a much more objective meaning. To be eudaimon is to be successful, to have what is most desirable, to flourish. There is some disagreement about what sort of life is most flourishing. Some say it is a life of pleasure, others of honor, some a wealthy life, others a virtuous one.
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Thank you Rachel. You are quite a well-read woman!!!
Of the two entries I liked http://en.wikipedia.org/wiki/Nicomachean_Ethics a bit more.
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Pasted here from the Legal Issues thread on P&R forum:
June 08, 2009, 4:00 a.m.
Bill of Rights, Inc.
Could a Second Amendment case establish Fourteenth Amendment originalism?
By Will Haun
The Seventh Circuit Court of Appeals recently decided McDonald v. City of Chicago, a challenge to Chicago’s gun ban. The case has major implications for protecting gun rights at the state level, but its importance goes further than that. Depending on what the Supreme Court does, it could make originalism — relying on the text of the Constitution and its amendments as they were understood when enacted — the accepted standard for interpreting the Bill of Rights, rather than the whims of a handful of justices.
The plaintiff’s case in McDonald is based on the Second Amendment, but also on the Fourteenth. Last year, in Heller v. District of Columbia, the Supreme Court ruled that the Second Amendment protects an individual’s right to own firearms against infringement by the federal government. But can a state or local government infringe that right? This question hinges on the constitutional principle of “incorporation” — the notion that the Fourteenth Amendment makes the states subject to the Bill of Rights.
When it was enacted in 1791, the Bill of Rights applied to the federal government only. Individual states could (and did) restrict free speech, for example, or have an established church. The states were beholden only to their own laws and constitutions and to certain provisions in Article I of the U.S. Constitution. After the Civil War, as Justice Clarence Thomas wrote in Zelman v. Simmons-Harris (2002), “the Fourteenth Amendment fundamentally restructured the relationship between individuals and the States and ensured that States would not deprive citizens of liberty without due process of law.” But what “liberty” was included in this guarantee, and what was meant by “due process”?
The full text of the first section of the Fourteenth Amendment reads:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Ringing phrases, to be sure, but somewhat short on specifics. In fact, the meaning of every major clause in the first section is disputed, and has been since the amendment’s enactment in 1868.
Case law provides little clarity. The first major Supreme Court decision to grapple with these questions came in the Slaughterhouse cases of 1873, but — to quote Justice Thomas again, this time from his dissent in Saenz v. Roe (1999) — that decision “all but read the Privileges or Immunities Clause out of the Constitution.” By adopting a narrow interpretation of the clause, the Court gave states wide latitude to enact laws they thought were necessary.
Towards the end of the 19th century, however, as various reform movements took hold, restrictive state laws came to be seen as an obstacle to progress. So the justices eventually concluded, as Prof. James W. Ely of Vanderbilt Law School notes, “that the Fourteenth Amendment did confer a national standard of rights against the states.” But instead of reviving the “privileges or immunities” clause to enforce this standard (and thus reversing Slaughterhouse), they seized upon the “due process” clause.
That clause may simply seem to restate the Fifth Amendment requirement guaranteeing an individual’s right to a day in court and the protections of the legal process, this time applying it to the states as well as the federal government. That’s the way many modern originalists understand the clause. But as reform took hold, courts began interpreting it to mean that states had no power to deprive citizens of important rights, whether or not those rights were mentioned in the Constitution. The judges themselves would decide what rights fell under the clause’s protection. They called this doctrine “substantive due process” to distinguish it from the traditional day-in-court meaning, which came to be called “procedural due process.”
At first, substantive due process was used mostly to reverse state encroachments on economic choices, like freedom of contract. If a baker wanted to work 70 or 80 hours a week, no one could stop him. But as the doctrine evolved, justices used it to incorporate selective provisions of the Bill of Rights, making them enforceable against state governments (the Second Amendment, among other provisions, was excluded for various reasons). And as the 20th century wore on, these two trends diverged: Economic regulation became popular among the progressives on the Court, while regulation of individuals’ “private” conduct became even less so. The justices modified the doctrine to fit their new preferences.
The result, Ely notes, was to create “an artificial division between economic rights, which the pro–New Deal court wanted to reject, and personal rights, which they wanted to expand to mean virtually anything.” Since the 1940s, the concept of substantive due process has been greatly expanded by the Court, not just to protect the Bill of Rights from abridgment by state action, but to create rights to privacy and abortion, a “wall of separation” between church and state, and many other inventions of the Warren and Berger Courts.
Many originalists, such as David Forte, co-editor of The Heritage Guide to the Constitution, have rightly argued that “due process was never meant to have a substantive meaning,” but merely a judicial one. This argument provides the basis for many conservatives and originalists to stand against the whole principle of incorporation. In a strict interpretation of this view, Chicago is entitled to restrict gun rights, since the Second Amendment (and the rest of the Bill of Rights) does not apply to it.
To parry this objection, the briefs in McDonald that argue for incorporation rely on recent scholarship that justifies incorporation on originalist grounds. Prof. Michael Kent Curtis, of Wake Forest School of Law, who worked on an amicus brief in McDonald, used the broad text of the Fourteenth Amendment, statements made in the 39th Congress (which passed the amendment), and the legal theories of its sponsors to conclude in his 1990 book No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights that incorporation through the “privileges or immunities” clause was part of the amendment’s intent.
Other originalists, such as Jim Bond, professor emeritus at Seattle University School of Law, have questioned how widespread the agreement on incorporation was, especially in the southern-state ratifying conventions that meticulously reviewed the amendment before passing it. But there is still good reason to believe, as Forte says, that some “federal package of rights is protected by the privileges or immunities clause.”
Exactly what rights are included in that package is unclear, but the connection of incorporation with the “privileges or immunities” clause provides another weapon for civil-liberties lawyers. That explains why both the progressive Constitutional Accountability Center (a “living Constitution” advocate) and the libertarian Institute for Justice filed amicus briefs in McDonald v. Chicago in favor of incorporating the Second Amendment. In a case of politics making strange bedfellows, the amicus briefs put those two groups on the same side as the National Rifle Association, which is co-plaintiff with McDonald.
In a decision delivered earlier this week, the Seventh Circuit upheld Chicago’s ban on firearms, but the decision left the merits of incorporation through the “privileges or immunities” clause to the Supreme Court. Alan Gura, arguing on behalf of the NRA and McDonald, anticipated this; he noted in oral arguments that his side intends to “preserve this argument for the upper [Supreme] Court.” (Gura was also the lawyer for the plaintiff in Heller v. D.C.)
Assuming the Supreme Court agrees to review McDonald, its decision could send shock waves through constitutional law. If the “privileges or immunities” clause becomes the new justification for incorporating the Bill of Rights into state law, the days of “substantive due process,” and all the judicial overreaching it has brought, could be numbered. Still, the fact that some liberals support this interpretation is worrisome. Would it merely substitute a new all-purpose tool for legislating from the bench in place of the old one?
Not necessarily. Basing decisions on the text-based “privileges or immunities” clause, rather than the judge-created doctrine of “substantive due process,” would naturally lend itself to the increased use of originalist analysis of the Fourteenth Amendment. The focus of inquiry would be, in Forte’s words, “what could have been reasonably understood to be the ‘Privileges or Immunities’ of Federal Citizenship by the amendment’s framers” — limiting the ability of future justices to “find” new “rights” protected by it. So no matter how the incorporation debate shakes out, an endorsement of originalism would be a victory for conservatives who prize intellectual honesty in constitutional interpretation.
Seemingly aware of these implications, the Left is trying to preserve the contrivances of “substantive due process” in an originalist guise. They want to define “privileges” and “immunities” as broadly as possible, to include what Doug Kendall of the Constitutional Accountability Center calls “very important progressive values,” such as abortion rights and same-sex marriage. The goal is to continue expanding “individual rights” while permitting restriction of property rights and economic freedoms. So if the Supreme Court decides in McDonald’s favor, it could end the controversy over gun rights but begin a host of new battles in other areas.
Yet Robert Levy, chairman of the Cato Institute, is not afraid of opening a can of worms. He says that libertarians see McDonald as an opportunity “to resurrect economic liberties suspended by the Court under the post–New Deal version of substantive due process.” Conservatives should see this case as a rare opportunity to base any incorporation of the Bill of Rights on originalist grounds — an opportunity they should waste no time in seizing, for it may not come again.
— Will Haun is a recent graduate of American University and is policy chairman of the Young Conservative Coalition. He is interning at the Heritage Foundation’s Center for Legal and Judicial Studies this summer before beginning law school at Catholic University this fall.
National Review Online - http://article.nationalreview.com/?q=NjM5ODQ5NGE5MGYxOTY4ZjdlMDMzMGU2NzZlMjI2NDM=
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Marc,
Thank you!
I don't think I am well read yet but I intend to be. However, I don't think it counts if you don't remember what you read or didn't really understand it the first place both are true for Aristotle
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Alabama 1901, Preamble
We the people of the State of Alabama , invoking the favor and guidance of Almighty God, do ordain and establish the following Constitution..
Alaska 1956, Preamble We, the people of Alaska , grateful to God and to those who founded our nation and pioneered this great land.
Arizona 1911, Preamble We, the people of the State of Arizona , grateful to Almighty God for our liberties, do ordain this Constitution...
Arkansas 1874, Preamble We, the people of the State of Arkansas , grateful to Almighty God for the privilege of choosing our own form of government...
California 1879, Preamble We, the People of the State of California , grateful to Almighty God for our freedom...
Colorado 1876, Preamble We, the people of Colorado , with profound reverence for the Supreme Ruler of Universe...
Connecticut 1818, Preamble. The People of Connecticut, acknowledging with gratitude the good Providence of God in permitting them to enjoy.
Delaware 1897, Preamble Through Divine Goodness all men have, by nature, the rights of worshipping and serving their Creator according to the dictates of their consciences...
Florida 1885, Preamble We, the people of the State of Florida , grateful to Almighty God for our constitutional liberty, establish this Constitution...
Georgia 1777, Preamble We, the people of Georgia , relying upon protection and guidance of Almighty God, do ordain and establish this Constitution...
Hawaii 1959, Preamble We , the people of Hawaii , Grateful for Divine Guidance ... Establish this Constitution.
Idaho 1889, Preamble We, the people of the State of Idaho , grateful to Almighty God for our freedom, to secure its blessings.
Illinois 1870, Preamble We, the people of the State of Illinois, grateful to Almighty God for the civil , political and religious liberty which He hath so long permitted us to enjoy and looking to Him for a blessing on our endeavors.
Indiana 1851, Preamble We, the People of the State of Indiana , grateful to Almighty God for the free exercise of the right to choose our form of government.
Iowa 1857, Preamble We, the People of the St ate of Iowa , grateful to the Supreme Being for the blessings hitherto enjoyed, and feeling our dependence on Him for a continuation of these blessings, establish this Constitution.
Kansas 1859, Preamble We, the people of Kansas , grateful to Almighty God for our civil and religious privileges establish this Constitution.
Kentucky 1891, Preamble.. We, the people of the Commonwealth are grateful to Almighty God for the civil, political and religious liberties..
Louisiana 1921, Preamble We, the people of the State of Louisiana , grateful to Almighty God for the civil, political and religious liberties we enjoy.
Maine 1820, Preamble We the People of Maine acknowledging with grateful hearts the goodness of the Sovereign Ruler of the Universe in affording us an opportunity .. And imploring His aid and direction.
Maryland 1776, Preamble We, the people of the state of Maryland , grateful to Almighty God for our civil and religious liberty...
Massachusetts 1780, Preamble We...the people of Massachusetts, acknowledging with grateful hearts, the goodness of the Great Legislator of the Universe In the course of His Providence, an opportunity and devoutly imploring His direction
Michigan 1908, Preamble. We, the people of the State of Michigan , grateful to Almighty God for the blessings of freedom, establish this Constitution.
Minnesota, 1857, Preamble We, the people of the State of Minnesota, grateful to God for our civil and religious liberty, and desiring to perpetuate its blessings:
Mississippi 1890, Preamble We, the people of Mississippi in convention assembled, grateful to Almighty God, and invoking His blessing on our work.
Missouri 1845, Preamble We, the people of Missouri , with profound reverence for the Supreme Ruler of the Universe, and grateful for His goodness . Establish this Constitution...
Montana 1889, Preamble. We, the people of Montana , grateful to Almighty God for the blessings of liberty establish this Constitution ...
Nebraska 1875, Preamble We, the people, grateful to Almighty God for our freedom . Establish this Constitution.
Nevada 1864, Preamble We the people of the State of Nevada , grateful to Almighty God for our freedom, establish this Constitution...
New Hampshire 1792, Part I. Art. I. Sec. V Every individual has a natural and unalienable right to worship God according to the dictates of his own conscience.
New Jersey 1844, Preamble We, the people of the State of New Jersey, grateful to Almighty God for civil and religious liberty which He hath so long permitted us to enjoy, and looking to Him for a blessing on our endeavors.
New Mexico 1911, Preamble We, the People of New Mexico, grateful to Almighty God for the blessings of liberty..
New York 1846, Preamble We, the people of the State of New York , grateful to Almighty God for our freedom, in order to secure its blessings.
North Carolina 1868, Preamble We the people of the State of North Carolina, grateful to Almighty God, the Sovereign Ruler of Nations, for our civil, political, and religious liberties, and acknowledging our dependence upon Him for the continuance of those...
North Dakota 1889, Preamble We , the people of North Dakota , grateful to Almighty God for the blessings of civil and religious liberty, do ordain...
Ohio 1852, Preamble We the people of the state of Ohio , grateful to Almighty God for our freedom, to secure its blessings and to promote our common.
Oklahoma 1907, Preamble Invoking the guidance of Almighty God, in order to secure and perpetuate the blessings of liberty, establish this
Oregon 1857, Bill of Rights, Article I Section 2. All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their consciences
Pennsylvania 1776, Preamble We, the people of Pennsylvania, grateful to Almighty God for the blessings of civil and religious liberty, and humbly invoking His guidance....
Rhode Island 1842, Preamble. We the People of the State of Rhode Island grateful to Almighty God for the civil and religious liberty which He hath so long permitted us to enjoy, and looking to Him for a blessing...
South Carolina , 1778, Preamble We, the people of he State of South Carolina grateful to God for our liberties, do ordain and establish this Constitution.
South Dakota 1889, Preamble We, the people of South Dakota , grateful to Almighty God for our civil and religious liberties ...
Tennessee 1796, Art. XI..III. That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their conscience...
Texas 1845, Preamble We the People of the Republic of Texas , acknowledging, with gratitude, the grace and beneficence of God.
Utah 1896, Preamble Grateful to Almighty God for life and liberty, we establish this Constitution.
Vermont 1777, Preamble Whereas all government ought to enable the individuals who compose it to enjoy their natural rights, and other blessings which the Author of Existence has bestowed on man ..
Virginia 1776, Bill of Rights, XVI Religion, or the Duty which we owe our Creator can be directed only by Reason and that it is the mutual duty of all to practice Christian Forbearance, Love and Charity towards each other
Washington 1889, Preamble We the People of the State of Washington, grateful to the Supreme Ruler of the Universe for our liberties, do ordain this Constitution
West Virginia 1872, Preamble Since through Divine Providence we enjoy the blessings of civil, political and religious liberty, we, the people of West Virginia reaffirm our faith in and constant reliance upon God ....
Wisconsin 1848, Preamble We, the people of Wisconsin , grateful to Almighty God for our freedom, domestic tranquility...
Wyoming 1890, Preamble We, the people of the State of Wyoming , grateful to God for our civil, political, and religious liberties, establish this Constitution...
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Looks to me like 49 states derive individual rights from the Creator. Missing from the list: Vermont, District of Columbia and one poster here who believes the right of a store in suburban Paris to sell products of their own choosing, free from disruption, is derived from LA County and the 9th Circuit, not from the Creator.
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:lol:
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Hat tip to BBG:
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Will Second Amendment Be Incorporated Through Citizenship Clause?
Posted Jun 17, 2009, 06:49 am CDT
By Debra Cassens Weiss
Federal appeals courts hearing gun rights cases after the Supreme Court’s Second Amendment ruling last year in District of Columbia v. Heller are confronting an old issue: whether the amendment applies to restrict state and local laws under the incorporation doctrine.
Heller found that the Second Amendment protected an individual right to own a gun in the District of Columbia, a federal enclave. New suits challenging state and local laws have resulted in a split. Two federal appeals courts refused to apply the Second Amendment to local laws without express Supreme Court authorization. A third disagreed.
University of Texas law professor Sanford Levinson told the New York Times that the case could present a dilemma for some conservative justices who scoffed at incorporation arguments in the past. Because of the touchy issues, he says he would be surprised if the U.S. Supreme Court agrees to hear new cases on the issue.
Yale law professor Akhil Reed Amar told the Times that incorporation fell out of favor after the 1960s, but it’s being resurrected by liberal scholars. Most of the Bill of Rights have been applied to the states under liberal Warren Court rulings that found the 14th Amendment required incorporation. One exception is the Seventh Amendment right to a jury trial, which has not been applied to the states.
“The precedents are now supportive of incorporation of nearly every provision of the Bill of Rights,” Amar told the Times. “Now what’s odd is that the Second Amendment doesn’t apply to the states.”
He believes the justices will support incorporation. A post at the Volokh Conspiracy after the Heller ruling cited evidence that Justice Antonin Scalia may be on board.
Scalia’s Heller opinion highlights the importance to the newly freed slaves of the right to keep and bear arms in the home—the kind of evidence used to support incorporation. One Scalia passage hints that he believes the amendment could be incorporated through the 14th Amendment’s citizenship clause, rather than due process safeguards, says the Volokh Conspiracy writer, University of Minnesota law professor Dale Carpenter.
http://www.abajournal.com/news/will_second_amendment_be_incorporated_through_citizenship_clause
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By DAVID B. RIVKIN JR. and LEE A. CASEY
Is a government-dominated health-care system unconstitutional? A strong case can be made for that proposition, based on the same "right to privacy" that underlies such landmark Supreme Court decisions as Roe v. Wade.
The details of this year's health-care reform bill are still being hammered out. But the end result is sure to be byzantine in complexity. Washington will have immense say over how, when and through whom Americans are treated. Moreover, despite the administration's public pronouncements about painless cuts in wasteful spending, only the most credulous believe that some form of government-directed health-care rationing can be avoided as a means of controlling costs.
The Supreme Court created the right to privacy in the 1960s and used it to strike down a series of state and federal regulations of personal (mostly sexual) conduct. This line of cases began with Griswold v. Connecticut in 1965 (involving marital birth control), and includes the 1973 Roe v. Wade decision legalizing abortion.
The court's underlying rationale was not abortion-specific. Rather, the justices posited a constitutionally mandated zone of personal privacy that must remain free of government regulation, except in the most exceptional circumstances. As the court explained in Planned Parenthood v. Casey (1992), "these matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and the mystery of human life."
It is, of course, difficult to imagine choices more "central to personal dignity and autonomy" than measures to be taken for the prevention and treatment of disease -- measures that may be essential to preserve or extend life itself. Indeed, when the overwhelming moral issues that surround the abortion question are stripped away, what is left is a medical procedure determined to be "necessary" by an expectant mother and her physician.
If the government cannot proscribe -- or even "unduly burden," to use another of the Supreme Court's analytical frameworks -- access to abortion, how can it proscribe access to other medical procedures, including transplants, corrective or restorative surgeries, chemotherapy treatments, or a myriad of other health services that individuals may need or desire?
This type of "burden" analysis will be especially problematic for a national health system because, in the health area, proper care often depends upon an individual's unique physical and even genetic history and characteristics. One size clearly does not fit all, but that is the very essence of governmental regulation -- to impose a regularity (if not uniformity) in the application of governmental power and the dispersal of its largess. Taking key decisions away from patient and physician, or otherwise limiting their available choices, will render any new system constitutionally vulnerable.
It is true, of course, that forms of rationing already exist in our current system. No one who has experienced the marked reluctance to treat aggressively lethal illnesses in the elderly can doubt that. However, what may be permissible for private actors -- including doctors and insurance companies -- is not necessarily lawful when done by the government.
Obviously, the government does not have to pay for any and all services individual citizens may desire. And simply refusing to approve a procedure or treatment under applicable reimbursement rules, as under the government-run Medicare and Medicaid, does not make the system unconstitutional. But if over time, as many critics fear, a "public option" health insurance plan turns into what amounts to a single-payer system, the constitutional issues regarding treatment and reimbursement decisions will be manifold.
The same will be true of a quasi-private system where the government claims a large role in defining acceptable health-insurance coverage and treatments. There will be all sorts of "undue burdens" on the rights of patients to receive the care they may want. Then the litigation will begin.
Anyone who imagines that Congress can simply avoid the constitutional issues -- and lawsuits -- by withdrawing federal court jurisdiction over the new health system must think again. A brief review of the Supreme Court's recent war-on-terror decisions, brought by or on behalf of detained enemy combatants, will disabuse that notion. This area of governmental authority was once nearly immune from judicial intervention. Over the past five years, however, the Supreme Court (supposedly the nonpolitical branch) has unapologetically transformed itself into a full-fledged, policy-making partner with the president and Congress.
In the process, the justices blew past specific congressional efforts to limit their jurisdiction and involvement like a hot rod in the desert. Questions of basic constitutionality (however the court may define them) cannot now be shielded from judicial review.
It is, of course, impossible to predict how and when the courts will ultimately rule on the new health system. Much depends on the details and the extent to which reasonable and practical private alternatives to the national plan remain. In crafting the law, however, its White House and congressional sponsors must keep privacy -- that near absolute right to personal autonomy they have so often praised and promoted -- squarely before them. The only thing that is certain today is that the courts, and not Congress, will have the last word.
Messrs. Rivkin and Casey worked in the Justice Department under Presidents Reagan and George H.W. Bush.
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Independence Day 2009: We still hold these truths...
"Is life so dear or peace so sweet as to be purchased at the price of chains and slavery? Forbid it, Almighty God. I know not what course others may take, but as for me, give me liberty or give me death!" --Patrick Henry
As we celebrate the 233rd year of our Declaration of Independence, let us look at the common parlance associated with the polar spectrum of current political ideology (while such a review is still permitted by the state), and explore what is meant by "Left versus Right," "Liberal versus Conservative" and "Tyranny versus Liberty"?
Tyranny v. Liberty (poster available at PatriotShop.US)
First, a little history.
On July 4th of 1776, our Founders, assembled as representatives to the Second Continental Congress, issued a declaration stating most notably: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. ... That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government..."
In other words, our Founders affirmed that our rights, which are inherent by Natural Law as provided by our Creator, can't be arbitrarily alienated by men like England's King George III, who believed that the rights of men are the gifts of government.
Our Founders publicly declared their intentions to defend these rights by attaching their signatures between July 4th and August 2nd of 1776 to the Declaration. They and their fellow Patriots pledged their lives, their fortunes, and their sacred honor as they set about to defend the Natural Rights of man.
At the conclusion of the American War for Independence in 1783, our Founders determined the new nation needed a more suitable alliance among the states than the Articles of Confederation. After much deliberation, they proposed the U.S. Constitution, adopted in 1787, ratified in 1788 and implemented in 1789 as subordinate guidance to our Declaration of Independence.
Since that time, generations of American Patriots have laid down their lives "to support and defend" our Constitution -- and I would note here that their sacred oath says nothing about a so-called "Living Constitution" as advocated by the political left.
Given that bit of history as a backdrop, consider the lexicography of our current political ideology.
On the dark side of the spectrum would be Leftists, liberals and tyrants.
(Sidebar: One should not confuse "classical liberalism" with "contemporary liberalism." The former refers to those, like Thomas Jefferson, who advocated individual liberty, while the latter refers to those, like Barack Hussein Obama, who advocate statism, which is the antithesis of liberty.)
Statism, as promoted by contemporary American liberals, has as its objective the establishment of a central government authorized as the arbiter of all that is "good" for "the people" -- and conferring upon the State ultimate control over the most significant social manifestation of individual rights, economic enterprise.
On the left, all associations between individuals ultimately augment the power and control of the State. The final expression and inevitable terminus of such power and control, if allowed to progress unabated, is tyranny.
The word "tyranny" is derived from the Latin "tyrannus," which translates to "illegitimate ruler."
Liberals, then, endeavor to undermine our nation's founding principles in order to achieve their statist objectives. However, politicians who have taken an oath to "support and defend" our Constitution, but then govern in clear defiance of that oath, are nothing more than illegitimate rulers, tyrants.
(Sidebar: Some Leftists contend that Communism and Fascism are at opposite ends of the political spectrum. Properly understood, however, both of these forms of government are on the left, because both have as a common end the establishment of an omnipotent state led by a dictator.)
Over on the "right wing" of the political spectrum, where the light of truth shines, would be "conservatives," from the Latin verb "conservare," meaning to preserve, protect and defend -- in this case, our Constitution.
American conservatives are those who seek to conserve our nation's First Principles, those who advocate for individual liberty, constitutional limits on government and the judiciary, and the promotion of free enterprise, strong national defense and traditional American values.
Contemporary political ideology is thus defined by tyrannus and conservare occupying the Left and Right ends of the American political spectrum, defining the difference between liberals and conservatives.
Though there are many devoted protagonists at both ends of this scale, the space in between is littered with those who, though they identify with one side or the other, are not able to articulate the foundation of that identity. That is to say, they are not rooted in liberal or conservative doctrine, but motivated by contemporaneous political causes associated with the Left or Right. These individuals do not describe themselves as "liberal" or "conservative" but as Democrat or Republican. Further, they tend to elect ideologically ambivalent politicians who are most adept at cultivating special interest constituencies.
That having been said, however, there is a major difference between those on the Left and the Right, as demonstrated by our most recent national elections. Those on the Left tend to form a more unified front for the purpose of electability; they tend to embrace a "win at all costs" philosophy, while those on the right tend to spend valuable political capital drawing distinctions between and among themselves.
I would suggest that this disparity is the result of the contest between human nature and Natural Law.
The Left appeals to the most fundamental human instincts to procure comfort, sustenance and shelter, and to obtain those basic needs by the most expedient means possible. The Left promises that the State will attain those needs equally, creating a path of least resistance for that fulfillment.
On the other end of the spectrum, the Right promotes the tenets of Natural Law -- individual liberty and its attendant requirements of personal responsibility and self-reliance.
Clearly, one of these approaches is far easier to sell to those who have been systematically dumbed down by government educational institutions and stripped of their individual dignity by the plethora of government welfare programs.
That easy sell notwithstanding, the threat of tyranny can eventually produce an awakening among the people and a reversal of trends toward statism. But this reversal depends on the emergence of a charismatic, moral leader who can effectively advocate for liberty. (Ronald Wilson Reagan comes to mind.)
For some nations, this awakening has come too late. The most notable examples in the last century are Russia, Germany, Italy and China, whose peoples suffered greatly under the statist tyrannies they came to embrace. In Germany and Italy, the state collapsed after its expansionist designs were forcibly contained. In Russia, the state collapsed under the weight of 70 years of economic centralization and ideological expansionism.
The Red Chinese regime, having witnessed the collapse of the USSR, has so far avoided its own demise by combining an autocratic government with components of a free enterprise economic system. (My contacts in China, including that nation's largest real estate developers and investment fund managers, believe the Red regime will be gone within five years.)
Of course, there exists an American option for the rejection of tyranny: Revolution. And it is an essential option, because the Natural Rights of man are always at risk of contravention by tyrants. At no time in the last century has our Republic faced a greater threat from "enemies, domestic" than right now.
"Our individual salvation," insists Barack Obama, "depends on collective salvation." In other words, BHO's tyranny, et al, must transcend Constitutional authority. And in accordance with his despotic ideals, Obama is now implementing "the fundamental transformation of the United States of America" that he promised his cadre of liberal voters.
It is yet to be seen whether the current trend toward statism will be reversed by the emergence of a great conservative leader, or by revolution, but if you're betting on another Ronald Reagan, I suggest you hedge your bet.
Our Declaration's author, Thomas Jefferson, understood the odds. He wrote, "The natural progress of things is for liberty to yield and government to gain ground," and he concluded, "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants."
Accordingly, George Washington advised, "We should never despair, our Situation before has been unpromising and has changed for the better, so I trust, it will again. If new difficulties arise, we must only put forth new Exertions and proportion our Efforts to the exigency of the times."
Indeed we must.
Semper Vigilo, Fortis, Paratus et Fidelis!
Mark Alexander
Publisher, PatriotPost.US
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The Obsolete New York Model. Where a tax-eating majority votes itself a permanent income
City Journal | July 16, 2009 | Myron Magnet
It’s worth recalling that when the Founding Fathers led the American colonists in revolt against British oppression, they weren’t rebelling against torture on the rack or being chained in galleys or having to let aristocrats deflower their daughters. They were rebelling against taxes. To them, having to pay duties they hadn’t voted for themselves was a tyrannical taking of property—theft—and, in true Lockean fashion, they concluded that since government exists to protect life, liberty, and property, a regime that does the opposite renders itself illegitimate. What would they make, then, of today’s New York City, where 1.2 percent of the taxpayers—40,000 households—pay 50 percent of the income taxes, and half the households pay no income tax at all? If the tax code ensures that those who pay the bulk of the taxes are always a minority of those who vote for the legislature that imposes the taxes, isn’t that taxation without representation? Isn’t it also the tyranny of the majority that the Founders tried to prevent?
A state of affairs so opposed to the Founders’ vision could never have come about all at once. It took shape in emergency spurts, sparked by upheavals like the Civil War, which prompted crisis measures like the first federal income tax (made legal retrospectively in 1913 by the Sixteenth Amendment). For New York, the cataclysmic turning point was the Depression. Gotham was the New Deal metropolis, with New York senator Robert F. Wagner and Gotham mayor Fiorello La Guardia falling over each other to make the city the showcase for President Franklin D. Roosevelt’s big programs, designed (among other aims) to turn urban ethnics—whose normally supportive banks and charities the Depression had crushed along with their jobs—into the foundation of Democratic Party power.
As New York’s governor, FDR had already begun in 1931 to provide the state’s jobless with welfare proper—direct relief in money, food, and clothing—for the first time in over half a century. As president, he made the program national in 1933 through the Federal Emergency Relief Administration, and La Guardia quadrupled Washington’s funds with lavish state and city supplements. After the mayor heard that insolent city workers were worsening the already-painful humiliation of getting aid, he rushed down to a Lower East Side relief station to investigate. When he saw abashed applicants waiting and waiting, while an official in a hat lounged with his feet on a desk, smoking a cigar, La Guardia famously strode over to him, knocked the cigar out of his mouth and the hat off his head, and barked, “Take your hat off when you speak to a citizen!” Later he announced, “That’s another s. of a b. that has no job.” In 1935, the feds instituted another cash relief program, this one for fatherless families: Aid to Dependent Children, which was supporting 700,000 kids nationwide by 1939 and later became the main U.S. welfare scheme. In addition to such cash programs, FDR’s Public Works Administration put New Yorkers to work building the Triborough Bridge, the Lincoln Tunnel, and La Guardia Airport; by 1936, the Works Progress Administration had employed 250,000 Gothamites to construct, under the direction of La Guardia and Parks Commissioner Robert Moses, public swimming pools, beaches, playgrounds, and hospitals.
La Guardia had set about constructing the first welfare city from the moment he entered City Hall. In his 1933 campaign, he had floated the unprecedented idea of government housing, and when he won, the White House offered to fund a New York City Housing Authority if the new mayor would set it up. On a frigid December 3, 1935, the nation’s first-ever public housing project opened on the Lower East Side. “A great constitutional lawyer two years ago told me it would be a cold day when the government builds houses,” said La Guardia at the dedication of the 122-unit complex, proudly highlighting the radicalism of his accomplishment. “Well, he was right that time.” Constitutional or not, eight more projects arose during La Guardia’s three terms in City Hall. In addition, with $315 million in bond financing, the mayor took over the city’s three ailing and deteriorating private subway companies, along with its bus lines, in 1939 and 1940, turning transportation into a government-subsidized public service and transit workers into civil servants. To accompany his publicly funded municipal hospitals, he also set in motion a subsidized health-insurance program, which began operating just before he died in 1947.
Taken together, all these programs not only expanded government unimaginably but also created a comprehensive new rationale for it, very different from the Founding Fathers’ political philosophy. Not content with ensuring the liberty in which individuals are free to pursue their own happiness in their own way, government was now going to hand it to them. “We are trying to make people happy,” La Guardia announced. “We are going to make our city a real heaven,” he promised, taking politics into a realm beyond the mere art of the possible.
A much subtler thinker, Roosevelt—in the spirit of never letting a good crisis go to waste, as a modern Democrat would put it—calculatedly used the Depression as an occasion to remake society in accordance with his own vision of “social justice” and freedom, though his new birth of freedom stood Lincoln’s on its head. “Necessitous men are not free men,” he postulated. The great corporations and the tycoons who controlled them before the New Deal, he said, “had concentrated into their own hands an almost complete control over other people’s property, other people’s money, other people’s labor—other people’s lives. For too many of us, life was no longer free; liberty was no longer real; men could no longer follow the pursuit of happiness. Against economic tyranny such as this, the American citizen could appeal only to the organized power of government.”
But while big government existed to protect the individual from big business, the individual paradoxically faded out in FDR’s worldview, changed in the president’s imagination into a unit in the great social machine. “For it is literally true that the ‘self-supporting’ man or woman has become as extinct as the man of the stone age,” he declared. “Without the help of thousands of others, any one of us would die, naked and starved.” Moreover, the great social machine is better off without the rugged individuals of yore, since in Roosevelt’s conventional (and mistaken) economic theory, the Depression was a crisis of overproduction, with an excess of goods and services forcing down prices and wages. “The day of the great promoter or financial Titan, to whom we granted everything if only he would build, or develop, is over,” FDR pronounced. “Our task now is not discovery, or exploitation, of natural resources, or necessarily producing more goods. It is the soberer, less dramatic business of administering resources and plants already in hand, . . . of distributing wealth and products more equitably.” Progress was something that had already happened; in FDR’s view—before the war, at least—America had reached the end of history.
Once you start talking about government’s equitable distribution of wealth—about giving government the power to define and create “fairness,” as Hayek put it—you have begun to leave democracy behind. And while both FDR and La Guardia were extraordinary visionaries with sincere sympathy for ordinary people, theirs was not a democratic vision. Roosevelt’s patrician paternalism saw the world from an Olympian height, from which individuals, in the shadow of the immense, almost superhuman institutions that concerned him, looked tiny and indistinguishable. The scale of his imagination was much grander than the Founders’ vision of a government powerful enough to protect individuals from the depredations of others but strictly limited and hedged by checks and balances to keep it from becoming an instrument of oppression, as history shows most governments have been.
In the same vein, La Guardia bristled at being called a “politician,” preferring the honorific “municipal officer.” In true Progressive fashion, he dreamed of government by enlightened, public-spirited experts, as opposed to venal (but democratic) Tammany-style pols, and he kept trying to soar above politics, defining himself as a “progressive” rather than a “regular” Republican. He flitted from party to party, winning the mayoralty in 1933 as the Fusion candidate, in 1937 as the Fusion, Republican, Progressive, and American Labor Party candidate, and in 1941 as the Republican candidate endorsed by his best Democratic friend, FDR. “You know I am in the position of an artist or a sculptor,” he explained. “I can see New York as it should be and as it can be if we all work together”—if, in other words, the voters would give him the power to mold their world into the shape he desired for them. Any great leader needs a vision, of course—needs to show people the world as it could be. But it is not surprising that the five-foot-two dynamo’s enemies called him the “midget Mussolini” or that he kept on his desk a figurine of that other dynamo of short stature who tried to impose his gigantic will on the world, Napoleon Bonaparte.
The Founders recognized the danger of a freely elected government’s becoming what Declaration of Independence signer Richard Henry Lee called an “elective despotism.” In their urgency to combat the Depression with all possible weapons, the New Dealers discounted that peril.
As so often happens, the emergency measures didn’t disappear when the emergency ended. But they needed an updated rationale. They got one in August 1943, when, after Gotham’s wartime job opportunities and its rich smorgasbord of welfare benefits had drawn waves of new black migrants into the city, a white cop summoned to settle an unruly dispute shot an unarmed black soldier, and Harlem erupted in riots. Even sober working people joined in the arson and looting, smashing windows and carrying off merchandise “in bundles and baskets and parcels.” Six died; property damage totaled $15 million. Mayor La Guardia’s response was to turn all the machinery of the new welfare city to eradicating the racial inequality that, in his view, had sparked the riots—though a Brooklyn grand jury at that very moment recommended better policing as the solution to that borough’s African-American lawlessness. Roundly condemning the Brooklyn approach, the mayor gave the welfare city a new justification: creating racial justice. For the first time, though, with New Deal money no longer flowing, the cost of welfare put the city budget in deficit. La Guardia’s successors raised taxes by dribs and drabs, a hotel levy here, a sales-tax boost there.
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La Guardia was ahead of his time, but over 20 years later, when John Lindsay took over city hall during President Johnson’s War on Poverty and Nelson Rockefeller’s long, liberal reign as New York’s governor, the nation had caught up. Redressing three centuries of racial wrongs became America’s Number One political crusade. As always, New York marched in the vanguard, with LBJ taking as his chief antipoverty model a Lower East Side far-left community-organizing group called Mobilization for Youth, which emphasized confrontational political activism to change “the system,” poverty’s supposed cause.
Lindsay himself—a “progressive” Republican like La Guardia, though without the genius—adopted a dumbed-down version of Marx’s already-crude idea that ideas and values are merely an automatic reflection of the economic “base.” So he set out to provide poor black New Yorkers with middle-class incomes, middle-class housing in middle-class neighborhoods, and middle-class political control of schooling as a way of making them middle-class citizens with a middle-class outlook. The result of such governmental largesse was exploding welfare dependency, anarchic housing projects, family collapse, and open warfare between activists and teachers whose destructive consequences proved ineradicable. As the welfare rolls shot up under radical social-services chief Mitchell “Come-and-Get-It” Ginsberg, and as businesses and middle-class taxpayers began fleeing the disorder, taxes shot up, too, and New York City imposed its first personal income tax during Lindsay’s first year in office, 1966.
But over the following decades—and despite all the War on Poverty foolishness that turned so many of its supposed beneficiaries into an intergenerational underclass—the Civil Rights Act of 1964, along with a transformation of white attitudes about race, really accomplished the civil rights revolution that the country desired, fully opening American opportunity to African-Americans. Much effort went into denying this accomplishment—from blacks whose identity rested on their sense of grievance, from unionized service providers and clients fearful of losing their incomes, from politicians and advocates staring into the dustbin of history. But with the election of an African-American as president, even many blacks who once resisted the idea are starting to imagine themselves as an equal part of the American nation.
A democracy can’t tax citizens without a rationale, however cockeyed, as much of the War on Poverty’s rationale was. That’s part of the reason for the outrage over the Bush-era congressional earmarks to build a bridge to nowhere or remove tattoos or combat obesity: giving legislators taxpayer money to disburse as they saw fit, with no stated national purpose, pulled the veil off the great taxation machine and revealed parts of it, at least, as a racket—as theft, the Founders would say. Now our polity stands at an inflection point. “New Deal II: The War on Poverty” is over, its mission accomplished, though by different means than it foresaw. What do we do with the government machinery it justified?
A strangely fortunate by-product of the War on Poverty’s focus on minorities was that it largely insulated white America from the most destructive and demoralizing welfare programs and attitudes that retarded progress among many of the black and Hispanic poor. It shunted the New Deal welfare state onto a branch line, while England and Europe hurtled down the welfare state’s main line to much more widespread dependency and idleness, low growth, limited horizons, little innovation, and a grossly bloated public sector, with countless unproductive government drones gobbling up a porcine share of GDP and further constricting liberty through meddling, “fairness”-promoting diktats.
But in New York, with its vast population of the hereditary minority poor, we now have something less like the rest of America and more like the European welfare state: heavily and inequitably taxed; undemocratic, unsustainable, and largely pointless; with government telling us what to eat and where to smoke, using its total control of the school system to accomplish little beyond boosting costs dramatically, subsidizing or dictating the rents on half of the city’s rental apartments, forcing private health-insurance buyers to subsidize the care of the indigent, and prohibiting us from asking whether those who use the services we pay for are here legally. Our public services, even vital ones like the subway, work badly, because they operate less for the convenience of their users than for the sake of their unionized, overpaid employees, now not so much public servants as the public’s masters, through the vast political might they wield over so powerful a government.
On top of which, New York State, judged the “least free” in the nation in a new George Mason University study of personal and economic liberty, is quicker than the other 49 states to wield eminent domain to take away private property and give it to someone else, the absurd extreme of government-forced redistribution. Such unfreedom—along with “swarms of officers to harass our people, and eat out their substance”—would have driven the Founders to arms, but New Yorkers have no idea of how to reform a government that is essentially a one-party elective despotism with no checks and balances, and no democratic levers of change, such as voters’ initiatives and referenda. For us, the clearest solution is to leave, as millions of middle-class individuals and most of our Fortune 500 headquarters have done over the last half-century.
Struggling under the accumulated burden of eight decades of “progressive” government, we New Yorkers can serve as a warning to our fellow Americans as President Obama, following the New Deal playbook, seeks to use the current financial crisis to provide a new rationale and legitimacy for the gargantuan machinery of the federal government. Our economic ills, the president contends, require expanding the welfare state to include the majority of Americans not just in Medicare and Social Security but also in government-subsidized and -controlled health care and higher education—all paid for by an ever smaller percentage of the citizens, in the name of European-style redistributionist “fairness.” Logically, this plan is a non sequitur (in the process of turning, by constant repetition, into a Big Lie), since health care and education have nothing to do with the causes or cure of our present economic woes. But logic aside, consider New York’s government-controlled services and ask if they are worth taking to nationwide scale. Take a good look at the president’s tax plans, too, which will end up with many more Americans paying nothing and many fewer paying most of the bills. Once the tax eaters outnumber the taxpayers and can vote themselves an income, you have arrived at elective despotism.
And despotism is the real issue, much larger than high taxes and bad services provided by public employees whose pensions and lifetime health benefits dwarf those of most taxpayers who struggle to support them. Just look beyond European-style New York to Europe proper. In the name of “fairness,” European governments have criminalized free speech, with France prosecuting Brigitte Bardot, and Switzerland and Italy prosecuting Oriana Fallaci, for anti-Muslim statements, while the British home secretary who charged her husband’s porno movie rentals to the taxpayers has barred Dutch M.P. Geert Wilders and American talk-show host Michael Savage from Britain for fomenting anti-Islamic hatred. The Scandinavian countries have outlawed antihomosexual speech as well.
As Theodore Dalrymple has written in these pages, governments that take charge of life’s important matters—health care, pensions, the education of children—infantilize their citizens, making them so frivolous and torpid that they become unwilling even to defend their country and their way of life. “I have never learned to fight for my freedom,” Mark Steyn quotes one Dutchman saying ruefully about the Islamization of his country. “I was only good at enjoying it.” In this spirit, 15 British sailors surrendered without a shot to an Iranian gunboat in the Persian Gulf two years ago. “From the outset, it was very apparent that fighting back was simply not an option,” said a marine captain among these latter-day representatives of Lord Nelson’s indomitable tars. “Had we chosen to do so, then many of us would not be standing here today.” Such unblushing cowardice makes the Royal Navy, for all its costly weaponry, about as fearsome as the expensively armed Saudi or Egyptian air forces.
More important still, the propounders of the individualist work ethic, from Alexander Hamilton onward, had it right: a free society isn’t one that alleviates the burden of supporting ourselves and our families, but rather one that provides the opportunity to labor in a way that brings to light whatever human excellence may lie within us—a way that perhaps even adds to the sum of human progress. As opposed to FDR’s immense governmental machine throbbing mightily at the end of history, how much grander is Edmund Burke’s vision of society as “a partnership in all science; a partnership in all art; a partnership in every virtue and in all perfection.” It is a vision in which some can be the Titans Roosevelt rejected—not just the Morgans and the Vanderbilts that New York produced, but also its Edith Whartons and its Herman Melvilles. Most crucially, all can be humans, free citizens with a sense of purpose, not cogs.
Myron Magnet is City Journal’s editor-at-large and was its editor from 1994 through 2006. He is the author of The Dream and the Nightmare: The Sixties’ Legacy to the Underclass and a recipient of the National Humanities Medal
http://city-journal.org/2009/nytom_taxes.html
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Ultimately the survival and flourishing of the American Creed is up to us:
http://blip.tv/play/AYGJ5h6YgmE
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Pentagon, governors clash over reserve units
The Defense Department is engaged in a turf war with the nation's governors, who object to plans for greater Pentagon control over Reserve units called up to assist with natural disasters. Unless governors remain in control, "strong potential exists for confusion in mission execution and the dilution of governors' control over situations with which they are more familiar and better capable of handling than a federal military commander," according to the National Governors Association. But the Pentagon responds that reservists already are under federal command during national emergencies such as terrorist attacks, and that the new proposal is simply an extension of that authority. "This provision would in no way impede or undermine or inadvertently reduce the authority that governors exercise under the United States Constitution," says Paul Stockton, the Pentagon's assistant secretary for homeland defense. Google/The Associated Press (8/13)
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From the DBMAA forum:
Woof,
In 1774 the colonies established the Continental Congress to coordinate their efforts against British rule. In 1776 the Congress adopted the Declaration of Independence. In 1781, while the war was still on going the C.C. formed the first constitution and the states ratified it; this was the Articles of Confederation. As a confederation it allowed each state to be sovereign and independent, with the states being supreme over the national government. The Articles reflected the fears of having a powerful, distant central government, after all they were fighting to get away from just such a government. The leaders at the time thought that given any power at all the new government would grow to be too strong and individual liberty would again be lost. They understood that individuals would have more of a chance to influence and maintain control over a state government than they would a central government.
After the end of the war it became clear that in their effort to keep the national government from becoming to powerful, they had weakened it to the point where it couldn't act on things of national interest with any effectiveness and they also realized that some states were using their power to the detriment of other member states. The Continental Army had been disbanded after the war and treaties signed but Britain still had outposts in the northwest and a standing army in Canada. Spain still claimed the entire Mississippi river valley and control shipping down the Mississippi to the Gulf and posed a threat to trade; and just as well, the Barbary pirates were seizing American ships and sailors on the high seas. Then on the domestic front was the huge war debt to be paid and problems with trade between the states and other governments. If Congress made a trade deal with another nation the states could ignore it, put tariffs on the goods and so on. Most states held elections every year which led to pandering. Politicans would pass laws to forgive debts, change laws on the whims of a single wealthy complaintant just to ensure they were reelected. In other words there was and excess of democracy.
All of this was of great concern but when Shay's Rebellion happened in 1786/87 it put the fear into them that their nation was about to fall apart. The states were becoming tyrannical and at the same time inciting mob rule. In short the government was too decentralized to ensure either peace or prosperity among the states. The Congress could not raise an army because it could not draft individuals or impose a tax to finance it; Congress could not enforce any treaty or trade agreement and was dependent on the states, who put their own self interests above all others. Things had gotten so bad that Nathaniel Gorham, the president of the C.C., wrote to Prince Henry of Prussia, telling him that there has been a failure of all our free institutions and asked if he would agree to become King of America. The Prince refused.
It was under these conditions that in 1787, just three months after Shay's Rebellion, that Congress convened to revise the Articles. The states picked 74 delegates to send and 55 showed up. Rhode Island didn't send anyone out of fears that they would no longer be able to forgive debts to its farmers. Patrick Henry of Kentucky said, "I think I smelt a rat", when asked why he wouldn't attend. Many felt that this was leading up to a betrayal of the spirit of 76 and that the liberty they fought long and hard for was about to be stolen out from under them.
The first thing the delegates agreed upon was that a new constitution was needed instead of a revised Articles of Confederation, so they started from scratch. They continued to fear creating a distant government with too much power; all the reasons they rebelled against British rule was still very vivid in their hearts and minds and they were not throwing those away. The consensus from the start was to have limited government, some want more some wanted less and there were compromises galore but the over riding factor was on limits that protected individual liberty and preserved states rights. They did not want a national government that wielded all the power but had enough power to be effective. Out of this came federalism and separation of powers and checks and balances. These were meant to constrain and contain the new government, to secure individual liberty and rights. They agreed on the three branches, the legislative, executive, and judiciary. Madison said, "The accumulation of all powers, legislative, executive, and judiciary, in the same hands may justly be pronounced the very definition of tyranny." To further establish protections for liberty they took away the question of who had sovereignty by giving it to the people. This is what Lincoln was referring to and he did not invent the idea of a government for the people by the people. They also set terms in the House to two years and in the Senate to six to reduce pandering but still keep them answerable to the people and their states. Until the seventeenth amendment was adopted, the Senate seats were appointed by the state's legislators. Term limits were set by elections, if the people kicked you out, the number of terms you served was limited.
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Illegal Health Reform
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By David B. Rivkin Jr. and Lee A. Casey
Saturday, August 22, 2009
President Obama has called for a serious and reasoned debate about his plans to overhaul the health-care system. Any such debate must include the question of whether it is constitutional for the federal government to adopt and implement the president's proposals. Consider one element known as the "individual mandate," which would require every American to have health insurance, if not through an employer then by individual purchase. This requirement would particularly affect young adults, who often choose to save the expense and go without coverage. Without the young to subsidize the old, a comprehensive national health system will not work. But can Congress require every American to buy health insurance?
In short, no. The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.
Although the Supreme Court has interpreted Congress's commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress's reach.
The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress's authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that -- as in the wheat case -- "the activities regulated by the [Controlled Substances Act] are quintessentially economic." That simply would not be true with regard to an individual health insurance mandate.
The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the "production, distribution or consumption of commodities," but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.
This leaves mandate supporters with few palatable options. Congress could attempt to condition some federal benefit on the acquisition of insurance. States, for example, usually condition issuance of a car registration on proof of automobile insurance, or on a sizable payment into an uninsured motorist fund. Even this, however, cannot achieve universal health coverage. No federal program or entitlement applies to the entire population, and it is difficult to conceive of a "benefit" that some part of the population would not choose to eschew.
The other obvious alternative is to use Congress's power to tax and spend. In an effort, perhaps, to anchor this mandate in that power, the Senate version of the individual mandate envisions that failure to comply would be met with a penalty, to be collected by the IRS. This arrangement, however, is not constitutional either.
Like the commerce power, the power to tax gives the federal government vast authority over the public, and it is well settled that Congress can impose a tax for regulatory rather than purely revenue-raising purposes. Yet Congress cannot use its power to tax solely as a means of controlling conduct that it could not otherwise reach through the commerce clause or any other constitutional provision. In the 1922 case Bailey v. Drexel Furniture, the Supreme Court ruled that Congress could not impose a "tax" to penalize conduct (the utilization of child labor) it could not also regulate under the commerce clause. Although the court's interpretation of the commerce power's breadth has changed since that time, it has not repudiated the fundamental principle that Congress cannot use a tax to regulate conduct that is otherwise indisputably beyond its regulatory power.
Of course, these constitutional impediments can be avoided if Congress is willing to raise corporate and/or income taxes enough to fund fully a new national health system. Absent this politically dangerous -- and therefore unlikely -- scenario, advocates of universal health coverage must accept that Congress's power, like that of the other branches, has limits. These limits apply regardless of how important the issue may be, and neither Congress nor the president can take constitutional short cuts. The genius of our system is that, no matter how convinced our elected officials may be that certain measures are in the public interest, their goals can be accomplished only in accord with the powers and processes the Constitution mandates, processes that inevitably make them accountable to the American people.
The writers are partners in the D.C. office of Baker Hostetler LLP and served in the Justice Department under presidents Ronald Reagan and George H.W. Bush.
http://www.washingtonpost.com/wp-dyn/content/article/2009/08/21/AR2009082103033_pf.html
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Obama’s Imperial Decree: Target Oklahoma
Posted on 06 August 2009
by Bryce Shonka
Remember the good old days, when one only had to watch out for the Federal Government’s twisted interpretation of the commerce clause to justify tyranny?
Well those days seem to be long gone. The Obama Administration has been employing an old tactic lately – what some might call an imperial threat – and they’re not doing it overseas, either.
STATES UNDER THREAT
The state of Oklahoma is now the target of a direct challenge from US Attorney General Eric Holder, who is using the Civil Rights Act of 1964 as justification to violate Oklahoma’s sovereignty as affirmed by the Tenth Amendment to the US Constitution.
In a letter written to the State Attorney General in April, the Federal government used aggressive language, bringing up the possibility of withholding Federal funds appropriated for Oklahoma. The reason? A proposed amendment to the State Constitution, which requires voter approval, that would make English the official language of the State.
“What it indicates is the Federal Government’s contempt for the states, in this case Oklahoma, and for the idea of federal — as opposed to national — government. AG Holder believes that Oklahoma is an administrative subdivision of the USA, and that it is perfectly right for him to coerce Oklahomans to do his will. Who cares whether he has ever been to Oklahoma, met an Oklahoman, or thought about Oklahoma?” said Kevin Gutzman, an American historian and New York Times bestselling author.
Oklahoma is not alone as a state challenged by central authority in recent months. Recently, federal firearms licensees in Tennessee and Montana received a letter from another Federal agency, the ATF, who had also issued a decree wrought with hubris - claims by the Federal government of their legal supremacy across the land.
DESTROYING LOCAL GOVERNMENT
“Both of these letters, particularly this letter to the Attorney General of Oklahoma, are very officious,” observed Rob Natelson, professor of law at the University of Montana. “It reminds one eerily of the kinds of communications that started to come out from the Emperor to the local cities of the Roman Empire, beginning the course of the ultimate destruction of local government.”
Professor Natelson is a widely-recognized expert on the framing and adoption of the United States Constitution, and on several occasions, he has been the first to uncover key background facts about the Constitution’s meaning. I knew this before our conversation. What I didn’t know, however, was that he’s also been studying Roman Law and history for the past 50 years, and is responsible for several works in that field.
“During the 2nd century AD, the Roman Emperors began increasingly to interfere with local government and they did this with…letters…letters that look something like this,” continued Natelson, indicating the letter from Holder to Oklahoma. “They started out as almost advisory and they got increasingly peremptory. By the end of the 2nd century, there was very little local government left. You had very few people, therefore, willing to participate in local elections; very little patriotic spirit towards one’s own province or city. And this was the harbinger for the ultimate centralization of the Roman Empire.”
He continued with a strong, decisive tone, “Almost everyone who’s studied in that area agrees that the effect was to sap the life out of the empire, so that everything flowed to the center. All that counted was the Emperor and his bureaucrats…and his courtiers. I look at this and I see this letter which gets close to looking like an order from the central government down to a sovereign state legislature, and I say…WOW. This looks like something that Septimius Severus would have sent to the local officials.”
In Columbus, Ohio last weekend, a rally in support of State Sovereignty drew around 7,000 people. Judge Andrew Napolitano addressed the rally and made similar comments indicating the nature of our current point in US history.
“In the long history of the world, very few generations have been granted the role of defending freedom in its maximum hour of danger. This is that moment and you are that generation”
IMPERIALISM AND DECLINE
Are these men ‘crying wolf’?
“Some people might think that’s a far fetched analogy but I can’t emphasize enough how important this development is seen by historians. When people think of the collapse of the Roman Empire they think of the fall of Rome in 476 AD. The conversion of Rome from a relatively free state - almost a Federation - into a totalitarian state, really picked up speed and accelerated during the 2nd century [AD], with this increasing intermeddling by the central authorities in local state government. That’s what it reminded me of,” recalled Natelson.
“[The DOJ] are not violating any law by sending these letters, but there’s a change in tone, there’s a new and disturbing tone in them. At least the ATF letter was addressed to individuals. This one is addressed to a state legislature - really, it’s a bit much. Besides the fact that there’s the tone, there’s the fact that they sent the letters at all. Most of the letters that were sent out by the emperor were called rescripts, and that’s almost what [the letter from Holder] looks like. The one difference is that a rescript was usually a reply to a request for advice. In some ways this is worse than a rescript because this is unsolicited. A better way to compare it would be to an imperial constitutio - an imperial decision or decree.” Natelson added.
His Roman analogy is worth considering, for several reasons. Rome may have ended up a brutal dictatorship, but it began through a series of treaties between regions, and in some ways parallels present day America.
“When you draw comparisons between the U.S. and ancient Rome, you have to be very cautious, though Rome does have lessons to offer us and the history and results of the relentless centralization of the Empire is one of them,” Natelson continued.
THE OTHER WAY AROUND
If there’s a case to be made that the US is headed for the same sort of central plan that sucks the life out of a Republic, it would be difficult to imagine who in the United States could be encouraged by such a trend, outside of DC’s beltway.
“Certainly state legislators in Oklahoma and congressmen from Oklahoma should put the Federal Government on notice that they will support a substantial reduction in the budget for Holder’s portion of the federal bureaucracy so long as he is trying to coerce them in this way.” recommended Gutzman.
Worldwide trends in recent political elections do exhibit signs of a move away from central planner candidates, a trend the United States has been contrary to for nearly a decade, but perhaps the pendulum has reversed itself.
“As the economy grows increasingly complicated, increasingly interdependent and increasingly technological, centralized control (which never worked very well) works less and less, and people are less willing to stand for it. This reflects a visceral gut reaction people have against centralized control, because they know from their own life it makes no sense, though it always takes time for those mega-trends to filter into the political class,” Natelson continued. “Eventually, when a mule gets hit over the head enough times it figures out what’s going on, and eventually the politicians will figure out what’s going on, too.”
People in the US are coming together by the thousands, demanding decentralization and nullification of Federal powers. Never before have the political elites had to contend with a non-partisan political force on such a massive scale. A storm seems to be brewing; a maelstrom of everyday Americans rallying around the document designed to keep the government in fear of the people - instead of the other way around.
http://www.tenthamendmentcenter.com/2009...
Bryce Shonka [send him email] is Media and Grassroots director for the TenthAmendmentCenter
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http://www.hillsdale.edu/news/imprimis.asp):
The Constitution and American Sovereignty
"WOULD WE be far wrong," President Lincoln asked in a special message to Congress in 1861, "if we defined [sovereignty] as a political community without a political superior?" Maybe that’s not exhaustive, but it comes on good authority. And notice that for Lincoln, sovereignty is a political or legal concept. It’s not about power. Lincoln didn’t say that the sovereign is the one with the most troops. He was making a point about rightful authority.
By contrast, sovereignty wasn’t an issue in the ancient world. Cicero notes that the ancient Romans had the same word for "stranger" as for "enemy." In the ancient world, people didn’t interact with foreigners enough to think about their relation to them except insofar as it meant war. Nor was sovereignty an issue in medieval Europe, since the defining character of that period was overlapping authority and a lot of confusion about which authority had primary claims. No one had to think about defining national boundaries. This became an issue only in the modern era, when interaction between different peoples increased.
The first important writer to address sovereignty was Jean Bodin, a French jurist of the late 16th century. In his work, Six Books of the Republic, Bodin set out an understanding of sovereignty whereby the King of France represented an independent political authority rather than owing allegiance to the Holy Roman Emperor or to the Pope. In the course of developing this argument, Bodin also advocated religious toleration and insisted that a monarch can neither seize property except by law nor raise taxes except by the consent of a representative body. He was in favor of free trade, and he insisted on the monarch’s general obligation to respect the law of nature and the law of God. His main practical point was that the government must be strong enough to protect the people’s rights, yet restrained enough not to do more than that. Subsequently, I might add, Bodin wrote a book about witchcraft—which he very much opposed. Witches are people who think they can make an end run around the laws of nature and of God using magical spells, and Bodin saw them as a menace.
It was not until the 17th century that the word "sovereignty" became common. This was also when people first came to think of representative assemblies as legislatures. Indeed, the word "legislature" is itself a 17th century term reflecting the modern emphasis on law as an act of governing will rather than impersonal custom. It is therefore related to the modern notion of government by consent. Significantly, it was also in this same era that professional armies came into being. Before the 17th century, for instance, there was no such thing as standard military uniforms. Uniforms indicate that soldiers have a distinct status and serve distinct governments. They reflect a kind of seriousness about defense.
The 17th century is also the period when people began thinking in a systematic way about what we now call international law or the law of nations—a law governing the relation of sovereign nations. The American Declaration of Independence refers to such a law in its first sentence: "When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them . . . ." The Declaration assumes here that nations have rights, just as individuals do.
The Sovereign Constitution
Returning to Lincoln, his understanding was that in an important sense American sovereignty rested in the Constitution. Article 7 of the Constitution declares that it will go into effect when it is ratified by nine states, for those nine states. And once ratified—once the people of those states have entered into the "more perfect Union’’ described in its Preamble—the Constitution is irrevocable. Unlike a treaty, it represents a commitment that cannot be renegotiated. Thus it describes itself unambiguously as "the supreme Law of the Land"—even making a point of adding, "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
The Constitution provides for treaties, and even specifies that treaties will be "the supreme Law of the Land"; that is, that they will be binding on the states. But from 1787 on, it has been recognized that for a treaty to be valid, it must be consistent with the Constitution—that the Constitution is a higher authority than treaties. And what is it that allows us to judge whether a treaty is consistent with the Constitution? Alexander Hamilton explained this in a pamphlet early on: "A treaty cannot change the frame of the government." And he gave a very logical reason: It is the Constitution that authorizes us to make treaties. If a treaty violates the Constitution, it would be like an agent betraying his principal or authority. And as I said, there has been a consensus on this in the past that few ever questioned.
Let me give you an example of how the issue has arisen. In 1919, the United States participated in a conference to establish the International Labour Organization (ILO). The original plan was that the members of the ILO would vote on labor standards, following which the member nations would automatically adopt those standards. But the American delegation insisted that it couldn’t go along with that, because it would be contrary to the Constitution. Specifically, it would be delegating the treaty-making power to an international body, and thus surrendering America’s sovereignty as derived from the Constitution. Instead, the Americans insisted they would decide upon these standards unilaterally as they were proposed by the ILO. In the 90 years since joining this organization, I think the U.S. has adopted three of them.
Today there is no longer a consensus regarding this principle of non-delegation, and it has become a contentious issue. For instance, two years ago in the D.C. Court of Appeals, the National Resources Defense Council (NRDC), an environmental group, sued the Environmental Protection Agency (EPA), claiming that it should update its standards for a chemical that is thought to be depleting the ozone layer. There is a treaty setting this standard, and the EPA was in conformity with the treaty. But the NRDC pointed out that Congress had instructed the EPA to conform with the Montreal Protocol and its subsequent elaborations. In other words, various international conferences had called for stricter emission standards for this chemical, and Congress had told the EPA to accept these new standards as a matter of course. The response to this by the D.C. Court of Appeals was to say, in effect, that it couldn’t believe Congress had meant to do that, since Congress cannot delegate its constitutional power and responsibility to legislate for the American people to an international body. This decision wasn’t appealed, so we don’t yet have a Supreme Court comment on the issue.
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The delegation of judicial power is another open question today. There’s no doubt that the U.S. can agree to arbitrations of disputes with foreign countries, as we did as early as the 1790s with the Jay Treaty. But it’s another thing altogether to say that the rights of American citizens in the U.S. can be determined by foreign courts. This would seem to be a delegation of the judicial power, which Article 3 of the Constitution says "shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." This became an issue last year in the case of Medellin v. Texas, which considered an International Court of Justice ruling that Texas could not execute a convicted murderer, because he had not been given the chance to consult the Mexican consulate before his trial, as he had the right to do under an international treaty. The Supreme Court, after much hand-wringing, concluded that it didn’t think the Senate had intended to give the International Court of Justice the power to decide these questions of American law as applied by American courts. I would go further and say that no matter what the Senate intended, this is not a power which can be delegated under the Constitution. But it is no longer clear that a majority on the Supreme Court would agree.
Or consider the Spanish judges who want to arrest American politicians if they venture into Europe, in order to try them for war crimes. This is preposterous. It is akin to piracy. And not only has our government not protested this nonsense, but it has contributed to building up an international atmosphere in which this sort of thing seems plausible—an atmosphere where the old idea of a jury of one’s peers and the idea of Americans having rights under the Constitution give way to the notion of some hazy international standard of conduct that everyone in the world can somehow agree upon and then enforce on strangers.
The Loss of Sovereignty
It is important to think about these issues regarding sovereignty today, because it is possible to lose sovereignty rather quickly. Consider the European Union. The process that led to what we see today in the EU began when six countries in 1957 signed a treaty agreeing that they would cooperate on certain economic matters. They established a court in Luxembourg—the European Court of Justice—which was to interpret disputes about the treaty. To make its interpretations authoritative, the Court decreed in the early 1960s that if the treaty came into conflict with previous acts of national parliaments, the treaty would take precedence. Shortly thereafter it declared that the treaty would also take precedence over subsequent statutes. And in the 1970s it said that even in case of conflicts between the treaty and national constitutions, the treaty would take precedence. Of course, judges can say whatever they want. What is more remarkable is that all the nations in the EU have more or less grudgingly accepted this idea that a treaty is superior to their constitutions, so that today whatever regulations are cranked out by the European Commission—which is, not to put too fine a point on it, a bureaucracy—supersede both parliamentary statutes and national constitutions. And when there was eventually a lot of clamor about protection of basic rights, the court in Luxembourg proclaimed that it would synthesize all the different rights in all the different countries and take care of that as well.
So on the one hand the European Union has constitutional sovereignty, but on the other it doesn’t have a constitution. When its bureaucrats recently attempted to write a constitution and get it adopted, a number of countries voted it down in referendums. Apart from lacking a constitution, the EU doesn’t have an army or a police force or any means of exercising common control of its borders. In effect, it claims political superiority over member states but declines to be responsible for their defense. Indeed, I think inherent in this whole enterprise of transcending nation-states through the use of international institutions is the idea that defense is not so important.
All of this has happened in Europe in a very short period, and is the reason we should be concerned about the loss in our own country of a consensus regarding constitutional sovereignty. Think of the Kyoto Protocol on global warming, which many of our leading politicians now say we should have ratified. Doing so would have delegated the authority over huge areas of important public policy to international authorities. It would have been a clear delegation of the treaty-making power. Nevertheless, the Obama administration is aiming to negotiate a new treaty along those lines.
Of even more urgent concern is the increasing sense that human rights law transcends the laws of particular countries, even those pertaining to national defense. Of course, the idea that there should be standards that all countries respect when engaged in armed conflict is fair enough. But who is going to set the standards? And who is going to enforce them—especially against terrorists who refuse to act like uniformed professional soldiers? What we once called the "law of war" is now commonly referred to as "international humanitarian law." Many today say that we need to follow this law as it is defined by the International Red Cross. But who makes up this organization in Geneva, Switzerland, and what gives them the authority to supersede national statutes and constitutions? Currently the International Red Cross thinks it is a violation of humanitarian standards for the U.S. to hold prisoners in Guantanamo Bay—not on the basis of any claim that these prisoners are mistreated, but based on the argument that they cannot be held indefinitely and should be put on trial in ordinary criminal courts. Even the Obama administration is not yet willing to conform to this particular standard of so-called international law, believing that holding these prisoners is vital to national defense and that the right to self- defense is morally compelling.
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Where does this trend away from the sovereignty of national constitutions lead? I do not think the danger is a world tyranny. I think that idea is fantastical. Rather what it will lead to, I think, is an undermining of the idea that national governments can protect people, with the result that people will start looking for defense elsewhere. We saw this in an extreme way in Iraq when it collapsed into chaos before the surge, and people looked for protection to various ethnic or sectarian militias. A similar phenomenon can be seen today in Europe with the formation of various separatist movements. We’re even hearing loud claims for Scottish independence. And it’s not surprising, because to the extent that Britain has surrendered its sovereignty, Britain doesn’t count for as much as it used to. So why not have your own Scotland? Why not have your own Wales? Why not have your own Catalonia in Spain? And of course the greatest example of this devolution in Europe is the movement toward Muslim separatism. While this is certainly driven to a large extent by trends in Islam, it also reflects the fact that it doesn’t mean as much to be British or to be French any more. These governments are cheerfully giving away their authority to the EU. So why should immigrants or children of immigrants take them seriously?
At the end of The Federalist Papers, Alexander Hamilton writes: "A nation, without a national government, is, in my view, an awful spectacle." His point was that if you do not have a national government, you can’t expect to remain a nation. If we are really open to the idea of allowing more and more of our policy to be made for us at international gatherings, the U.S. government not only has less capacity, it has less moral authority. And if it has less moral authority, it has more difficulty saying to immigrants and the children of immigrants that we’re all Americans. What is left, really, to being an American if we are all simply part of some abstract humanity? People who expect to retain the benefits of sovereignty—benefits like defense and protection of rights—without constitutional discipline, or without retaining responsibility for their own legal system, are really putting all their faith in words or in the idea that as long as we say nice things about humanity, everyone will feel better and we’ll all be safe. You could even say they are hanging a lot on incantations or on some kind of witchcraft. And as I mentioned earlier, the first theorist to write about sovereignty understood witchcraft as a fundamental threat to lawful authority and so finally to liberty and property and all the other rights of individuals.
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Aut vincere, aut mori. Sic itur ad astra.
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Third post of the morning
August 28, 2009, 4:00 a.m.
Eric Holder’s Hidden Agenda
The investigation isn’t about torture, but about transnationalism.
By Andrew C. McCarthy
‘This is an administration that is determined to conduct itself by the rule of law. And to the extent that we receive lawful requests from an appropriately created court, we would obviously respond to it.”
It was springtime in Berlin and Eric Holder, a well-known “rule of law” devotee, was speaking to the German press. He’d been asked if his Justice Department would cooperate with efforts by foreign or international tribunals to prosecute U.S. government officials who carried out the Bush administration’s post-9/11 counterterrorism policies. The attorney general assured listeners that he was certainly open to being helpful. “Obviously,” he said, “we would look at any request that would come from a court in any country and see how and whether we should comply with it.”
As the Associated Press reported at the time, Holder was “pressed on whether that meant the United States would cooperate with a foreign court prosecuting Bush administration officials.” He skirted the question in a way Americans ought to find alarming. The attorney general indicated that he was speaking only about “evidentiary requests.” Translation: The Obama administration will not make arrests and hand current or former American government officials over for foreign trials, but if the Europeans or U.N. functionaries (at the nudging of, say, the Organization of the Islamic Conference) want Justice’s help gathering evidence in order to build triable cases — count us in.
Hue and cry followed Holder’s decision this week to have a prosecutor investigate CIA interrogators and contractors. The probe is a nakedly political, banana republic-style criminalizing of policy differences and political rivalry. The abuse allegations said to have stunned the attorney general into acting are outlined in a stale CIA inspector general’s report. Though only released this week — a disclosure timed to divert attention from reports that showed the CIA’s efforts yielded life-saving intelligence — the IG report is actually five years old. Its allegations not only have been long known to the leaders of both parties in Congress, they were thoroughly investigated by professional prosecutors — not political appointees. Those prosecutors decided not to file charges, except in one case that ended in an acquittal. As I outline here, the abuse in question falls woefully short of torture crimes under federal law.
Americans are scratching their heads: Why would Holder retrace this well-worn ground when intimidating our intelligence-gatherers so obviously damages national security? The political fallout, too, is palpable. Leon Panetta, the outraged CIA director, is reportedly pondering resignation. President Obama, laying low in the tall grass on his Martha’s Vineyard vacation, is having staffers try to put distance between himself and his attorney general. It is unlikely that many will be fooled: Both Obama and Holder promised their antiwar base just this sort of “reckoning” during the 2008 campaign. But the question remains, Why is Holder (or, rather, why are Holder and the White House) instigating this controversy?
I believe the explanation lies in the Obama administration’s fondness for transnationalism, a doctrine of post-sovereign globalism in which America is seen as owing its principal allegiance to the international legal order rather than to our own Constitution and national interests.
Recall that the president chose to install former Yale Law School dean Harold Koh as his State Department’s legal adviser. Koh is the country’s leading proponent of transnationalism. He is now a major player in the administration’s deliberations over international law and cooperation. Naturally, membership in the International Criminal Court, which the United States has resisted joining, is high on Koh’s agenda. The ICC claims worldwide jurisdiction, even over nations that do not ratify its enabling treaty, notwithstanding that sovereign consent to jurisdiction is a bedrock principle of international law.
As a result, there have always been serious concerns that the ICC could investigate and try to indict American political, military, and intelligence officials for actions taken in defense of our country. Here it’s crucial to bear in mind that the United States (or at least the pre-Obama United States) has not seen eye-to-eye with Europe on significant national-security matters. European nations, for example, have accepted the 1977 Protocol I to the Geneva Conventions, while the United States has rejected it. Protocol I extends protections to terrorists and imposes an exacting legal regime on combat operations, relying on such concepts as “proportional” use of force and rigorous distinction between military and civilian targets. That is, Protocol I potentially converts traditional combat operations into war crimes. Similarly, though the U.S. accepted the torture provisions of the U.N. Convention Against Torture (UNCAT), our nation rejected the UNCAT’s placing of “cruel, inhuman, and degrading treatment” on a par with torture. By contrast, Europe generally accepts the UNCAT in toto.
#pageAs long as we haven’t ratified a couple of bad human-rights treaties, why should we care that Europe considers them binding? Because of the monstrosity known as “customary international law,” of which Koh is a major proponent. This theory holds that once new legal principles gain broad acceptance among nations and international organizations, they somehow transmogrify into binding law, even for nations that haven’t agreed to them. That is, the judgment of the “international community” (meaning, the judgment of left-wing academics and human-rights activists who hold sway at the U.N. and the European Union) supersedes the standards our citizens have adopted democratically. It is standard fare among transnational progressives to claim that Protocol I is now binding on the United States and that what they define as cruel, inhuman, and degrading treatment is “tantamount to torture.”
And the transnational Left has still another treat in store: its notion of “universal jurisdiction.” This theory holds that individual nations have the power to prosecute actions that occur in other countries, even when they have no impact on the prosecuting nation. The idea is that some offenses — such as torture and war crimes — so offend the purported consensus of humanity (i.e., so offend left-wing sensibilities) that they may be prosecuted by any country that cares to take the initiative. In fact, many countries (the United States included) open their justice systems to civil suits against government officials — again, even if the country where the suit is filed has nothing to do with the alleged offenses.
So we come back to Holder in Berlin. Two months before the attorney general’s visit, the U.N.’s “special rapporteur on torture” told German television that the Obama administration had “a clear obligation” under the UNCAT to file torture charges against former president George W. Bush and former defense secretary Donald Rumsfeld. The rapporteur was relying on documents produced because of American investigations — including a nakedly partisan report by the Democrat-controlled Senate Armed Services Committee.
Meanwhile, as I detailed here in March, Spain’s universal-justice crusader Baltasar Garzón is pursuing his own torture case against Bush administration lawyers who weighed in on interrogation policy. Garzón is the Spanish investigating magistrate who, with the help of a terrorist turned human-rights lawyer, had Chilean strongman Augusto Pinochet arrested in England for crimes against humanity. The same terrorist-lawyer, Gonzalo Boye, is helping Garzón on the Bush case. The Brits, by the way, eventually decided not to send Pinochet to Spain, but not before the law lords ruled that they could, a decision enthusiastically hailed at the time by U.N. High Commissioner on Human Rights Mary Robinson, the former president of Ireland. That would be the same Mary Robinson of Durban infamy — the one President Obama just honored with the Medal of Freedom.
And then there is the Center for Constitutional Rights, a Marxist organization that for years has coordinated legal representation for terrorists detained at Guantanamo Bay. The CCR has been attempting to convince Germany, France, Spain, and other countries to file war-crime indictments against former Bush administration officials, including President Bush, Vice President Cheney, and Secretary Rumsfeld. In representing America’s enemies, CCR has collaborated with many private lawyers, who also volunteered their services — several of whom are now working in the Obama Justice Department. Indeed, Holder’s former firm boasts that it still represents 16 Gitmo detainees (the number was previously higher). And, for help shaping detainee policy, Holder recently hired Jennifer Daskal for DOJ’s National Security Division — a lawyer from Human Rights Watch with no prior prosecutorial experience, whose main qualification seems to be the startling advocacy she has done for enemy combatants.
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fourth post of the morning:
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Put it all together and it’s really not that hard to figure out what is going on here.
Transnationalists from outside and, now, inside our government have been ardent supporters of prosecutions against American officials who designed and carried out the Bush counterterrorism policies that kept this country safe after 9/11. The U.N.’s top torture monitor is demanding legal action, almost certainly as a prelude to calling for action by an international tribunal — such as the ICC — if the Justice Department fails to indict. Meantime, law-enforcement authorities in Spain and elsewhere are weighing charges against the same U.S. officials, spurred on by the CCR and human-rights groups that now have friends in high American places. In foreign and international courts, the terrorist-friendly legal standards preferred by Europe and the U.N. would make convictions easier to obtain and civil suits easier to win.
Obama and Holder were principal advocates for a “reckoning” against Bush officials during the 2008 campaign. They realize, though, that their administration would be mortally wounded if Justice were actually to file formal charges — this week’s announcement of an investigation against the CIA provoked howls, but that’s nothing compared to the public reaction indictments would cause. Nevertheless, Obama and Holder are under intense pressure from the hard Left, to which they made reckless promises, and from the international community they embrace.
The way out of this dilemma is clear. Though it won’t file indictments against the CIA agents and Bush officials it is probing, the Justice Department will continue conducting investigations and releasing reports containing new disclosures of information. The churn of new disclosures will be used by lawyers for the detainees to continue pressing the U.N. and the Europeans to file charges. The European nations and/or international tribunals will make formal requests to the Obama administration to have the Justice Department assist them in securing evidence. Holder will piously announce that the “rule of law” requires him to cooperate with these “lawful requests” from “appropriately created courts.” Finally, the international and/or foreign courts will file criminal charges against American officials.
Foreign charges would result in the issuance of international arrest warrants. They won’t be executed in the United States — even this administration is probably not brazen enough to try that. But the warrants will go out to police agencies all over the world. If the indicted American officials want to travel outside the U.S., they will need to worry about the possibility of arrest, detention, and transfer to third countries for prosecution. Have a look at this 2007 interview of CCR president Michael Ratner. See how he brags that his European gambit is “making the world smaller” for Rumsfeld — creating a hostile legal climate in which a former U.S. defense secretary may have to avoid, for instance, attending conferences in NATO countries.
The Left will get its reckoning. Obama and Holder will be able to take credit with their supporters for making it happen. But because the administration’s allies in the antiwar bar and the international Left will do the dirty work of getting charges filed, the American media will help Obama avoid domestic political accountability. Meanwhile, Americans who sought to protect our nation from barbarians will be harassed and framed as war criminals. And protecting the United States will have become an actionable violation of international law.
I’m betting that’s the plan.
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By THEODORE B. OLSON
Public discussion about the character and fitness for office of presidential candidates is at the core of the First Amendment's command that "Congress shall make no law . . . abridging the Freedom of Speech." Yet Congress, in its zeal to impose onerous campaign-finance restrictions, has made political speech a felony for one class of speakers. Corporations and unions can face up to five years in prison for broadcasting candidate-related advocacy during federal elections.
Is outlawing political speech based on the identity of the speaker compatible with the First Amendment? Tomorrow, the Supreme Court will hear arguments to determine the answer to this question.
The case—Citizens United v. Federal Election Commission—involves a 90-minute documentary produced by Citizens United, a small nonprofit advocacy corporation. "Hillary: The Movie" examines the record, policies and character of the former New York senator, now Secretary of State, Hillary Rodham Clinton. The documentary was set to be broadcast during Mrs. Clinton's presidential primary campaign. But the broadcast was banned when the Federal Election Commission declared that the broadcast would violate the 2002 McCain-Feingold campaign finance law.
The government defends this restriction by saying that corporations and unions are uniquely capable of amassing great wealth and must therefore be prevented from overwhelming the voices of others during an election. Relying on a 1990 Supreme Court decision (Austin v. Michigan State Chamber of Commerce), the government characterizes this threat as a "type of corruption" on the peculiar theory that such expenditures do not "reflect actual public support for the political ideas espoused by corporations." Therefore, the government reasons, corporate expenditures "distort" the political process and must be banned.
In crafting McCain-Feingold, Congress acted without proof that such expenditures have any distorting effect on elections. And it responded to a nonproblem with a sledgehammer rather than a scalpel. The current ban on candidate-related speech is not limited to big corporations or powerful unions. It prohibits election advocacy by all unions and all corporations, regardless of size. It even criminalizes speech by nonprofit advocacy corporations such as Citizens United and the ACLU, which cannot conceivably distort or corrupt the political process.
The government claims the authority to suppress corporate and union speech not only in broadcast formats but also in books, pamphlets and yard signs. Put simply, the government's theory is that because wealthy corporations and unions might speak too much during elections, all of them must be silenced.
While the law prohibits even the smallest nonprofit groups from engaging in election advocacy, it exempts wealthy individuals, and it does not restrict the many advantages of incumbency for sitting members of Congress. A limitless loophole is also granted to the media. Thus the corporations that own NBC and ABC (GE and Disney, respectively), and corporations like The New York Times (or News Corp., owner of this newspaper), can express whatever views they want during campaigns.
Loopholes aside, the government's argument that speech may be outlawed because it does not reflect "public support for the ideas expressed" is absurd. It is the very antithesis of free speech.
Hard-charging campaign rhetoric is something that the First Amendment's authors had experienced firsthand. In making the choice between government-approved, polite discourse and boisterous debate, the Founders chose freedom. They did not say Congress could enact finely reticulated restrictions on speech. They said plainly that there could be "no law" abridging the freedom of speech.
The idea that corporate and union speech is somehow inherently corrupting is nonsense. Most corporations are small businesses, and they have every right to speak out when a candidate threatens the welfare of their employees or shareholders.
Time after time the Supreme Court has recognized that corporations enjoy full First Amendment protections. One of the most revered First Amendment precedents is New York Times v. Sullivan (1964), which afforded publishers important constitutional safeguards in libel cases. Any decision that determines that corporations have less protection than individuals under the First Amendment would threaten the very institutions we depend upon to keep us informed. This may be why Citizens United is supported by such diverse allies as the ACLU, the U.S. Chamber of Commerce, the AFL-CIO, the National Rifle Association and the Reporters Committee for Freedom of the Press.
Persons of modest means often band together to speak through ideological corporations. That speech may not be silenced because of speculation that a few large entities might speak too loudly, or because some corporations may earn large profits. The First Amendment does not permit the government to handicap speakers based on their wealth, or ration speech in order somehow to equalize participation in public debate.
Tomorrow's case is not about Citizens United. It is about the rights of all persons—individuals, associations, corporations and unions—to speak freely. And it is about our right to hear those voices and to judge for ourselves who has the soundest message.
Mr. Olson, an attorney at Gibson, Dunn & Crutcher, will deliver the oral argument on behalf of Citizens United before the Supreme Court tomorrow.
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http://www.madisonbrigade.com/library_ff.htm
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http://www.gunscholar.org/
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http://www.davekopel.com/2dAmendment.htm#History_and_Philosopy
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By ANDREW P. NAPOLITANO
Last week, I asked South Carolina Congressman James Clyburn, the third-ranking Democrat in the House of Representatives, where in the Constitution it authorizes the federal government to regulate the delivery of health care. He replied: "There's nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do." Then he shot back: "How about [you] show me where in the Constitution it prohibits the federal government from doing this?"
Rep. Clyburn, like many of his colleagues, seems to have conveniently forgotten that the federal government has only specific enumerated powers. He also seems to have overlooked the Ninth and 10th Amendments, which limit Congress's powers only to those granted in the Constitution.
One of those powers—the power "to regulate" interstate commerce—is the favorite hook on which Congress hangs its hat in order to justify the regulation of anything it wants to control.
Unfortunately, a notoriously tendentious New Deal-era Supreme Court decision has given Congress a green light to use the Commerce Clause to regulate noncommercial, and even purely local, private behavior. In Wickard v. Filburn (1942), the Supreme Court held that a farmer who grew wheat just for the consumption of his own family violated federal agricultural guidelines enacted pursuant to the Commerce Clause. Though the wheat did not move across state lines—indeed, it never left his farm—the Court held that if other similarly situated farmers were permitted to do the same it, might have an aggregate effect on interstate commerce.
James Madison, who argued that to regulate meant to keep regular, would have shuddered at such circular reasoning. Madison's understanding was the commonly held one in 1789, since the principle reason for the Constitutional Convention was to establish a central government that would prevent ruinous state-imposed tariffs that favored in-state businesses. It would do so by assuring that commerce between the states was kept "regular."
The Supreme Court finally came to its senses when it invalidated a congressional ban on illegal guns within 1,000 feet of public schools. In United States v. Lopez (1995), the Court ruled that the Commerce Clause may only be used by Congress to regulate human activity that is truly commercial at its core and that has not traditionally been regulated by the states. The movement of illegal guns from one state to another, the Court ruled, was criminal and not commercial at its core, and school safety has historically been a state function.
Applying these principles to President Barack Obama's health-care proposal, it's clear that his plan is unconstitutional at its core. The practice of medicine consists of the delivery of intimate services to the human body. In almost all instances, the delivery of medical services occurs in one place and does not move across interstate lines. One goes to a physician not to engage in commercial activity, as the Framers of the Constitution understood, but to improve one's health. And the practice of medicine, much like public school safety, has been regulated by states for the past century.
The same Congress that wants to tell family farmers what to grow in their backyards has declined "to keep regular" the commercial sale of insurance policies. It has permitted all 50 states to erect the type of barriers that the Commerce Clause was written precisely to tear down. Insurers are barred from selling policies to people in another state.
That's right: Congress refuses to keep commerce regular when the commercial activity is the sale of insurance, but claims it can regulate the removal of a person's appendix because that constitutes interstate commerce.
What we have here is raw abuse of power by the federal government for political purposes. The president and his colleagues want to reward their supporters with "free" health care that the rest of us will end up paying for. Their only restraint on their exercise of Commerce Clause power is whatever they can get away with. They aren't upholding the Constitution—they are evading it.
Mr. Napolitano, who served on the bench of the Superior Court of New Jersey between 1987 and 1995, is the senior judicial analyst at the Fox News Channel. His latest book is "Dred Scott's Revenge: A Legal History of Race and Freedom in America" (Nelson, 2009).
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September 16, 2009
The Originalist Perspective
by David F. Forte
WebMemo #2617
An excerpt from The Heritage Guide to the Constitution
Written constitutionalism implies that those who make, interpret, and enforce the law ought to be guided by the meaning of the United States Constitution--the supreme law of the land--as it was originally written. This view came to be seriously eroded over the course of the last century with the rise of the theory of the Constitution as a "living document" with no fixed meaning, subject to changing interpretations according to the spirit of the times.
In 1985, Attorney General Edwin Meese III delivered a series of speeches challenging the then-dominant view of constitutional jurisprudence and calling for judges to embrace a "jurisprudence of original intention." There ensued a vigorous debate in the academy, as well as in the popular press, and in Congress itself over the prospect of an "originalist" interpretation of the Constitution. Some critics found the idea too vague to be pinned down; others believed that it was impossible to find the original intent that lay behind the text of the Constitution. Some rejected originalism in principle, as undemocratic (though it is clear that the Constitution was built upon republican rather than democratic principles), unfairly binding the present to the choices of the past.
As is often the case, the debate was not completely black and white. Some nonoriginalists do not think that the Framers intended anything but the text of the Constitution to be authoritative, and they hold that straying beyond the text to the intentions of various Framers is not an appropriate method of interpretation. In that, one strain of originalism agrees. On the other hand, many prominent nonoriginalists think that it is not the text of the Constitution per se that ought to be controlling but rather the principles behind the text that can be brought to bear on contemporary issues in an evolving manner.
Originalism, in its various and sometimes conflicting versions, is today the dominant theory of constitutional interpretation. On the one hand, as complex as an originalist jurisprudence may be, the attempt to build a coherent nonoriginalist justification of Supreme Court decisions (excepting the desideratum of following stare decisis, even if the legal principle had been wrongly begun) seems to have failed. At the same time, those espousing originalism have profited from the criticism of nonoriginalists, and the originalist enterprise has become more nuanced and self-critical as research into the Founding period continues to flourish. Indeed, it is fair to say that this generation of scholars knows more about what went into the Constitution than any other since the time of the Founding. To paraphrase Thomas Jefferson, in a significant sense "we are all originalists" now.
This is true of both "liberal" and "conservative" judges. For example, in United States Term Limits, Inc. v. Thornton (1995), Justices John Paul Stevens and Clarence Thomas engaged in a debate over whether the Framers intended the Qualifications Clauses (Article 1, Section 2, Clause 2 and Article I, Section 3, Clause 3) to be the upper limit of what could be required of a person running for Congress. In Wallace v. Jaffree (1985), Justice William H. Rehnquist expounded on the original understanding of the Establishment Clause (Amendment I), which Justice David Souter sought to rebut in Lee v. Weisman (1992). Even among avowed originalists, fruitful debate takes place. In Mclntyre v. Ohio Elections Commission (1995), Justices Thomas and Antonin Scalia disputed whether the anonymous pamphleteering of the Founding generation was evidence that the free speech guarantee of the First Amendment was meant to protect such a practice.
Originalism is championed for a number of fundamental reasons. First, it comports with the nature of a constitution, which binds and limits any one generation from ruling according to the passion of the times. The Framers of the Constitution of 1787 knew what they were about, forming a frame of government for "ourselves and our Posterity." They did not understand "We the people" to be merely an assemblage of individuals at any one point in time but a "people" as an association, indeed a number of overlapping associations, over the course of many generations, including our own. In the end, the Constitution of 1787 is as much a constitution for us as it was for the Founding generation.
Second, originalism supports legitimate popular government that is accountable. The Framers believed that a form of government accountable to the people, leaving them fundamentally in charge of their own destinies, best protected human liberty. If liberty is a fundamental aspect of human nature, then the Constitution of 1787 should be defended as a successful champion of human freedom. Originalism sits in frank gratitude for the political, economic, and spiritual prosperity midwifed by the Constitution and the trust the Constitution places in the people to correct their own errors.
Third, originalism accords with the constitutional purpose of limiting government. It understands the several parts of the federal government to be creatures of the Constitution, and to have no legitimate existence outside of the Constitution. The authority of these various entities extends no further than what was devolved upon them by the Constitution." n all free States the Constitution is fixd," Samuel Adams wrote, "& as the supreme Legislative derives its Power & Authority from the Constitution, it cannot overleap the Bounds of it without destroying its own foundation."
Fourth, it follows that originalism limits the judiciary. It prevents the Supreme Court from asserting its will over the careful mix of institutional arrangements that are charged with making policy, each accountable in various ways to the people. Chief Justice John Marshall, overtly deferring to the intention of the Framers, insisted that "that the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature." In words that judges and academics might well contemplate today, Marshall said,
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if theywere to be used as the instruments, and the knowing instruments, for violating what they swear to support! (Marbury v. Madison)
Fifth, supported by recent research, originalism comports with the understanding of what our Constitution was to be by the people who formed and ratified that document. It affirms that the Constitution is a coherent and interrelated document, with subtle balances incorporated throughout. Reflecting the Founders understanding of the self-motivated impulses of human nature, the Constitution erected devices that work to frustrate those impulses while leaving open channels for effective and mutually supporting collaboration. It is, in short, a remarkable historical achievement, and unbalancing part of it could dismantle the sophisticated devices it erected to protect the peoples liberty.
Sixth, originalism, properly pursued, is not result-oriented, whereas much nonoriginalist writing is patently so. If evidence demonstrates that the Framers understood the commerce power, for example, to be broader than we might wish, then the originalist ethically must accept the conclusion. If evidence shows that the commerce power was to be more limited than it is permitted to be today, then the originalist can legitimately criticize governmental institutions for neglecting their constitutional duty. In either case, the originalist is called to be humble in the face of facts. The concept of the Constitution of 1787 as a good first draft in need of constant revision and updating--encapsulated in vague phrases such as the "living Constitution"--merely turns the Constitution into an unwritten charter to be developed by the contemporary values of sitting judges.
Discerning the Founders original understanding is not a simple task. There are the problems of the availability of evidence; the reliability of the data; the relative weight of authority to be given to different events, personalities, and organizations of the era; the relevance of subsequent history; and the conceptual apparatus needed to interpret the data. Originalists differ among themselves on all these points and sometimes come to widely divergent conclusions. Nevertheless, the values underlying originalism do mean that the quest, as best as we can accomplish it, is a moral imperative.
How does one go about ascertaining the original meaning of the Constitution? All originalists begin with the text of the Constitution, the words of a particular clause. In the search for the meaning of the text and its legal effect, originalist researchers variously look to the following:
The evident meaning of the words.
The meaning according to the lexicon of the times.
The meaning in context with other sections of the Constitution.
The meaning according to the words by the Framer suggesting the language.
The elucidation of the meaning by debate within the Constitutional Convention. The historical provenance of the words, particularly their legal history.
The words in the context of the contemporaneous social, economic, and political events.
The words in the context of the revolutionary struggle.
The words in the context of the political philosophy shared by the Founding generation, or by the particular interlocutors at the Convention.
Historical, religious, and philosophical authority put forward by the Framers.
The commentary in the ratification debates.
The commentary by contemporaneous interpreters, such as Publius in The Federalist.
The subsequent historical practice by the Founding generation to exemplify the under stood meaning (e.g., the actions of President Washington, the First Congress, and Chief Justice Marshall).
Early judicial interpretations.
Evidence of long-standing traditions that demonstrate the peoples understanding of the words.
As passed down by William Blackstone and later summarized by Joseph Story, similar interpretive principles guided the Framing generation itself. It is the legal effect of the words in the text that matters, and its meaning is to be determined by well-known and refined rules of interpretation supplemented, where helpful, by the understanding of those who drafted the text and the legal culture within which they operated. As Chief Justice Marshall put it,
To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers; -- is to repeat what has been already said more at large, and is all that can be necessary. (Ogden v. Sounders, Marshall, C. J., dissenting, 1827)
Marshall's dialectical manner of parsing a text, seeking its place in the coherent context of the document, buttressed by the understanding of those who drafted it and the generally applicable legal principles of the time are exemplified by his classic opinions in Marbury v. Madison (1803), McCulloch v. Maryland (1819), Gibbons v. Ogden (1824), and Barron v. Baltimore (1833). Both Marshalls ideological allies and enemies, such as Alexander Hamilton and Thomas Jefferson, utilized the same method of understanding.
Originalism does not remove controversy, or disagreement, but it does cabin it within a principled constitutional tradition that makes real the Rule of Law. Without that, we are destined, as Aristotle warned long ago, to fall into the "rule of men."
David F. Forte is Professor of Law at Cleveland State University and Senior Visiting Fellow at the Center on Religion and the Constitution at the Witherspoon Institute. He is Senior Editor of The Heritage Guide to the Constitution, a clause-by-clause analysis of the Constitution of the United States, from which this selection is taken.
http://www.heritage.org/Research/Thought/wm2617.cfm
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According to Webster's 1828 dictionary, "regulate" means "[t]o put in good order; as, to regulate the disordered state of a nation or its finances."
"Militia" means "[t]he body of soldiers in a state enrolled for discipline, but not engaged in actual service except for emergencies; as distinguished from regular troops, whose sole occupation is war or military service. The militia of a country aer the able bodied men organized into companies, regiments, and brigades, with officers of all grades, and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations."
At the time the articles of confederation and the constitution were adopted, it was universally accepted that a full time military was extremely dangerous to liberty. They referred to a full time military as a "standing army" or a "regular army."
The phrase "well regulated militia" appears in Article VI of the Articles of Confederation. According to that Article, "every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutred, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition, and camp equipage."
The Anti-federalists opposed adopting the constitution because they feared it gave the federal government the ability to destroy the militia and create a standing army.
Patrick Henry put this pretty well: "My great objection to [the constitution] is, that it does not leave us the means of defending our rights; or, of waging war against tyrants: It is urged by some Gentlemen, that this new plan will bring us an acquisition of strength, an army, and the militia of the States: This is an idea extremely ridiculous: Gentlemen cannot be in earnest. This acquisition will trample on your fallen liberty ... Have we the means of resisting disciplined armies, when our only defence, the militia is put into the hands of Congress? ... The Honorable Gentlemen who presides, told us, that to prevent abuses in our Government, we will assemble in Convention, recall our delegated powers, and punish our servants for abusing the trust reposed in them. Oh, Sir, we should have fine times indeed, if to punish tyrants, it were only sufficient to assemble the people. Your arms wherewith you could defend yourselves are gone ... Did you ever read of any revolution in any nation, brought about by the punishment of those in power, inflicted by those who had no power at all? You read of a riot act in a country which is called one of the freest in the world, where a few neighbors cannot assemble without the risk of being shot by a hired soldiery, the engines of despotism. We may see such an act in America. A standing army we shall have also, to execute the execrable commands of tyranny."
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The Undoing of American Constitutionalism
How a political revolution begun more than a century ago led to Sonia Sotomayor.
By Richard M. Reinsch
Those who were desperately confused, if not enraged, by candidate Barack Obama’s contention that the ideal federal judge should fashion his opinion in empathy with the more downtrodden and oppressed party in a case should consult Bradley Watson’s Living Constitution, Dying Faith: Progressivism and the New Science of Jurisprudence to understand how the man who has become president could assert the primacy of personal opinion over law. Watson’s book daringly asks what social Darwinism and pragmatism have to do with the progressivist evolution in American politics and jurisprudence during the 20th and 21st centuries. Together they were, Watson argues, akin to an intellectual tsunami that shaped, developed, and still informs, albeit in evolved modalities, the dominant understanding of the American constitutional order (or lack thereof) held by the judicial, academic, and political classes. Strange as it might seem, Watson convincingly shows how these philosophical schools flowed into the main currents of American political and judicial thinking.
The social-Darwinist ingredient in progressive jurisprudence is the notion of the state as an organic principle, informed by the general will of society and by the particular facts, circumstances, and history of a people. Subject to no fixed limits, eschewing belief in objective justice, the state follows a path of incessant growth and flexibility, limited only by the ever-changing needs of society. As dictated by the laws of progress and evolution, the state moves society along an inevitable ascent. By application of “scientific” expertise and rationalizing administration, government directs this growth. Expressly left behind is Madisonian constitutionalism and its notions of natural rights, limited government, the rule of law, prevention of faction, and vigilance against the possibility of overly centralized and unaccountable government.
Watson marshals the speeches and writings of Theodore Roosevelt and Woodrow Wilson, and the jurisprudence of Justice Oliver Wendell Holmes, among others, as evidence for his claim of the pervasive influence of social Darwinism in the intellectual cocktail that is progressivism. As Wilson demonstrates, the progressives sought to move the energy of government from the democratic branches to the bureaucracy. Insulated from politics and popular opinion, federal bureaucrats would engage in the scientific administration of government — the overriding ethos of progressivism. The expert and, in time, the judge would supply regulations and orders to fill the multiplying and unruly (i.e., unregulated) gaps of modern industrialized society. Thus, the real purpose of politics under progressivism informed by social Darwinism is not justice, or the preservation of personal and economic liberty — those worthless dregs of past history — but the infusion into federal and state governments of the substantive powers needed to achieve the perfection of government administration.
There was, however, that second element informing progressive thought. Almost seamlessly interwoven with the evolutionary ideal of social-Darwinian ideology, pragmatism equally challenged the fixed understanding of America’s constitutional order. William James — the pragmatist par excellence — brilliantly summarized this school of thought with his statement that ideas “become true just in so far as they help us to get into a satisfactory relation with other parts of our experience.” More succinctly, “The reason why we call things true is the reason that they are true.” Virtually synonymous with the idea that state and society are to be subjected to ongoing experimentalism, pragmatism, like social Darwinism, embraced the idea of ceaseless adaptation and change. It presented the state as the entity most capable of selecting the optimal arrangements for meeting the challenges of new social, political, economic, and technological circumstances. Devastatingly absent was any consideration of the ends or purposes of democratic deliberation. For the pragmatist, the Constitution and its express limits on democratic energy must be negated lest necessary and positive change be wrongly arrested.
For the pragmatist, the importance of democratic thought and choice is not in the considerations of justice or law, not with final causes or transcendent purpose, which informs past understandings and meanings, but pure practicality. Moving with the inherent flux of the times determines the emphasis for law and politics. The truth of ideas and the validity of political and economic movements are now to be found in the actual successes these movements have in achieving practical operations. As Justice Holmes articulated the rationale for the protection of free speech, “If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” In response to Justice Holmes’s constitutional nominalism, Watson deftly notes, “If the Constitution — or the presently established constitutional order — is itself neutral or indifferent on this question [i.e., legitimate government], what is the basis for a constitutional ruling in favor of a First Amendment claim?” Indeed, progressivism’s pervasive skepticism ends in denying the philosophical grounding of constitutionalism and its animating principle — the rule of law. This, Watson argues throughout the book, is the damage rendered to American constitutionalism by progressivism and its twinned social-Darwinian and pragmatist components.
Against these apostles of ceaseless adaptation, progress, and organic growth of the state loom the men who framed America’s constitutional order and its underlying philosophy. Watson synthesizes the varying rationales for liberty held by the Founders under the overarching understanding they held of man’s natural rights in his property and person, and the corollary that government must secure these rights and, in turn, defend citizens from the government itself. However, this conception of government as necessary to the protection of man’s natural rights, but also preternaturally dangerous because of man’s vice-ridden passions and propensity to form factions, is simply incompatible with progressivism. Under the latter’s dispensation, the citizen now joins in an undulating partnership with the government, under the administration of experts whose intervention actualizes the liberty and self-development of persons and groups. From this perspective, natural rights are seen more as the negation rather than the fulfillment of freedom. James Madison has been thrown into the dock.
Abraham Lincoln also stands athwart progressive ideology in his attempts to reground American politics on a firmer understanding of the singular dignity of the person. Through the spoken word and through his statesmanship, Lincoln rearticulated the natural basis of republican government, and the goods it must secure and the evils it must crush if it is to endure. Noteworthy is Watson’s contention that after the victory over the slaveholding South, Lincoln’s recovery of the political justice of the Declaration of Independence was rejected by the rising tide of progressivism in the decades following his presidency. The denatured person seen by progressivism requires an unlimited government to deploy the operations and powers necessary to unlock social progress.
The spillover to our time can be seen in Justice Sotomayor’s statement to a group of law clerks that the appellate courts are where policy is made. Justice Sotomayor was merely following her progressive teachers, who have risen to dominance in American law schools and courts. Their continuing attempt to replace constitutionalism now finds its purest and most honest expression with those federal judges who openly equate judicial power with politics and policy. Watson’s scholarship exposes the intellectual stair-stepping that has taken us to the brink of this dangerous precipice.
-- Richard M. Reinsch is a program officer at Liberty Fund, and author of the forthcoming Whittaker Chambers: The Spirit of a Counter-Revolutionary, to be published by ISI Books.
National Review Online - http://article.nationalreview.com/?q=MmYxZWQ2YzIyMzljOTIxYWUwNDE4NzZlNmEyZDFhODQ=
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Court to rule on gun rights, terrorism law
Wednesday, September 30th, 2009 10:04 am | Lyle Denniston |
Taking on a major new constitutional dispute over gun rights, the Supreme Court agreed on Wednesday to decide whether to apply the Second Amendment to state, county and city government laws. In another major case among ten new grants, the Court said it will rule on the constitutionality of one of the government’s most-used legal weapons in the “war on terrorism” — a law that outlaws “material support” to terrorist groups.
The Court had three cases from which to choose on the Second Amendment issue — two cases involving a Chicago gun ban, and one case on a New York ban on a martial-arts weapon. It chose one of the Chicago cases — McDonald v. Chicago (08-1521) — a case brought to it by Alan Gura, the Alexandria, VA. lawyer who won the 2008 decision for the first time recognizing a constitutional right to have a gun for personal use, at least in self-defense in the home (District of Columbia v. Heller). A second appeal on the Chicago dispute had been filed by the National Rifle Association (NRA v. Chicago, 08-1497). Presumably, the Court will hold onto that case until it decides McDonald; the same is likely for the New York case, Maloney v. Rice (08-1592) — a case in which Justice Sonia Sotomayor had participated when she was a judge on the Second Circuit Court.
http://www.scotusblog.com/wp/court-t...terrorism-law/
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Cross fingers and knock wood. . . .
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A friend writes:
ith the very first Congress consisting almost entirely of Federalist (nationalist), and George Washington as President appointing Federalist to all post within his administration, including the Supreme Court, with the first Chief Justice being John Jay, the power grab for the new government began with ease and the new court led the way. The decisions of the court on various cases didn't matter so much but their opinions written on those decisions set the stage for interpreting the Constitution based on their personal understanding and not as to how the Federalist presented it at the ratifying debates or on the understanding of the ratifiers that agreed to it on those terms, this, even though every judge on the first court helped write the Constitution and argued for ratification giving assurance on those same terms.
An opinion on a relatively unimportant case regarding a grant to a probate hearing on the enforcement of a will in the Connecticut legislature, the 1798 case Calder vs Bull, would stand to set the majority opinion of high court justices till this day. It didn't seem to matter to them that it nullified the power of the Constitution to restrain the Federal government and its court. Justice Samuel Chase, in his opinion said that although the government powers were defined and that the states retain all powers granted them by the people and not denied by the Constitution; the state legislatures were not absolute and without control even if the state's Constitution did not limit their authority.
Chase said, "There are certain vital principles in our free republican government which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection where of government was established. An act of the legislature (for I cannot call it law), contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority."
Chase had based his opinion on natural law, the principles of free republican government. Any state that violated these principles in passing statutes, according to this opinion, were going against the general principles of law and reason and as such would not be enforceable as law. So who gets to decide if a state violated these principles? The federal courts of course! But it's worse than just that as one justice points out even though he to is a federalist.
Justice James Iredell rightfully blasted Chase with an opinion of his own in which he said that natural law or its principles were not regulated by any fixed standard and that if Congress or a state passed a statute consistent with the power it had been granted, that no court may declare it void merely because in their judgement it was contrary to natural law. Iredell insisted that the system of written constitutions was what guarded against legislative abuse and that the ultimate corrective was elections. Few judges have heeded this opinion.
During this period the federalist were going back on their assurances about the limited powers of the government. It became so bad that Jefferson and Madison teamed up to get the states to rebel against and resist federal policy that they saw as blatantly unconstitutional. They had to this in secret to avoid prosecution under the Sedition Act of 1798. The Constitution was in the hands of its enemies but the election of 1800 was the corrective.
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Alexander's Essay – October 15, 2009
Our Constitution is on Life Support
"Early to bed, early to rise makes a man healthy, wealthy, and wise." --Benjamin Franklin
That wise old sage, Ben Franklin, was prescient back in 1748, when he issued his simple Rx for success. Unfortunately, the wealth and wisdom of generations of Americans have been progressively supplanted by our central government's exercise of unconstitutional authority.
In regard to wealth, I refer most directly to our government's colossal spending and debt accumulation, and unlawful taxation.
As to wisdom, well, there's not much of that emerging from government-run school systems.
Having already depleted the wealth and wisdom of our great nation, the Obama juggernaut is determined to do likewise to health, that third prong of Franklin's trident. If successful, then we may rightly fear it as a deathblow to the greatest experiment in human history.
Where is Doctor Franklin when we really need him?
Simpletons across the United States and, indeed, the world, are beguiled by the Democrat health scare cacophony. While so much has been said, so too has so little. And, as we approach the seemingly inevitable passage of some such diabolical legislation, almost to a citizen everyone is screaming, "Stop the world, I want to get off!" Indeed, only elitist Democrats are charging full-steam ahead, constituents be damned.
Intentionally lost in all this noise is the Leftist tactic of drowning its opposition in waves of excessive and ever-changing health care minutia. With the devil being so well hidden in the details, this ensures that we remain distracted while Rule of Law is further usurped by the rule of man.
As Patriots, we are summoned to slice through this diversionary blather. And, to obtain proper analysis of this overarching objective, we must seek guidance from our founding documents, the Constitution of the United States of America and its superordinate document, the Declaration of Independence.
In a search of the Constitution, we find that the words "health," "medicine" or "medical" are mentioned -- drum roll please -- not even once: not within the original text, nor within 220 years of amendments. (A search of the Articles of Confederation yields similar results.)
To some, this exclusion indicates that the Founding Fathers were unconcerned about the health of their countrymen. But, supporters of this argument expose their condescension, and it is here mentioned to disabuse them of their disdain. For our Founding Fathers sacrificed so greatly for the birth of our nation -- in both blood and treasure -- that to posit such indifference does a great and grotesque disservice to their honor and their memory.
To others, this exclusion indicates that health care was mercifully omitted since medical care of the 1700s was so "primitive" that the cure often caused more harm than the ailment. They further argue that, given the foresight of modern medicine, our Founders would have surely incorporated universal health care within the Constitution. But, supporters of this argument expose their arrogance, and it is here mentioned to disabuse them of their haughtiness. For the medicine of our Founding Fathers was actually advanced in its day, just as the U.S. medicine of today is advanced, and just as tomorrow it will be thought primitive. This, of course, assumes that we successfully restore Rule of Law.
Alas, we discern seemingly little counsel from the Constitution.
And, as we turn to the Declaration, a search for the words "health," "medicine" or "medical" once more yields exactly zero results. Furthermore, the itemized grievances therein make nary a hint concerning health, even considering the "primitive" conditions discussed above.
Alack, we also discern seemingly little counsel from the Declaration.
However, neither do the Constitution nor the Declaration counsel us with direct verbiage concerning agriculture, textiles, construction and the whole raft of goods and services upon which those everyday necessities of food, clothing and shelter are stationed.
But, the Declaration does aver that all men are created equal, not of outcome but of opportunity; that they are endowed with the right to Life, not a guaranteed good life, not a guaranteed healthy life, but life with all of its miraculous potential; that they are endowed with a right to Liberty, the fusion of freedom and personal responsibility; and that they are endowed with a right to the pursuit of Happiness, the eclectic amalgamation of hopes and dreams and desires and necessities as defined by each individual -- not by faceless, nameless bureaucrats.
Furthermore, the Constitution's Preamble declares that its purpose is to establish Justice, the even-handed application of law to all citizens; to insure domestic Tranquility, the exclusion of class warfare; to promote (not provide) the general Welfare; and to secure the blessings of Liberty, there again, the fusion of freedom with personal responsibility.
So, our founding documents do guide us to proper health care legislation: for it is that which encompasses equality and liberty for consumers and providers alike; that which promotes life above death panels; that which encourages the medical hopes and dreams as defined by each individual; that which constrains, not magnifies, class warfare; and that which secures "the blessings of Liberty, to ourselves and our Posterity."
Anything more than this is an affront to constitutional order and Rule of Law. As Thomas Jefferson so keenly observed: "Were we directed from Washington when to sow, and when to reap, we should soon want bread." And, it takes little thought, or even imagination, to extend his estimation to the current health care debate.
The bottom line is that Article 1, Section 8 of our Constitution, which addresses powers of the legislature, never endowed Congress with authority to regulate or collect taxes for banking, mortgage or automaker bailouts. Neither does it present authority for them to subsidize production or service sectors such as health care. Indeed, James Madison wrote, "I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents..."
Sadly, not one Democrat bill addresses "health care" so much as it seeks omnipotent centralized government power and control, the currency of the Left. However, the proposals certainly betray the Left's condescension and contempt for Rule of Law, along with their frontal assault upon our Essential Liberty.
Patriot Readers, the U.S. Constitution is on life support. To prevent it from flat-lining, we must exude high dudgeon, we must slice through the Left's onslaught of minutia, and we must surgically endeavor with our every thought and deed to restore a healthy Rule of Law.
Semper Vigilo, Fortis, Paratus et Fidelis!
Mark Alexander
Publisher, PatriotPost.US, with J. Adams Clymer
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Be a Good Victim
Under current law, the Second Amendment ends at your front door.
By David Rittgers
In August, a man shot two people to death on a bridge near San Francisco. At the moment of the killings, two on-duty Marin County sheriff’s deputies were within 100 yards of the shooter. One was close enough to see the muzzle blast of the shotgun. The police officers, however, did not move against the culprit. One, stuck in traffic, called in a description of the killer’s vehicle as he fled. The other positioned her car to prevent traffic from entering the crime scene.
These two law-enforcement officers did what police officers tell the public to do: Don’t intervene. Get a description of the offender. Call the police. Be a good witness.
Much debate ensued about whether the officers’ behavior was appropriate, but the real tragedy is that the victims of this rampage did not have the legal opportunity to arm themselves. To them, the message was clear: Be a good victim.
In Marin County, the jurisdiction where those two officers work, Sheriff Robert Doyle requires residents to demonstrate “extreme need” before they can get concealed-handgun permits. Among the few who have met this burden are private investigators, jewelry dealers, and a former district attorney.
Ten states still use a system that subjects lawful self-defense to the whim of a functionary such as Sheriff Doyle, a practice known as a “may issue” policy. (Two more refuse to grant concealed-carry permits to anyone.) The decision rests with the local chief law-enforcement officer, who may employ whatever criteria he deems valid — or deny permits for no reason at all. The result is that only those who are wealthy or politically connected are able to secure permits. Sean Penn got one after he claimed that a former employee was stalking him and that he had received a number of crank calls and letters.
This is not the case in most of the nation. Thirty-eight states have “shall issue” permit systems, which essentially require the chief law-enforcement officer to issue permits to everyone who passes background checks and training requirements. Many of these states have established reciprocity agreements, making the permits they issue valid in much of the nation. Years of experience have shown that permit holders are far more law-abiding than the general populace.
The propriety of “may issue” permitting is now being challenged in court on the opposite coast. The District of Columbia maintains a “shall issue” or, more appropriately, a “no issue” policy. After the Supreme Court struck down the District’s ban on handgun possession within the home last year, the District repealed the police chief’s power to issue permits to let gun owners carry their weapons outside the home. Several plaintiffs have filed a lawsuit challenging this refusal to issue handgun-carry permits.
In the Heller decision last year, the Supreme Court affirmed the Second Amendment right of individuals to keep arms in their home and have them in a condition useful for self-defense. The Court stressed that the individual right to arms was not an unlimited one, leaving undisturbed bans on carrying guns into “sensitive places” such as schools and government buildings. The D.C. suit does not challenge this power, but asks the court to recognize that the whole of the District of Columbia cannot be a “sensitive place.”
The District will almost certainly mention that the Heller decision also did not call into question 19th-century bans on concealed carry. This ignores the fact that while concealed carry was considered the mark of a brigand, open carry was accepted and legal. Modern feelings are the reverse; concealed carry is now practiced far more often than open carry. The plaintiffs do not specify the method of carry — open or concealed — merely that the Second Amendment does not stop at your front door.
The lawsuit intends to make the District face reality. Criminals have guns. They brandish them when the police are not on the scene and victims are outside of their homes. The D.C. government should not handicap the honest, law-abiding citizens who wish to carry arms in order to defend themselves.
One of the plaintiffs, Tom Palmer (disclosure: Tom is my colleague at the Cato Institute), once used a handgun to deter a mob of violent aggressors who were yelling death threats at him. Tom’s right, and the right of any other citizen, to arm himself should not be subject to approval by a civil servant who will not be present to protect them. Even if the police are present when someone is being assaulted or killed, they don’t necessarily have a duty to intervene — as evidenced by the praise given to the two Marin County officers by their sheriff after the aforementioned incident.
Just as the Supreme Court affirmed a right to be armed in the home for self-defense, the courts of the District of Columbia should affirm the right of law-abiding citizens to be armed and defend their own lives outside of their homes. Ending “may issue” policies that work to ensure the victimization of average people will make the District, and eventually the nation, a safer and more just place to live.
— David Rittgers is an attorney and decorated former Army Special Forces officer who served three tours in Afghanistan and is now a legal-policy analyst at the Cato Institute.
National Review Online - http://article.nationalreview.com/?q=ZWZiZTdhNmU5NmQyNWY1YTJlOWFmZDllYzllMWVhNDY=
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Interesting explanation of the basis for the Coast guard's search and seizure authority vs our 4th Amendment rights.....
A warning. If you have no interest in civil liberties, constitutional law, or the unmitigated growth of federal power... don't read the next several paragraphs.
About six weeks ago, I purchased a 35-foot fishing boat – an Everglades 35CC. I store the boat on a dock behind my house in Miami, where it is properly registered with the state of Florida. It takes me about 30 minutes to reach the ocean through canals maintained by the city of Miami. I've been out ocean fishing three times since I got the boat. On two of those three occasions, I've been threatened, detained, searched, and/or boarded by agents of the federal government without any probable cause of wrongdoing... or even any reasonable suspicion.
These actions were taken against me and my guests with considerable force: The stops involved high-speed boats, helicopters, large caliber automatic weapons, and black-booted officers decked out in SWAT-team like apparel. In the second instance, my boat was boarded and searched. IDs were taken from all eight passengers. We were ordered to stay on the far side of the boat – in the sun – for nearly two hours and treated like suspected drug smugglers while two Coast Guard officers searched every compartment of my boat – including the small tackle box drawers and our personal belongings.
They called the boarding a "safety inspection." And let me tell you... it is scary when heavily armed men are telling you not to make any sudden movements, to get on the far side of the boat. Their hands are sitting on top of their holsters... and you are 30 miles out at sea.
A safety inspection is supposed to consist of checking life jackets, fire extinguishers, the structural integrity of the boat, the registration, and a few other minor documents, like an oil discharge placard. How could doing this require two hours? Why would doing this require a stop 30 miles out to sea, involving a helicopter, a Coast Guard cutter, and a four-man boarding party? What's reasonable about a "safety" inspection that features black-soled boots marking up nearly every topside surface of a white, brand-new fiberglass boat? Why should our driver licenses have been taken from us?
You might recall the Fourth Amendment of the U.S. Constitution forbids unreasonable searches and seizures:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Obviously, boats are not specifically named as a protected class of property... but papers and effects seem to be protected. And there's plenty of case law that has extended Fourth Amendment protections – to some degree – to places other than your home. For example, you can't be pulled over on the highway without some probable cause or some traffic violation. But... we had done nothing wrong. We received no citations whatsoever. We were in a brand new boat, running at 40 knots... clearly, there was no problem with the safety of our vessel.
Our new "friends" on USCGC 87318 Bluefin
So the question I had when I was eventually able to return home, after dark, following our two-hour "safety inspection" was: How in the hell do these guys get away with these actions?
Well, it turns out the Coast Guard and other customs agents have more power to search and seize than any other kind of law enforcement. The reason why dates back to 1790, when the Coast Guard was part of the Treasury Department. Back then, the inspections had nothing to do with safety – they were revenue cutters. The Coast Guard was looking for smugglers because, at the time, the main sources of revenue for the federal government were tariffs. Congress passed a law that would seem to violate the Fourth Amendment directly because it had to ensure its ability to collect tariffs:
That it shall be lawful for all collectors, naval officers, surveyors, inspectors, and the officers of the revenue cutters herein after mentioned, to go on board of ships or vessels in any part of the United States, or within four leagues of the coast thereof, if bound to the United States, whether in or out of their respective districts, for the purposes of demanding the manifests aforesaid, and of examining and searching the said ships or vessels...
Here's the fascinating part... The Coast Guard's role as revenue cutters was abandoned in 1915 with the advent of income taxes. The Coast Guard finally left the Department of the Treasury in 1967. It is now a part of the Department of Homeland Security. And yet, despite the obvious and well-documented changes in the role of the Coast Guard and the nature of its mission, the Supreme Court continues to deny U.S. citizens their Fourth Amendment rights, out of deference to the Coast Guard's former unique duties (see United States v. Villamonte-Marquez, 1983).
The government, which wouldn't ordinarily be able to stop, search, and seize any American-flagged vessel anywhere in the world at any time, is now empowered to do so simply because, 100 years ago, this power was necessary for tax revenues. So guess who is now routinely assigned to duty aboard Coast Guard cutters? DEA agents.
And yet... the Supreme Court continues to pretend these random searches are merely for "safety inspections." It is yet another case of the Constitution simply being ignored.
Now... you might say, so what? We like the Coast Guard catching drug smugglers. OK, fine. Just change the Constitution. There is a legal process for doing so. But you're fooling yourself if you think the Coast Guard is actually doing any good. The price of drugs has been falling ever since the "War on Drugs" was announced. We keep spending more money trying to stop drug smuggling... but what actually happens out there?
The Coast Guard has been turned into a weapon against the citizens of the United States. What's the Coast Guard actually doing? Why would they inspect a brand new boat? A boat that's obviously not involved in any large-scale drug smuggling and is loaded up with expensive fishing equipment and top-of-line Yamaha engines? Here's a possibility: If they find a single joint, they can seize the boat.
What's happened to the job of actually defending and protecting the people of the United States? In January 1984, just as the Coast Guard's new role as the top drug hound was being expanded, it began refusing ALL requests to help stranded boaters. Taxpayers fund the Coast Guard... which now refuses to help boaters in trouble and instead preys on boat owners at every possible opportunity. Maybe we shouldn't just ignore the Constitution.
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second post of the AM
Patriot Post
Digest · Friday, October 23, 2009
The Foundation
"[T]he present Constitution is the standard to which we are to cling. Under its banners, bona fide must we combat our political foes -- rejecting all changes but through the channel itself provides for amendments." --Alexander Hamilton
Pelosi: "Are you serious?"Government & Politics
A Serious Question
We have known for many years that Democrats view the Constitution as an obstacle to their goals, not as something to be revered or upheld -- despite their repeated oaths to do just that. And as Mark Alexander warned last week, our Constitution is on life support.
More evidence of the trauma inflicted by our elected "representatives" surfaced this week when CNSNews.com asked the only truly relevant question in the health care debate: Where in the Constitution is the authority to mandate that Americans buy health insurance?
Sen. Patrick Leahy (D-VT) was befuddled and deflected:
CNSNews.com: Where, in your opinion, does the Constitution give specific authority for Congress to give an individual mandate for health insurance?
Leahy: We have plenty of authority. Are you saying there is no authority?
CNSNews.com: I'm asking-
Leahy: Why would you say there is no authority? I mean, there's no question there's authority, nobody questions that.
While Leahy's answer is both defensive and outrageously arrogant, in a sense, he's right: Not enough voters question the constitutional authority for anything Congress does. Even Republicans too often simply declare, "Me too, only a little less," instead of abiding by the Constitution.
The interviewer persisted, however, and again asked the question. Leahy dodged, saying, "Where do we have the authority to set speed limits on an interstate highway? The federal government does that on federal highways." He then walked away.
So to get this straight, Leahy defended Congress' unconstitutional attempt to take over one sixth of the U.S. economy by citing another unconstitutional law that was justly repealed 14 years ago.
House Majority Leader Steny Hoyer (D-MD) answered the question by saying, "Well, in promoting the general welfare the Constitution obviously gives broad authority to Congress to effect [a mandate that individuals must buy health insurance]. The end that we're trying to effect is to make health care affordable, so I think clearly this is within our constitutional responsibility."
On the contrary, in 1994, the Congressional Budget Office reported that a mandate forcing Americans to buy insurance would be an "unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States."
According to Hoyer and his accomplices, however, the General Welfare Clause in the Constitution empowers Congress not only to "promote the general Welfare," but to provide it, demand it and enforce it.
But House Speaker Nancy Pelosi (D-CA) was the worst offender. "Madam Speaker," CNSNews.com asked, "where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?" Her brief reply spoke volumes about the Left's contempt for the Constitution and the Rule of Law: "Are you serious? Are you serious?" She then ignored the question and moved on to the next one. Her spokesman later added, "You can put this on the record: That is not a serious question. That is not a serious question."
Even in light of the current recession, we live in a day of unprecedented prosperity and, as a result, we have become complacent. Unfortunately, the likes of Leahy, Hoyer and Pelosi, who mock the Constitution instead of keeping their oaths, have almost completely robbed us of the "Blessings of Liberty" which our Founding Fathers pledged "our Lives, our Fortunes and our sacred Honor" to defend.
Though questions concerning constitutional authority are finally being asked inside the Beltway, they have been asked with ever-louder voices across the nation since Ronald Reagan reinvigorated that debate. Of course, since the last election, the national debate chorus has become much more unified.
For example, in The Patriot's home state of Tennessee (which Al Gore claims as "home" but which gave its electoral votes to Bush, twice, and then to McCain), there is a 10th Amendment battle underway, and not a minute too soon.
State Republicans are organizing a state sovereignty campaign in opposition to the federal government's abuse of states' rights. This week, a legislative committee approved a motion to invite representatives from the legislatures of the other 49 states to join a "working group ... to enumerate the abuses of authority by the federal government and to seek repeal of its assumption of powers."
Can you say, "Constitutional Convention"?
Predictably, Obama's state cadre of Democrat sycophants are huffing and puffing. State Democrat Chairman Chip Forrester says, "It's unfortunate that Republican members of the state Legislature have jumped on this crazy train. This is nothing short of lunacy. The Tea Party organizers and their ultra-right wing cronies began this ridiculous issue to disrupt civil debate about how to move this state and nation forward. I hope they are not suggesting we fight another Civil War."
No, we should give the Convention a chance before taking up arms. And if it comes to the latter, I suggest Mr. Forrester say goodbye to the sun and slither down a very deep hole.
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"Where in the Constitution is the authority to mandate that Americans buy health insurance?"
I passed that excellent question to my liberal senators, Amy Klobuchar and the Honorable Al Franken as well as Congressman Keith Ellison and one friendly Republican. Will keep the board informed of any interesting answers.
Maybe the federal authority to mandate health insurance is hidden in between the federal power to forbid states from limiting the right to kill your young and the search exemption for pleasure crafts. :-(
A constitutional convention is a bad idea in a climate where the existing provisions are already ignored and when the opponents of limited government are clearly in power.
Instead it seems to me that each time federal authorities step on the constitution we should push for an up or down vote on repealing that constitutional protection, and see where they stand. For example, McCain-Feingold should have been coupled with a demand for congress to vote yea or nay on repeal of the 1st amendment. Couple Coast Guard funding with a demand for a vote to repeal the 4th amendment, and health reform with a demand for a vote for or against repealing the 10th. If 2/3 of the House and 2/3rds of the Senate vote repeal, off it goes to the states. I'm assuming that most people like constitutional limits on power, but like Pelosi - they just forget we have them.
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With states and cities struggling with deficits, one fertile source of revenue has been money or property seized by police in possible connection with crimes. Not to be left behind, Illinois has pursued this tactic aggressively, using a law which encourages both police departments and prosecutors to take property for forfeiture, long before the accused ever get their day in court.
This practice was challenged at the Supreme Court recently in Alvarez v. Smith, where six people allege that police use of the Illinois Drug Asset Forfeiture Procedure Act violated their right to due process under the Fourteenth Amendment. Though forfeiture laws are designed to strip criminals of ill-gotten gains, three of the six were never charged with a crime. All six had their property or money taken without a warrant and had to wait for months or years without a hearing on the legitimacy of the forfeiture.
By now, the individual cases in Illinois have been resolved with either a forfeiture or a return of the property, leading the Justices to question during oral argument whether the case should be dismissed as moot. Whether the court considers the details in Alvarez, the court will soon need to resolve when detention of property violates due process.
Under Illinois law, the state has 187 days after property is seized to file forfeiture proceedings. Meanwhile, of forfeited funds seized, 25% lands in the lap of the prosecutor's office. Another 65% goes to the department that seized the property, giving police added incentive to take the property to pad their budgets. Justice Sonia Sotomayor noted this police incentive with concern.
The numbers can be hefty. In 2008, the Chicago Police Department bragged it took in some $13.5 million in asset forfeitures, nearly double what it had seized the previous year. Golly. Inquiring minds will wonder if there were actually double the situations that called for asset forfeiture last year, or if the Chicago PD is simply more assertive about detaining property when the city is short of money.
The case comes from the Seventh Circuit Court of Appeals, which vindicated the citizens when it ruled that the time between forfeiture and judicial hearing presented an unconstitutional delay. The court required the state to provide property owners with an informal hearing to establish whether there is probable cause to continue to keep the property in custody.
The question for the Supreme Court is whether to uphold what's known as the "Mathews standard," a well-worn method by which courts determine how individuals may challenge government "takings." The standard requires courts to take into account the individual harm caused by a property seizure as well as the risk of mistakes and the cost of additional hearings or other procedures. Illinois prefers a looser standard, allowing the state to continue to delay due process.
The Illinois law compares awkwardly with the federal Civil Asset Forfeiture Reform Act of 2000. As the Cato Institute details in an amicus brief, while the two laws may establish comparable time frames, federal civil forfeiture actions can often run into the hundreds of millions of dollars, a level of cost and complexity well beyond the property at issue under the Illinois drug law. The better match-up is with other state forfeiture laws, and here Illinois performs miserably, taking many times as long to provide a hearing as the likes of Florida, Iowa, Arizona, Missouri and Texas.
We're all for relieving criminals of illegal profits, but civil forfeiture laws must be used with caution and oversight lest they infringe on fundamental rights. Alvarez v. Smith provides an opportunity to restore the balance of justice to citizens.
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By MICHAEL W. MCCONNELL
Last week's announcement that "Pay Czar" Kenneth Feinberg slashed compensation for executives at seven large financial firms by an average of 50% stunned Wall Street, stoked the fires of populist resentment, and troubled economists. Will this government-mandated pay cut drive the most talented professionals away from these companies, endangering their recovery? Does it augur further politicization of economic decisions?
Lost in the arguments over economics and political theory, however, is a more basic question: Was this action constitutional?
Mr. Feinberg's ukase is the most prominent example (and not just by the Obama administration) of the exercise of power by an individual unilaterally appointed by the executive branch without Senate confirmation—and thus outside the ordinary channels of Congressional oversight. Earlier this month, the Senate Subcommittee on the Constitution conducted hearings into the constitutional basis for this practice, which many see as an end-run around checks and balances. The Obama administration declined Sen. Russ Feingold's (D., Wisc.) invitation to send a witness to the hearing to explain the constitutional basis for its various "czars."
So who is Kenneth Feinberg, and where did he get the power to set pay for executives at private firms?
As part of the hastily enacted and seldom-read legislation establishing the Troubled Asset Relief Program (TARP), Congress authorized the Secretary of the Treasury to "require each TARP recipient to meet appropriate standards for executive compensation." To carry out this task, last June the Treasury promulgated an emergency "Interim Final Rule," waiving ordinary requirements for a public comment period.
As part of this emergency rule, Treasury Secretary Timothy Geithner created the office of "Special Master" for compensation, delegated his TARP authority to set compensation standards to this officer, and appointed Mr. Feinberg (a lawyer and mediator) to this position, without obtaining Senate confirmation.
Therein lies the problem. The Appointments clause of the Constitution, Article II, section 2, provides that all "Officers of the United States" must be appointed by the president "by and with the Advice and Consent of the Senate." This means subject to confirmation, except that "the Congress may by Law vest the Appointment" of "inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."
There is no doubt that Mr. Feinberg is an "officer" of the United States. The Supreme Court has defined this term (Buckley v. Valeo, 1976) as "any appointee exercising significant authority pursuant to the laws of the United States." Mr. Feinberg signed last week's orders setting pay levels for executives at Bank of America, AIG, Chrysler Financial, Citigroup, GMAC, General Motors and Chrysler. They have the force of law and are surely an exercise of "significant authority" pursuant to an Act of Congress. He is not a mere "employee," acting at the direction of a superior. That means his office is subject to the requirements of the Appointments Clause.
While somewhat more disputable, Mr. Feinberg's is probably an "inferior" officer, defined as one subject to supervision and removal by a member of the cabinet. Although he has substantial discretion and independence, Mr. Feinberg reports to the secretary of the Treasury, who can fire him any time for any reason. This means that Congress could, if it wished, vest the appointment of the pay czar in the secretary, without any need for Senate confirmation.
But Congress has not done so. On the contrary, it vested the authority to implement TARP's compensation provision in the secretary of the Treasury. The secretary may sub-delegate that power to someone else—but that someone must be an "officer" properly appointed "by and with the advice and consent of the Senate."
The Supreme Court observed in Buckley v. Valeo that the provisions governing appointments under the Constitution reflect more than "etiquette or protocol." They embody the Founders' conviction that all power under U.S. laws must be exercised by officers with constitutional authority.
The Founders understood that the president and heads of the executive departments could not single-handedly carry out the law, so they required Senate confirmation as what the Federalist Papers call "an excellent check" on abuse or favoritism by the president. Yes, there are some offices so inferior that this check may be eliminated—but it is for Congress to judge which ones these may be. Congress and Congress alone has power to dispense with the safeguard of the confirmation process.
The power to set compensation at large American businesses is especially subject to potential abuse, favoritism, arbitrariness, or political manipulation. It is no reflection on Kenneth Feinberg, who has a sterling reputation and who appears to have approached these sensitive duties with a spirit of commendable integrity, to say that the checks and balances of the Constitution should be scrupulously observed. They were not. Because he is not a properly appointed officer of the United States, Mr. Feinberg's executive compensation decisions were unconstitutional.
Mr. McConnell is on the faculty of Stanford University Law School, director of its Constitutional Law Center, and a senior fellow at the Hoover Institution. He was a federal judge on the 10th Circuit Court of Appeals from 2002-2009.
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Pasting here BBG's post from the Libertarian thread:
fizer abandons site of infamous Kelo eminent domain taking
By: Timothy P. Carney
Examiner Columnist
11/09/09 1:47 PM EST
The private homes that New London, Conn., took away from Suzette Kelo and her neighbors have been torn down. Their former site is a wasteland of fields of weeds, a monument to the power of eminent domain.
But now Pfizer, the drug company whose neighboring research facility had been the original cause of the homes' seizure, has just announced that it is closing up shop in New London.
To lure those jobs to New London a decade ago, the local government promised to demolish the older residential neighborhood adjacent to the land Pfizer was buying for next-to-nothing. Suzette Kelo fought the taking to the Supreme Court, and lost. Five justices found this redevelopment met the constitutional hurdle of "public use."
The Hartford Courant reports:
Pfizer Inc. will shut down its massive New London research and development headquarters and transfer most of the 1,400 people working there to Groton, the pharmaceutical giant said Monday....
Pfizer is now deciding what to do with its giant New London offices, and will consider selling it, leasing it and other options, a company spokeswoman said.
Scott Bullock, Kelo's co-counsel in the case, told me: "This shows the folly of these redevelopment projects that use massive taxpayer subsidies and other forms of corporate welfare and abuse eminent domain."
http://www.washingtonexaminer.com/opinion/blogs/beltway-confidential/Pfizer-abandons-site-of-infamous-Kelo-eminent-domain-taking-69580497.html
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Amazing and appalling that these public officials were in such a hurry to take these homes and that now, a decade later, the project will not be built.
Your home is your castle. You are constitutionally protected against unreasonable search. But condemnation, taking of the title and bulldozing can be done simply in the name of economic favoritism according to Anthony Kennedy siding with all the 'liberals' on the court.
(http://i603.photobucket.com/albums/tt114/dougmacg/ClarenceThomasTshirt.jpg)
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http://www.constitution.org/afp/afp.htm
A friend likes this one in particular
http://www.constitution.org/afp/brutus01.txt
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by JAMES TARANTO
New York
Seth Lipsky has a knack for seeing the bright side of things. A nearly 20-year veteran of this newspaper, including its editorial page, he cheerfully acknowledges the obvious: This is far from a golden age of free-market conservatism. Of President Obama, he tells me over lunch, "I sense that he has a very leftist, socialist-oriented worldview."
Yet this makes Mr. Lipsky anything but grim: "I for one find this very exciting. . . . We're just at a great moment."
Why? Because, he says, "America is in what I call a constitutional moment." Mr. Obama's efforts to expand government power raise basic questions about the constitutional limits of that power. "The enumerated-powers argument is enormous," Mr. Lipsky says. "It's just enormous, the ground that is open for contest here. . . . Right now, we're at a moment where we're not going to be able to turn to either the Congress or the executive branch for help on this." He believes "the only defense now, the only tool we have now, is the Constitution. That's why I call it a constitutional moment, as opposed to a political moment."
That makes it an auspicious moment for Mr. Lipsky's new book, "The Citizen's Constitution: An Annotated Guide." The U.S. Constitution is a brief document, taking up just 42 pages in a popular pocket-size edition from the Cato Institute. Mr. Lipsky expands it to 287 pages of 5 by 8 inches, by way of 327 lengthy footnotes in which he discusses each and every constitutional clause in the context of history, case law and current events. There are an additional 36 pages of bibliographic references, making it the only book I've seen in which the footnotes have endnotes.
Mr. Lipsky doesn't remember exactly when he thought of the idea, but he believes it was in the late 1980s. "I got into an argument over abortion and was talking to someone about the right to privacy," he recalls. "I looked at a pamphlet the government had issued with a text-only edition of the Constitution, and I realized I couldn't find the word 'privacy' in the Constitution. I began to think about a better edition." Mr. Lipsky's edition has an index, where the listing for "privacy, right to" directs the reader to the chapters on the Third, Ninth and 14th amendments.
As a newspaperman for 40-plus years—in addition to working for the Journal, he founded two papers of his own—Mr. Lipsky has built a career on the First Amendment. But his enthusiasm extends as well to the preamble, the original seven articles and the 26 other amendments.
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Zina Saunders
."For years I've been sending memos to people who worked for me—desk editors, reporters, editorial writers—constantly trying to raise their consciousness about the usefulness of the Constitution in editorial work," he says. "Usually these memos that I would send would be simple memos, like, 'Where the hell does the Congress get the power to do that?' or, 'The New York Sun will not carry a dispatch about the Second Amendment which does not quote Justice Story as saying the Second Amendment is the palladium of our liberties.'"
In 1968, after graduating from Harvard, Mr. Lipsky took a reporting job at the Anniston Star in Alabama. He was there just seven months before he was drafted and sent to Vietnam, but it was long enough to provide a formative experience. He visited Frank Johnson, then a federal district judge, who had been a member of the three-judge panel that ordered the desegregation of Montgomery buses after Rosa Parks's arrest. Johnson also presided over Lee v. Macon County, a school-desegregation case that began in 1963.
He told Mr. Lipsky about the trial: "The school board was ready to accede when Gov. [George] Wallace heard about it and ordered them not to. So Johnson gets [Wallace] into court, and he says, 'On what basis are you objecting to this order?' [The governor] says, 'Well, I'm the ex officio chairman of the state board of education, and under that authority, I'm telling them not to integrate the schools.'
"Johnson says, 'As ex officio chairman of the state board of education, you have the power to tell the school board of Macon County, Alabama, that they can't integrate the school?' And the governor says, 'Yes, your honor, I do.' The judge says, 'Well, then, I'm ordering you to integrate all 67 counties in Alabama.'"
In Vietnam, Mr. Lipsky worked as a combat reporter for Pacific Stars and Stripes. Returning to civilian life, he joined the Journal in Detroit, with later postings in Hong Kong, New York and Brussels. He left in 1990 to start an English-language weekly edition of the Forward, a venerable Yiddish newspaper. In 2002, he founded the daily New York Sun—or rather he revived it, the original Sun having folded in 1950. The new Sun attracted a small but influential readership and gave many aspiring writers their start. It ceased publication last year, although Mr. Lipsky and a small stable of writers still publish occasional stories at nysun.com.
The optimism that drove Mr. Lipsky to start a daily newspaper in the Internet age also informs his view of the prospects for American governance. "One of the wonderful things about the Constitution is that anybody can play," he says. "Ordinary people asking simple questions have affected the country in enormous ways using this document. . . . It's just astounding the way individual predicaments and problems are used by the [Supreme] Court to lay down broad principles in the country."
To prove his point, he cites examples from the 1930s, the 1960s and the current decade.
The 1935 case of Schechter Poultry Corp. v. U.S. was decided at a time when the liberal political juggernaut looked even more unstoppable than today. Mr. Lipsky describes the facts: Enforcing the National Industrial Recovery Act, which gave the president vast powers to regulate business, "government thugs went into the kosher butcher shop of the Schechter family in Brooklyn, and they arrested its proprietor on criminal charges."
Among the charges: permitting a housewife "to pick which chicken she wanted." This measure provoked some levity during oral arguments at the Supreme Court: "The judges are asking a question about, 'How is the housewife supposed to pick out her chicken when she can't look at it?' Schechter's lawyer reaches over his shoulder into an imaginary cage and starts pitching around for a chicken, and the Supreme Court started laughing."
The justices ruled unanimously in Schechter's favor and declared the act unconstitutional. "They ended the New Deal," Mr. Lipsky says. Then, with more feeling: "They ended the New Deal!" (This overstates the case somewhat. The court later upheld the Social Security Act and the National Labor Relations Act.)
Gideon v. Wainwright (1963) "involved this guy who was arrested in Florida for robbing a poolroom. He goes into the court and says, 'The Supreme Court says I have a right to a lawyer.' The judge says . . . something to the effect of, 'Not in the state of Florida, you don't.' He gets convicted; he gets sent to prison. While he's in prison, he goes to the prison library. This derelict basically writes an appeal to the Supreme Court . . . in pencil and paper—a pauper's petition that says, 'I have a right to a lawyer.' The Supreme Court notices it, assigns Abe Fortas"—who himself joined the court in 1965—"to defend him. He wins the right to a lawyer for everyone accused of a crime in America. The name of Clarence Earl Gideon will be remembered as long as there is a law."
Last year's District of Columbia v. Heller, in which the court held that the Second Amendment protects an individual right to own firearms, exemplifies Mr. Lipsky's point that the language of the Constitution retains its power even when long ignored. "We've had 200 years, and nothing's ever been done about this," he says. "For 50 of the 200 years, the New York Times has been sneering at the idea of an individual right, and everybody's been talking about how this right belongs to the 'militia.'"
Yet by carefully analyzing the language of the Second Amendment, the court cast aside that musty conventional wisdom. Mr. Lipsky, who describes himself as "a partisan of the plain-language school of the law," applauds not just the result but the method the justices, in an opinion by Antonin Scalia, employed to reach it: "They really get into the language. I mean, the actual grammar, the sentence structure, the subordinate and not-subordinate clauses, which—forgive me, but I've been arguing for a generation and a half as an editorial writer, the plain language of this thing is plain."
Although anybody can play, not everybody can win. In 2003, the high court ruled against Susette Kelo and allowed the city of New London, Conn., to seize her house under eminent domain and turn the land over to private developers.
It's just unbelievable, that case," Mr. Lipsky says—and all the more so in light of the latest development, or rather the lack of development. On Monday, Pfizer Inc., which was to have built offices on the now-barren site, announced that it was leaving New London altogether as part of a consolidation move.
Such disappointments notwithstanding, Mr. Lipsky's passion for the Constitution is a tonic for political depression. If ObamaCare does become law, to take an especially worrying example, it isn't hard to imagine a lot of Americans facing "individual predicaments," including threats to their lives from government rationing. It's some comfort to think they'll be able to petition for a stay—and to demand an answer to the question in that old Lipsky memo: "Where the hell does the Congress get the power to do that?"
Mr. Taranto, a member of The Wall Street Journal's editorial board, writes the Best of the Web Today column for OpinionJournal.com.
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. . . can be found here:
http://www.chicagoguncase.com/wp-content/uploads/2009/11/08-1521-ts.pdf
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Second post.
Heller Counsel Argues for an Originalist Revolution
Posted By Ilya Shapiro On November 17, 2009 @ 8:54 am In Law and Civil Liberties | Comments Disabled
Alan Gura, who successfully defended the individual right to keep and bear arms under Second Amendment in District of Columbia v. Heller has now filed his brief [1] in the case that seeks to apply that right to the states, McDonald v. City of Chicago. (Cato earlier filed a brief [2] supporting Alan’s cert petition, the background to which you can read about here [3].)
The question presented in this case is: Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses. Remarkably, only 7 of the brief’s 73 pages are devoted to the Due Process Clause, which is the constitutional provision by which almost all the the Bill of Rights has been “incorporated” against the states. Indeed, the brief argues that the Due Process Clause “has incorporated virtually all other enumerated rights” and so there is no reason to make the Second Amendment an exception.
The rest of the brief is far more interesting, arguing for overturning the ill-fated Slaughter-House Cases, which eviscerated the Priviliges or Immunities Clause in 1873. Slaughter-House forced the Court to start protecting natural rights and fundamental liberties under the oddly named “substantive due process” doctrine — and it remains a bugaboo for legal scholars of all ideological stripes. Overturning it would potentially open the door to challenges against legislation that violates a host of unenumerated rights, such as the right to enter into contract or to earn an honest living.
Understandably, libertarians are excited at the prospect of Privileges or Immunities’ revival. But so too are liberals, at the thought of potentially filling an empty constitutional vessel with positive rights (to health care, education, pensions, etc.). I believe this to be an overstated threat from the perspective of constitutional interpretation — as opposed to legislation – and have an article coming out with Josh Blackman in the Georgetown Journal of Law and Public Policy in January making this point. (The article, titled “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment,” will shortly be up on SSRN [4], but for now you can read the abstract/introduction here [5].)
In any event, P or I (as it’s known) is a vastly superior way of giving people in the states the right to keep and bear arms for self-defense. But it’s ambitious to argue this way rather than settle for the traditional jurisprudence. As Orin Kerr says at the Volokh Conspiracy [6], “It’s certainly an attention-getting way to brief the case. It’s not just arguing for a win: It’s arguing for a revolution.”
For further discussion of Alan’s McDonald brief — which Cato will be supporting with an amicus brief next week – see Lyle Deniston’s write-up [7] at SCOTUSblog.
Article printed from Cato @ Liberty: http://www.cato-at-liberty.org
URL to article: http://www.cato-at-liberty.org/2009/11/17/heller-counsel-argues-for-an-originalist-revolution/
URLs in this post:
[1] his brief: http://www.chicagoguncase.com/wp-content/uploads/2009/11/08-1521-ts.pdf
[2] a brief: http://www.cato.org/pubs/legalbriefs/chicago_second_am_brief.pdf
[3] here: http://www.cato.org/pub_display.php?pub_id=10336
[4] on SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1503583
[5] here: http://ssrn.com/abstract=1503583
[6] at the Volokh Conspiracy: http://volokh.com/2009/11/16/petitioners-brief-in-mcdonald-v-city-of-chicago-the-second-amendment-incorporation-case/
[7] Lyle Deniston’s write-up: http://www.scotusblog.com/wp/history-lesson-on-2nd-amendments-reach/
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BBG:
This is quite remarkable. I hope you will continue to monitor this case and its issues and share here.
Thank you.
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How Will the Court Vote on “Incorporating” the Second Amendment?
Posted By Ilya Shapiro On November 18, 2009 @ 10:37 am In Government and Politics, Law and Civil Liberties | Comments Disabled
Yesterday I described [1] the brief [2]Alan Gura filed on behalf of the petitioners challenging Chicago’s gun ban in the Supreme Court — asking the Court to apply the individual right to keep and bear arms to the states.
Late last night, Orin Kerr at the Volokh Conspiracy sketched out his predictions [3] of whether the individual justices would go for Gura’s main argument: that the indefensible Slaughter-House Cases should be overturned and thus that the Court should “incorporate” the rights at issue via the Privileges or Immunities Clause. (Cato supports this argument, as we’ll show in the brief we’ll be filing next week.) He concludes that Justice Thomas is the only vote available for this claim. According to Orin, the Chief Justice and Justices Scalia and Alito are too enamored with stare decisis to overturn an 1873 precedent, Justice Kennedy isn’t an originalist and likes substantive due process too much, and the other four are too afraid of Lochner and Institute for Justice-style economic liberty arguments to go there.
As George Will would say: Well. Orin could turn out to be right, but I think his analysis is too simplistic. I was just about to write my response when I saw that Josh Blackman, with whom I have a law review article [4] forthcoming on these issues, already said it best in the comments to Orin’s post [3]:
First, I think you present a binary choice; incorporate through Due Process OR incorporate through privileges or immunities. The question presented asked about both routes of incorporation. Neither path is by necessity mutually exclusive. As Gura’s brief makes clear, the Court could incorporate through the Due Process Clause, and alternatively recognize that the right to keep and bear arms is also among the Privileges or Immunities of Citizenship. The Court need not displace 100 years of substantive due process jurisprudence with this single case. And from a practical perspective, basically the entire Bill of Rights has been incorporated. So, unless some people start clamoring about states quartering troops in theirs homes, this would be a one time deal. Such a holding would do little to upset the apple cart, or as we put it, open Pandora’s Box.
Second, I think you may over-simplify Scalia’s views on originalism and stare decisis. Our article shows that Scalia, while on the Supreme Court, has never voted in favor of a substantive due process incorporation. The last such case was in 1982. Can Scalia really cite the doctrine that he excoriated in Lawrence, Casey, and elsewhere based solely on reliance interests? It is no secret Scalia likes guns, and he wants to incorporate the 2nd Amendment. But he does not want to enlarge substantive due process. Is he stuck between a rock and a substantively hard place? The Privileges or Immunities Clause provides an alternative method for Scalia. He could write a classic originalist opinion tracing the right to bear arms during Reconstruction, and find that it applies to the State.
Finally, fellow Volokh conspirator Randy Barnett (and Cato senior fellow) also disagrees with Orin, offering this perspective [5]:
When choosing between the two pending cases in the Seventh Circuit, why would four Justices grant cert on the McDonald case in which the challenge was focused on the Privileges or Immunities Clause and deny cert on NRA case, which confined its argument to the Due Process Clause? Why would they have rejected the City of Chicago’s proposal which limited the question presented to Due Process?
Faced with this background and the actual question presented, I wonder how would Orin have briefed the case. Would he have offered any of the analysis in his post? Would he have told the Court just to ignore the Privileges or Immunities Clause? Or might he not have assumed as an experienced litigator that the Justices could write a Due Process Clause “incorporation” opinion in their sleep–heck, their clerks could write that opinion in their sleep–and then devoted the bulk of his brief to describing the meaning of the Privileges or Immunities Clause in context?
Ultimately, Orin’s analysis is based in what he thinks will be the Justices’ dislike for the interpretation of the Privileges or Immunities Clause described in the brief. The conservatives will hate the references to “natural rights” while the liberals will hate the references to “property.” Fair enough. But notice that the brief does not offer Alan Gura’s theory of the Privileges or Immunities Clause. All the phrases to which Orin objects are taken from quotes from the historical sources. Was Gura supposed to conceal these sources from the Court or faithfully report them? Orin may think this case is a hoot, but for the parties and the Court it is serious business.
In short, Orin’s legal realism/conventional wisdom may turn out prescient — and all the rest of us are engaged in a quixotic originalist/libertarian crusade [6]– but I’ll put my money [7] elsewhere.
Article printed from Cato @ Liberty: http://www.cato-at-liberty.org
URL to article: http://www.cato-at-liberty.org/2009/11/18/how-will-the-court-vote-on-incorporating-the-second-amendment/
URLs in this post:
[1] described: http://www.cato-at-liberty.org/2009/11/17/heller-counsel-argues-for-an-originalist-revolution/
[2] brief : http://www.chicagoguncase.com/wp-content/uploads/2009/11/08-1521-ts.pdf
[3] sketched out his predictions: http://volokh.com/2009/11/17/how-many-votes-to-overrule-the-slaughterhouse-cases/comment-page-1/#comment-689859
[4] a law review article: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1503583
[5] this perspective: http://volokh.com/2009/11/18/predicting-the-mcdonald/
[6] originalist/libertarian crusade : http://www.cato-at-liberty.org/2009/04/28/in-defense-of-libertarian-crusades/
[7] put my money: http://fantasyscotus.net/
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Tis a rare event that I post a NYT editorial in agreement!
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GPS and Privacy Rights Recommend
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LinkedinDiggFacebookMixxMySpaceYahoo! BuzzPermalinkPublished: November 22, 2009
A federal appeals court in Washington, D.C., heard arguments last week about whether police should have to get a warrant before putting a GPS device on a suspect’s car. It is a cutting-edge civil liberties question that has divided the courts that have considered it. GPS devices give the government extraordinary power to monitor people’s movements. The Washington court should rule that a warrant is required.
Antoine Jones was charged with being part of an interstate drug conspiracy. The government obtained evidence against Mr. Jones by putting a GPS device on his Jeep. It obtained a court order to install the GPS device, but the defense said the order was faulty, and tried to get the evidence collected by the device thrown out. The government responded that the evidence was admissible because it did not need to get a court order at all.
The Supreme Court has not considered the question of whether the police need a court order to install a GPS device. The government has tried to draw an analogy to a 1983 case in which the court ruled that the police do not need a warrant to use a radio beeper to track a vehicle on public roads, but the circumstances were different. In that case, the police were conducting visual surveillance of a particular suspect’s movements, and a beeper augmented the officers’ senses. A modern GPS device is a far more potent means of tracking people than a beeper.
Lower courts have reached different conclusions. A panel of the Chicago-based United States Court of Appeals for the Seventh Circuit ruled in 2007 that a warrant is not required for remote surveillance by a GPS device, although it said that if the police began to use the technique on a large scale it might violate the Fourth Amendment.
The highest courts of three states — New York, Oregon and Washington — ruled the opposite way, that their state constitutions prohibit the police from installing GPS devices without a warrant. The New York Court of Appeals, the highest New York court, got it exactly right earlier this year, insisting that permitting police to install GPS devices without judicial oversight would be “an enormous unsupervised intrusion by the police agencies of government upon personal privacy.”
As technology advances, government will continue to acquire new and more efficient ways of monitoring people. It is critical that the privacy rights guaranteed by the Fourth Amendment keep up with those advances.
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Should a warrant be required to physicallly surveil a suspect? If not, why? What's the difference?
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What's the difference?
Benefit/cost analysis. Physical surveillance is so labor intensive that the powers that be are inspired to commit resources in a sensible fashion. GPS monitoring is comparably cheap and so easy to deploy that there is little incentive to select targets narrowly.
I like check and balances. Surveillance has 'em. Not aware of many where GPS is involved.
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American law enforcement is being hollowed out as we speak. Lots of veteran investigators are pulling the pin and taking their institutional knowledge with them and those that remain are being put back into uniform. As a result, only the low hanging fruit of stupid street criminals will face investigation and complex/organized crime will face little to no prosecution.
Surveillance is how you will tend to establish probable cause that a crime was/is being committed. You can raise the bar so that all but the most basic police services are impossible to provide. It's good news for the real world Tony Sopranos/Avon Barksdales out there.
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Disagree that the bar is being raised in this case. Here the question presented is whether surveillance capabilities can be vastly expanded and permanently accelerated by technology to where the State can keep track of all of us all the time.
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What state? No matter the technology involved, it boils down to flesh and blood humans doing the job. Now more than ever, there are less doing law enforcement and greater demands on those doing the job. My state invests little in law enforcement in the best of times, as a result, outlaw motorcycle gangs have set up shop here as they discuss how it's a safe state from them to operate in.
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http://www.policeone.com/law-enforcement-and-the-economy
A recent poll by the Police Executive Research Forum found that more than half the agencies questioned had been "bracing for funding cuts during the upcoming year."
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Do you see no problem with THE State having a permanent record of where everyone goes and has gone?
Would YOU want to run for office to challenge the powers that be if you knew they could look up everywhere you go and had gone?
Have you ever heard of the politicis of personal destruction?
Would you want President Obama and his vast left wing conspiracy with this knowledge about you?
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Do I want a GPS tracker on everyone's car? No. For law enforcement purposes, it would normally be used as a tool to assist in a physical surveillance, not a substitute for "tailing" a suspect in a crime. You need to be able to testify that your suspect was the driver of the car at the time the car was used in a criminal act. Otherwise your surveillance is worthless because of the "soddi" defense.
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What do you make of this?
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http://www.wired.com/beyond_the_beyond/2009/11/the-joy-of-intimidating-peacenik-troublemakers-through-their-license-plates/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+wiredbeyond+%28Blog+-+Beyond+the+Beyond%2FSterling%29
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The US has laws that forbid such things, and rightly so.
http://www.ojp.usdoj.gov/BJA/topics/CI_Paper_0703.pdf
While intelligence plays a key role in law enforcement operations,
history tells us that it can also be the instrument of abuse if
such operations are not properly organized, focused and directed.
Particularly during times of national emergency, one must be
particularly vigilant to prevent aggressive enforcement and intelligence
gathering from becoming incursions upon constitutional
rights. Aggressive intelligence gathering operations that resemble
fishing expeditions have been employed improperly in the
past to garner sensitive or confidential information on individuals
for whom there is no reasonable suspicion of criminal activity.
Once documented, such information can develop a life of its
own if sufficient safeguards are not built into screening, review
and management of intelligence files. If passed on to other law
enforcement agencies as intelligence, it can form the basis for
abuse of civil liberties and potential civil liability.
In the same manner, intelligence operations are misguided
that directly or indirectly gather information on persons based
solely on their dissident political activities or views, because they
espouse positions or philosophies that are perceived to threaten
conventional social or political doctrine, traditionally accepted
social mores or similar societal values or institutions, or because
they have cultural connections with terrorists. Use of law
enforcement intelligence resources to intimidate, inhibit or suppress
such activities or harass such individuals under the pretext
of legitimate police concern for maintaining social order are at
best misguided and, in the worst case scenario, constitute a threat
to the principles of law enforcement in a democratic society.
Additionally, misguided intelligence gathering is a waste of valuable
resources that are desperately needed to ferret out wrongdoers
and persons who pose real threats to national and local
security.
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New York judges served up what basketball fans call a facial on Tuesday, when an appellate court ruled that the state may seize homes and small businesses in Brooklyn for the benefit of a private developer and the New Jersey Nets. The decision represents a backward step for the effort to protect property rights at the state level since the Supreme Court's 2005 decision in Kelo v. New London.
The case, Goldstein v. New York State Urban Development Corporation, dealt with plans by developer Forest City Ratner to build a new arena for the Nets as well as snazzy apartments and offices on land currently occupied by homes and businesses. To make way for the sports complex, the state declared the property "blighted" and used its power of eminent domain to hand it to the developer.
Such unabashed takings have an unfortunate history in New York state, where the political class has a habit of using its powers on behalf of well-connected private interests. Caught under the wheels are average citizens whose only recourse is to try to defend their property rights in court.
So much for that. In allowing the property seizure, the Court of Appeals dodged some of the central challenges to the condemnation, including whether the Empire State Development Corporation's designation of blight in the Atlantic Yards area was applied after the stadium project had already been planned, making it a "pretext." Nor did the court take on the question—at the heart of eminent domain law since Kelo—whether economic development may be considered a public use under the New York Constitution.
Instead, the majority argued that because the state had designated the area as blighted, the takings were therefore a "public use," and it was not the place of the court to interfere. Nevermind that the determination of blight was based largely on a study funded by . . . the aspiring developer.
Courts in New York have been famously hostile to eminent domain challenges, but 43 states have adjusted their laws since Kelo to provide stronger protections for property owners. The New York ruling vindicates Justice Sandra Day O'Connor's prediction in dissent in Kelo that "the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms." Q.E.D.
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Surveillance Shocker: Sprint Received 8 MILLION Law Enforcement Requests for GPS Location Data in the Past Year
News Update by Kevin Bankston
This October, Chris Soghoian — computer security researcher, oft-times journalist, and current technical consultant for the FTC's privacy protection office — attended a closed-door conference called "ISS World". ISS World — the "ISS" is for "Intelligence Support Systems for Lawful Interception, Criminal Investigations and Intelligence Gathering" — is where law enforcement and intelligence agencies consult with telco representatives and surveillance equipment manufacturers about the state of electronic surveillance technology and practice. Armed with a tape recorder, Soghoian went to the conference looking for information about the scope of the government's surveillance practices in the US. What Soghoian uncovered, as he reported on his blog this morning, is more shocking and frightening than anyone could have ever expected
At the ISS conference, Soghoian taped astonishing comments by Paul Taylor, Sprint/Nextel's Manager of Electronic Surveillance. In complaining about the volume of requests that Sprint receives from law enforcement, Taylor noted a shocking number of requests that Sprint had received in the past year for precise GPS (Global Positioning System) location data revealing the location and movements of Sprint's customers. That number?
EIGHT MILLION.
Sprint received over 8 million requests for its customers' information in the past 13 months. That doesn't count requests for basic identification and billing information, or wiretapping requests, or requests to monitor who is calling who, or even requests for less-precise location data based on which cell phone towers a cell phone was in contact with. That's just GPS. And, that's not including legal requests from civil litigants, or from foreign intelligence investigators. That's just law enforcement. And, that's not counting the few other major cell phone carriers like AT&T, Verizon and T-Mobile. That's just Sprint.
Here's what Taylor had to say; the audio clip is here and we are also mirroring a zip file from Soghoian containing other related mp3 recordings and documents.
[M]y major concern is the volume of requests. We have a lot of things that are automated but that's just scratching the surface. One of the things, like with our GPS tool. We turned it on the web interface for law enforcement about one year ago last month, and we just passed 8 million requests. So there is no way on earth my team could have handled 8 million requests from law enforcement, just for GPS alone. So the tool has just really caught on fire with law enforcement. They also love that it is extremely inexpensive to operate and easy, so, just the sheer volume of requests they anticipate us automating other features, and I just don't know how we'll handle the millions and millions of requests that are going to come in.
Eight million would have been a shocking number even if it had included every single legal request to every single carrier for every single type of customer information; that Sprint alone received eight million requests just from law enforcement only for GPS data is absolutely mind-boggling. We have long warned that cell phone tracking poses a threat to locational privacy, and EFF has been fighting in the courts for years to ensure that the government only tracks a cell phone's location when it has a search warrant based on probable case. EFF has also complained before that a dangerous level of secrecy surrounds law enforcement's communications surveillance practices like a dense fog, and that without stronger laws requiring detailed reporting about how the government is using its surveillance powers, the lack of accountability when it comes to the government's access to information through third-party phone and Internet service providers will necessarily breed abuse. But we never expected such huge numbers to be lurking in that fog.
Now that the fact is out that law enforcement is rooting through such vast amounts of location data, it raises profoundly important questions that law enforcement and the telcos must answer:
How many innocent Americans have had their cell phone data handed over to law enforcement?
How can the government justify obtaining so much information on so many people, and how can the telcos justify handing it over?
How did the number get so large? Is the government doing massive dragnet sweeps to identify every single cell phone that was in a particular area at a particular time? Is the government getting location information for entire "communities of interest" by asking not only for their target's location, but also for the location of every person who talked to the target, and every person who talked to them?
Does the number only include requests to track phones in real-time, or does it include requests for historical GPS data, and if so, why did the telcos have that incredibly sensitive data sitting around in the first place? Exactly when and how are they logging their users' GPS data, and how long are they keeping that data?
What legal process was used to obtain this information? Search warrants? Other court orders? Mere subpoenas issued by prosecutors without any court involvement? How many times was this information handed over without any legal process at all, based on government claims of an urgent emergency situation?
Looking beyond Sprint and GPS, how many Americans have had their private communications data handed over to law enforcement by their phone and Internet service providers?
What exactly has the government done with all of that information? Is it all sitting in an FBI database somewhere?
Do you really think that this Orwellian level of surveillance is consistent with a free society and American values? Really?
These questions urgently need to be asked — by journalists, and civil liberties groups like EFF, and by every cell phone user and citizen concerned about privacy. Most importantly, though, they must be asked by Congress, which has failed in its duty to provide oversight and accountability when it comes to law enforcement surveillance. Congress should hold hearings as soon as possible to demand answers from the government and the telcos under oath, and clear the fog so that the American people will finally have an accurate picture of just how far the government has reached into the private particulars of their digital lives.
Even without hearings, though, the need for Congress to update the law is clear. At the very least, Congress absolutely must stem the government's abuse of its power by:
Requiring detailed reporting about law enforcement's access to communications data using the Electronic Communications Privacy Act (ECPA), just as it already requires for law enforcement wiretapping under the Wiretap Act, and make sure that the government actually fulfills its obligations rather than ignore the law for years on end.
Requiring that the government "minimize" the communications data it collects under ECPA rather than keep it all forever, just like it is supposed to do with wiretaps.
Prohibiting the government from using in a criminal trial any electronic communications content or data that it obtains in violation of ECPA, just as the government is prohibited by the Wiretap Act from using illegally acquired telephone intercepts.
Clarifying that ECPA can only be used to get specific data about particular individuals and cannot be used for broad sweeps, whether to identify everyone in a particular geographic area or to identify every person that visits a particular web site.
It's time for Congress to pull the curtain back on the vast, shadowy world of law enforcement surveillance and shine a light on these abuses. In the meantime, we give our thanks to those like Chris Soghoian who are doing important work to uncover the truth about government spying in America.
UPDATE: Sprint has responded to Soghoian's report:
The comments made by a Sprint corporate security officer during a recent conference have been taken out of context by this blogger. Specifically, the “8 million” figure, which the blogger highlights in his email and blog post, has been grossly misrepresented. The figure does not represent the number of customers whose location information was provided to law enforcement, as this blogger suggests.
Instead, the figure represents the number of individual “pings” for specific location information, made to the Sprint network as part of a series of law enforcement investigations and public safety assistance requests during the past year. It’s critical to note that a single case or investigation may generate thousands of individual pings to the network as the law enforcement or public safety agency attempts to track or locate an individual.
Instances where law enforcement agencies seek customer location information include exigent or emergency circumstances such as Amber Alert events, criminal investigations, or cases where a Sprint customer consents to sharing location information.
Sprint takes our customers’ privacy extremely seriously and all law enforcement and public safety requests for customer location information are processed in accordance with applicable state and federal laws.
This response provides some important answers, while raising even more questions. First off, Sprint has confirmed that it received 8 million requests, while denying a charge that no one has made: that 8 million individual customers' data was handed over. Sprint's denial also begs the question: how many individual customers have been affected?
As for Sprint's claim that in some instances a single case or investigation may generate thousands of location "pings", that is certainly possible, but that doesn't make the 8 million number any less of a concern, or moot any of the important questions raised by Soghoian in his report or by EFF in its post regarding the lack of effective oversight and transparency in this area.
Even assuming that Sprint's statement about "pings" is true, 8 million — or, in other words, 8,000 thousands — is still an astronomical number and more than enough to raise serious concerns that Congress should investigate and address. Moreover, the statement raises additional questions: exactly what legal process is being used to authorize the multiple-ping surveillance over time that Sprint is cooperating in? Is Sprint demanding search warrants in those cases? How secure is this automated interface that law enforcement is using to "ping" for GPS data? How does Sprint insure that only law enforcement has access to that data, and only when they have appropriate legal process? How many times has Sprint disclosed information in "exigent or emergency circumstances" without any legal process at all? And most worrisome and intriguing: what customers does Sprint think have "consent[ed] to the sharing [of] location data" with the government? Does Sprint think it is free to hand over the information of anyone who has turned on their GPS functionality and shared information with Sprint for location-based services? Or even the data of anyone who has agreed to their terms of service? What exactly are they talking about?
These questions are only the beginning, and Sprint's statement doesn't come close to answering all of them. Of course, we appreciate that Sprint has begun a public dialogue about this issue. But this should be only the beginning of that discussion, not the end. Ultimately, the need for Congress to investigate the true scope of law enforcement's communications surveillance practices remains. Congress can and should dig deeper to get the hard facts for the American people, rather than forcing us to rely solely on Sprint's public relations office for information on these critical privacy issues.
http://www.eff.org/deeplinks/2009/12/surveillance-shocker-sprint-received-8-million-law
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Oh wow, uninformed hysteria from the EFF. Shocking. :roll:
Here is the supersecret countermeasure to protect yourself from malevolent gov't snooping.
1. Pick up cellphone.
2. Remove battery.
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I'm thinking the matter deserves more interest and concern than that , , ,
Anyway, here's another case in the Kelo line:
Floridians who think life's a beach should be watching the Supreme Court closely today when the Justices hear oral arguments about whether the state may confiscate private waterfront land for a dubious public purpose.
The case, Stop the Beach Renourishment v. Florida Dep't of Environmental Protection, began in 2003, when home owners in the Florida Panhandle objected to changes in their property lines caused by a "beach renourishment" program. Typically done in the name of deterring erosion, the government carts in truckloads of sand, making the beach bigger. But rather than extending the property of the owner, the state declares itself owner of the sandy addition, effectively separating waterfront home owners from the water itself.
The Florida Supreme Court ruled 5-2 for the state and claimed the program doesn't mean the state can go around "creating as much dry land between upland property and the water as it pleases." There's a point, they said, at which such beach additions would represent an unconstitutional taking. But the problem is where exactly that point occurs: Without a specific demarcation, it's a slippery slope for how much land the state may seize without having to compensate the private owners.
To reach its decision, the Florida high court had to throw over 100 years of common law to declare that waterfront property owners have "no independent right of contact with the water." In a scathing dissent, Florida Justice Fred Lewis wrote that for the court to say that waterfront rights are unconnected with ownership of the land abutting water is a non sequitur. The court had "butchered Florida law," he wrote, and "unnecessarily created dangerous precedent based on a manipulation of the question actually certified."
Beach renourishment has been controversial around the country as a waste of money spent on sand that literally washes back into the ocean. According to the National Oceanic and Atmospheric Administration, by 2002 more than $2.5 billion of federal money had been spent on beach projects. According to a May report by Oklahoma Senator Tom Coburn, many are special interest projects for wealthy communities and have few environmental benefits.
The Florida case is all the weirder because the beaches in question aren't threatened by erosion and some have grown naturally in recent years, adding to the suspicion that "beach renourishment" is a state pretext to gain waterfront rights in a desirable area. Unable to stop the state from dumping the new sand on their beaches, several owners offered to pay the state their pro-rata share of the sand distribution to maintain exclusive rights to their waterline. Florida refused the deal.
If the state wants to create a public beach, it may have the power to do so by invoking eminent domain and compensating owners for their loss. Short of that, the action is a taking that violates the Fifth Amendment, and this case provides an opportunity for the Supreme Court to begin making amends for the damage it did to property rights in the 2005 case of Kelo v. New London.
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8 million is a lot. there were only Thousands of search warrants issued last year nationally. It makes me wonder, that is what is probably concerning the EFF. Removing the battery from your primary communication tool is like living with out a telephone, intrusion into "free association". I do not like the appearance that a cop could pick up a phone dial a number and find out where I am at, all without a warrant or knowledge of a couple of other officers. Too much room for abuse.
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1. Pick up cellphone.
2. Remove battery.
Hmm, don't see in the users manual how I can do that with my iPhone. Perhaps you know of a way that doesn't involve a hammer?
Perhaps this is hysteria, but it's one guy working for one phone company inadvertently, I presume, revealing what's behind the curtain. I for one would like to know how often these sorts of requests are dealt with by all carriers, what procedures are in place to document these requests, how abuse is prevented, and so on. Or should members of a participatory democracy (or republic, if you prefer) not be concerned about stuff like that?
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I'm with BBG and Rarick on this.
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**Assuming that someone from the EFF actually has some technical ability to grasp the "electronic frontier, I'm assuming some AGW-esque book-cooking in the above post. Below is a more technically accurate and honest article:
http://www.wired.com/threatlevel/2009/12/gps-data
**Now, I assume the EFF has heard of something certain internet insiders call "google". Using this mostly unheard of website, I was able to bring up this article that was published by taxpayers money and exists as an open source document viewable by any member of said participatory democracy/republic.**
http://www.fbi.gov/publications/leb/2006/may2006/may2006leb.htm#page25
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From the first link:
The spokesman wouldn’t disclose how many of Sprint’s 48 million customers had their GPS data shared, or indicate the number of unique surveillance requests from law enforcement.
Why as customers aren't we allowed to evaluate how willing a carrier is to provide locational data without a users' consent?
From the second link:
Conclusion
The only thing certain with respect to the legal requirements for acquisition of cell site information by the government for purposes of identifying the location of a cellular telephone and its user is that nothing is certain at this moment. The path that the use of cell site tracking is headed down is likely toward a legislative solution. In the interim, law enforcement should track judicial developments closely within their jurisdictions. State and local law enforcement also should take a proactive role with respect to legislative solutions to this uncertainty within their own state electronic surveillance statutes.
Sounds far less than definitive to me.
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From the first link:
The spokesman wouldn’t disclose how many of Sprint’s 48 million customers had their GPS data shared, or indicate the number of unique surveillance requests from law enforcement.
Why as customers aren't we allowed to evaluate how willing a carrier is to provide locational data without a users' consent?
**Without wading through all the applicable laws and caselaw, I'm guessing that Sprint has no legal obligation to do so. Keep in mind that this data is being accessed by court order/subpeona/warrant and is subject to judicial review.**
From the second link:
Conclusion
The only thing certain with respect to the legal requirements for acquisition of cell site information by the government for purposes of identifying the location of a cellular telephone and its user is that nothing is certain at this moment. The path that the use of cell site tracking is headed down is likely toward a legislative solution. In the interim, law enforcement should track judicial developments closely within their jurisdictions. State and local law enforcement also should take a proactive role with respect to legislative solutions to this uncertainty within their own state electronic surveillance statutes.
Sounds far less than definitive to me.
**It's not definitive. As technology advances and new laws are written and caselaw develops, the rules and procedures get fleshed out. Still, this is being shaped as we speak by those legislatures and courts that are part of that participatory democracy/republic. Phones have come a long way since the FBI was sitting in AT&T switching operator stations, recording conversations on wax. Laws and law enforcement has to reflect that.**
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Also coming a real long way is the Orwellian potential of ever accelerating technological capabilities , , ,
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So, the policy solution to technology is....
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Well, the first step in your case would be to admit it exists :lol:
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Does the 1st amd. only apply to town criers and wood block printing? Does the 2nd. only apply to muskets? Does the 4th apply to cell phones and the intertubes, or are they somehow immune from reasonable search and seizure?
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The right of the people to be secure in their persons, houses, papers, and effects, against searches and seizures, shall not be violated, and no Warrants shall issue.
Better?
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"Does the 1st amd. only apply to town criers and wood block printing? Does the 2nd. only apply to muskets? Does the 4th apply to cell phones and the intertubes, or are they somehow immune from reasonable search and seizure?"
If you seize and search something after a warrant is issued, that is different that using that something to track where a human being has been or goes.
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UNITED STATES V KARO, 468 U. S. 705 (1984)
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U.S. Supreme Court
United States v Karo, 468 U.S. 705 (1984)
United States v Karo
No. 83-850
Argued April 25, 1984
Decided July 3, 1984
468 U.S. 705
Syllabus
After a Drug Enforcement Administration (DEA) agent learned that respondents Karo, Horton, and Harley had ordered 50 gallons of ether from a Government informant, who had told the agent that the ether was to be used to extract cocaine from clothing that had been imported into the United States, the Government obtained a court order authorizing the installation and monitoring of a beeper in one of the cans of ether. With the informant's consent, DEA agents substituted their own can containing a beeper for one of the cans in the shipment. Thereafter, agents saw Karo pick up the ether from the informant, followed Karo to his house, and determined by using the beeper that the ether was inside the house, where it was then monitored. The ether then moved in succession to two other houses, including Horton's, before it was moved first to a locker in one commercial storage facility and then to a locker in another such facility. Both lockers were rented jointly by Horton and Harley. Finally, the ether was removed from the second storage facility by respondent Rhodes and an unidentified woman and transported in Horton's truck, first to Rhodes' house and then to a house rented by Horton, Harley, and respondent Steele. Using the beeper monitor, agents determined that the beeper can was inside the house, and obtained a warrant to search the house based in part on information derived through use of the beeper. The warrant was executed, and Horton, Harley, Steele, and respondent Roth were arrested, and cocaine was seized. Respondents were indicted for various offenses relating to the cocaine. The District Court granted respondents' pretrial motion to suppress the seized evidence on the grounds that the initial warrant to install the beeper was invalid, and that the seizure was the tainted fruit of an unauthorized installation and monitoring of the beeper. The Government appealed, but did not challenge the invalidation of the initial warrant. The Court of Appeals affirmed, except with respect to Rhodes, holding that a warrant was required to install the beeper in the can of ether and to monitor it in private dwellings and storage lockers, that the warrant for the search of the house rented by Horton, Harley, and Steele, and the resulting seizure, were tainted by the Government's prior illegal conduct, and that therefore the evidence was properly suppressed as to Horton, Harley, Steele, Roth, and Karo.
Page 468 U. S. 706
Held:
1. No Fourth Amendment interest of Karo or of any other respondent was infringed by the installation of the beeper. The informant's consent was sufficient to validate the installation. And the transfer of the beeper-laden can to Karo was neither a search nor a seizure, since it conveyed no information that Karo wished to keep private and did not interfere with anyone's possessory interest in a meaningful way. Pp. 468 U. S. 711-713.
2. The monitoring of a beeper in a private residence, a location not opened to visual surveillance, violates the Fourth Amendment rights of those who have a justifiable interest in the privacy of the residence. Here, if a DEA agent had entered the house in question without a warrant to verify that the ether was in the house, he would have engaged in an unreasonable search within the meaning of the Fourth Amendment. The result is the same where, without a warrant, the Government surreptitiously uses a beeper to obtain information that it could not have obtained from outside the curtilage of the house. There is no reason in this case to deviate from the general rule that a search of a house should be conducted pursuant to a warrant. Pp. 468 U. S. 713-718.
3. The evidence seized in the house in question, however, should not have been suppressed with respect to any of the respondents. The information that the ether was in the house, verified by use of the beeper without a warrant, would be inadmissible against those respondents with privacy interests in the house, and would invalidate the search warrant, if critical to establishing probable cause. But because locating, without prior monitoring, the ether in the second storage facility was not an illegal search (use of the beeper not identifying the specific locker in which the ether was located and the locker being identified only by the smell of ether emanating therefrom), and because the ether was seen being loaded into Horton's truck, which then traveled the highways, it is evident that there was no violation of the Fourth Amendment as to anyone with or without standing to complain about monitoring the beeper while it was located in the truck. United States v. Knotts, 460 U. S. 276. Under the circumstances, the warrant affidavit, after striking the facts about monitoring the beeper while it was in the searched house, contained sufficient untainted information to furnish probable cause for issuance of the search warrant. Pp. 468 U. S. 719-721.
710 F.2d 1433, reversed.
WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN and POWELL, JJ., joined, in Parts I, II, and IV of which REHNQUIST and O'CONNOR, JJ., joined, and in Part III of which BRENNAN, MARSHALL, and STEVENS, JJ., joined. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in which
Page 468 U. S. 707
REHNQUIST, J., joined, post, p. 468 U. S. 721. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined, post, p. 468 U. S. 728.
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UNITED STATES V. KNOTTS, 460 U. S. 276 (1983)
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U.S. Supreme Court
United States v. Knotts, 460 U.S. 276 (1983)
United States v. Knotts
No. 81-1802
Argued December 6, 1982
Decided March 2, 1983
460 U.S. 276
Syllabus
Having reason to believe that one Armstrong was purchasing chloroform to be used in the manufacture of illicit drugs, Minnesota law enforcement officers arranged with the seller to place a beeper (a radio transmitter) inside a chloroform container that was sold to Armstrong. Officers then followed the car in which the chloroform was placed, maintaining contact by using both visual surveillance and a monitor which received the beeper signals, and ultimately tracing the chloroform, by beeper monitoring alone, to respondent's secluded cabin in Wisconsin. Following three days of intermittent visual surveillance of the cabin, officers secured a search warrant and discovered the chloroform container, and a drug laboratory in the cabin, including chemicals and formulas for producing amphetamine. After his motion to suppress evidence based on the warrantless monitoring of the beeper was denied, respondent was convicted in Federal District Court for conspiring to manufacture controlled substances in violation of 21 U.S.C. § 846. The Court of Appeals reversed, holding that the monitoring of the beeper was prohibited by the Fourth Amendment.
Held: Monitoring the beeper signals did not invade any legitimate expectation of privacy on respondent's part, and thus there was neither a "search" nor a "seizure" within the contemplation of the Fourth Amendment. The beeper surveillance amounted principally to following an automobile on public streets and highways. A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements. While respondent had the traditional expectation of privacy within a dwelling place insofar as his cabin was concerned, such expectation of privacy would not have extended to the visual observation from public places of the automobile arriving on his premises after leaving a public highway, or to movements of objects such as the chloroform container outside the cabin. The fact that the officers relied not only on visual surveillance, but also on the use of the beeper, does not alter the situation. Nothing in the Fourth Amendment prohibited the police from augmenting their sensory faculties with such enhancement as science and technology afforded them in this case. There is no indication that the beeper was used in any way to reveal information as to the movement of the chloroform container within the cabin, or in any
Page 460 U. S. 277
way that would not have been visible to the naked eye from outside the cabin. Pp. 460 U. S. 280-285.
662 F.2d 515, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, and O'CONNOR, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL, J., joined, post, p. 460 U. S. 285. BLACKMUN, J., filed an opinion concurring in the judgment, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 460 U. S. 287. STEVENS, J., filed an opinion concurring in the judgment, in which BRENNAN, and MARSHALL, JJ., joined, post, p. 460 U. S. 288.
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Do these cases from the mid 80s address the questions being raised now?
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Very much so:
Held: Monitoring the beeper signals did not invade any legitimate expectation of privacy on respondent's part, and thus there was neither a "search" nor a "seizure" within the contemplation of the Fourth Amendment. The beeper surveillance amounted principally to following an automobile on public streets and highways. A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements. While respondent had the traditional expectation of privacy within a dwelling place insofar as his cabin was concerned, such expectation of privacy would not have extended to the visual observation from public places of the automobile arriving on his premises after leaving a public highway, or to movements of objects such as the chloroform container outside the cabin. The fact that the officers relied not only on visual surveillance, but also on the use of the beeper, does not alter the situation. Nothing in the Fourth Amendment prohibited the police from augmenting their sensory faculties with such enhancement as science and technology afforded them in this case.
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For a slightly different angle... Your cell phone signal and its records are private, your health care with its records are private, your banking and credit card records are private and yes, your garbage is private. My garbage cans are on my property. My contract with my hauler is to take it carefully and professionally and dispose of it, not to share it, sell it or data mine it. Guess I won't be chosen for the court anytime soon.
The syllabus started: "Having reason to believe " which sounds vaguely like probable cause. That changes things back to giving law enforcement the tools to do their job and making search reasonable. If those who we trust abuse that power, knowingly dummy up the 'reason to believe', then they are violating the constitution and should be fired, fined, sued and caned IMO. Fair enough?
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GM:
Your points are lucid, but I submit that there is something qualitatively different about being effortlessly being able to keep track of ALL of someone's movements, or to recover what they were retroactively.
"Nothing in the Fourth Amendment prohibited the police from augmenting their sensory faculties with such enhancement as science and technology afforded them in this case."
I'm not sure that the truth of this statement, which after all is limited to the facts presented, means that it applies across the board.
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All of these go around could have been avoided if the Wired article had been simply posted as a counter to the EFF article. The usual checks and balances are in place, so there is some reasurance. I have a certain amount of paranoia tho' like Dougy Mac, your flip answer pushes buttons, and earns a bit of aggro.
Crime Prevention is a slippery slope, catching a criminal after the fact is fine by me. It keeps life interesting knowing you still hafta wath out for the lions, tigers and bears out there, even if they have 2 feet nowadays. Too much surveillance precludes freedom due to a lack of privacy, if not anonymity (sp?)
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For a slightly different angle... Your cell phone signal and its records are private, your health care with its records are private, your banking and credit card records are private and yes, your garbage is private. My garbage cans are on my property. My contract with my hauler is to take it carefully and professionally and dispose of it, not to share it, sell it or data mine it. Guess I won't be chosen for the court anytime soon.
**This is what the courts have said thus far on some of these key topics :
http://www.kscoplaw.com/outlines/s&sforcode.html
Discovery of Certain Actions or Individual Characteristics do not require a Fourth Amendment "search" and are not protected by the Fourth Amendment.
Abandoned property. By definition, voluntarily abandoned property cannot support a reasonable claim of privacy or possessory interests, and so there can be no "search" or "seizure" of such property in the Fourth Amendment sense. See, e.g., Hester v. United States, 265 U.S. 57, 58, 44 S.Ct. 445, 68 L.Ed. 898 (1924) (contraband liquor discarded in a field); Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960) (contents of wastebasket in vacated hotel room); and California v. Greenwood, 486 U.S. at 35, (trash left for collection at the curb); State v. Brunson, 13 Kan.App.2d 384, 394-95, 771 P.2d 938, rev. denied 245 Kan. 786 (1989)(car abandoned on golf course).
Open fields. "[A]n individual has no expectation that open fields will remain free from warrantless intrusion by government officers." Oliver v. United States, 466 U.S. 170, 181, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). See also Hester, 265 U.S. at 58; Dunn, 480 U.S. at 300; State v. Tinsley, 16 Kan. App. 2d 289, 823 P.2d 205 (1991)(marijuana growing in area 45 to 70 feet from house near a cattle shed); Dow Chemical v. United States, 476 U.S. 227, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1986)(no expectation of privacy from aerial surveillance & photography of smokestack emissions); United States v. Knotts, 460 U.S. 276, 281-82, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1983)(person traveling on public roads has no reasonable expectation of privacy from observation of his movements).
Plain view. No legitimate expectation of privacy exists in property exposed to official observation.
It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).
There is no inadvertence requirement for plain-view seizures. Horton v. California, 495 U.S. 128, 137, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).
Two varieties of plain view seizures are possible: (1) an item exposed to view in a public place may be seized without involving any search activity; or (2) an item may be seen in plain view during the course of other lawful search or-seizure activity (such as during service of a search warrant, or while requesting consent to search). In either case, the seizure of the property in plain view "involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity." Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)(Emphasis added). See, especially, Texas v. Brown, 460 U.S. 730, 738, n. 4, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)("'plain view' provides grounds for seizure of an item when an officer's access to an object has some prior justification under the Fourth Amendment."); Arizona v. Hicks, 480 U.S. 321, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1987)(no seizure by recording serial numbers from stereos, but moving equipment to see numbers was a seizure).
The use of optical aids, such as flashlights, searchlights or binoculars, do not affect the legality of observing in plain view what could lawfully be seen in daylight or at closer range. Texas v. Brown, 460 U.S. at 739-740 (flashlight); State v. Epperson, 237 Kan. 707, 714, 703 P.2d 761, (1985)(same); On Lee v. United States, 343 U.S. 747, 754, 72 S.Ct. 967, 96 L.Ed. 1270 (1952)(radio transmitter & receiver); United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 71 L.Ed. 1202 (1927)(searchlight).
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GM:
Your points are lucid, but I submit that there is something qualitatively different about being effortlessly being able to keep track of ALL of someone's movements, or to recover what they were retroactively.
**You can track's someone's phone, with some effort and a court's approval, but in most situations that isn't of much evidentiary value by it's self. It is my understanding that absent a court order or request, cell phone providers dump their records very rapidly, given the cost involved in archiving such data. So there is not much in the way of retroactive recovering of location via cell records.**
"Nothing in the Fourth Amendment prohibited the police from augmenting their sensory faculties with such enhancement as science and technology afforded them in this case."
I'm not sure that the truth of this statement, which after all is limited to the facts presented, means that it applies across the board.
**It's not absolute. Remember Kyllo v. the United States? The 4th amendment protects the reasonably expected privacy in your home from thermal imaging without a search warrant. **
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FOURTH AMENDMENT [U.S. Constitution] - 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'
To pass muster under the Fourth Amendment, detention must be 'reasonable. ' See U.S. v. Montoya de Hernandez, 473 U.S. 531, 542-44 ('85) (analyzing constitutionality of length of traveler's border detention under Fourth Amendment reasonableness standard); Caban, 728 F.2d at 75 (considering whether duration of border detention without a hearing was reasonable).
In the context of a criminal arrest, a detention of longer than 48 hours without a probable cause determination violates the Fourth Amendment as a matter of law in the absence of a demonstrated emergency or other extraordinary circumstance. See County of Riverside v. McLaughlin, 111 S.Ct. 1661, 670 ('91). However, the Supreme Court arrived at this rule by considering the time it takes to complete administrative steps typically incident to arrest. See id.
Unreasonable Searches And Seizures.
Non-consensual extraction of blood implicates Fourth Amendment privacy rights. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 16 ('89) ('this physical intrusion, penetrating beneath the skin, infringes [a reasonable] expectation of privacy'); Schmerber v. California, 384 U.S. 757, 67 ('66) (compulsory blood test 'plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment').' '[f]or the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable.' Skinner, 489 U.S. at 619; accord Vernonia School Dist. 47J v. Acton, No. 95-590, 1995 WL 373274, at *3 (June 26,'95) ('the ultimate measure of the constitutionality of a governmental search is `reasonableness''). A search's reasonableness under the Fourth Amendment generally depends on whether the search was made pursuant to a warrant issued upon probable cause. U.S. v. Place, 462 U.S. 696, 701 ('83).
Even in the law enforcement context, the State may interfere with an individual's Fourth Amendment interests with less than probable cause and without a warrant if the intrusion is only minimal and is justified by law enforcement purposes. E.g., Michigan State Police Dept v. Sitz, 496 U.S. 444, 450 ('90); Terry v. Ohio, 392 U.S. 1, 20 ('68).
The gathering of fingerprint evidence from 'free persons' constitutes a sufficiently significant interference with individual expectations of privacy that law enforcement officials are required to demonstrate that they have probable cause, or at least an articulable suspicion, to believe that the person committed a criminal offense and that the fingerprinting will establish or negate the person's connection to the offense. See Hayes v. Florida, 470 U.S. 811, 813-18 ('85); Davis v. Mississippi, 394 U.S. 721, 726-28 ('69).
Nevertheless, everyday 'booking' procedures routinely require even the merely accused to provide fingerprint identification, regardless of whether investigation of the crime involves fingerprint evidence. See Smith v. U.S., 324 F.2d 879, 882 (D.C. Cir.'63) (Burger, J.) ('it is elementary that a person in lawful custody may be required to submit to . . . fingerprinting . . . as part of the routine identification processes'); Napolitano v. U.S., 340 F.2d 313, 314 (1st Cir.'65) ('Taking fingerprints [prior to bail] is universally standard procedure, and no violation of constitutional rights.'). Thus, in the fingerprinting context, there exists a constitutionally significant distinction between the gathering of fingerprints from free persons to determine their guilt of an unsolved criminal offense and the gathering of fingerprints for identification purposes from persons within the lawful custody of the state.
Although the drawing of blood from free persons generally requires a warrant supported by probable cause to believe that a person has committed a criminal offense and that his blood will reveal evidence relevant to that offense, see Schmerber, 384 U.S. at 768-71; U.S. v. Chapel, ___ F.3d ___, slip op. at 5753-54 (9th Cir.'95) (en banc), the absence of such a warrant does not a fortiori establish a violation of the plaintiffs' Fourth Amendment rights.
The Supreme Court has noted repeatedly that the drawing of blood constitutes only a minimally intrusive search. Skinner, 489 U.S. at 625 (blood tests do not 'infringe significant privacy interests'); Winston v. Lee, 470 U.S. 753, 62 ('85) (not 'an unduly extensive imposition'); Schmerber, 384 U.S. at 771 ('commonplace'); Breithaupt v. Abram, 352 U.S. 432, 36 ('57) ('routine' and 'would not be considered offensive by even the most delicate').
'An essential purpose of a warrant requirement is to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents.' Skinner, 489 U.S. at 421-2 (holding that a warrant was not required in part because 'in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtually no facts for a neutral magistrate to evaluate'). The Supreme Court recently reaffirmed and expanded the principle first enunciated in Skinner, stating that, in some contexts, 'testing based on `suspicion' of [wrongful activity] would not be better, but worse' than suspicionless testing. Acton, 1995 WL 373274, at *8. In Acton, the Supreme Court upheld as constitutional a school district's practice of conducting random, suspicionless urine testing of school athletes for drug use. The Court rejected the proposition that the school district could conduct such testing only if school officials had suspicion that a specific athlete was using drugs, holding that this alternative 'entails substantial difficulties -- if it is indeed practicable at all.' Id. Accusatory drug testing would 'transform[] the process into a badge of shame' and would increase the risk that school officials would impose testing arbitrarily upon disfavored, but not drug-using, students. Id.
Except in certain narrowly limited cases, the Court repeatedly has stated its 'insist[ence] upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution.' Chambers v. Moreny, 399 U.S. 42, 51 ('70). Because '[t]he integrity of an individual's person is a cherished value in our society,' searches that invade bodily integrity cannot be executed as mere fishing expeditions to acquire useful evidence: 'The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.' Schmerber, 384 U.S. at 772, 769-70.
Only when law enforcement faces an exigent circumstance, such as a need to preserve evanescent blood alcohol evidence, and has probable cause to link the sought-after information to a crime under investigation is it constitutional to conduct nonconsensual blood testing without a warrant. Id. at 770-71. Therefore, forced extraction of blood not only 'implicates the Fourth Amendment,' as the majority notes, but also falls squarely within the area of privacy interests for which the traditional probable cause requirement determines reasonableness in the law enforcement context. Forced blood extraction intrudes on the private personal sphere and infringes upon an individual's 'most personal and deep-rooted expectations of privacy.' Winston v. Lee, 470 U.S. 753, 60 ('85).
Searches Involving Intrusions Beyond The Body's Surface.
Schmerber v. California, 384 U.S. 757, 69 ('66). The Schmerber Court posed two questions: (1) whether the police were justified in imposing a nonconsensual blood test and (2) whether the procedures themselves were reasonable. Id. at 768. In answering the first question, the Court recognized that it was 'writ[ing] on a clean slate' regarding the treatment of searches that involve intrusions into the human body. Id. at 767-8. It concluded that such searches require probable cause. Id. at 770-1.
Similarly, the Supreme Court in Winston v. Lee, 470 U.S. 753 ('85), recognized that Schmerber's threshold standard was a requirement of probable cause 'where intrusions into the human body are concerned,' which implicate 'deep-rooted expectations of privacy.' Id. at 761, 760. The Winston Court then acknowledged `other factors'' eyond these standards' that must be considered in determining whether a particular intrusion is reasonable: whether 'the procedure threatens the safety or health of the individual' and 'the extent of the intrusion upon the individual's dignitary interests.' Id. at 761 (emphasis added). In regard to the additional 'dignitary' factor (beyond the threshold inquiry of invasion of bodily integrity), the Winston Court noted Schmerber's recognition that blood extraction is not 'an unduly extensive imposition.' Id. at 762. The Court contrasted this lesser bodily invasion, which the Schmerber Court had upheld upon demonstration of probable cause, with the more drastic measure of dangerous surgery to recoup criminal evidence, which the Winston Court concluded would violate the individual's Fourth Amendment rights even when supported by probable cause. Thus again, the context of the quotation demonstrates that the Court places blood extraction squarely within the probable cause requirement because it is an invasion of bodily integrity, while at the same time acknowledging that it is a less extensive imposition on dignitary interests than surgical removal of a bullet.
Investigatory Stops Of Motorists At Sobriety Checkpoints.
The unique situation in which the Supreme Court has approved suspicionless searches in the traditional law enforcement context. See Michigan Dep't of State Police v. Sitz, 496 U.S. 444 ('90). The Sitz Court relied on well-settled law that motorists have a lessened expectation of privacy regarding stops and visual searches of automobiles on the nation's roadways. Id. at 450 (explaining the importance of the context of 'police stops of motorists on public highways'). At these sobriety checkpoints, which motorists may choose to avoid, only the initial brief stop and preliminary questioning may take place without individualized suspicion: 'more extensive field sobriety testing' requires justification. Id. at 450-2.
Like the highway sobriety checkpoints, the 'special needs beyond normal law enforcement' rationale supports searches on lesser grounds than probable cause only in a very few, carefully tailored regulatory contexts that do not involve apprehension of criminal perpetrators. See, e.g., National Treasury Employees Union v. Von Raab, 489 U.S. 656, 65-66 ('89) (applying the special needs exception to suspicionless quasi-consensual drug testing of Customs Service employees seeking transfer to positions having a direct involvement in drug interdiction).
The special needs exception covers testing which 'is not designed to serve the ordinary needs of law enforcement [because] . . . results may not be used in criminal prosecution.' Von Raab, 489 U.S. at 666 (emphases added). Even so, a search in the special needs context almost always requires individualized suspicion. See, e.g., Portillo v. U.S. Dist. Court, 15 F.3d 819, 823 (9th Cir.'94) (requiring individualized suspicion for urinalysis testing under the probationer special needs exception). The rare special needs cases which do not require individualized suspicion involve persons who voluntarily participate in a highly regulated context. See, e.g., Von Raab, at 671, 677 (noting that 'certain forms of employment may diminish privacy expectations' for the 'employees who seek to be promoted' to certain positions); Vernonia School Dist. v. Acton, 1995 WL 373274, *6-*7 (U.S. June 26, '95) (noting that schools are highly regulated and 'like adults who choose to participate in a `closely regulated industry,' students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy').
Nonetheless, routine searches that intrude into prisoners' bodies without probable cause may be upheld only when the search is undertaken pursuant to a valid prison regulation that is reasonably related to a legitimate penological objective. Turner v. Safley, 482 U.S. 78, 87-91 ('87); see, e.g., Walker v. Sumner, 917 F.2d 382, 387 (9th Cir.'90) (remanding for evidence of a specific penological objective because 'general protestations of concern for the welfare of the citizens of Nevada and the prison community are simply insufficient to render the involuntary seizure of blood specimens, even from prison inmates, constitutionally reasonable').
Individuals have a categorically different and lesser expectation of privacy in their fingerprints, visual images, or voice prints -- even when their production is compelled -- because they are personal attributes that are routinely exposed to the public at large in daily life. Katz v. U.S., 389 U.S. 347, 51 ('67) (finding a lesser expectation of privacy in personal effects that 'a person knowingly exposes to the public, even in his own home or office').
The Fourth Amendment provides no protection for what 'a person knowingly exposes to the public'. Like a man's facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.
The required disclosure of a person's voice is thus immeasurably further removed from the Fourth Amendment protection than was the intrusion into the body effected by the blood extraction in Schmerber . . . . Rather, this is like the fingerprinting in Davis, . . . [which] 'involves none of the probing into an individual's private life and thoughts that marks an interrogation or search.' U.S. v. Dionisio, 410 U.S. 1, 14-15 ('73) (quoting Katz v. U.S., 389 U.S. 347, 51 ('67), and Davis v. Mississippi, 394 U.S. 721, 27 ('69)) (emphases added).
'Fingerprinting' - like the compelled production of other aspects of an individual's identification that are routinely exposed to and superficially observable by the public at large, such as voice prints, handwriting exemplars, and photographs - simply belongs to a different category of search that 'represents a much less serious intrusion upon personal security than other types of searches and detentions.' Hayes v. Florida, 470 U.S. 811, 14 ('85).*fn10 The majority's analysis obliterates this critical constitutional distinction between coerced fingerprinting and blood extraction for DNA genetic pattern analysis.
Blanket Searches.
Blanket searches are unreasonable, however 'evenhanded' they may be, in the traditional criminal law enforcement context. See, e.g., Ybarra v. Illinois, 444 U.S. 85, 91-2, 92 n.4 ('79) (invalidating a blanket patdown search of all patrons in a tavern, even though there was probable cause to search the bartender and the premises). The ill that the Fourth Amendment prevents is not merely the arbitrariness of police discretion to single out individuals for attention, but also the unwarranted domination and control of the citizenry through fear of baseless but 'evenhanded' general police searches.
In Zurcher, the Supreme Court held that a search of the offices of a university newspaper, which was not involved in any criminal activity, for photographs of demonstrators who had assaulted police officers did not offend the Fourth Amendment's ban against unreasonable searches and seizures. The court concluded: '[T]he Amendment has not been a barrier to warrants to search property on which there is probable cause to believe that fruits, instrumentalities, or evidence of crime is located, whether or not the owner or possessor of the premises to be searched is himself reasonably suspected of complicity in the crime being investigated.' Zurcher v. Stanford Daily ('78) 436 U.S. 547, 549-50.
Fourth Amendment protects the 'right of the people to be secure in their persons . . . against unreasonable searches and seizures.' The essence of that protection is a prohibition against some modes of law enforcement because the cost of police intrusion into personal liberty is too high, even though the intrusion undoubtedly would result in an enormous boon to the public if the efficient apprehension of criminals were the sole criterion to be considered. 'The easiest course for [law enforcement] officials is not always one that our Constitution allows them to take.' Wolfish, 441 U.S. at 595 (Stevens, dissenting).
A permanent resident alien is entitled to constitutional protection. See Landon v. Plasencia, 459 U.S. 21, 32-4 ('82) ('- nce an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly.'). In particular, to Fourth Amendment protection against unlawful seizures. See Benitez-Mendez v. INS, 760 F.2d 907, 09-10 (9th Cir.'85) (finding that INS seizure of alien violated Fourth Amendment); see also INS v. Delgado, 466 U.S. 210, 213 n.1, 215-21 ('84) (considering whether questioning of resident aliens by INS agents amounted to seizure for purposes of Fourth Amendment); Martinez v. Nygaard, 831 F.2d 822, 824, 826-28 (9th Cir.'87) (analyzing whether seizures of three resident aliens complied with Fourth Amendment).
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http://hotair.com/greenroom/archives/2009/11/05/there-is-no-freedom-without-law/
There Is No Freedom Without Law
posted at 4:08 pm on November 5, 2009 by Doctor Zero
Senator Roland Burris (D-Illinois) was recently asked by CNS News to specify which part of the Constitution authorizes Congress to legally compel individuals to purchase health insurance, a key component of the last dozen versions of the twelve hundred page ObamaCare proposal. Burris replied:
“Well, that’s under certainly the laws of the–protect the health, welfare of the country. That’s under the Constitution. We’re not even dealing with any constitutionality here. Should we move in that direction? What does the Constitution say? To provide for the health, welfare and the defense of the country.”
This is not a new sentiment. Burris is stating one of the core principles of American liberalism: the belief that the Constitution lays out a series of general directives, rather than imposing specific restrictions on the power of government… as if “promote the general welfare” and the interstate commerce clause were deliberately written into the Constitution as secret ingredients that would vaporize the rest of the document and give the government unlimited power, once some future generation of clever liberals combined them.
Many conservatives respond to the occasional RINO stampede, such as the one which tore through New York congressional district 23 in the recent special election, by suggesting the Republicans should advance a solid conservative platform, and require all candidates to swear allegiance to it. I understand this desire, but I’ve always been uncomfortable with the notion of threatening candidates with excommunication, unless they agree to support a list of positions stapled to their foreheads. We should all be able to come together around the defense of the Constitution, however. We need no other set of principles to guide us in repairing the damage of the past century. If the government is not restrained by loyalty to the Constitution, then its citizens are not free.
Freedom cannot exist in the absence of law. People living in a state of anarchy are not free. They live under the random tyranny of any warlord, gang, or predator who can overpower them. They also live within the prison of their own distrust for their fellow men. A code of clear, fairly administered laws enhances our ability to trust, and cooperate with, people we don’t know personally. Of course, laws restrict our actions, by punishing us for engaging in illegal activities… but they also enhance our freedom, by allowing us to work more easily with each other, and trade with confidence.
You submit to a fairly involved code of laws, backed up by steep financial penalties and the threat of deadly force, every time you climb into your car. Those very same laws make it possible for you to drive long distances quickly and easily – compared to foot or horse travel, anyway. Without those laws, the fast-moving and complex system of roads and highways would become so deadly that everyone would be afraid to use them.
This same principle applies to government. A lawless government is a tyranny, and its citizens are not free. It doesn’t matter if the lawless state was reached through a brutal thirst for power, or high-minded compassionate ideals. We wouldn’t indulge reckless defiance of the traffic laws by someone in a mad rush to make a large donation to the local Salvation Army chapter. Even ambulance drivers are expected to obey certain rules of the road, and would not be allowed to run down pedestrians in their race to the local emergency room.
Government cannot derive its legitimacy entirely from the approval of a democratic majority, as asserted by the demand that President Obama should be granted virtually limitless power over the lives of American citizens because he won the last election. This would be no less offensive to liberty if Obama had won with seventy, eighty, or ninety percent of the popular vote, instead of 52%. The need to assemble majority support cannot be the sole limit on the power of the State. If the male castaways of “Gilligan’s Island” decide to hold a purely democratic vote to enslave the women, then Mrs. Howell, Ginger, and Mary Ann are in deep trouble.
Some Democrats have responded to the Tea Party movement by whining that noisy minorities should not be allowed to interfere with governance. These are the same people who assert the power to nationalize the health insurance industry because 20, 30, or 47 million people lack adequate insurance. Freedom cannot be reduced to a struggle between whichever noisy minority puts on the biggest demonstration in Washington D.C. How much time, energy, and money has already been expended, fighting over a gigantic, ever-changing health care bill that never should have existed in the first place?
A strict adherence to the Constitution would “promote the general welfare” far more effectively than any program cobbled together in the back rooms of Congress, by saving us the waste of money and passion expended in arguing about those programs. A properly respected Constitution would be a peerless tool for bringing people together, because it would prevent government from tearing them into warring factions by offering fabulously expensive benefits to some, at the expense of others. It would reduce the level of anger and venom in our society, because no one would have to fight a desperate last-ditch battle to preserve his liberty in the voting booth. It would improve the civic pride of citizens, by giving them meaningful input into local policies, instead of demanding they submit to the agenda of distant politicians they will never be allowed to vote against, from states they might never even visit.
For too long, the Left has interpreted the Constitution as an ever-expanding warrant for the arrest of all those who dissent from its agenda. The glorious truth of that incredible document is exactly the opposite: it was designed to restrain the central government, with chains equally impervious to threats and pleading. A just government has very few laws its citizens cannot change by voting locally, or escape by moving to a different state. It cannot require the level of trust that free citizens extend only to each other. Reasoned deliberation can never involve blind votes on thousand-page bills written last week.
The Founding Fathers gave their descendants a luminous gift: a set of laws that transform a potentially tyrannical State into a mighty champion of liberty. Those laws are written on a sheet of antique parchment, which can be easily ignored by fallible men… unless other men have the courage and discipline to hold it up, and insist it be obeyed. That’s a job that every strain of conservative should be eager to rally around. Slicing our bloated, delusional government back down to something in line with the Constitution would be the work of a lifetime… and we’ve only got a few years to get it done, before its heart gives out, and we are crushed beneath it. If the Declaration of Independence was a challenge to foreign conquerors, then the Constitution is a challenge we issue to ourselves. Both documents await the signature of anyone who expects my vote.
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A state court ruled on Thursday that the state could not use
eminent domain on behalf of Columbia University to obtain a
17-acre site in West Harlem, dealing a major blow to the
university's plans to build a $6.3 billion satellite campus.
Read More:
http://cityroom.blogs.nytimes.com/2009/12/03/court-rules-against-columbia-university/?emc=na
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Lying and the Federal Government
Posted by David Boaz
Speaking of White House gate-crashers Tareq and Michaele Salahi (as we were trying to think of an excuse to do, to increase blog traffic), Slate says they might be guilty of a federal crime. What crime? Well, possibly trespassing on federal property. Or maybe the “broad prohibition on lying to the federal government.” Title 18, section 1001 of the U.S. Code
can be used to prosecute anyone who “knowingly and willfully … falsifies, conceals, or covers up by any trick, scheme, or device a material fact” or “makes any materially false, fictitious, or fraudulent statement or representation” to the government. That could include lying about your arrest record on a government job application, claiming a fake deduction on your taxes, or telling someone you’re on the White House invite list when you’re not.
I can’t help wondering, is there any equally broad prohibition on lying by the federal government? If the federal government, or a federal agency, or a federal official “knowingly and willfully … falsifies, conceals, or covers up” information or “makes any materially false, fictitious, or fraudulent statement or representation” — about the costs of a new entitlement, or how a candidate for reelection will act in his next term, or case for going to war — is that prohibited? Or are the rules tougher on the ruled than the rulers?
http://www.cato-at-liberty.org/2009/12/03/lying-and-the-federal-government/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Cato-at-liberty+%28Cato+at+Liberty%29
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There is a lot of parsing going on with the gate crashers. IMO they were waved in by someone, maybe a czar. Hopefully we will find out. Maybe the Obama'a were comfortable with the breach but another major world leader should not be put in that situation. BTW, when did state dinners drop to the level of picnic in a tent...
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NY is not one of the states that passed further restrictions after Kelo so that decision will be interesting to look at.
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Regarding the privacy of garbage: Considering other decisions like Roe and Kelo standing the test of time, I'm not surprised to find I disagree with the court over garbage. If someone sees a couch discarded at the curb and picks it up, that is one thing. No harm done. If someone combs for account numbers and personal correspondence maybe a well organized militia could be the remedy or deterrent. :-) I shouldn't need to shred everything when I pay a private company to dispose of it.
Once again, LE with serious reason to believe is another thing IMO. What they see and what they find still remains private (just my view) except for how it may apply toward solving a case.
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"I shouldn't need to shred everything when I pay a private company to dispose of it."
But you do.
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Tweakers and other vermin love people that don't shred using a crosscut shredder. Buy a good one and USE it before you get a harsh lesson in identity theft.
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Congress wants to wallop business with even more regulation in the wake of the financial panic, but perhaps the Members should pause on Monday and visit the Supreme Court. The Justices will hear arguments on whether major portions of the last great Congressional overreaction, the 2002 Sarbanes-Oxley Act, are constitutional.
Free Enterprise Fund v. Public Company Accounting Oversight Board was brought in 2006 by Brad Beckstead, whose small Nevada accounting firm endured a costly examination under Sarbox rules. At issue is whether the Public Company Accounting Oversight Board, or PCAOB, which supervises compliance with the law, violates the Constitution's separation of powers. Under the Appointments Clause, all "officers" of the United States must be appointed by the President and accountable to him—a condition PCAOB members do not meet.
The board's five members are instead hired by the commissioners of the Securities and Exchange Commission, who are appointed by the President. This arrangement passed muster in a 2-1 decision by the D.C. Circuit Court of Appeals, on the dubious grounds that the members were "inferior officers" and accountable to the President through the SEC. Never mind that they are not "directed and supervised" by the SEC, the traditional requirement for inferior officers.
The dissenter on the D.C. Circuit panel, Judge Brett Kavanaugh, called the case the most important separation of powers case in 20 years and said the appeals court had created a constitutional hash. Though the PCAOB "performs numerous regulatory and law enforcement functions at the core of the executive power," he wrote, for the first time in U.S. history we have "an independent agency whose heads are appointed by and removable only for cause by another independent agency."
The PCAOB has indeed grown as a politically unaccountable entity with vast power to regulate business. Texas Senator Phil Gramm warned at its creation that Congress was setting up a board with "massive unchecked power" to "make decisions that affect all accountants and everybody they work for, which directly or indirectly is every breathing person in the country."
Massive is the right word. The accounting board's wide-open mandate—to make whatever rules "may be necessary or appropriate in the public interest or for the protection of investors"—has cost the economy nearly $1 trillion, according to a study by AEI and the Brookings Institution. The benefit is supposed to be investor protection. But despite these costs, the law did nothing to warn about the meltdown of mortgage-backed securities, much less expose Bernie Madoff or other fraudsters.
These realities contributed to the welcome 37-32 November vote in the House Financial Services Committee to exempt small businesses from section 404b of Sarbox, which governs audit requirements. Sponsored by Democrat John Adler and Republican Scott Garrett, both of New Jersey, the provision was supported by the Obama Administration and 10 Democrats joined Republicans in support.
As the Supremes now take their turn, the case has implications the regulation-loving press corps hasn't noticed. A decision to uphold the PCAOB would open the door for Congress to create any number of equally unaccountable regulators across the economy. However, a ruling against the PCAOB could bring down the whole law because Sarbox does not have a "severability clause," which means that if one part goes down the entire law may be invalidated.
Debates over the Appointments Clause haven't typically divided the Supreme Court along liberal and conservative lines, so the outcome is hard to handicap. As Hans Bader and John Berlau of the Competitive Enterprise Institute point out, in the 1995 case Ryder v. United States, the High Court ruled unanimously that "an individual or firm disciplined by a government agency can challenge that discipline if agency officials were improperly appointed."
At stake here isn't merely a poorly written law that has done great economic harm. The issue is whether Congress, in its haste, can ignore the Constitutional order that has ensured accountable government for 230 years.
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GM you are right about shredding. My volume of paperwork is overwhelming; I think I will go back to separating personalized paperwork, including a lot of junk mail, from the trash and burning it in the occasional home campfire. Unfortunately all that extra effort doesn't save me from the larger identity risks out there. Almost every bank in North America already knows my mother's maiden name. If I ever forget it, I can probably buy a used hard drive on eBay and just look it up.
The bank gets my info because I want/need their service and thus agree to their terms. What about car insurance companies? I prefer self insurance but do business with them by government mandate. But I choose to drive on a public street and need to pay by automatic means to be punctual so that makes it consensual. Then comes health care. Rhetorical, but why do they get to know everything? Now comes the mandate. Even if I refuse to be treated I need to 'buy' the policy and disclose all info including health, financial, credit and behaviors. If you have taken a kid in for a checkup lately you have been asked if there are guns in the house, among other things.
We need a resurgence in privacy. Not from law enforcement when a crime was committed, but for just living and going about your business when you are not harming someone else.
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I really don't know the legislative remedy for that.
The used hard drive line was funny, btw. :-D
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Some context where data harvesting is concerned. It doesn't take much to put innocuous looking stuff together:
http://reason.com/archives/2009/12/04/where-everybody-knows-your-nam
Reason Magazine
Where Everybody Knows Your Name
What do AOL customers, Netflix subscribers, and abortion seekers in Oklahoma have in common? Hacking their identities is a cinch.
Katherine Mangu-Ward | December 4, 2009
We're all part of a huge, ongoing statistics project. Mostly, we become a part of various data sets anonymously, without even knowing it—as sales figures for Guitar Hero, traffic patterns on I-95, or levels of cocaine in an urban sewer system.
But there's another kind of data that gets released into the wild with increasing frequency: researcher bait. Netflix made its user-generated rating database publicly available as part of a prize competition designed to improve the site's movie recommendations. Three years ago, America Online released several months of search query information, just as a nice gesture to researchers. In both cases, the names and other obvious identifying information were removed before the data was set free.
Last month, Oklahoma set out to contribute a new mass of data to the world. New reporting requirements on abortion would have dumped a massive amount of information into a public database, available on the state government's website. The new laws require doctors to collect and report information about every abortion in the state, including the mother's age, marital status, race, number of children, education level, the mother’s relationship to the father, the reason for the abortion, the cost, and method of payment. The form contains 37 questions, most with several subsections. The names and addresses of the women would have been omitted, though her zip code was part of the information to be disclosed.
But as it turns out, taking your name off of something doesn't mean your fingerprints aren't all over it. Even when obvious identifying information is stripped from a large data set, personal identities can often be cracked by a geek with time on his hands.
Geeks like Arvind Narayanan and Vitaly Shmatikov, to be specific, who broke the anonymity of the Netflix set by comparing the dates of specific rankings with similar rankings on the popular Internet Movie Database, where users reveal personal information in public profiles. The vulnerability of the AOL database so horrified researchers that they have mostly left the set alone, tempting though that juicy data is. For a taste of the kind of revelations from that "anonymized" set, check out what this guy was up to:
17556639 how to kill your wife
17556639 how to kill your wife
17556639 wife killer
17556639 how to kill a wife
17556639 poop
17556639 dead people
17556639 pictures of dead people
17556639 killed people
17556639 dead pictures
17556639 dead pictures
17556639 dead pictures
17556639 murder photo
17556639 steak and cheese
17556639 photo of death
17556639 photo of death
17556639 death
17556639 dead people photos
17556639 photo of dead people
17556639 www.murderdpeople.com
17556639 decapatated photos
17556639 decapatated photos
17556639 car crashes3
17556639 car crashes3
17556639 car crash photo
Searches for just a couple of addresses or phone numbers along with that astonishingly evocative list of murder-related searches and user 17556639 is in the bag. In 2000 then-graduate student Latanya Sweeney sliced and diced U.S. Census data and found that 87 percent of the population can be identified using only their date of birth, zip code, and gender.
This fall, Paul Ohm of the University of Colorado Law School published a study on the "surprising failure of anonymization." He writes that we have "labored beneath a fundamental misunderstanding, which has assured us much less privacy than we have assumed. This mistake pervades nearly every information privacy law, regulation, and debate, yet regulators and legal scholars have paid it scant attention."
As Ohm notes, while the tech community has become very aware of the privacy issues surrounding large data sets over the last several years—Google has fought off broad government subpoenas demanding search queries, even though the feds weren't asking for personal information about users—Oklahoma state legislators don't seem to have gotten the memo. And it's safe to assume that federal legislators will suffer from the same problem. For now, the Oklahoma rules are on hold while a court considers a challenge to the law. The hearing was postponed this week, after a second judge recused herself from the case. But this won't be the last time courts have to consider the viability of laws like Oklahoma's. And as the federal government gets more involved with health care, the feds will be looking for ways to get more bang for their regualtory buck. One of the likely results: More disclosure mandates, so that we can all be part of the great, ongoing statistics project whether we like it or not.
There's an old(ish) adage that the Internet treats censorship as a malfunction, and routes around it. There's a corollary for online data, voiced by Sweeney, now of Harvard’s Center for Research on Computation and Society, who has said that “data tend to flow around and get linked to other data.” Stripping out information about names and addresses isn't enough to keep data secure. Digital data sets don't stay isolated. And as Ohm notes, this illustrates a central reality of data collection: "Data can either be useful or perfectly anonymous but never both."
Katherine Mangu-Ward is a senior editor at Reason magazine.
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Second post:
http://reason.com/blog/2009/12/04/cash-strapped-police-departmen
Reason Magazine
Cash-Strapped Police Departments Find New Source of Revenue: Stealing!
Radley Balko | December 4, 2009
But under the color of law, of course. All thanks to the wonderful world of asset forfeiture.
The way Krista Vaughn sees it, Wayne County fined her $1,400 even though police and prosecutors admit she broke no laws.
Vaughn, who has no criminal record, was required to pay for the return of her car, which was seized by police after they mistook Vaughn's co-worker for a prostitute. Even though prosecutors later dropped the case, Vaughn still had to pay.
Her story is not unusual. In Wayne County, law enforcement officials regularly seize vehicles without levying charges -- even in cases in which they later concede no law was broken. The agency provides perhaps the most prolific and egregious example of what critics contend is the wrongful use of laws allowing the seizure of private property.
It's a practice that's paying off. The Wayne County Sheriff's Office, which helps run the prosecutor's forfeiture unit, took in $8.69 million from civil seizures in 2007, more than four times the amount collected in 2001. The Wayne County Prosecutor's Office gets up to 27 percent of that money.
The article is part of a Detroit News series on an explosion in forfeiture cases in and around the crumbling city. From an earlier article in the series:
"We're trying to fight crime," said Police Chief Mike Pachla of Roseville, where the money raised from forfeitures jumped more than tenfold, from $33,890 to $393,014.
"We would be just as aggressive even if there wasn't any money involved."
Roseville had among the most dramatic increases over the five-year period examined by The News. But several other agencies also more than doubled their takes, including Novi, Trenton, Farmington Hills, Southfield, the Michigan State Police, Shelby Township, Livonia, Warren and Romulus.
The increase in money coming in leads to a higher percentage of the police budget being covered by seizures. In Roseville, the share of the police budget raised from forfeitures went from 0.3 percent to 4.2 percent. In Romulus, it jumped from 4.5 percent to 11.2 percent from 2003-2007, the most recent years for which comparable records were available.
I have a feature on asset forfeiture coming in the February 2010 issue of Reason. Forfeiture critics I interviewed for the article say there's good reason to think laws that send forfeiture proceeds back to prosecutor offices may be unconstitutional. Whereas police only make the initial seizure, prosecutors actually make the policy decision of determining which cases to take. Dicta in prior U.S. Supreme Court cases indicates the Court may find due process problems with those same offices then materially benefiting from those decisions.
The Civil Asset Forfeiture Reform Act of 2000 quelled a lot of the debate on this issue. But that law only applies to federal police agencies. Most of the more egregious forfeiture cases now happen at the state and local level.
In September I wrote a column on Alvarez v. Smith, the forfeiture case that will be decided early next year by the Supreme Court. That case is a challenge to a provision in the Illinois forfeiture laws that allow police to keep seized property a year or more before a claimant can have his day in court to get it back. This is particularly harsh on low-income people who may rely a seized car to get to work, or to shuttle kids around.
It's worth noting that Obama's Justice Department filed an amicus brief on behalf of the state in that case. They weren't obligated to. Though the solicitor general's office is charged with defending all federal laws, the law at issue in Alvarez is a state law, not a federal one. In fact, federal civil forfeiture laws are much friendlier to property owners. So you could make a decent case that the administration could have argued against the Illinois law. At the very least, it could have kept quiet. Instead, it argued that the state should retain the power to take property from people without ever charging a crime (and not necessarily kingpins—the Illinois law in question applies only to property valued at under $20,000), and keep that property for a year or more before affording the owner a chance to get it back.
Taking property from poor people without due process of law in order to enrich local police departments. Seems like the sort of thing Barack Obama might have fought to change in his days as a community organizer.
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I'm down with this. Tired of these pompous fools exempting themselves from all they foist:
Poll: Is it time to pass a 28th Amendment to the U. S. Constitution?
December 7, 2:40 AM
Fort Worth Christianity & Culture Examiner
Rene Girard
"I do not believe that the Constitution was the offspring of inspiration, but I am satisfied that it is as much the work of a Divine Providence as any of the miracles recorded in the Old and New Testament." ~ Benjamin Rush *
What is the Constitution?
The Constitution of the United States is the most important document in United States history following the Declaration of Independence. It was signed September 17, 1787 by George Washington, James Madison, Alexander Hamilton, Benjamin Franklin and thirty-five (35) others with "the Unanimous Consent of the States" in order to "establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty" for "We the People of the United States."
The Constitution establishes the legislative powers that govern our nation via Congress "which shall consist of a Senate and House of Representatives." It also establishes the power of the President, Vice-President, all civil officers, the Supreme Court, and how each State and it's citizens shall be governed by those powers.
Just two years later in 1789 the Bill of Rights was established "in order to prevent misconstruction or abuse of its powers" by adding ten (10) Amendments to the Constitution. Over the next 200+ years, seventeen (17) more Amendments have been added for a grand total of twenty-seven (27) Amendments. These include such notable favorites as the 22nd Amendment which limits a President to no more than two (2) terms, and the 26th Amendment (Passed by Congress March 23, 1971; Ratified July 1, 1971) which allows citizens the right to vote at age eighteen (18).
Time for a New Amendment?
Now there is a new idea circulating amongst U.S. citizens on the internet: A 28th Amendment to the Constitution. It has sprung out of a very real need for the politicians in Washington D.C. to have the same rights and privileges as the people they represent. No more and no less.
It only makes sense that those men and women, who are a mere sampling of the people they represent, be United States citizens who are subject to all of the same laws and rules under which United States citizens live.
Therefore the 28th Amendment could read as such:
AMENDMENT XXVIII
"Congress shall make no law that applies to the citizens of the United States that does not apply
equally to United States Senators and those of the House of Representatives; likewise, Congress
shall make no law that applies to the Senators or Representatives that does not apply equally to
the citizens of the United States."
How This Concept could be Applied
In relation to such controversial topics as Government-run health care, we need not fear that our elected officials will pass into law that which they themselves have not approved out of due diligence for themselves and their loved ones. And if by law our elected officials are entitled to health care for the rest of their lives, we their fellow citizens can be assured that we will too shall receive the same health care for the rest of our lives.
Sticking to our Principals
If we still operate under the principals of our Declaration of Independence and believe "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed", then whatever power these Government officials have, that power is derived from us, those who are governed, and we acknowledge that these officials are equal, not inferior or superior to us.
So for those who ascribe to the concept that some people are more equal than others, this 28th Amendment to the Constitution will help to ensure it simply is not so - at least, not here in America.
http://www.examiner.com/x-25060-Fort-Worth-Christianity--Culture-Examiner~y2009m12d7-Poll--Is-it-time-to-pass-a-28th-Amendment-to-the-U-S-Constitution
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Makes sense to me.
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An exhibit in the legal reasoning of liberal fascism from todays Pravda on the Hudson-- the New York Times:
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Eminent Domain in New York Sign in to Recommend
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LinkedinDiggFacebookMixxMySpaceYahoo! BuzzPermalinkPublished: December 13, 2009
A New York State appellate court has misguidedly put a roadblock in the way of Columbia University’s expansion plans, ruling that the state misused eminent domain to help Columbia assemble the land it needs. This decision conflicts with the relevant law and will make it much harder for the university to move ahead with a project that would benefit the surrounding neighborhood and the entire city.
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Times Topics: Columbia University | Eminent DomainColumbia is outgrowing its Morningside Heights campus and is planning a major expansion north into West Harlem that would include school buildings, laboratories and publicly accessible open space. It would allow the school to better pursue its important missions of education and research. It would also provide the community with jobs and amenities, including widened, pedestrian-friendly streets and space for local artists.
To secure enough land, the university is relying in part on the Empire State Development Corporation’s eminent domain power, compelling holdout commercial property owners to sell. Several of the holdouts sued, arguing that the use of eminent domain was illegal.
In a weakly reasoned decision, the Appellate Division of the State Supreme Court agreed, by a 3-to-2 vote. The majority took the peculiar position that there is no civic purpose behind Columbia’s decision to expand.
The decision is completely out of step with eminent domain law, including a recent 6-to-1 decision from the New York State Court of Appeals, the state’s highest court. That court ruled that Brooklyn’s Atlantic Yards, a commercial development, can use eminent domain to secure land to build new housing and a basketball arena for the Nets. That was the right decision, and the case for Columbia is even stronger.
The civic purpose in the Columbia expansion is clear, given the contributions it would make to education, the job market and community life. The Empire State Development Corporation also made a thoroughly defensible decision that eminent domain was appropriate given the blighted condition of the land at issue, between 125th and 133rd Streets near the Hudson River.
The university says it intends to move forward on a center for interdisciplinary neuroscience, which would be built on land it already owns. But it is regrettable that much of the project is now stalled. The Court of Appeals should hear the case on an expedited schedule and reverse the Appellate Division’s ruling.
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http://hotair.com/archives/2009/12/23/did-obama-exempt-interpol-from-same-legal-constraints-as-american-law-enforcement/
Did Obama exempt Interpol from same legal constraints as American law-enforcement?
posted at 2:55 pm on December 23, 2009 by Ed Morrissey
During his presidency, Ronald Reagan granted the global police agency Interpol the status of diplomatic personnel in order to engage more constructively on international law enforcement. In Executive Order 12425, Reagan made two exceptions to that status. The first had to do with taxation, but the second was to make sure that Interpol had the same accountability for its actions as American law enforcement — namely, they had to produce records when demanded by courts and could not have immunity for their actions.
Barack Obama unexpectedly revoked those exceptions in a change to EO 12425 last month, as Threats Watch reports:
Last Thursday, December 17, 2009, The White House released an Executive Order “Amending Executive Order 12425.” It grants INTERPOL (International Criminal Police Organization) a new level of full diplomatic immunity afforded to foreign embassies and select other “International Organizations” as set forth in the United States International Organizations Immunities Act of 1945.
By removing language from President Reagan’s 1983 Executive Order 12425, this international law enforcement body now operates – now operates – on American soil beyond the reach of our own top law enforcement arm, the FBI, and is immune from Freedom Of Information Act (FOIA) requests. …
After initial review and discussions between the writers of this analysis, the context was spelled out plainly.
Through EO 12425, President Reagan extended to INTERPOL recognition as an “International Organization.” In short, the privileges and immunities afforded foreign diplomats was extended to INTERPOL. Two sets of important privileges and immunities were withheld: Section 2© and the remaining sections cited (all of which deal with differing taxes).
And then comes December 17, 2009, and President Obama. The exemptions in EO 12425 were removed.
Section 2c of the United States International Organizations Immunities Act is the crucial piece.
Property and assets of international organizations, wherever located and by whomsoever held, shall be immune from search, unless such immunity be expressly waived, and from confiscation. The archives of international organizations shall be inviolable. (Emphasis added.)
Inviolable archives means INTERPOL records are beyond US citizens’ Freedom of Information Act requests and from American legal or investigative discovery (“unless such immunity be expressly waived.”)
Property and assets being immune from search and confiscation means precisely that. Wherever they may be in the United States. This could conceivably include human assets – Americans arrested on our soil by INTERPOL officers.
Actually, that last argument overreaches. American law does not consider people as “assets.” It does mean, though, that Interpol officers would have diplomatic immunity for any lawbreaking conducted in the US at a time when Interpol nations (like Italy) have attempted to try American intelligence agents for their work in the war on terror, a rather interesting double standard.
It also appears to mean that Americans who get arrested on the basis of Interpol work cannot get the type of documentation one normally would get in the discovery process, which is a remarkable reversal from Obama’s declared efforts to gain “due process” for terrorists detained at Gitmo. Does the White House intend to treat Americans worse than the terrorists we’ve captured during wartime?
Andy McCarthy wonders the same thing:
Interpol’s property and assets are no longer subject to search and confiscation, and its archives are now considered inviolable. This international police force (whose U.S. headquarters is in the Justice Department in Washington) will be unrestrained by the U.S. Constitution and American law while it operates in the United States and affects both Americans and American interests outside the United States.
Interpol works closely with international tribunals (such as the International Criminal Court — which the United States has refused to join because of its sovereignty surrendering provisions, though top Obama officials want us in it). It also works closely with foreign courts and law-enforcement authorities (such as those in Europe that are investigating former Bush administration officials for purported war crimes — i.e., for actions taken in America’s defense).
Why would we elevate an international police force above American law? Why would we immunize an international police force from the limitations that constrain the FBI and other American law-enforcement agencies? Why is it suddenly necessary to have, within the Justice Department, a repository for stashing government files which, therefore, will be beyond the ability of Congress, American law-enforcement, the media, and the American people to scrutinize?
I seem to recall the Left getting hysterical over the Patriot Act extensions that Obama finally backed. This gives Interpol a much wider operational latitude than anything contemplated in the Patriot Act, and with no accountability at all.
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Newt Gingrich in fine form:
http://www.youtube.com/watch?v=qtjfMjjce2Y&feature=player_embedded#
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Newt Gingrich in fine form:
http://www.youtube.com/watch?v=qtjfMjjce2Y&feature=player_embedded#
THAT is awesome.
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By ORRIN G. HATCH, J. KENNETH BLACKWELL AND KENNETH A. KLUKOWSKI
President Obama's health-care bill is now moving toward final passage. The policy issues may be coming to an end, but the legal issues are certain to continue because key provisions of this dangerous legislation are unconstitutional. Legally speaking, this legislation creates a target-rich environment. We will focus on three of its more glaring constitutional defects.
First, the Constitution does not give Congress the power to require that Americans purchase health insurance. Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes. None of those powers justifies the individual insurance mandate. Congress's powers to tax and spend do not apply because the mandate neither taxes nor spends. The only other option is Congress's power to regulate interstate commerce.
Congress has many times stretched this power to the breaking point, exceeding even the expanded version of the commerce power established by the Supreme Court since the Great Depression. It is one thing, however, for Congress to regulate economic activity in which individuals choose to engage; it is another to require that individuals engage in such activity. That is not a difference in degree, but instead a difference in kind. It is a line that Congress has never crossed and the courts have never sanctioned.
In fact, the Supreme Court in United States v. Lopez (1995) rejected a version of the commerce power so expansive that it would leave virtually no activities by individuals that Congress could not regulate. By requiring Americans to use their own money to purchase a particular good or service, Congress would be doing exactly what the court said it could not do.
Some have argued that Congress may pass any legislation that it believes will serve the "general welfare." Those words appear in Article I of the Constitution, but they do not create a free-floating power for Congress simply to go forth and legislate well. Rather, the general welfare clause identifies the purpose for which Congress may spend money. The individual mandate tells Americans how they must spend the money Congress has not taken from them and has nothing to do with congressional spending.
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Associated Press
Barack Obama.
.A second constitutional defect of the Reid bill passed in the Senate involves the deals he cut to secure the votes of individual senators. Some of those deals do involve spending programs because they waive certain states' obligation to contribute to the Medicaid program. This selective spending targeted at certain states runs afoul of the general welfare clause. The welfare it serves is instead very specific and has been dubbed "cash for cloture" because it secured the 60 votes the majority needed to end debate and pass this legislation.
A third constitutional defect in this ObamaCare legislation is its command that states establish such things as benefit exchanges, which will require state legislation and regulations. This is not a condition for receiving federal funds, which would still leave some kind of choice to the states. No, this legislation requires states to establish these exchanges or says that the Secretary of Health and Human Services will step in and do it for them. It renders states little more than subdivisions of the federal government.
This violates the letter, the spirit, and the interpretation of our federal-state form of government. Some may have come to consider federalism an archaic annoyance, perhaps an amusing topic for law-school seminars but certainly not a substantive rule for structuring government. But in New York v. United States (1992) and Printz v. United States (1997), the Supreme Court struck down two laws on the grounds that the Constitution forbids the federal government from commandeering any branch of state government to administer a federal program. That is, by drafting and by deliberate design, exactly what this legislation would do.
The federal government may exercise only the powers granted to it or denied to the states. The states may do everything else. This is why, for example, states may have authority to require individuals to purchase health insurance but the federal government does not. It is also the reason states may require that individuals purchase car insurance before choosing to drive a car, but the federal government may not require all individuals to purchase health insurance.
This hardly exhausts the list of constitutional problems with this legislation, which would take the federal government into uncharted political and legal territory. Analysts, scholars and litigators are just beginning to examine the issues we have raised and other issues that may well lead to future litigation.
America's founders intended the federal government to have limited powers and that the states have an independent sovereign place in our system of government. The Obama/Reid/Pelosi legislation to take control of the American health-care system is the most sweeping and intrusive federal program ever devised. If the federal government can do this, then it can do anything, and the limits on government power that our liberty requires will be more myth than reality.
Mr. Hatch, a Republican senator from Utah, is a former chairman of the Senate Judiciary Committee. Mr. Blackwell is a senior fellow with the Family Research Council and a professor at Liberty University School of Law. Mr. Klukowski is a fellow and senior legal analyst with the American Civil Rights Union.
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second post
By JULIA VITULLO-MARTIN
New York
Columbia University is one of New York's largest landowners, and perhaps the one with the most to gain from the state's power to seize private property. But in a surprise ruling in early December, a state court struck down the city's attempt to take private land in West Harlem and give it to the university. Now that case is becoming an important beachhead in the fight over eminent domain.
Columbia wants the land as part of its 17-acre plan to build a research and academic facility. A decade ago it started acquiring as much of the land as it could. In recent years, however, a few holdouts were impossible to dislodge. The university turned to the Empire State Development Corporation (ESDC), a public company that has the power to compel landowners to sell through eminent domain.
Columbia contends that its academic center will upgrade the neighborhood, create 6,900 jobs, and make immense contributions in biotechnology and health research. There is little reason to doubt any of these assertions. Columbia is one of the nation's leading research institutions and New York City's seventh-largest private employer.
.But should its importance entitle the university to take property owned by others?
Nick Sprayregen, a 47-year-old businessman, says no. He owns Tuck-It-Away Self-Storage, which is located in a brick building inside the footprint of Columbia's project. The business was started by his father in 1980, and he intends to pass it along to his children. So he joined a lawsuit to keep his land. He claims that taking his property would violate the state's constitution. The state can seize land that is considered blighted, but he argues that his neighborhood is sound and had been steadily improving before Columbia launched its expansion plans. He notes that there are excellent new restaurants that have sprung up in the neighborhood, and there are also nice artist studios and lofts, rehabilitated, city-owned apartment buildings, and successful manufacturers.
He acknowledges there is some blight but blames Columbia for it. As recently as August 2002, data prepared by the accounting firm of Ernst & Young for New York City's Economic Development Corporation showed that 54 of the 67 lots in question were in good, very good or fair condition. In November 2007, a study by AKRF Consultants reached a dramatically different conclusion—that the area was "substantially unsafe, unsanitary, substandard, and deteriorated."
What happened, argues Mr. Sprayregen, was that Columbia had increased its ownership or control from a handful of properties in 2001 to 51% in 2007 and 91% of the area today. Along the way it let the properties decay by erecting ugly scaffolding, pushing out commercial tenants, and allowing trash to pile up.
In all, Mr. Sprayregen put 10,000 pages of documents into the court record to show that West Harlem was not blighted before Columbia began its plans. "Is it fair to reward a private entity for its own bad conduct, its own role in producing neighborhood deterioration?" he asks.
State Supreme Court Justice James Catterson seems to agree with Mr. Sprayregen that it isn't. In ruling against Columbia on Dec. 3, he wrote that the use of eminent domain "to benefit a private elite education institution is violative of the Takings Clause of the U.S. Constitution, of the New York Constitution, and the 'first principles of the social contract.'"
Judge Catterson also wrote that "the blight designation in the instant case is mere sophistry. It was utilized by ESDC years after the scheme was hatched to justify the employment of eminent domain but this project has always primarily concerned a massive capital project for Columbia."
Judge Catterson's decision sets up a conflict that will likely shape how eminent domain is used in the future. Just a week before he issued his ruling, New York's highest court, the Court of Appeals, decided in Goldstein et al. v. Urban Development Corporation that ESDC could seize private property in Brooklyn and hand it over to Forest City Ratner, a private developer.
That case was a big setback for private property advocates, who had spent years trying to curtail the use of eminent domain and who got a bump in public support after the U.S. Supreme Court ruled in Kelo v. the City of New London (2005) that states could seize private land as part of private development projects.
Now, in the wake of Judge Catterson's ruling, the state's Court of Appeals will likely have to take the issue up again if the case is appealed. Perhaps this time it will impose strict limits on when the power of eminent domain can be used.
State Sen. Bill Perkins, a Harlem Democrat and chairman of the committee on corporations, authorities and commissions, doesn't want to leave it to the courts. He held one public meeting on Judge Catterson's ruling before Christmas and is planning a second this coming week. He also fired off a letter to Democratic Gov. David A. Paterson asking him not to appeal Judge Catterson's ruling, and to impose a "statewide moratorium on the use of eminent domain" until the state legislature can pass legislation that specifies how the power can be used.
The governor hasn't decided what to do, but he doesn't have the luxury of sitting on the sidelines forever. With two conflicting court decisions and a brewing controversy, the legislature will almost certainly pass something that will force him to choose sides.
If Judge Catterson's ruling stands, Mr. Sprayregen he says he will keep running his business. He once told me, "I can coexist with Columbia. Why can't Columbia coexist with me?"
Ms. Vitullo-Martin is director of the Center for Urban Innovation at the Regional Plan Association.
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Courts Roll Back Limits on Spending in Election Law
By DAVID D. KIRKPATRICK
Published: January 8, 2010
WASHINGTON — Even before a landmark Supreme Court ruling on campaign finance law expected within days, a series of other court decisions is reshaping the political battlefield by freeing corporations, unions and other interest groups from many of the restrictions on their advertising about issues and candidates.
Legal experts and political operatives say the cases roll back campaign spending rules to the years before Watergate. The end of decades-old restrictions could unleash a torrent of negative advertisements, help cash-poor Republicans in a pivotal year and push President Obama to bring in more money for his party.
If the Supreme Court, as widely expected, rules against core elements of the existing limits, Democrats say they will try to enact new laws to reinstate the restrictions in time for the midterm elections in November. And advocates of stricter campaign finance laws say they hope the developments will prod the president to fulfill a campaign promise to update the presidential campaign financing system, even though it would diminish his edge as incumbent.
Many legal experts say they expect the court to use its imminent ruling, in the case of Citizens United v. Federal Election Commission, to eliminate the remaining restrictions on advertisements for or against candidates paid for by corporations, unions and advocacy organizations. (The case centers on whether spending restrictions apply to a conservative group’s documentary, “Hillary: The Movie.”)
Even if the court rules more narrowly, legal experts and political advocates say that the 2010 elections will bring the first large-scale application of previous court decisions that have all but stripped away those restrictions. Though the rulings have not challenged the bans on direct corporate contributions to parties and candidates, political operatives say that as a practical matter the rulings and a deadlock at the Federal Election Commission have already opened wide latitude for independent groups to advocate for and against candidates.
“It will be no holds barred when it comes to independent expenditures,” said Kenneth A. Gross, a veteran political law expert at the firm of Skadden Arps in Washington.
The United States Chamber of Commerce, the goliath of the lobbying world, is expected to outline its battle plan next week for the midterms. It spent $25 million on advertisements and get-out-the-vote efforts in the 2006 elections and $36 million in 2008, and will spend far more this year, chamber officials say. And in the last election it was already probing the limits of the court’s rulings with commercials like one in New Hampshire denouncing Senator Jeanne Shaheen, a Democrat, as “a taxing machine.”
Labor unions, stalwart outside allies to the Democrats, plan to take advantage of the changing rules with their own record-setting spending, said Karen Ackerman, political director of the A.F.L.-C.I.O. But business, she argued, had more to gain.
“The corporate side will always have more to spend than the union side,” she said.
Even before the Supreme Court issues its Citizens United ruling, Democrats in the House and the Senate have begun lamenting its expected result. “Clearly, the Republican Party overwhelmingly would benefit,” said Senator Robert Menendez of New Jersey.
Representative Chris Van Hollen of Maryland vowed a “prompt legislative response” if the Supreme Court rules broadly. In the meantime, he said, the Democratic campaign committee planned to counterattack big donors to outside groups to show “they are not just disinterested citizens.”
Conservatives accused the Democrats of using the specter of corruption as an excuse to silence their opponents. “What this is about is prohibiting information from reaching the American people if it is critical of them, those poor little dears who can’t stand criticism,” said Wayne LaPierre, chief executive of the National Rifle Association.
Senator John Cornyn of Texas, chairman of the Republican Senate campaign committee, said: “It is about a nonprofit group’s ability to speak about the public issue. I can’t think of a more fundamental First Amendment issue.”
Still, Mr. Cornyn acknowledged that the expected ruling could “open up resources that have not previously been available” for the Republicans.
Democratic candidates and party committees have raised a total of $396.5 million for the midterms, with $50 million on hand and $10 million debts in public filings released this week. Republicans had raised just $204.7 million, with about $30 million on hand and about $6 million in debts, according to the nonpartisan Center for Responsive Politics.
The campaign finance system imposed after the Watergate scandal began to spring leaks in the 1990s with the large-scale exploitation of unlimited “soft money” contributions to political parties from wealthy individuals, corporations, unions and others. Congress fortified those rules by eliminating soft money with the 2002 campaign finance law known as McCain-Feingold, and since then activists and operatives have played cat-and-mouse with regulators in the search for other loopholes.
The Supreme Court began to poke new holes in the system in a 2007 ruling that outside groups could pay for critical commercials attacking individual candidates on specific issues up to the day of the election, as long as the ad did not explicitly urge a “vote for” or “vote against.”
The 2010 midterms will be the first big test of the changing rules in part because in 2008 both major party candidates — Mr. Obama and Senator John McCain — explicitly discouraged independent spending by their supporters. The Federal Election Commission had also punished previous efforts to evade the McCain-Feingold rules severely enough to discourage new attempts.
No such restraints apply this year, in part because the changing composition of the Federal Election Commission has created a deadlock blocking vigorous enforcement. “The cop is gone from the beat,” said Trevor Potter, a lawyer for the nonpartisan Campaign Legal Center who has also worked for Mr. McCain.
Campaign finance laws block outside groups from coordinating with candidates, but it is easy enough for outside allies to read in news reports where a campaign wants to spend money and what message it wants to send. Such groups also tend to favor negative commercials because they are more potent.
So if the court strikes down the restrictions on outside spending, some legal experts say, the remaining restrictions on direct contributions to campaigns would mean much less because it would be easy to support a campaign through an outside group.
“The campaign finance system would certainly be less regulated than any time since Watergate,” said Richard L. Hasen, a campaign law expert at the Loyola Law School in Los Angeles.
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Stacking the Deck Against Proposition 8 Recommend
by EDWIN MEESE III
January 10, 2010
Washington
THE much-anticipated trial to determine the constitutionality of California’s Proposition 8 is scheduled to begin this morning in the case of Perry v. Schwarzenegger. What’s at stake in this case, filed in federal district court in San Francisco on behalf of two gay couples, is not just the right of California voters to reaffirm the definition of marriage as only between a man and a woman, but also whether marriage may be otherwise defined in any state.
The entire premise of this litigation is disquieting — that traditional marriage is nothing but “the residue of centuries of figurative and literal gay bashing,” as David Boies, a lawyer for the plaintiffs, has written. According to the plaintiffs, there is just no rational basis for government to privilege marriage between a man and a woman. Thus, in their minds, Proposition 8, which was supported by more than seven million California voters, could have been adopted only as a result of “animus,” as the complaint puts it, toward gays and lesbians.
It’s disquieting that the trial is taking place in San Francisco, probably the venue most likely to support gay marriage. More than 75 percent of San Francisco voters opposed Proposition 8. That’s quite a home-court advantage for same-sex marriage advocates.
But most disquieting for supporters of traditional marriage is a series of pretrial rulings issued by Judge Vaughn R. Walker that have the effect of putting the sponsors of Proposition 8, and the people who voted for it, on trial.
Judge Walker’s decisions have been surprising because they differ from those of other judges who have previously scrutinized marriage laws — in Iowa, Hawaii, Massachusetts, New Jersey and elsewhere in California, for example. In those instances, the courts have decided legal challenges to state marriage laws based on legislative history, scholarly articles and testimony by social scientists and other experts. They have, in some cases, looked for evidence of legislative intent in the statements published in official voter information pamphlets.
But in this case, Judge Walker has ruled that things like TV advertisements, press releases and campaign workers’ statements are also relevant evidence of what the voters intended. The judge went so far as to order the Proposition 8 campaign to disclose private internal communications about messages that were considered for public use but never actually used. He has even ordered the campaign to turn over copies of all internal records and e-mail messages relating to campaign strategy.
Most troubling, Judge Walker has also ruled that the trial will investigate the Proposition 8 sponsors’ personal beliefs regarding marriage and sexuality. No doubt, the plaintiffs will aggressively exploit this opportunity to assert that the sponsors exhibited bigotry toward homosexuals, or that religious views motivated the adoption of Proposition 8. They’ll argue that prohibiting gay marriage is akin to racial discrimination.
To top it all off, Judge Walker has determined that this case will be the first in the Ninth Circuit to allow cameras in the courtroom, with the proceedings posted on YouTube. This will expose supporters of Proposition 8 who appear in the courtroom to the type of vandalism, harassment and bullying attacks already used by some of those who oppose the proposition.
Thankfully, some of Judge Walker’s rulings have been overturned. For example, the Ninth Circuit Court of Appeals blocked the disclosure of internal communications among the core Proposition 8 organizers. But there is no question that virtually every ruling by Judge Walker so far has put advocates of traditional marriage at an increasing disadvantage.
Despite this, during the trial, the supporters of Proposition 8 will work hard to demonstrate that it was rational for voters to conclude that marriage is a unique institution that promotes the interests of child-rearing, and that those interests are broader than the personal special interests of the adults involved. And they’ll make the case that voters were very much within their rights, when casting their ballots, to consider their own moral and religious views about marriage — or any other subject.
It remains to be seen whether traditional marriage, and the rights of the voters who approved Proposition 8, will prevail in Judge Walker’s courtroom. Most likely, no matter how the judge rules, the Perry case is destined for appeals and a final decision in the United States Supreme Court. But it is during the present trial that the facts in the case will be determined, and it is there that the two sides should be able to present their cases on a level playing field.
Edwin Meese III, a fellow at the Heritage Foundation, was attorney general of the United States during the Reagan administration.
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Supreme Court rejects limits on corporate spending in electoral campaigns
By Robert Barnes
Washington Post Staff Writer
Thursday, January 21, 2010; 11:57 AM
A divided Supreme Court on Thursday swept away decades of legislative efforts to restrict the role of corporations in election campaigns, ruling that severe restrictions on corporate spending are inconsistent with the First Amendment's protection of political speech.
The court split 5 to 4 over the ruling, with its conservative members in the majority.
"When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought," the court said in a decision written by Justice Anthony M. Kennedy. "This is unlawful. The First Amendment confirms the freedom to think for ourselves."
The decision upends the court's precedent that corporations may not use their profits to support or oppose candidates, and it rejects a large portion of the so-called McCain-Feingold campaign finance reform act that the justices had declared constitutional just six years ago. It seems likely to apply to the political role of labor unions as well.
The decision does not address the restriction on direct contributions to candidates, and it upholds disclosure requirements for groups that mount advertising campaigns for and against candidates.
The far-reaching ruling marks a triumph for groups that have fought the McCain-Feingold provisions, formally known as the Bipartisan Campaign Finance Reform Act of 2002.
It also is a telling reminder of how quickly a court can change. Justice Sandra Day O'Connor supported the constitutionality of the act in 2003. But Chief Justice John G. Roberts Jr. and O'Connor's replacement, Justice Samuel A. Alito Jr., have supported each challenge to the law since they have joined the court. They supported Kennedy's opinion, along with Justices Antonin Scalia and Clarence Thomas.
The court's liberal bloc, which included new Justice Sonia Sotomayor in the case, dissented. Justice John Paul Stevens took more than 20 minutes to read a dissent from the bench, a move justices reserve for emphasizing their disagreement.
"A radical change in the law," Stevens called the decision. He said Thursday's majority rejects the decisions of Congress dating from 1907 and "the overwhelming majority of justices who have served on this court."
He said the five-member majority are the only ones who believe corporate money in electoral politics should be increased, rather than controlled. Sotomayor and Justices Ruth Bader Ginsburg and Stephen G. Breyer joined his 90-page dissent.
http://www.washingtonpost.com/wp-dyn/content/article/2010/01/21/AR2010012101724.html?hpid=topnews
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2nd post.
http://reason.com/blog/2010/01/21/antonin-scalia-vs-john-paul-st
Reason Magazine
Antonin Scalia vs. John Paul Stevens
Damon W. Root | January 21, 2010
Counting the majority opinion and the various partial concurrences and dissents, today’s landmark First Amendment decision in Citizens United v. Federal Election Commission clocks in a hefty 183-pages. But one thing that jumped right out while reading the dissent (it’s also a concurrence, in parts) written by Justice John Paul Stevens and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, is Stevens' angry tone. He calls the idea that the First Amendment forbids distinctions between individuals and individuals organized as a corporation “a glittering generality” with no foundation in the law, and later declares, “Under the majority's view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.” Well!
But most significantly, Stevens accuses the majority of making “only a perfunctory attempt to ground its analysis in the principles or understandings of those who drafted and ratified the Amendment.” Stevens even cites the influential legal conservative Judge Robert Bork to impugn the majority’s originalist credentials. That's not something you see everyday.
Justice Antonin Scalia, however, isn’t having it:
I write separately to address JUSTICE STEVENS’ discussion of “Original Understandings”... This section of [Stevens'] dissent purports to show that today’s decision is not supported by the original understanding of the First Amendment. The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment. It never shows why “the freedom of speech” that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form. To be sure, in 1791 (as now) corporations could pursue only the objectives set forth in their charters; but the dissent provides no evidence that their speech in the pursuit of those objectives could be censored....
The [First] Amendment is written in terms of "speech," not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals--and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is "speech" covered by the First Amendment. No one says otherwise.
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It's been a few good days! :-D
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Alan Gura has filed his final brief in McDonald v. Chicago. My quick assessment is that he pulled few punches. Devastating stuff. Full text here:
http://www.chicagoguncase.com/wp-content/uploads/2010/01/08-1521rb.pdf
An excerpt:
Unable to articulate the correct standard for substantive due process incorporation, or interpret the Privileges or Immunities Clause, Respondents offer irrelevant political arguments against applica- tion of the right to keep and bear arms against the States, failing to accept that the decision to secure the right in our Constitution has already been made.
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Gah! legallese, what I do understand of it, he is throwing with boths fist and foot, knee and elbow as opportunity permits.
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ROBERT COSTA
JANUARY 29, 2010 4:00 A.M.
First Amendment 451
How one man irked Obama and won a historic victory for free speech.
David Bossie irritates President Obama. Bossie did not get the usual upturned chin or expletive-riddled call from Rahm Emanuel this week after the Supreme Court ruled in favor of Citizens United, his non-profit corporation, in a landmark free-speech decision. Rather, Obama decided to take a potshot through a sharp-edged rant tucked into the State of the Union.
“With all due deference to separation of powers, last week the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections,” Obama said. “Well, I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.”
Bossie’s take on Obama’s finger-wagging was similar to what Justice Samuel Alito mouthed, and similar to the analysis Bradley A. Smith and Shannen Coffin have presented on the Corner: “Not true.” Foreign corporations, Bossie says, are prohibited from making contributions in connection with American elections, and that wasn’t even at issue in the case. The president’s anger over the Court’s 5–4 decision, he adds, actually reveals something more troubling: Obama doesn’t like it when someone tries to snatch power from the federal government and put it back in the hands of the American people.
“Our argument in the case wasn’t complicated,” says Bossie. “It was about freedom, and it ended up hinging on a very simple question: If the FEC is comfortable banning political films, like Citizens United’s Hillary: The Movie, around election time, would it also be fine with banning political books financed by corporations? The Justice Department’s attorney answered yes, the government did have the power to prohibit the publication of a book. When they admitted that, everything changed.”
“I think that answer sent a chill through the Court,” says Bossie. “It was that moment that was a catalyst for us, and gave us the opportunity to win on much bigger constitutional grounds than we anticipated. It became apparent that the government believed that they could ban anything: movies, books, pamphlets, the Kindle, you name it. It was a shocking revelation.”
Ted Olson, the former solicitor general who represented Citizens United before the Court, says that he’s not surprised at what Bossie has been able to accomplish. “I’ve known Dave for a decade,” he says. “I’ve always admired what he does. When we got together to discuss this case, I knew we could win. He had other attorneys before me, but for this last step, he brought me on. We spent a lot of time looking at the arguments from the court below, and realized after our oral argument in March 2009 that we could argue that precedents could be overturned. That’s when we knew we had traction.”
“President Obama and his party are worried that this decision means that big corporations will dominate politics. They’re wrong,” says Olson. “The Court’s decision was about opening up the political process to individual corporations and small corporations, to create a more favorable balance and open up free speech to everyone.”
So how did Bossie, an unknown outside the Beltway, become the new hero for political speech? It all starts with Bill and Hillary. Before becoming a producer of political films at Citizens United, Bossie was what the Clintons would call a card-carrying member of the vast right-wing conspiracy. He was the chief Whitewater investigator for the House GOP in the 1990s. He also investigated the foreign-fundraising problems in Bill Clinton’s 1996 reelection campaign.
Those experiences, says Ed Gillespie, Bossie’s old friend and former chairman of the Republican National Committee, helped to prepare him for a historic Supreme Court battle.. “Dave pushed this free-speech issue and saw opportunity when very few others did,” says Gillespie. “He understood its significance from the outset, and now he’s changed the political environment.”
Since the big win, Bossie has been assailed by the Left. Not that he cares. He doesn’t apologize for his past investigations into the Clintons, and shrugs off criticism that his motives for suing the FEC were purely political. “This case wasn’t just about me or Citizens United,” he says. “It was about standing up for the principles of our Founding Fathers.” He points to the support he garnered from the American Civil Liberties Union as an example of how this wasn’t about “conservative demagoguery.”
“When I heard the ACLU was supporting us, I had to question myself for a moment,” Bossie laughs. “I mean, wow, I’ve never had their support, ever. Think about this: One of our films was called ACLU: At War With America. To have them agreeing with us, plus the AFL-CIO and the Reporters Committee for the Freedom of the Press — both not exactly bastions of conservatism — was a sign of how powerful our position was. I’m eternally grateful to all them for bringing forward a view of how important this was to groups across the political spectrum.”
“The FEC believed that they have a mandate to tell the American people what they can and cannot do when it comes to an election,” says Bossie. “We’ve always been under the impression that the FEC believes that it’s not necessarily an inherent right for the American people to speak during an election; it’s only by the grace of the FEC. The oral arguments in this case proved that all to be true. As they’ve taken more and more power, which Congress, via John McCain and Russ Feingold, has happily given them, they’ve encroached on the First Amendment..” Writing for the majority, Justice Anthony Kennedy agreed, quoting a previous case that called political speech “indispensible to decision-making in a democracy and this is no less true because the speech comes from a corporation.”
“It’s a huge, huge symbolic win,” says Andrew Breitbart, the founder of BigGovernment.com. “The Left wants to scare people into thinking that more free speech will be harmful for democracy, but just watch, in five years we’ll laugh with contempt at such arguments. Thanks, in part, to Dave’s great work, Americans are becoming hip to how they’ve been muzzled by our politically correct Sharia system. Conservative opinions may be deemed toxic by the mainstream media, but this new ruling stops their ability to curb speech in this country.”
“Dave’s legal work,” adds Breitbart, “is like what I do with my websites: We’re trying to wrest control of media back from the Left, who have brilliantly taken control over the years and dominated our political and cultural narrative.”
With all due deference to President Obama, the floodgates are now open, not for special interests, but for free speech.
— Robert Costa is the William F. Buckley Jr. Fellow at the National Review Institute.
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The Neglected Case of Buchanan v. Warley
Residential segregation as an infringement of liberty and property rights
Erin Miller | Wednesday, February 10th, 2010 12:05 pm
The following is an essay for our Race and the Supreme Court program by David E. Bernstein, professor at George Mason University School of Law and frequent blogger at the Volokh Conspiracy. This post is an excerpt from his book, Rehabilitating Lochner, forthcoming in 2011 from University of Chicago Press.
Buchanan v. Warley is one of the most significant civil rights cases decided before the modern civil rights era. Starting in 1910, many cities in the South, border states, and lower Midwest, responded to a wave of African-American in-migration from rural areas by passing laws mandating residential segregation in housing. More cities were ready to follow suit if the laws survived constitutional challenges. Several southern state supreme courts upheld the laws against constitutional challenges. In 1917, however, the Buchanan Court unanimously invalidated a Louisville residential segregation law as a deprivation of liberty and property without due process of law.
Although some scholars have portrayed Buchanan as only vindicating white people’s right to alienate property, the opinion’s text belies that understanding. The right at issue, according to the Court, was “the civil right of a white man to dispose of his property if he saw fit to do so to a person of color and of a colored person to make such disposition to a white person.” “Colored persons,” Justice Day wrote for the Court, “are citizens of the United States and have the right to purchase property and enjoy and use the same without laws discriminating against them solely on account of color.”
The Court rejected each of Kentucky’s asserted police power rationales for upholding the law. Day dismissed the argument that existing “race hostility” was an appropriate rationale for narrowing the scope of citizens’ constitutional rights. Justice Day added that the legitimate goal of promoting the public peace could not be accomplished “by laws or ordinances which deny rights created or protected by the Federal Constitution.” Nor could the law be justified as promoting the “maintenance of the purity of the races.” The Court noted that the law did not even prohibit African Americans from working in white households, showing that the law’s target was not race-mixing, per se.
Finally, the Court spurned the claim that the law was necessary to prevent the depreciation in the value of property owned by white people when African Americans became their neighbors. Day noted that property owned by “undesirable white neighbors” or “put to disagreeable though lawful uses” could cause similar depreciation.
While Buchanan clearly did not lead to a general rollback of de jure segregation, the decision inhibited state and local governments from passing more pervasive and brutal segregation laws, akin to those enacted in South Africa. Buchanan also did not lead to integration of residential neighborhoods, but it did impede the efforts of urban whites to prevent African Americans from migrating to white neighborhoods and ultimately replacing the white residents. The African-American urban population in the United States almost doubled between 1910 and 1929, and continued to grow in later years. Individual cities had far more dramatic growth in their African-American population. For example, the number of African Americans living in Detroit increased from roughly six thousand in 1910 to approximately one hundred and twenty thousand in 1930.
Whites tried to use restrictive covenants to prevent the in-migration of African Americans, but these covenants generally failed to prevent such in-migration. In some cities, whites lobbied for segregation laws precisely because restrictive covenants had proved ineffective in restricting black settlement. Not only did cities provide African Americans with more economic opportunity, but the migration of blacks to cities, North and South, was a crucial element in the civil rights movement’s ultimate victory. Among other advantages, it enabled African Americans to increase their political power by moving to areas where they could vote.
Buchanan was also important as a matter of legal doctrine, but it has been unjustly neglected by historians and legal scholars because it doesn’t fit the standard narrative of constitutional development in which equalitarian civil rights jurisprudence is said to have developed entirely apart from, and indeed, in opposition to, liberty of contract and property rights. Generations of legal scholars and historians have treated Buchanan as a “property rights case” that rested on “laissez-faire” ideology, of little if any relevance to the later civil rights revolution. Undoubtedly, the fact that Buchanan involved property rights and liberty of contract played an important role in the decision, as it allowed the Court to distinguish Buchanan from Plessy, which involved “mere social rights.”
But focusing myopically on the economic rights element of Buchanan misses the fact that even property rights and liberty of contract were subject to the police power. Plessy had suggested that any “reasonable” segregation law would come within the police power, and the Plessy Court applied a lax–and racism-infused—standard of reasonableness.
In contrast, after noting that property rights are subject to the police power, the Buchanan opinion cited anti-discrimination statutes and court precedents dating back to Reconstruction. The Court for the first time held that discriminatory animus, even when supported by popular opinion and expert opinion backed by contemporary social science evidence, and justified by fear of miscegenation and racial violence, was not a proper police power justification for laws violating recognized individual rights. This was hardly a foregone conclusion.
Pre-Buchanan legal commentary universally argued that residential segregation laws were constitutional, and the Buchanan opinion changed few if any minds. With the exception of a student comment in the Columbia Law Review, all law review commentary was hostile. A Columbia professor even accused the Court of destroying whites’ right to live in a segregated neighborhood.
Despite this outpouring of criticism, Buchanan marked a favorable turning point in the Court’s attitude toward the rights of African Americans. According to one tally, the Supreme Court heard twenty-eight cases involving African Americans and the Fourteenth Amendment between 1868 and 1910. Of these, African Americans lost twenty-two. However, between 1920 and 1943, African Americans won twenty-five of twenty-seven Fourteenth Amendment cases before the Supreme Court.
After the Supreme Court confirmed the constitutionality of general residential zoning in 1926 in Euclid v. Ambler Realty, various southern and border-state jurisdictions once again passed residential segregation ordinances, hoping that Euclid signaled a more sympathetic Court attitude to all types of regulation of property. The Court, however, summarily invalidated these laws in 1927 and 1930. If the NAACP had had the resources and inclination to pursue the matter, Buchanan could have been used to broader effect to combat de jure segregation in the private sector.
Arguably, Buchanan also shows the potential for a racially egalitarian jurisprudence to have emerged in a political environment far closer to America’s libertarian tradition than what had emerged by the 1950s, when the Supreme Court began to protect the rights of African Americans in earnest. Indeed, Buchanan, by rejecting the standard police power arguments used to justify segregation, had the potential to be used as a weapon in school desegregation litigation. This required only that the Court shift its view from segregation in public education as involving a “social right” not implicating the Equal Protection or Due Process Clause, to it infringing an important liberty or property right. And, in fact, the Court issued a Buchanan-like due process opinion in 1954 in Bolling v. Sharpe, invalidating racial segregation in District of Columbia public schools. But that is the subject for another blog post.
http://www.scotusblog.com/2010/02/the-neglected-case-of-buchanan-v-warley/
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That was very interesting.
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Pasting here BBG's post today in the Legal Issues thread-- see there also his second post on the Justice who wrote the Miller decision.
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Using Guns to Protect Liberty
Posted by Ilya Shapiro
Tomorrow the Supreme Court will hear oral argument in McDonald v. Chicago — the Second Amendment case with implications far beyond gun rights. The Court is quite likely to extend the right to keep and bear arms to the states and thereby invalidate the Chicago handgun ban at issue, but the way in which it does so could revolutionize constitutional law.
In response to the oppression of freed slaves and abolitionists in southern and border states after the Civil War, the Fourteenth Amendment’s drafters sought to protect individual rights from infringement by state and local governments. The amendment’s Due Process Clause and Privileges or Immunities Clause provided overlapping but distinct protections for these rights. The Court decided in the 1873 Slaughter-House Cases, however, that the Privileges or Immunities Clause only protected Americans’ rights as national, not state, citizens. This reactionary holding eviscerated the clause, rendering it powerless to protect individual rights from state interference.
McDonald provides the Court an opportunity to overturn the Slaughter-House Cases and finally restore the Privileges or Immunities Clause to its proper role as a check against government intrusion on individual rights. Doing so would secure Americans’ natural rights, such as the freedom of contract and the right to earn an honest living, without enabling judges to invent constitutional rights to health care or welfare payments. For a more detailed discussion of McDonald’s potential implications, and how the Court should rule, see my recent op-ed here.
I will also be participating in several public events this week on McDonald, the Fourteenth Amendment, and firearm regulation. Today at 4:00 p.m., I will be speaking at a Cato policy forum, which will be broadcast live on C-SPAN and which you may watch online here. Tomorrow at 3:30 p.m., I will participate in a post-argument discussion of McDonald at the Georgetown University Law Center, which event is cosponsored by the Federalist Society and the Georgetown Journal of Law and Public Policy (where Josh Blackman and I recently published a lengthy article on the subject). And on Wednesday at noon, I will be participating in a Cato Capitol Hill briefing on McDonald and the future of gun rights at the Rayburn House Office Building, room B-340 (more information here).
http://www.cato-at-liberty.org/2010/03/01/using-guns-to-protect-liberty/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Cato-at-liberty+%28Cato+at+Liberty%29
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Bringing this rather deep discussion over from BBG's post in the legal issues thread:
http://reason.com/archives/2010/03/04/guns-for-all-privileges-and-im
Reason Magazine
Guns for All, Privileges or Immunities for None
The hearings in McDonald v. Chicago promise an unrevolutionary victory—but still an important one
Brian Doherty | March 4, 2010
Justice Antonin Scalia delivered the big laugh line of the hour at Tuesday’s Supreme Court hearings in McDonald v. Chicago. That case’s outcome will decide whether the Second Amendment rights vindicated in 2008’s D.C. v. Heller apply to states and localities. Scalia amused the crowd by asking a question that has perplexed some legal scholars and gun activists both for and against McDonald lawyer Alan Gura’s general goal of applying Second Amendment protections to all levels of American government.
To get the joke, such as it was, you first need the background about what was at stake. The Bill of Rights was originally interpreted to bind only the federal government. The framers of the 14th Amendment intended to change that, and bind the states as well in respecting Americans’ rights. This was in 1868, when recently freed slaves had their rights to work, own property, and bear arms widely abused and unprotected by state and local governments.
The history of the 14th Amendment's passage indicates that a certain part of the amendment was meant to bear the interpretive burden of applying—“incorporating” in the legal lingo—the Bill of Rights (and other restrictions on government power) to the states. That was the Privileges or Immunities Clause: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
Since a controversial 1873 Supreme Court decision in a set of cases regarding a slaughterhouse monopoly in Louisiana, known as the Slaughterhouse Cases, the Privileges or Immunities Clause has been pretty much interpreted out of existence. The Supreme Court has instead used the vaguer and less textually sensible “due process of law" provision of the same amendment to incorporate certain rights against the states. Using that tool, the Court over the past century has already incorporated most of the Bill of Rights on the states, and some unenumerated rights as well. Gura elected to reverse this trend by arguing for incorporation of the Second Amendment on privileges or immunities grounds.
So Scalia asked Gura early in his 20 minutes of argument time on Tuesday: “Mr. Gura, do you think it is at all easier to bring the Second Amendment under the Privileges and Immunities Clause than it is to bring it under our established law of substantive due…process?... Why are you asking us to overrule 150, 140 years of prior law, when—when you can reach your result under substantive due—I mean, you know, unless you are bucking for a—a place on some law school faculty…?”
Scalia, reputedly a constitutional originalist, flashed some ugly colors with that laugh-provoking comment: He’d rather go with the easy precedential flow—even given a substantive due process argument that he openly admits he thinks is wrong but which he’s “acquiesced” to—then vindicate the actual intentions of the framers of a very important constitutional amendment.
Gura undoubtedly went for a daring gambit on privileges or immunities (in addition to, not at the expense of, the more traditionally successful due process argument). He did so, first, because he thought it was the correct argument based on constitutional language and history. But he, and many other legal scholars, was also excited because a revival of privileges or immunities could give courts new power to restrict states and localities from violating other rights much on the minds of the 14th Amendment’s framers.
Gura quoted some of them, from the 1866 Civil Rights Act: “To make and enforce contracts…to inherit, purchase, lease, sell, hold and convey real and personal property.” A properly grounded application of the privileges or immunities clause could help vindicate the sort of economic liberties considered out of fashion and meaningless in the higher courts since the early 20th century days of the Lochner case.
While nothing is certain until the decision (or decisions) come down later in the year, the general consensus is that Gura has at least the same five justices who revived the Second Amendment in Heller prepared to apply it to the states via the Due Process Clause. This includes Scalia, despite his expressed doubts about the validity of due process incorporation in general. Thus, Gura and the McDonald team win.
Gura cast his mission so ambitiously, though, that he may have created an unfortunate public relations problem for his team. His impending victory might be spun as a defeat. There were elements in the gun-rights community, including the National Rifle Association (NRA) (who won argument time for their advocate Paul Clement at the hearings even though McDonald was not their case), who thought Gura reached for too risky a victory for economic and other liberties when he should have kept his eye on the Second Amendment ball. The NRA’s Clement kept it simple, insisting before the court that “Under this court's existing jurisprudence, the case for incorporating the Second Amendment through the Due Process Clause is remarkably straightforward. The Second Amendment, like the First and the Fourth, protects a fundamental preexisting right that is guaranteed to the people” and thus should be incorporated against the states just as those other amendments were.
In his half hour before the justices, Chicago’s counsel James Feldman maintained that, since guns can hurt people, localities’ power to protect public safety should allow them to regulate guns as much as they want. Not wanting to re-argue Heller (unlike Justice Steven Breyer, who is still obsessed with the militia clause as presumptively dominating the purpose of the Second Amendment, contra Heller), Feldman asserted that a fundamental right to self-defense might exist, but that right was not infringed fundamentally by the banning of any specific variety of weapon, as Chicago did with handguns. Scalia wondered why Feldman seemed to think an unwritten right to self-defense existed that states should honor when he didn’t think that the written right to keep and bear arms had to be thusly honored.
The confused and random jumble of issues and concerns that flowed out in the hour at the Court shows that, while using due process may be the easiest way out for lazy justices who don’t want to think freshly or step outside a middle-of-the-road consensus, the inherent vagueness of due process makes actual legal reasoning hard—unnecessarily so, given the clearer set of historical concerns about privileges or immunities that were on the minds of the Republicans who pushed the 14th Amendment in the late 1860s.
The absurdity of legal reasoning unmoored from the historical understanding of liberty rights was apotheosized in Breyer’s reference to a "Madison Chart,” in which we decide on how much judicial respect various rights would be granted by imagining James Madison ranking their importance on a chart. Breyer avers, apparently consulting Madison’s shade, that guns for the militia would be listed high on the chart, high above guns to shoot burglars. (Jokes about the “Madison Chart” ought to be law school staples down the line.)
The various justice's particular and often eccentric concerns further muddied any discernible lines of logic at the hearing. Justice Ruth Bader Ginsburg took a poorly conceived swipe at any originalist understanding of what rights the Privileges or Immunities Clause might guarantee by stressing the claim that women didn’t have the right to own property or have occupations separate from their husbands in 1868. (Meaning they wouldn’t now either if Gura won on privileges or immunities grounds?) Both she and Justice Anthony Kennedy tried to dredge a precise answer from Gura as to exactly what rights were protected by his conception of the clause, which he wouldn’t and couldn’t do. That the Constitution was designed to protect the people’s liberties through limiting government’s power and not listing citizens’ rights is not an idea much at the front of the justices’ minds.
Justice John Paul Stevens made it clear again and again that even if incorporated against the states, a Second Amendment right could and even ought to be restricted to the narrowest version of Heller: commonly used weapons for self-defense in the home. Even Scalia made it clear that he doesn’t think state level restrictions on concealed carry would necessarily be in danger under an incorporated Second Amendment, and both Chief Justice John Roberts and Justice Kennedy made it clear that an incorporated Second Amendment does not mean a Second Amendment whose reach was as wide as the gun rights community might like. Roberts spelled it out like this: The Second Amendment “is still going to be subject to the political process if the Court determines that it is incorporated in the Due Process Clause. All the arguments [Chicago’s lawyer Feldman made] against incorporation it seems to me are arguments you should make in favor of regulation under the Second Amendment. We haven't said anything about what the content of the Second Amendment is beyond what was said in Heller.”
That’s worth remembering as we wait for the decision and its aftermath. In the usual media scrum outside the courtroom as the hearings let out, the Brady Center’s Paul Helmke was OK with losing complete bans on commonly used weapons such as Chicago’s, but insisted most (though he denied many even existed) local gun regulations are sensible public safety measures and would certainly survive future legal challenges even if Gura wins. The NRA’s Paul Clement cagily refused to say what sort of lawsuits the NRA might file challenging other state gun regulations in the event of a McDonald victory.
The future of gun rights, then, is brighter than before, though not as bright as the most tenacious defenders of self-defense rights might like. But what of the future of the Privileges or Immunities Clause? It seems as if the clause arose, goosed by Gura, from a grave that Slaughterhouse had sealed it in, only to promptly have a stake driven through its heart and its head chopped off and then shoved back in to the grave by the decidedly unfriendly approach of the justices. In the pre-hearing debate over whether privileges or immunities had a chance in McDonald, the very fact the court took up Gura’s case as opposed to a simpler due process case from the NRA also up for consideration led some to assume the Court must have wanted a chance to seriously rethink the issue. The evidence from Tuesday morning showed no sign of such interest in privileges or immunities.
However, at a Hill briefing by three privileges or immunities scholars and advocates on Wednesday—Clark Neily of the Institute for Justice, Ilya Shapiro of the Cato Institute, and Timothy Sandefur of the Pacific Legal Foundation—the mood was still defiant, not defeated.
To roughly summarize a set of arguments I heard this week in interviews and at that briefing on the future of privileges or immunities, just as Progressive-era legal doctrinal victories such as “rational review” evolved over generations to overtake the profession, a rising group of younger litigators and legal scholars are united in agreeing that Slaughterhouse was an embarrassment and must go. And scholars and advocates from different sides of the political spectrum, for different reasons, are eager to see privileges or immunities arguments become an active part of the arsenal for courts and lawyers. (Some progressives see in it a stronger chance to cram various welfare rights into the Constitution, though more libertarian fans of the clause think the clearer historical record makes the clause a weaker, not stronger, tool than due process by which to work such legal mischief.)
But no matter what the consensus is, a privileges or immunities victory will eventually have to be won in the Supreme Court, and in my read there is at best one person on the current Court who would vote for it. Justice Clarence Thomas, silent as always in this week’s hearings, has in the past expressed an interest in rethinking privileges or immunities. There’s a strong expectation on the part of some privileges or immunities fans that Thomas will write a concurring opinion uniting in the holding that the Second Amendment is incorporated, but with a separate set of privileges or immunities-based reasoning that could become a rallying flag for future arguments about the clause’s continued value. However, what sort of case might be on the horizon to bring it back before the court is unclear. What seems clear is that at least four justices have to go and be replaced by jurists friendly to the abandoned clause for it to become a meaningful part of American jurisprudence. We will have the privileges or immunities fight with us for a long time to come.
On the night of the hearings, I stepped outside the constitutional debate, and glimpsed the heart of why such high-level abstractions matter—the reason why the Supreme Court was even listening to these arguments. Cases have plaintiffs, and plaintiffs are people. At a reception sponsored by one of the case’s institutional plaintiffs, the Second Amendment Foundation, I met the lead plaintiff, Otis McDonald.
Otis McDonald will be the man—as a plaintiff—who vindicated the rights of every American who doesn’t live in a federal enclave to, at the very least, have adequate means to try to protect their lives, families, and property from violent danger. He’ll go down in the history books, to be sure, this 76-year-old man with a wife and eight kids.
He’s black, which is appropriate for both public relations and for history. It ties the arguments Gura made on McDonald's behalf to why the 14th Amendment exists: to guarantee that people of his color would have the liberties and protections white Americans of the time were supposed to have enjoyed. As Gura declared right at the start of his presentation to the Court, “In 1868, our nation made a promise to the McDonald family that they and their descendants would henceforth be American citizens, and with American citizenship came the guarantee enshrined in our Constitution that no State could make or enforce any law which shall abridge the privileges or immunities of American citizenship.”
Let me tell you something else about Otis McDonald: If you are lucky enough to meet the guy, you’re going to love him. Really. In about a half hour of conversation, both one-on-one and in a small group, the guy was devastatingly charming, in a completely unstudied way. He’s compelling and convincing and real, telling quotidian stories about being late for planes and late-night fishing; and equally so when getting historical and cosmic about the arc of his life and the role he knows he’s playing in his country’s history. One minute laughing and light, the other giving a sincerely tear-jerking account of the pride and gratitude he feels toward everyone else, especially the younger generation, advancing the scholarship and advocacy of his and his fellow Americans’ rights. After that half hour, I was on this guy’s side, just as a fellow human being. And a dream client for a civil rights case like this to boot, as the lawyers present agreed enthusiastically.
That the city of Chicago prevents this man from making the best choice available to him to protect himself and his family from the very real threats that surround him is, simply and with no constitutional history or theory required, wrong. It is a wrong that Gura's arguments on Tuesday will likely right. And while libertarian legal scholars (and some leftist ones) may feel dejected that Gura failed to win the Court over to the wisdom of overturning Slaughterhouse, McDonald, his fellow plaintiffs, and the rest of Chicago will because of his efforts be able to exercise a core human right unmolested. That is great news, news whose importance should not be clouded by the specifics of how it was won.
Senior Editor Brian Doherty is author of This is Burning Man (BenBella), Radicals for Capitalism (PublicAffairs) and Gun Control on Trial (Cato Institute).
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Behind Supreme Court case: Do gun rights protect against tyranny?
The US Supreme Court is considering what could be a landmark decision on individual gun rights. An unspoken argument is that armed citizens would make any usurper think twice before subverting the Constitution.
An anti-gun control flag during the 'Tea Party' at the Arizona State Capitol in Phoenix April 15, 2009. Nearly 10,000 people attended the rally, which was supposed to be in opposition to the Obama economic plan but turned into a general anti-Obama rally.
(Newsom)
By Warren Richey Staff writer
posted March 4, 2010 at 7:44 pm EST
More than 10,000 words were spoken during this week’s historic oral argument over gun rights at the US Supreme Court. But one potentially significant word was never uttered during the hour-long session: tyranny.
Long a focus of debates between gun control advocates and gun rights supporters, the issue was not discussed by lawyers attacking Chicago’s ban on handguns or the lawyer for the city defending local gun regulations. No member of the court mentioned it either. (Monitor analysis of the Chicago case here.)
But the idea is there, just below the surface of what analysts expect to become the high court’s second gun rights landmark decision in as many years.
The basic contention of many gun rights advocates is that the Second Amendment was designed to preserve a large, well-armed, and highly proficient community of gun owners that would make any usurping politician or military commander think twice before attempting to subvert the nation’s constitutional framework.
Founders' intent with Second Amendment
“The Second Amendment … stands as the Founding Fathers’ clear and unmistakable legal statement that an armed citizenry is the bulwark of liberty and provides the fundamental basis for law-abiding Americans to defend themselves, their families, their communities, and their nation against all aggressors, including, ultimately, a tyrannical government,” wrote Daniel Schmutter in a friend of the court brief on behalf Jews for the Preservation of Firearms Ownership.
Mr. Schmutter said the Second Amendment is “the very last line in the defense of American liberty.”
To gun control specialists this argument is deeply troubling. They worry that any armed person with a beef against the government will look to the Second Amendment for encouragement to lock and load and then rain down armed force in the face of what he or she perceives as “tyranny.”
How to define 'tyranny'
“In a world in which ‘tyranny’ means many different things to many different people, it is of paramount importance that the court choose its words carefully when discussing just what is, and what is not, protected by the Second Amendment,” wrote John Schreiber in a friend of the court brief on behalf of the Educational Fund to Stop Gun Violence.
“The Framers plainly did not envision ad hoc groups of armed individuals beyond state control (i.e. a ‘citizens’ militia’) as a constitutional check on tyranny,” Mr. Schreiber wrote. “They saw them as unruly mobs that must be quelled.”
Although it was not discussed during oral argument in the Chicago case, Justice Antonin Scalia addressed the issue briefly in his majority decision in the high court’s 2008 ruling striking down Washington, D.C.’s handgun ban.
“If … the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia [and] the organized militia is the sole institutional beneficiary of the Second Amendment’s guarantee – it does not assure the existence of a ‘citizens’ militia’ as a safeguard against tyranny,” Justice Scalia wrote.
Scalia drew a distinction between government-sanctioned militiamen and a broader “people’s militia,” which he said was the concern of the founding generation.
These sentences have attracted significant interest and speculation from both sides of the gun rights debate.
Schreiber denounces what he calls “insurrectionist” arguments. “At no time has the Second Amendment been understood to protect a personal or private right of insurrection,” he wrote.
Schmutter cited history to support his contention that individual possession of arms is essential to preventing usurpation by the state.
Lessons from history
“During the 20th Century, more than 70 million people, after first being disarmed, were slaughtered by their own governments,” he wrote. “This pattern appeared in Ottoman Turkey (1915-1917), the Soviet Union (1929-1945), Nazi Germany and occupied Europe (1933-1945), Nationalist China (1927-1949), Communist China (1949-1952, 1957-1960, and 1966-1970, Guatemala (1960-1981), Uganda (1971-1979), Cambodia (1975-1979), and Rwanda (1994) just to name a few.”
He added: “The Second Amendment was created as the final barricade against the unthinkable – the day when the rest of our Constitutional safeguards have failed us and we stand exposed to the brutal reality that so many in history have understood only too late.”
The Anti-Defamation League approached the issue from a different perspective. In a friend of the court brief the organization worried that expansive gun rights might feed into what it said was a pervasive culture of guns and violence among extremists in the US.
What role for government control?
“It is imperative that nothing said in the decision of this case threaten the ability of federal, state, and local governments to address the daunting ‘on the ground’ challenges posed by trying to keep guns out of the hands of extremists, terrorists, and hate criminals,” wrote Leonard Niehoff in the Anti-Defamation League’s brief.
In a dissent in a 2003 gun case, Appeals Court Judge Alex Kosinski laid out his views on the Second Amendment and tyranny. “The simple truth – born of experience – is that tyranny thrives best where government need not fear the wrath of an armed people,” he wrote.
“If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars,” Judge Kosinski said.
“The Second Amendment is a doomsday provision,” he added. “One designed for those exceptionally rare circumstances where all other rights have failed – where government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.”
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A 6 part answer:
http://www.youtube.com/watch?v=kSsNdMsXTNU (http://www.youtube.com/watch?v=kSsNdMsXTNU)
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I have no opinion on this, but post it in search of Truth:
Comments?
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A One-Track Senate Recommend
By BARRY FRIEDMAN and ANDREW D. MARTIN
Published: March 9, 2010
THE Senate is badly gummed up. Major policy initiatives — health care reform and financial regulation, to name but two — are stalled in endless negotiations. There’s a big reason for this torpor: the filibuster. But there’s a solution: the filibuster. Don’t be confused. The two aren’t the same.
During the 1960s, the Senate was frozen by lengthy filibusters over civil rights legislation. When, in the mid-’70s, that tactic once again threatened to bring the Senate to a standstill, Robert Byrd, the West Virginia Democrat who was the majority whip, invented a dual-track system. This change in practice allowed the majority leader — with the unanimous consent of the Senate or the approval of the minority leader — to set aside whatever was being debated on the Senate floor and move immediately to another item on the agenda.
The result of tracking? No more marathon debate sessions that shut down the Senate. While one bill is being “filibustered,” business can continue on others.
Today a “filibuster” consists of merely telling the leadership that 41 senators won’t vote for a bill. Worse, any single senator can put a “hold” on anything, indefinitely, for any reason. Not only has it become easier to “filibuster,” but tracking means there are far fewer consequences when the minority party or even one willful member of Congress does so, because the Senate can carry on with other things.
Tracking allowed Republican Senator Richard Shelby of Alabama to stop 70 administration nominees while pursuing earmarks for his home state. It permitted the Senate to conduct other business, like confirming a circuit-court judge, during the recent hold by Jim Bunning, Republican of Kentucky, on the unemployment benefit extension. During the “filibuster” of the Senate health care bill, it cleared the way for months of other votes.
Because dual-tracking is a Senate practice, not a formal rule, the majority leader, Harry Reid, could end tracking at any time. By doing so, the Democrats would transform the filibuster and recover their opportunity to govern effectively.
To pull this off, the Democrats need to take three steps: First, they should announce the order in which they will take up their legislative agenda. Next, they should declare that they will no longer be using dual tracking, so that the Senate will hear just one issue at a time. Finally, Democrats should require those who want to filibuster legislation or appointments to actually do so, by holding the floor, talking the issue to death and bringing everything to a halt.
The new-school filibuster would preserve minority rights in the Senate, while imposing significant costs on obstructionist members, changing the calculus that causes today’s logjam. Stuck on the Senate floor, filibustering senators couldn’t meet with lobbyists or attend campaign fund-raising events; they couldn’t do much of anything, really, until their filibuster ended.
Getting rid of dual-tracking would require the minority to make careful choices about what to obstruct, and when to obstruct it. As Senator Bunning’s unsuccessful solo stand against jobless benefits showed, even Republicans have limited tolerance when it comes to stalling legislation for reasons that lack popular support.
After all, filibusters historically broke when public opinion went against the Senate minority. If the Democratic leadership eliminated the dual-track system, serial, single-issue filibusters would give us an opportunity to see where the country actually stands on issues like health care reform and financial regulation — and where the Senate should stand.
By consistently blocking legislation, Republican have made great political gains over the last year. But in a Senate without dual-tracking, Democrats would be able to simply and repeatedly remind the American people that after endless debate there always comes time for a vote. Win or lose, that is how things work in a democracy.
Barry Friedman, a vice dean at New York University School of Law, is the author of the “The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.” Andrew D. Martin is the chairman of the political science department and a professor of law at Washington University in St. Louis.
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Forwarded to me. The source "worldnetdaily" is not necessarily a reliable one IMHO, but the subject matter is interesting:
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REBELLION IN AMERICA
5th state exempts guns. Is Washington noticing?
'I think they're going to let it ride, hoping some judge throws out case'
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Posted: March 15, 2010
9:11 pm Eastern
By Bob Unruh
© 2010 WorldNetDaily
A fifth state – South Dakota – has decided that guns made, sold and used within its borders no longer are subject to the whims of the federal government through its rule-making arm in the Bureau of Alcohol, Tobacco and Firearms, and two supporters of the growing groundswell say they hope Washington soon will be taking note.
South Dakota Gov. Mike Rounds has signed into law his state's version of a Firearms Freedom Act that first was launched in Montana. It already is law there, in Tennessee, Utah and Wyoming, which took the unusual step of specifying criminal penalties – including both fines and jail time – for federal agents attempting to enforce a federal law on a "personal firearm" in the Cowboy State.
According to a report in the Dakota Voice, the new South Dakota law addresses the "rights of states which have been carelessly trampled by the federal government for decades."
"As the federal government has radically overstepped is constitutional limitations in the past year or so, an explosion of states have begun re-asserting their rights not only with regard to firearms, but also in shielding themselves against government health care, cap and trade global warming taxes, and more," the report said.
(Story continues below)
South Dakota's law specifically notes "any firearm, firearm accessory, or ammunition that is manufactured commercially or privately in South Dakota and that remains within the borders of South Dakota is not subject to federal law or federal regulation, including registration, under the authority of Congress to regulate interstate commerce."
The provisions are nearly a mirror of the original law penned in Montana as well as those adopted in subsequent decisions by Tennessee, Utah and Wyoming.
Gary Marbut of the Montana Shooting Sports Association spearheaded the Montana law and now describes himself as a sort of "godfather" to the national campaign.
He told WND the issue is not only about guns but about states' rights and the constant overreaching by federal agencies and Washington to impose their requirements on in-state activities.
Here are answers to all your questions about guns, ammunition and accessories.
He said he's pleased South Dakota has become No. 5, and noted Alaska, Idaho and Oklahoma all have legislation that is approaching the stage of being presented to a governor to be made into law.
The Firearms Freedom Act website also reveals that other states either with pending legislation or pending plans include Alabama, Arizona, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Missouri, New Hampshire, North Carolina, Ohio, Pennsylvania, South Carolina, Texas, Virginia, Washington and West Virginia.
Map showing 5 states adopting gun exemptions (in green)
Marbut said Washington appears to be reacting the same way it did when states legalized marijuana or rejected the REAL ID national plan: by ignoring it.
"Ultimately we hope there will be lawsuits in other federal circuits, because there are two things that predispose the U.S. Supreme Court to take a case: the national scope of the issue and differing appellate decisions," he told WND.
Michael Boldin of the Tenth Amendment Center said Washington likely is not anxious for a confrontation.
"I think they're going to let it ride, hoping some judge throws out the case," he said today.
"When they really start paying attention is when people actually start following the [state] firearms laws," he said.
WND reported earlier when Wyoming joined the states with self-declared exemptions from federal gun regulation.
But when Democratic Gov. Dave Freudenthal signed his state's bill into law, it included penalties for any agent of the U.S. who "enforces or attempts to enforce" federal gun rules on a "personal firearm" in Wyoming including up to two years in prison and up to $2,000 in fines.
The bellwether likely is to be a lawsuit pending over the Montana law, which was the first to go into effect.
As WND reported, the action was filed by the Second Amendment Foundation and the Montana Shooting Sports Association in U.S. District Court in Missoula, Mont., to validate the principles and terms of the Montana Firearms Freedom Act, which took effect Oct. 3, 2009.
Marbut argues that the federal government was created by the states to serve the states and the people, and it is time for the states to begin drawing boundaries for the federal government and its agencies.
The government's filing in the case demands its dismissal, citing a lacking of "standing" for the plaintiffs and the court's lack of "jurisdiction," as well as the Constitution's Commerce clause. The government filing argues, "The Supreme Court and Ninth Circuit have repeatedly held that even purely intrastate activities, such as those the MFFA purports to exempt from federal law, do affect interstate commerce and thus are within Congress' power to regulate. As a result, even if plaintiffs had standing and jurisdiction existed, plaintiffs' amended complaint fails to state a claim and must be dismissed."
The Commerce Clause, however, can be interpreted to have been amended by the 10th Amendment, which is part of the Bill of Rights, adopted subsequent to the U.S. Constitution, Marbut explains.
His organization said, "The Commerce Clause was amended – by the 10th Amendment. It is a bedrock principle of jurisprudence that for any conflict between provisions of a co-equal body of law, the most recently enacted must be given deference as the most recent expression of the enacting authority. This principle is ancient. Without this principle, laws could not be amended or repealed."
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For example, U.S. courts repeatedly affirmed slavery before it ultimately was rejected.
There's no question that the components of the Bill of Rights have authority: Just look at the First Amendment, Marbut explained.
In an analysis by the Tenth Amendment Center, the gun laws were described as a nullification.
"Laws of the federal government are to be supreme in all matters pursuant to the delegated powers of U.S. Constitution. When D.C. enacts laws outside those powers, state laws trump. And, as Thomas Jefferson would say, when the federal government assumes powers not delegated to it, those acts are 'unauthoritative, void, and of no force' from the outset," Boldin wrote.
"When a state 'nullifies' a federal law, it is proclaiming that the law in question is void and inoperative, or 'non-effective,' within the boundaries of that state; or, in other words, not a law as far as the state is concerned. Implied in such legislation is that the state apparatus will enforce the act against all violations – in order to protect the liberty of the state's citizens," he continued.
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I have been watching this for a while. I think this is one way that government is going more local and the citizenry is trying to make its wishes known outside of the special interest lobby power brokering that is going on inside the beltway. Basically it is saying, "there are parts of the constitution that we will not tolerate you playing fast and lose with".
One of the key parts is where the citizenry holds accountability capabilities.
This is kind of like the talk radio movement during the 80's when the MSM effectively blocked a lot of "conservative" shows/ subject matter from being presented.
There is a certain pressure building due to a sense of a government being out of control, and trying to control access to public forums. That paradigm was recently used by scientists with global warming, and has been getting used for years by an allegedly "free press" pursuing an agenda as well.
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The politics will continue but for now the two branches have spoken on health care, largely forgetting there is a third branch overseeing their work. For certain there will be a challenge to various aspects, but the big one seems to be the individual mandate.
I have no faith in the chances of 5 justices getting this right, considering Kelo etc., but offer my view of how they should rule.
The Tenth Amendment states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
This power is not delegated elsewhere by the framers so it is therefore a) reserved to the states, as in RomneyCare, and b) requires a new amendment to the constitution in order to delegate this authority.
The reason the proponents did not seek a new amendment is because they do not have 2/3 of the house, 2/3 of the senate and 3/4 of the legislatures on their side. Not because they didn't think it was necessary; they even said it was a right, which is something you would want enumerated in the constitution if you could. Same goes for McCain Feingold campaign finance limits. They knew people weren't going to support, at super-majority levels, a bunch of fine print bullsh*t exceptions inserted into the first amendment that otherwise prohibits congress from limiting political speech.
There is no question in my mind that 4 justices will support the political aspect of the legislation and will pretend to find this power as some unenumerated power into their imaginative readinig of a living and breathing document where it does not exist. Roberts, Scalia, Thomas and Alito will see this as it is - a violation of the limits on federal powers(MHO). So the whole bleepin' shooting match regarding the future of our constitutional republic sadly comes down to one spineless 'centrist', Justice Anthony Kennedy, who just 5 years ago concurred on Kelo, taking private homes for other private enterprises in the 'public interest' of allowing a city to collect more property tax on the improvements (that never happened).
Two things have changed since then. 1) two new very sharp and persuasive conservative justices were added to the court in Roberts and Alito, and Kennedy has leaned more conservative since, and 2) Kennedy wrote the corporate campaign finance decision, Citizens United v. Federal Election Commission, that was specifically the target of Obama's public bitch-slap of the court at the State of the Union to a thundering applause on national television.
Wouldn't it be ironic if that one blatant act of arrogance costs this one term President his only signature accomplishment. We will see.
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Hi Doug,
Good to see you back on the board.
Great synopsis of what lies ahead from the Judicial side.
Thanks,ccp
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Health Measure’s Opponents Plan Legal Challenges
By JOHN SCHWARTZ
Published: March 22, 2010
Officials in a dozen states who oppose the health care bill say they hope to block it in court by arguing that requiring people to buy health insurance is an unprecedented intrusion by the federal government into people’s lives — the equivalent of going a step beyond simply regulating automobiles to requiring people to buy a car. They add that the bill would rewrite the relationship between federal and state government, and they plan to make their argument in court as soon as the legislation becomes law.
“We plan to file the moment Obama signs the bill,” Greg Abbott, the Texas attorney general, wrote on his Facebook page.
But constitutional scholars suggest that such cases would likely amount to no more than a speed bump for health care legislation. The reason, they say, is that Congress has framed the mandate as a tax, which it has well-established powers to create. And Congress’s sweeping authority to regulate the nation’s economy, they add, has been clear since the 1930s.
“The attack on this bill,” said Jack M. Balkin, a professor of constitutional law at Yale University, “is not merely an attack on the substance of this particular measure. It’s also a challenge to understandings that come with the New Deal.”
Florida’s attorney general, Bill McCollum, is leading the effort to block the new bill, saying that it “violates the U.S. Constitution and infringes on each state’s sovereignty.”
Mr. McCollum pledged to fight alongside attorneys general from Alabama, Nebraska, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington. Louisiana announced it would join the suit as well, and Virginia, which has passed a law barring government mandates to buy health insurance, has said it will also file suit.
Their arguments in court are likely to focus on the scope of the mandate and the intrusion of the federal government into state affairs, said David B. Rivkin Jr., a lawyer advising Florida who served in the Justice Department under President Ronald Reagan and the first President George Bush.
“This really goes to the heart of the constitutional architecture that the framers have devised” between the government and its citizens, Mr. Rivkin said. He also said that it would represent “a qualitatively unprecedented expansion of federal authority at the expense of the states.”
Whatever people feel about the worthiness of the bill’s goals, “the Constitution does matter,” he added.
Prof. Randy E. Barnett, who teaches constitutional law at Georgetown University Law Center and has been critical of the bill, said a constitutional challenge to the individual requirement to purchase insurance is a “a serious argument that might have success.”
Still, Professor Barnett was careful not to predict that the opponents of the bill would block the legislation completely. He said that even if a court were to strike down the requirement to buy insurance, such a ruling would still be likely to leave other elements of the law in place. Professor Balkin of Yale said the mandate did not run afoul of the Constitution because Congress had carefully structured it as a tax — and taxes are fully within its power.
“People have to pay taxes all the time,” he said. “This is not new.”
Courts generally defer to Congress’s taxation decisions and definitions so long as they constitute a “genuine revenue-raising device,” Professor Balkin said, and so the health insurance mandate is likely to pass muster.
The broad extent of the government’s power to regulate interstate commerce has been recognized since the Roosevelt administration. In fact, courts have backed Congress’s ability to regulate under the Commerce Clause of the Constitution, even when the issues might not seem, at first blush, to even involve interstate commerce at all. That is why Roscoe Filburn, a small farmer in Ohio, had to destroy wheat that exceeded production quotas in a 1942 case, even though he was growing the wheat for his own use and had no intention to sell it. And in 2005, the Supreme Court ruled that Congress could prohibit medical marijuana, despite some state laws that allow it. The people who had filed suit argued that they had not bought the marijuana, but the Supreme Court said the Commerce Clause still applied.
“In both cases, the Supreme Court said the cumulative effect of your attempt not to participate in the market has an effect on markets — and we can regulate it,” Professor Balkin said.
Erwin Chemerinsky, a constitutional scholar and dean of the University of California, Irvine School of Law, said the argument that people should have the right not to buy health care was “rhetorically appealing” because of its paean to personal freedom. But “individual freedom not to purchase health care, I think, has no basis in Constitutional law.”
In fact, Professor Chemerinsky added, “there is no case law, post 1937, that would support an individual’s right not to buy health care if the government wants to mandate it.”
Congress has often taken actions that impinge on personal freedom for a national purpose, he noted, including the Civil Rights Act of 1964, which required hotels and restaurants to serve minorities.
“If the court stays true to its Commerce Clause jurisprudence of the last 15 years,” Professor Chemerinsky said, “I think this will be upheld.”
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CCP, Very much appreciate the kind words. I've kept up reading in my posting absence and always enjoy your insights as well. Crafty's post certainly warns us not to have false optimism, even with the Pravda disclaimer and knowing that there are plenty of 'experts' like the Yale Professor to argue for the other side. Yet in justification he points to rulings where feds stopped a farmer from growing wheat (or pot) on his own land for his own consumption, while I pointed to where they found the constitution could prohibit the city from entering a private home, but not from bulldozing it!
Like referees in the NFL or in hockey, maybe they sometimes know when the have gone too far in one direction and the next call goes the other way, as with campaign finance restrictions versus freedom of speech.
I really hate the idea and actually going in to read this garbage that these lawmakers never read, but it seems to me these mandates are backed with fines or penalties rather than a tax and the language they used is all about mandate, not choice or taxpayer option.
Either way, the NY Times got one part right. They won't strike down the whole deal, only certain provisions, which can be tweaked to conform with the guidelines set by the court, if they still have the votes.
In the meantime I pray for the health of all the justices, 5 in particular.
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Interesting stuff, Doug. I'm hoping that all this fun leads to a revival of a State's Rights effort. Currently there is a lot going on at the state level where both healthcare and second amendment issues are concerned. I'm kinda hoping a lot of this wends its way up through sundry federal courts, finds some measure of unity and common voice, and then either passes SCOTUS muster or so clearly defines just how far we strayed from the framer's intent that folks are motivated to use methods said framers made sure citizens had access to to impose changes on our congressional overlords.
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Who’s Supreme? The Supremacy Clause Smackdown
by Brion McClanahan
When Idaho Governor C.L. “Butch” Otter signed HO391 into law on 17 March 2010, the “national” news media circled the wagons and began another assault on State sovereignty. The bill required the Idaho attorney general to sue the federal government over insurance mandates in the event national healthcare legislation passed. The lead AP reporter on the story, John Miller, quoted constitutional “scholar” David Freeman Engstrom of Stanford Law School as stating that the Idaho law would be irrelevant because of the “supremacy clause” of the United States Constitution.
In his words, “That language is clear that federal law is supreme over state law, so it really doesn’t matter what a state legislature says on this.” Now that Barack Obama has signed healthcare legislation into law, almost a dozen States have filed suit against the federal government, with Idaho in the lead. Battle lines have been drawn. Unfortunately, the question of State sovereignty and the true meaning of the “supremacy clause” may be swallowed up in the ensuing debate.
Engstrom’s opinion is held by a majority of constitutional law “scholars,” but he is far from correct, and Idaho and the thirty seven other States considering similar legislation have a strong case based on the original intent of the powers of the federal government vis-à-vis the States.
The so-called “supremacy clause” of the Constitution, found in Article 6, states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding [emphasis added].”
The key, of course, is the italicized phrase. All laws made in pursuance of the Constitution, or those clearly enumerated in the document, were supreme, State laws notwithstanding. In other words, the federal government was supreme in all items clearly listed in the document.
A quick reading of the Constitution illustrates that national healthcare is not one of the enumerated powers of the federal government, so obviously Engstrom’s blanket and simplistic statement is blatantly incorrect, but his distortion of the supremacy clause goes further.
The inclusion of such a clause in the Constitution was first debated at the Constitutional Convention on 31 May 1787. In Edmund Randolph’s initial proposal, called the Virginia Plan, the “national” legislature had the ability to “legislate in all cases to which the separate states are incompetent…” and “to negative all laws passed by the several states contravening, in the opinion of the national legislature, the Articles of Union….” John Rutledge, Pierce Butler, and Charles Pinckney of South Carolina challenged the word “incompetent” and demanded that Randolph define the term. Butler thought that the delegates “were running into an extreme, in taking away the powers of the states…” through such language.
Randolph replied that he “disclaimed any intention to give indefinite powers to the national legislature, declaring that he was entirely opposed to such an inroad on the state jurisdictions, and that he did not think any considerations whatever could ever change his determination [emphasis added].” James Madison, the author of the Virginia Plan, was not as forthcoming as to his sentiment. Ultimately, Madison preferred a negative over State law and wished the national legislature to be supreme in call cases. But he was not in the majority.
The Convention again broached a federal negative on State law on 8 June 1787. Charles Pinckney, who presented a draft of a constitution shortly after Randolph offered the Virginia Plan, believed a national negative necessary to the security of the Union, and Madison, using imagery from the solar system and equating the sun to the national government, argued that without a national negative, the States “will continually fly out of their proper orbits, and destroy the order and harmony of the political system.” Such symbolism made for a beautiful picture, but it belied reality.
To most of the assembled delegates, the national government was not the center of the political universe and the States retained their sovereignty. Hugh Williamson of North Carolina emphatically stated he “was against giving a power that might restrain the states from regulating their internal police.”
Elbridge Gerry of Massachusetts was against an unlimited negative, and Gunning Bedford of Delaware believed a national negative was simply intended “to strip the small states of their equal right of suffrage.” He asked, “Will not these large states crush the small ones, whenever they stand in the way of their ambitious or interested views?”
When the negative power was put to a vote, seven States voted against it and three for it, with Delaware divided (and Virginia only in the affirmative by one vote). Roger Sherman of Connecticut summarized the sentiment of the majority when he stated he “thought the cases in which the negative ought to be exercised might be defined.” Since the negative did not pass, such a definition was unnecessary.
Thus, the federal government was supreme only in its enumerated powers and it did not have a negative over State law. Supremacy had limits.
By the time the Constitution was debated in the several State ratifying conventions in 1787 and 1788, the “supremacy clause” galvanized opponents of the document. The Constitution, they said, would destroy the States and render them impotent in their internal affairs. The response from proponents of ratification illuminates the true intent of the clause. William Davie, a delegate to the Constitutional Convention from North Carolina and proponent of the Constitution, responded to attacks levied on the “supremacy clause” by stating that:
This Constitution, as to the powers therein granted, is constantly to be the supreme law of the land. Every power ceded by it must be executed without being counteracted by the laws or constitutions of the individual states. Gentlemen should distinguish that it is not the supreme law in the exercise of power not granted. It can be supreme only in cases consistent with the powers specially granted, and not in usurpations [emphasis added].
Davie wasn’t alone in this opinion. Future Supreme Court justice James Iredell of North Carolina argued that, “This clause [the supremacy clause] is supposed to give too much power, when, in fact, it only provides for the execution of those powers which are already given in the foregoing articles….If Congress, under pretence of executing one power, should, in fact, usurp another, they will violate the Constitution [emphasis added].”
Furthermore, in a foreshadowing of nullification, Iredell argued that, “It appears to me merely a general clause, the amount of which is that, when they [Congress] pass an act, if it be in the execution of a power given by the Constitution, it shall be binding on the people, otherwise not [emphasis added]. Other ratifying conventions had similar debates, and proponents of the Constitution continually reassured wavering supporters that the Constitution would only be supreme within its delegated authority.
Most bought their assurances, though to staunch opponents, the Constitution still vested too much power in the central authority. The States would lose their sovereignty, they argued, and as a result, these men demanded an amendment to the Constitution that expressly maintained the sovereignty of the States and placed limits on federal power. Even several moderate supporters of the Constitution embraced this idea.
Ultimately, the three most powerful States in the Union, New York, Massachusetts, and Virginia, demanded that a bill of rights be immediately added to the Constitution; near the top of those recommended amendments on every list, a State sovereignty resolution. These ultimately became the Tenth Amendment to the Constitution, which reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Clearly the intent of this amendment was to mitigate any design the federal government had on enlarging its powers through the “supremacy clause.” If the power was not enumerated in the Constitution and the States were not prohibited by the Constitution from exercising said power, then that power was reserved to the States.
Several other constitutional “scholars” have weighed in on the debate in the last week, and each has invoked the “supremacy clause” to defend their opposition to State action against healthcare. Duke Law Professor Neil Siegel went so far as to suggest that the States are not reading the Tenth Amendment correctly. In perhaps the most outlandish statement of the debate, he also said, “Any talk of nullification bothers me because it’s talk of lawlessness.”
I guess Mr. Siegel has failed to consider that Idaho bill HO391 was passed by a legitimate legislative body elected by the people of the State. That would make it lawful.
mcclanahan-founding-fathersOf course, this debate ultimately boils down to loose interpretation verses strict construction. Thomas Jefferson had the best line on this issue. When asked to read between the lines to “find” implied powers, Jefferson responded that he had done that, and he “found only blank space.”
The original intent of both the “supremacy clause” and the Tenth Amendment indicate that Idaho and the other States challenging Obamacare are justified and correct and that the legal profession is either in the tank for the federal government or has not read either the debates of the Constitutional Convention and/or the State ratifying debates. This should make people like Engstrom and Siegel, rather than legitimate State law directed at unconstitutional authority, irrelevant.
Brion McClanahan holds a Ph.D in American history from the University of South Carolina and is the author of The Politically Incorrect Guide to the Founding Fathers (Regnery, 2009).
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This piece by Thomas Sowell covers my view very nicely. Win or lose it should be good for the Republic to watch new confirmation hearings this summer and have a review of the system we once called limited government.
Good Riddance!
By Thomas Sowell
When Supreme Court Justices retire, there is usually some pious talk about their "service," especially when it has been a long "service." But the careers of all too many of these retiring jurists, including currently retiring Justice John Paul Stevens, have been an enormous disservice to this country.
Justice Stevens was on the High Court for 35 years-- more's the pity, or the disgrace. Justice Stevens voted to sustain racial quotas, created "rights" out of thin air for terrorists, and took away American citizens' rights to their own homes in the infamous "Kelo" decision of 2005.
The Constitution of the United States says that the government must pay "just compensation" for seizing a citizen's private property for "public use." In other words, if the government has to build a reservoir or bridge, and your property is in the way, they can take that property, provided that they pay you its value.
What has happened over the years, however, is that judges have eroded this protection and expanded the government's power-- as they have in other issues. This trend reached its logical extreme in the Supreme Court case of Kelo v. City of New London. This case involved local government officials seizing homes and businesses-- not for "public use" as the Constitution specified, but to turn this private property over to other private parties, to build more upscale facilities that would bring in more tax revenues.
Justice John Paul Stevens wrote the Supreme Court opinion that expanded the Constitution's authorization of seizing private property for "public use" to seizing private property for a "public purpose." And who would define what a "public purpose" is? Basically, those who were doing the seizing. As Justice Stevens put it, the government authorities' assessment of a proper "public purpose" was entitled to "great respect" by the courts.
Let's go back to square one. Just who was this provision of the Constitution supposed to restrict? Answer: government officials. And to whom would Justice Stevens defer: government officials. Why would those who wrote the Constitution waste good ink putting that protection in there, if not to protect citizens from the very government officials to whom Justice Stevens deferred?
John Paul Stevens is a classic example of what has been wrong with too many Republicans' appointments to the Supreme Court. The biggest argument in favor of nominating him was that he could be confirmed by the Senate without a fight.
Democratic presidents appoint judges who will push their political agenda from the federal bench, even if that requires stretching and twisting the Constitution to reach their goals.
Republicans too often appoint judges whose confirmation will not require a big fight with the Democrats. You can always avoid a fight by surrendering, and a whole wing of the Republican party has long ago mastered the art of preemptive surrender.
The net result has been a whole string of Republican Justices of the Supreme Court carrying out the Democrats' agenda, in disregard of the Constitution. John Paul Stevens has been just one.
There may have been some excuse for President Ford's picking such a man, in order to avoid a fight, at a time when he was an unelected President who came into office in the wake of Richard Nixon's resignation in disgrace after Watergate, creating lasting damage to the public's support of the Republicans.
But there was no such excuse for the elder President Bush to appoint David Souter, much less for President Eisenhower, with back-to-back landslide victories at the polls, to inflict William J. Brennan on the country.
In light of these justices' records, and in view of how long justices remain on the court, nominating such people was close to criminal negligence.
If and when the Republicans return to power in Washington, we can only hope that they remember what got them suddenly and unceremoniously dumped out of power the last time. Basically, it was running as Republicans and then governing as if they were Democrats, running up big deficits, with lots of earmarks and interfering with the market.
http://www.realclearpolitics.com/articles/2010/04/13/good_riddance_105145.html
But their most lasting damage to the country has been putting people like John Paul Stevens on the Supreme Court.
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Agreed.
Doug, or other Court followers,
Couldn't it be worse with the replacement?
Obviously the One wants activist judges who interpret the constitution in a way then benefits transfer of power to the "oppressed".
I mean phone one is in office less than two years and he already is appointing two justices. Ginsberg may die soon so there is likely a third. Thank God they were all liberal to start with!
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The Latest ‘Intelligence Gap’
Posted by Julian Sanchez
Stop me if you think you’ve heard this one before. The Washington Post reports that the National Security Agency has halted domestic collection of some type of communications metadata—the details are predictably fuzzy, though I’ve got a guess—in order to allay the concerns of the secret FISA Court that the NSA’s activity might not be technically permissible under the Foreign Intelligence Surveillance Act. Naturally, there’s the requisite quote from the anonymous concerned intel official:
“This is a basic tool we used to have, and it’s now gone,” said one intelligence official familiar with the impasse. “Every day, every week that goes by, there’s just one more week of information that we’re not collecting. You sit there and say, ‘This is unbelievable that we have this gap.’”
I want to take claims like these with due gravity, but I can’t anymore. Because we’ve heard them again and again over the past decade, and they’ve proven to be bogus every time. We were told that the civil liberties restrictions built into pre-9/11 surveillance law kept the FBI from searching “20th hijacker” Zacarias Moussaoui’s laptop—but a bipartisan Senate panel found it wasn’t true. We were told limits on National Security Letters were FBI delaying agents seeking vital records in their investigations—but the delay turned out to have been manufactured by the FBI itself. Most recently, we were warned that the FISA Court had somehow imposed a requirement that a warrant be obtained in order to intercept purely foreign telephone calls that were traveling through U.S. wires. Anyone who understood the FISA law realized that this couldn’t possibly be right—and as Justice Department officials finally admitted under pressure, that wasn’t true either. But this time there’s a really real for serious “intelligence gap” and we’ll all be blown up by scary terrorists any minute if it’s not fixed? Pull the other one.
That said, Republicans are claiming the problem requires a mere “technical fix” to FISA, so we should at least be able to get a rough sense of what the issue is, if Congress actually decides to act. Democrats, by contrast, appear to think NSA can “address the court’s concerns without resorting to legislation.” The word “resort” here seems depressingly apt: They’ll ask for a legislative tweak if there’s absolutely no way to shoehorn what they want to do into the statute through clever lawyering in an ex parte proceeding in front of a highly deferential court, but it’s a last resort.
As for what the problem might be, I can think of a couple of possibilities off the top of my head. A few years back, the FISA pen register provision was amended to effectively build into the legal order for a standard pen register, which records data about calls or e-mails made and received, language mirroring a legal demand for subscriber records known as a 2703(d) order in the criminal context. Law enforcement routinely uses that combination of a 2703(d) plus a pen register to get location tracking information for cell phones. But the evidentiary standard for getting a 2703(d) order is (very) slightly higher than the standard for a pen register alone, and federal law prohibits the use of a pen register alone to gather location data. So there might be a question about whether FISA pen registers alone can be used for cell phone location tracking purposes.
Alternatively, given that Internet communications aren’t just “metadata” and “content” but rather a whole series of layers containing different types of information, there could be a question about just how far down “metadata” goes. This might be especially tricky for protocols where quite a lot of information about the content of the communication—which is supposed to require a full probable cause warrant—can be gleaned from sophisticated analysis of the size and timing of packets in the stream.
These are, of course, blind guesses. What’s disturbing is how much blind guessing the FISA court itself may be doing. The new hiatus, the Post tells us via an anonymous source, came about when the FISA Court “got a little bit more of an understanding”of what the NSA was up to. Their enhanced understanding concerns data that NSA has been getting with the court’s approval for “several years,” according to the Post. And there you have the real “intelligence gap” in modern surveillance: We have a Court going through a pantomime of oversight over thousands of highly technologically sophisticated interception programs, but it may take a few years for them to really understand what they’ve been signing off on.
We’ll understand still less about the rationale for any “technical fix” to FISA that Congress might approve, if they deign to go that route. But we’ll be reassured that it’s very important, necessary to keep us safe from the terrorist hordes, and nothing worth bothering our pretty heads about.
http://www.cato-at-liberty.org/2010/04/19/the-latest-intelligence-gap/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Cato-at-liberty+%28Cato+at+Liberty%29
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The only intelligence gap is the usuall one. A bureaucrat more interested in the rumor by the water cooler than checking his full in box. The FBI had an agent that put the pieces together- the agent was junior and female so it did not go anywhere......... 4 broken buildings later and a retired FBI agent with a couple million taxpayer dolars in the bank and they still haven't solved the real issue.
someone mentioned that agents in the field could have a pretty good idea where their info should go, why not let them directly send it? You need at least 1 more layer there for cut outs, and deniability, but that layer would still have a much better idea than the guy in the comfy office, and get it where it needs to go way faster. I wonder how many inside under the roof jobs that would cut? also it would clear up the accountability issues regarding a government spying on its own citizens "just in Case".
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In the article CCP posted it said:
"Most recently, we were warned that the FISA Court had somehow imposed a requirement that a warrant be obtained in order to intercept purely foreign telephone calls that were traveling through U.S. wires. Anyone who understood the FISA law realized that this couldn’t possibly be right—and as Justice Department officials finally admitted under pressure, that wasn’t true either."
This "traveling through US wires" thing is something I have read and believed for several years. Its been a lie?!? :x :x :x Does anyone have anything more on this?!?
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On the subject of the Constitution being "a living document", this seems pertinent to me:
"Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction." --Thomas Jefferson, letter to Wilson Nicholas, 1803
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Hat tip to BBG
The Insurance Mandate in Peril
First Congress said it was a regulation of commerce. Now it's supposed to be a tax. Neither claim will survive Supreme Court scrutiny.
By RANDY E. BARNETT
A"tell" in poker is a subtle but detectable change in a player's behavior or demeanor that reveals clues about the player's assessment of his hand. Something similar has happened with regard to the insurance mandate at the core of last month's health reform legislation. Congress justified its authority to enact the mandate on the grounds that it is a regulation of commerce. But as this justification came under heavy constitutional fire, the mandate's defenders changed the argument—now claiming constitutional authority under Congress's power to tax.
This switch in constitutional theories is a tell: Defenders of the bill lack confidence in their commerce power theory. The switch also comes too late. When the mandate's constitutionality comes up for review as part of the state attorneys general lawsuit, the Supreme Court will not consider the penalty enforcing the mandate to be a tax because, in the provision that actually defines and imposes the mandate and penalty, Congress did not call it a tax and did not treat it as a tax.
The Patient Protection and Affordable Care Act (aka ObamaCare) includes what it calls an "individual responsibility requirement" that all persons buy health insurance from a private company. Congress justified this mandate under its power to regulate commerce among the several states: "The individual responsibility requirement provided for in this section," the law says, ". . . is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2)." Paragraph (2) then begins: "The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased."
In this way, the statute speciously tries to convert inactivity into the "activity" of making a "decision." By this reasoning, your "decision" not to take a job, not to sell your house, or not to buy a Chevrolet is an "activity that is commercial and economic in nature" that can be mandated by Congress.
It is true that the Supreme Court has interpreted the Commerce Clause broadly enough to reach wholly intrastate economic "activity" that substantially affects interstate commerce. But the Court has never upheld a requirement that individuals who are doing nothing must engage in economic activity by entering into a contractual relationship with a private company. Such a claim of power is literally unprecedented.
Since this Commerce Clause language was first proposed in the Senate last December, Democratic legislators and law professors alike breezily dismissed any constitutional objections as preposterous. After the bill was enacted, critics branded lawsuits by state attorneys general challenging the insurance mandate as frivolous. Yet, unable to produce a single example of Congress using its commerce power this way, the defenders of the personal mandate began to shift grounds.
On March 21, the same day the House approved the Senate version of the legislation, the staff of the Joint Committee on Taxation released a 157-page "technical explanation" of the bill. The word "commerce" appeared nowhere. Instead, the personal mandate is dubbed an "Excise Tax on Individuals Without Essential Health Benefits Coverage." But while the enacted bill does impose excise taxes on "high cost," employer-sponsored insurance plans and "indoor tanning services," the statute never describes the regulatory "penalty" it imposes for violating the mandate as an "excise tax." It is expressly called a "penalty."
This shift won't work. The Supreme Court will not allow staffers and lawyers to change the statutory cards that Congress already dealt when it adopted the Senate language.
In the 1920s, when Congress wanted to prohibit activity that was then deemed to be solely within the police power of states, it tried to penalize the activity using its tax power. In Bailey v. Drexel Furniture (1922) the Supreme Court struck down such a penalty saying, "there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment."
Although the Court has never repudiated this principle, the Court now interprets the commerce power far more broadly. Thus Congress may regulate or prohibit intrastate economic activity directly without invoking its taxation power. Yet precisely because a mandate to engage in economic activity has never been upheld by the Court, the tax power is once again being used to escape constitutional limits on Congress's regulatory power.
Supporters of the mandate cite U.S. v. Kahriger (1953), where the Court upheld a punitive tax on gambling by saying that "nless there are provisions extraneous to any tax need, courts are without authority to limit the exercise of the taxing power." Yet the Court in Kahriger also cited Bailey with approval. The key to understanding Kahriger is the proposition the Court there rejected: "it is said that Congress, under the pretense of exercising its power to tax has attempted to penalize illegal intrastate gambling through the regulatory features of the Act" (emphasis added).
In other words, the Court in Kahriger declined to look behind Congress's assertion that it was exercising its tax power to see whether a measure was really a regulatory penalty. As the Court said in Sonzinsky v. U.S. (1937), "nquiry into the hidden motives which may move Congress to exercise a power constitutionally conferred upon it is beyond the competency of courts." But this principle cuts both ways. Neither will the Court look behind Congress's inadequate assertion of its commerce power to speculate as to whether a measure was "really" a tax. The Court will read the cards as Congress dealt them.
Congress simply did not enact the personal insurance mandate pursuant to its tax powers. To the contrary, the statute expressly says the mandate "regulates activity that is commercial and economic in nature." It never mentions the tax power and none of its eight findings mention raising any revenue with the penalty.
Moreover, while inserting the mandate into the Internal Revenue Code, Congress then expressly severed the penalty from the normal enforcement mechanisms of the tax code. The failure to pay the penalty "shall not be subject to any criminal prosecution or penalty with respect to such failure." Nor shall the IRS "file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section," or "levy on any such property with respect to such failure."
In short, the "penalty" is explicitly justified as a penalty to enforce a regulation of economic activity and not as a tax. There is no authority for the Court to recharacterize a regulation as a tax when doing so is contrary to the express and actual regulatory purpose of Congress.
So defenders of the mandate are making yet another unprecedented claim. Never before has the Court looked behind Congress's unconstitutional assertion of its commerce power to see if a measure could have been justified as a tax. For that matter, never before has a "tax" penalty been used to mandate, rather than discourage or prohibit, economic activity.
Are there now five justices willing to expand the commerce and tax powers of Congress where they have never gone before? Will the Court empower Congress to mandate any activity on the theory that a "decision" not to act somehow affects interstate commerce? Will the Court accept that Congress has the power to mandate any activity so long as it is included in the Internal Revenue Code and the IRS does the enforcing?
Yes, the smart money is always on the Court upholding an act of Congress. But given the hand Congress is now holding, I would not bet the farm.
Mr. Barnett is a professor of constitutional law at Georgetown and the author of "Restoring the Lost Constitution: The Presumption of Liberty" (Princeton, 2005).
http://online.wsj.com/article/SB10001424052748704446704575206502199257916.html
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"They are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please which may be good for the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.... Certainly no such universal power was meant to be given them. It was intended to lace them up straightly within the enumerated powers and those without which, as means, these powers could not be carried into effect." --Thomas Jefferson, Opinion on National Bank, 1791
"The Constitution on which our Union rests, shall be administered by me [as President] according to the safe and honest meaning contemplated by the plain understanding of the people of the United States at the time of its adoption -- a meaning to be found in the explanations of those who advocated, not those who opposed it, and who opposed it merely lest the construction should be applied which they denounced as possible." --Thomas Jefferson, letter to Mesrs. Eddy, Russel, Thurber, Wheaton and Smith, 1801
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"I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution." --James Madison, letter to Henry Lee, 1824
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Elena Kagan as Scholar
Eugene Volokh • May 10, 2010 3:47 pm
As scholar, Elena Kagan worked in two main fields, First Amendment law and (more or less) administrative law. Since the first of those fields is one in which I also work, I decided to reread those articles, and — since some people have raised questions about Kagan’s qualities as a scholar — look more broadly at her scholarship.
1. Let me begin with some objective factors, rather than my own evaluation of Kagan’s scholarship. As this excellent SCOTUSblog post chronicles, Kagan was a working scholar from 1991–95, and then 1999–2003. Between those years, she worked in the Clinton Administration; after those years, she was dean at Harvard Law School, a position that these days leaves its holder with very little time to do serious scholarship. In those eight years, she wrote or cowrote four major articles (linked to here), Presidential Administration (Harv. L. Rev. 2001), Chevron’s Nondelegation Doctrine (Harv. L. Rev. 2001, cowritten with David Barron), Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine (U. Chi. L. Rev. 1996), The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion (Sup. Ct. Rev. 1993). She also wrote three shorter but still substantial pieces, When a Speech Code Is a Speech Code: The Stanford Policy and the Theory of Incidental Restraints (U.C. Davis. L. Rev. 1996), Confirmation Messes, Old and New (U. Chi. L. Rev. 1995), and Regulation of Hate Speech and Pornography After R.A.V. (U. Chi. L. Rev. 1993).
Quantitatively, this is quite good output for eight years as a working scholar. It looks a lot smaller if one looks at her career from 1991 to 2009, when she was appointed Solicitor General — but for the reasons I mentioned above, that’s not the right way to look at it.
Moreover, two of her articles have been judged to be quite important by her colleagues. Presidential Administration has been cited 305 times in law journal articles (according to a search of Westlaw’s JLR database) — an extraordinarily high number of citations for any article, especially one that is less than 10 years old. In fact, a HeinOnline list of all articles with more than 100 citations, run in August 2009, reports that her article was at the time the 6th most-cited law review article of all the articles published since 2000. Many legal scholars, even ones working in the relatively high-citation fields of constitutional law and administrative law, have never and will never write an article that is so much cited.
Chevron’s Nondelegation Doctrine has been cited 75 times, a very high number for an article’s first 10 years; I suspect that only a tiny fraction of one percent of all law review articles are cited at such a pace. Private Speech, Public Purpose has been cited 129 times, likewise a very high number. The Changing Faces of First Amendment Neutrality has been cited only 36 times, but that probably stems in large part from the fact that Supreme Court Review articles from that era are not on Westlaw or Lexis (ridiculous, especially for a faculty-edited journal with the Supreme Court Review’s excellent reputation, and likely stemming from a short-sighted non-licensing decision by the University of Chicago Press).
And while some articles might be heavily cited because they fit with academic ideological fashions, I don’t think these would qualify. As I understand it, Kagan’s administrative law work is consistent with a strong executive model, and the modern intellectual fashion (especially during the Bush era) has been to criticize this model (though the balance of the legal academy on this has not been as lopsided as on some other issues). Likewise, Kagan’s First Amendment scholarship, especially Private Speech, Public Purpose, doesn’t fit with any current fashion among First Amendment scholars; it is not, for instance, distinctively left-wing in its views (the direction in which the constitutional law academy famously trends these days). That it has been heavily cited suggests a substantive judgment about its technical merit and originality, and not just ideological sympathy.
So Kagan, it seems to me, is a successful scholar whose interests have extended beyond scholarship, to government service and to educational institution-building. As a result, she hasn’t written as much as she would have had she only been interested in scholarship (though I suspect that her time in the Clinton Administration helped her produce her administrative law articles). But that reflects the breadth of her interests, and not any intellectual limitations.
2. On then to my own evaluation of the First Amendment articles: I think they’re excellent. I disagree with them in significant ways (this article, for instance, reaches results that differ quite a bit from those suggested by Kagan’s Private Speech, Public Purpose article, see, e.g., PDF pp. 8–9). But I like them a lot.
The articles attack difficult and important problems (Private Speech, Public Purpose, for instance, tries to come up with a broad theory to explain much of free speech law). They seriously but calmly criticize the arguments on both sides, and give both sides credit where credit is due. For instance, I particularly liked Kagan’s treatment of both the Scalia R.A.V. v. City of St. Paul majority and the Stevens concurrence, in her Changing Faces of First Amendment Neutrality article.
As importantly, the articles go behind glib generalizations and formalistic distinctions and deal with the actual reality on the ground, such as the actual likely effects of speech restrictions, and of First Amendment doctrine. (I’m a big believer in formalism in the sense of a preference for rules over standards; but I share many people’s disapproval of formalistic arguments in the fashioning of rules, when those arguments ignore real-world distinctions and effects, and obscure the important policy questions rather than revealing them.) This is legal scholarship as it should be, and as it too rarely is.
3. But how would Elena Kagan likely actually vote in First Amendment cases? It’s hard to tell for sure.
This is partly because her work is in large measure structural and theoretical, rather than focusing on specific constitutional controversies. And it is partly because even her articles that focus on such specific controversies, such as over so-called “hate speech” and pornography, are often more analytical (here’s how we should understand the law, and here are the pluses and minuses of various approaches) than prescriptive (here’s the rule courts should adopt). That’s a fine trait in an article — the analytical components are generally more useful to readers than the prescriptive components. But it does make it hard to predict just how the author would decide cases as a Supreme Court Justice.
Still, here’s my rough sense of the matter:
a. Kagan’s First Amendment work suggests a general acceptance of current free speech law, and an attempt to better understand it and make it more internally consistent rather than to radically change it. I can’t tell for sure whether this flows from a judgment about what’s more useful scholarship, from a largely precedent-respecting temperament, or from agreement with the underlying free speech caselaw. But my guess is that it at least in part reflects a general comfort with the current precedents, and a lack of desire to shift them much.
b. On so-called “hate speech” and pornography, the two First Amendment topics on which Kagan has most explicitly written, I likewise see little interest in moving the law much. Kagan seems to find much that’s sensible about R.A.V. v. City of St. Paul — which held that even within the unprotected category of “fighting words,” the government may not single out words based on their racially, religiously, etc. themed message. And to the extent she’s skeptical about that decision, it sounds like most that she would tolerate is a restriction within this unprotected category of fighting words: I don’t think she would endorse restrictions on allegedly racist or otherwise bigoted speech outside this traditionally unprotected category.
Likewise, while she might tolerate some restrictions on pornography — probably limited to pornography that depicts violent sex — it seems likely that she won’t go much beyond (and likely not at all beyond) restrictions on pornography that already fits within the “obscenity” exception. I am no fan of the obscenity exception, chiefly because of its nearly lawless vagueness. But while it sounds like Kagan probably wouldn’t vote to get rid of the exception, or even go so far as Stevens to argue that obscenity could only be punished through civil enforcement and not the criminal law, it also sounds like Kagan probably wouldn’t materially expand the exception, or create similar exceptions to join it.
c. What about the matters on which Justices on the left wing of the Court have generally taken a relatively speech-restrictive view — campaign finance speech restrictions, and restrictions on religious speech in generally available government subsidy programs (see, e.g., Rosenberger v. University of Virginia)? (I do not include within this category so-called “hate speech” or pornography, even violent and allegedly misogynistic pornography, since the Justices on the left wing of the Court have not generally taken a relatively speech-restrictive view as to these.)
Here, Kagan’s writings are relatively opaque. Some passages in her Private Speech, Public Purpose article suggests that she’s at least sympathetic with Buckley v. Valeo’s holding that restrictions on individual expenditures related to campaigns are unconstitutional. If that’s so, then she would probably take a more speech-protective view than Justices Stevens, Ginsburg, and probably Breyer (we don’t know much about Justice Sotomayor’s views on the question). But it’s hard to be even close to certain of this.
My guess is that the likeliest bet would be to say that a Justice Kagan would be roughly where Justice Ginsburg is — generally pretty speech-protective, but probably with some exceptions in those areas where the liberal Justices on the Court have taken a more speech-restrictive view, chiefly expensive speech related to campaigns and religious speech in generally available government subsidies. Not perfect from my perspective, but not bad, and no worse than Justice Stevens, with whom Justice Ginsburg largely agreed on such matters.
http://volokh.com/2010/05/10/elena-kagan-as-scholar/
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Long, comprehensive examination of a federal trend to criminalize laws and regulations, generally quite obscure ones, without intending to. Piece states that there are currently almost 4500 federal laws that don't require intent to violate, and an estimated 10,000 federal regulations. Link to the full report here:
http://s3.amazonaws.com/thf_media/2010/pdf/WithoutIntent_lo-res.pdf#page=1
Executive summary follows:
For centuries, “guilty mind,” or mens rea, requirements restricted criminal punishment to those who were truly blameworthy and gave individuals fair notice of the law. No person should be convicted of a crime without the government having proved that he acted with a guilty mind—that is, that he intended to violate a law or knew that his conduct was unlawful or sufficiently wrongful so as to put him on notice of possible criminal liability. In a sharp break with this tradition, the recent proliferation of federal criminal laws has produced scores of criminal offenses that lack adequate mens rea requirements and are vague in defining the conduct that they criminalize.
The National Association of Criminal Defense Lawyers and The Heritage Foundation jointly under- took an unprecedented look at the federal legislative process for all studied non-violent criminal offenses introduced in the 109th Congress in 2005 and 2006. This study revealed that offenses with inadequate mens rea requirements are ubiquitous at all stages of the legislative process: Over 57 percent of the of- fenses introduced, and 64 percent of those enacted into law, contained inadequate mens rea requirements, putting the innocent at risk of criminal punishment. Compounding the problem, this study also found consistently poor legislative drafting and broad delegation of Congress’s authority to make criminal law to unaccountable regulators.
According to several scholars and legal researchers, Congress is criminalizing everyday conduct at a reckless pace. This study provides further evidence in support of that finding. Members of the 109th Congress proposed 446 non-violent criminal offenses and Congress enacted 36 of them. These totals do not include the many offenses concerning firearms, possession or trafficking of drugs or pornography, immigration violations, or intentional violence. The sheer number of criminal offenses proposed dem- onstrates why so many of them were poorly drafted and never subjected to adequate deliberation and oversight.
Even more troubling is the study’s finding that many of the criminal offenses Congress is enacting are fundamentally flawed. Not only do a majority of enacted offenses fail to protect the innocent with adequate mens rea requirements, many of them are so vague, far-reaching, and imprecise that few lawyers, much less non-lawyers, could determine what specific conduct they prohibit and punish.
These failings appear to be related to the reckless pace of criminalization. Congress is awash with crim- inal legislation, and the House and Senate Judiciary Committees lack the time and opportunity to review each criminal offense and correct weak mens rea requirements. Over half (52 percent) of the offenses in the study were never referred to either judiciary committee. This is despite these committees’ special expertise in crafting criminal offenses, knowledge of the priorities and resources of federal law enforcement, and express jurisdiction over federal criminal law.
One encouraging finding is that oversight by the House Judiciary Committee does improve the qual- ity of mens rea requirements. Oversight includes marking up a bill or reporting it out of committee for consideration by the full House of Representatives. Based upon this analysis, and upon the specific criminal law jurisdiction and expertise of the House and Senate Judiciary Committees, automatic referral of all bills adding or modifying criminal offenses to these two committees is likely to improve mens rea requirements. More importantly, automatic referral could stem the tide of criminalization by forcing Congress to adopt a measured and prioritized approach to criminal lawmaking. By neglecting the expertise of the judiciary committees, Congress endangers civil liberties.
The study also revealed that Congress frequently delegates its criminal lawmaking authority to other bodies, typically executive branch agencies. Delegation empowers unelected regulators to decide what conduct will be punished criminally, rather than requiring Congress to make that determination itself. This “regulatory criminalization” significantly increases the scope and complexity of federal criminal law, pre- vents systematic congressional oversight of the criminal law, and lacks the public accountability provided by the normal legislative process.
To begin to solve the problems identified in the study, this report offers five specific recommendations for reform. Congress should:
1. Enact default rules of interpretation to ensure that mens rea requirements are adequate to protect against unjust conviction.
Congress should enact statutory law that directs federal courts to grant a criminal defendant the ben- efit of the doubt when Congress has failed to adequately and clearly define the mens rea requirements for criminal offenses and penalties. First, this reform would address the unintentional omission of mens rea terminology by directing federal courts to read a protective, default mens rea requirement into any criminal offense that lacks one. Second, it would direct courts to apply any introductory or blanket mens rea terms in a criminal offense to each element of the offense. In this way, it would improve the mens rea protections throughout federal criminal law, provide needed clarity, force Congress to give careful consideration to mens rea requirements when adding or modifying criminal offenses, and help ensure that fewer individuals are unjustly prosecuted and punished.
2. Codify the common-law rule of lenity, which grants defendants the benefit of doubt when Congress fails to legislate clearly.
The rule of lenity directs a court, when construing an ambiguous criminal law, to resolve the ambiguity in favor of the defendant. In a recent U.S. Supreme Court decision, United States v. Santos, Justice Antonin Scalia explained that this “venerable rule vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed.” Giving the benefit of the doubt to the defendant is consistent with the traditional rules that all defendants are presumed innocent and that the government bears the burden of proving every element of a crime beyond a reasonable doubt. Codifying this venerable common-law rule would serve the rights of all defendants at every stage of the criminal process. This reform would also protect Congress’s lawmaking authority because it would restrict the ability of federal courts to legislate from the bench and reduce the frequency with which those courts must speak because Congress has failed to legislate clearly.
3. Require judiciary committee oversight of every bill that includes criminal offenses or penalties.
Congressional rules should require every bill that would add or modify criminal offenses or penalties to be subject to automatic referral to the relevant judiciary committee. A “sequential” referral requirement would give the House or Senate Judiciary Committee exclusive control over a bill until it reports the bill out or the time limit for its consideration expires, and only at that point could the bill move to another committee. The judiciary committees have special expertise in crafting criminal offenses, knowledge of the priorities and resources of federal law enforcement, and express jurisdiction over federal criminal law. While automatic referral may not produce stronger, more protective mens rea requirements, it should result in clearer, more specific, and higher quality criminal offenses. More importantly, this rule could help stem the tide of criminalization by forcing Congress to adopt a measured and prioritized approach to criminal lawmaking. Further, it would increase congressional accountability for new criminalization and ultimately reduce overcriminalization.
4. Require detailed written justification for and analysis of all new federal criminalization.
This reform would require the federal government to produce a standard public report assessing the purported justification, costs, and benefits of all new criminalization. This report must include:
• A description of the problem that the criminal offense or penalty is intended to redress, includ- ing an account of the perceived gaps in existing law, the wrongful conduct that is currently unpunished or under-punished, and any specific cases or concerns motivating the legislation;
• A direct statement of the express constitutional authority under which the federal government purports to act;
• An analysis of whether the criminal offenses or penalties are consistent with constitutional and prudential considerations of federalism;
• A discussion of any overlap between the conduct to be criminalized and conduct already crimi- nalized by existing federal and state law;
• A comparison of the new law’s penalties with the penalties under existing federal and state laws for comparable conduct;
• A summary of the impact on the federal budget and federal resources, including the judiciary, of enforcing the new offense and penalties to the degree required to solve the problem that the new criminalization purports to address;
• A review of the resources that federal public defenders have available and need in order to adequately defend indigent defendants charged under the new law; and
• An explanation of how the mens rea requirement of each criminal offense should be interpreted and applied to each element of the offense.
This reform would also require Congress to collect information on regulatory criminalization, includ- ing an enumeration of all new criminal offenses and penalties that federal agencies have added to federal regulations, as well as the specific statutory authority supporting these regulations.
Mandatory reporting would increase accountability by requiring the federal government to perform basic analysis of the grounds and justification for all new and modified criminal offenses and penalties.
5. Draft every criminal offense with clarity and precision.
One overarching reform recommendation is a slower, more focused, and deliberative approach to the creation and modification of federal criminal offenses. When drafting criminal offenses, Members of Congress should always:
• Include an adequate mens rea requirement; • Define both the actus reus (guilty act) and the mens rea (guilty mind) of the offense in specific and
unambiguous terms; • Provide a clear statement of whether the mens rea requirement applies to all the elements of the
offense or, if not, which mens rea terms apply to which elements of the offense; and • Avoid delegating criminal lawmaking authority to regulators.
The importance of sound legislative drafting cannot be overstated, for it is the drafting of a criminal offense that frequently determines whether a person acting without intent to violate the law and lacking knowledge that his conduct was unlawful or sufficiently wrongful to put him on notice of possible criminal liability will endure a life-altering prosecution and conviction—and lose his freedom.
It is equally important that Members of Congress resist the temptation to bypass the arduous task of drafting criminal legislation by delegating it to unelected regulators. It is the legislative branch’s responsibil- ity to ensure that no individual is punished if Congress itself did not devote the time and resources neces- sary to clearly and precisely articulate the law giving rise to that punishment.
These five reforms would help ensure that every proposed criminal offense receives the attention due whenever Congress determines how to focus the greatest power government routinely uses against its own citizens: the criminal law. Coupled with increased public awareness and scrutiny of the criminal offenses Congress enacts, these reforms would strengthen the protections against unjust conviction and prevent the dangerous proliferation of federal criminal law. With their most basic liberties at stake, Americans are entitled to no less.
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Three Deadly Weapons
by Timothy Reeves, Oregon Tenth Amendment Center
Any honest reading of the US Constitution gives the impression that the Federal Government is but a lackey to the states. However, when it comes to the way it has been interpreted (incorrectly), there are three clauses which are widely cited as authority to usurp power which belongs elsewhere. In this article, I intend to delve into these and examine how they are true or false. I also intend to highlight the impact that the abuse/use of these clauses has had.
Commerce Clause
Article I Section8 Clause3 of the Constitution states that Congress has the power:
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
This obviously means Congress has the right to regulate how much grain you can grow on your land for your own consumption, right? If you said no it does not (like any other thinking person), you are out of step with the US Supreme Court. This also means that the Congress can force you to purchase health insurance, right? If you said no, you are out of step with the Congress. Surely the Commerce clause means that if a migratory bird (that is hunted in another state) lands on your property, then your property can be seized by the Federal Govt. due to it’s part in interstate commerce right? No?
How about this one; The Federal Government can make gun laws (in direct contravention of the US Constitution) because they are sold over state lines. Obviously the ambiguous verbiage above allows them the authority to ignore the clearly unambiguous verbiage of “shall not be infringed,” right?
Well, there is the Government’s case, now how about the governed? For our case I will focus on some quotes from the founders:
How about that James Madison (the acknowledged father of the Constitution)?
It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.
So… the way I read James Madison here is that the Commerce clause is to keep the states themselves from interfering with commerce (laying tariffs between states, placing restrictions on imports, etc…). It seems that Madison did not want the Federal Government using the Commerce clause to control… well.. everything.
How about Thomas Jefferson? Here is the quote I found from him-
“[The commerce clause] does not extend to the internal regulation of the commerce of a State (that is to say, of the commerce between citizen and citizen) … but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes.”
Hmmm… I think Thomas Jefferson agreed with me. The Commerce clause was intended only to regulate resale.
In fact, the federalist papers used the term “commerce” dozens of times, and they all amounted to the resale of things by merchants and shippers, not one time did it mean growing of agriculture or manufacturing of products for sale. If this context was examined, then this would be the original intent of the Constitution.
Necessary And Proper Clause
Article I Section8 Clause18 states that Congress has the power:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Most school children are taught that this clause was added so that Congress could legislate on issues that would come with new inventions. (My teacher used to say that there were no autos in 1789, so they needed to put this clause in).
Surely this clause means that Congress can make any law they want, right? The problem with this view is that at the end of this clause the Constitution clearly limits the power to making laws necessary to carry out the other laws in the Constitution. In other words, Congress has the power to raise and support a navy, so they have the power to train sailors and commission ships.
These powers are referred to as “incidental powers.” They must be smaller than the power they are used in conjunction with. That is, they may regulate interstate commerce, but may not regulate state governments or laws.
Some examples of “necessary and proper” overreach are:
In 1896, it was ruled that it was legal for the Federal Government to condemn a railroads property to build a national park on the basis that it was necessary to the national defense that the citizens are proud of their country.
Now, I love my country as much as anyone else alive, however, I love the freedoms more than the national park, and this just illustrates what freedoms we do not have. The necessary and proper clause was also used to justify the national bank as necessary to conduct the borrowing and national defense powers of Congress. But lets look at some other input:
Joseph Story (an early Supreme Court Justice) said-
“The plain import of the clause is, that congress shall have all the incidental and instrumental powers, necessary and proper to carry into execution all the express powers. It neither enlarges any power specifically granted; nor is it a grant of any new power to congress. But it is merely a declaration for the removal of all uncertainty, that the means of carrying into execution those, otherwise granted, are included in the grant.”
This about spells it out. The debate for McCullough Vs. Maryland is another source for quotes from Hamilton, Madison and Jefferson.
General Welfare Clause
To promote or to provide for the general welfare, appears in two places in the US Constitution;
First in the preamble, which is just a listing of reasons and gives no powers whatsoever, and then Article I Section8 Clause 1 where it states:
“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”
Does this clause mean that Congress has no limits except what they believe will advance the “general welfare?” Is it just the Supreme Court which determines the general welfare, but the federal government may do anything that the court does not forbid? This is the primary opinion of the elite and the elected. It has been used to justify welfare, Medicare, Social Security, Medicaid, and a host of freedom-destroying legislation. But what did the founders think of this?
Take James Madison-
“If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress… Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.”
or this one:
“With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”
Or this one from Thomas Jefferson
“Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.”
In reality, the “General welfare” clause is a qualifier. Congress may only lay taxes for revenue to be used for the general welfare (as opposed to the special welfare) of the states, for example, they may lay taxes to build postal roads, but they may not lay taxes for building postal roads in New Hampshire, to the detriment of the rest of the states. So, ironically, the way that Congress horse-trades favors for votes in Congress makes most legislation unconstitutional.
There’s More
In addition to these gross misconceptions by the Federal Govt., they add the Supremacy clause, which states:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwith-standing.”
This is pointed to anytime the Federal Government wants to escape criticism from people saying they have exceeded their authority. However, a careful reading of the passage above makes it clear that only laws in pursuance of the US Constitution are supreme. Anytime the Federal Govt. goes beyond the Constitution, citizens are not bound to obey them.
The preceding examples of intentional misconstruction of the Constitution are examples of our Federal Government out of control. They pit the citizens against each other; they take from the hand of labor to give to the hand of not only the needy, but the banks and corporations as well.
They make people perpetual slaves by addicting them to handouts and then denying them the escape from this perpetual misery by over-regulating prospective employers for these people. They have bogged us down in perpetual wars overseas for over a period of 70 years, ignoring the appropriate method of war-making under the Constitution.
They have criminalized multiple forms of commerce, suspended Habeas corpus in absence of properly declared wars, and they have systematically denied due process rights for the people.
Indeed, this list could go on for pages. Most of these transgressions against the natural rights of man are done in the name of the good intentions (saving people from themselves). These need to end, and our country needs to return to the republican form of government it was founded on. Our states need to resume pushing back at the Federal Government and interposing on our behalf.
Tim Reeves is an 11 year veteran of the U.S Navy, and is now an engineer, He grew up in Michigan, but has resided in the Pacific NW since 1992. He’s the State Chapter Coordinator for the Oregon Tenth Amendment Center.
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Freki:
That is a very nice article and very practical for citing. Good find!
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Although this article is thoughtful and well-informed, I think the better point is to throw out these laws altogether as violations of the First Amendment.
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Editor's note: The following article is co-authored by former Federal Election Commissioners Joan Aikens, Lee Ann Elliott, Thomas Josefiak, David Mason, Bradley Smith, Hans A. von Spakovsky, Michael Toner and Darryl R. Wold:
As former commissioners on the Federal Election Commission with almost 75 years of combined experience, we believe that the bill proposed on April 30 by Sen. Chuck Schumer and Rep. Chris Van Hollen to "blunt" the Supreme Court's decision in Citizens United v. FEC is unnecessary, partially duplicative of existing law, and severely burdensome to the right to engage in political speech and advocacy.
Moreover, the Democracy Is Strengthened by Casting Light On Spending in Elections Act, or Disclose Act, abandons the longstanding policy of treating unions and businesses equally, suggesting partisan motives that undermine respect for campaign finance laws.
At least one of us served on the FEC at all times from its inception in 1975 through August 2008. We are well aware of the practical difficulties involved in enforcing the overly complex Federal Election Campaign Act and the problems posed by additional laws that curtail the ability of Americans to participate in the political process.
As we noted in our amicus brief supporting Citizens United, the FEC now has regulations for 33 types of contributions and speech and 71 different types of speakers. Regardless of the abstract merit of the various arguments for and against limits on political contributions and spending, this very complexity raises serious concerns about whether the law can be enforced consistent with the First Amendment.
View Full Image
Martin Kozlowski
.Those regulatory burdens often fall hardest not on large-scale players in the political world but on spontaneous grass-roots movements, upstart, low-budget campaigns, and unwitting volunteers. Violating the law by engaging in forbidden political speech can land you in a federal prison, a very un-American notion. The Disclose Act exacerbates many of these problems and is a blatant attempt by its sponsors to do indirectly, through excessively onerous regulatory requirements, what the Supreme Court told Congress it cannot do directly—restrict political speech.
Perhaps the most striking thing about the Disclose Act is that, while the Supreme Court overturned limits on spending by both corporations and unions, Disclose seeks to reimpose them only on corporations. The FEC must constantly fight to overcome the perception that the law is merely a partisan tool of dominant political interests. Failure to maintain an evenhanded approach towards unions and corporations threatens public confidence in the integrity of the electoral system.
For example, while the Disclose Act prohibits any corporation with a federal contract of $50,000 or more from making independent expenditures or electioneering communications, no such prohibition applies to unions. This $50,000 trigger is so low it would exclude thousands of corporations from engaging in constitutionally protected political speech, the very core of the First Amendment. Yet public employee unions negotiate directly with the government for benefits many times the value of contracts that would trigger the corporate ban.
This prohibition is supposedly needed to address concerns that government contractors might use the political process to steer contracts their way; but unions have exactly the same conflict of interest. So do other recipients of federal funds, such as nonprofit organizations that receive federal grants and earmarks. Yet there is no ban on their independent political expenditures.
Disclose also bans expenditures on political advocacy by American corporations with 20% or more foreign ownership, but there is no such ban on unions—such as the Service Employees International Union, or the International Brotherhood of Electrical Workers—that have large numbers of foreign members and foreign nationals as directors.
Existing law already prohibits foreign nationals, including corporations headquartered or incorporated outside of the U.S., from participating in any U.S. election. Thus Disclose does not ban foreign speech but speech by American citizen shareholders of U.S. companies that have some element of foreign ownership, even when those foreigners have no control over the decisions made by the Americans who run the company.
For example, companies such as Verizon Wireless, a Delaware corporation headquartered in New Jersey with 83,000 U.S. employees and 91 million U.S. customers, would be silenced because of the British Vodafone's minority ownership in the corporation. But competing telecommunications companies could spend money to influence elections or issues being debated in Congress.
The new disclosure requirements are unnecessary, duplicating information already available to the public or providing information of low value at a significant cost in reduced clarity for grass-roots political speech. In many 30-second ads, Disclose would require no fewer than six statements as to who is paying for the ad (the current law already requires one such statement). These disclaimers would take up as much as half of every ad.
The Disclose Act also creates new disclosure requirements for nonprofit advocacy groups that speak out. These groups already have to disclose their sponsorship, but Disclose requires them to go further and provide the government with a membership list. This infringes on the First Amendment rights of private associations recognized by the Supreme Court in NAACP v. Alabama. Groups can avoid this only by creating a new type of political action committee called a "campaign related activities account."
The result of these overly complex and unnecessary provisions is to force nonprofits to choose between two options that have each been found unconstitutional by the Supreme Court: Either disclose their members to the government or restrict their political spending to the campaign related activities account. This runs contrary to the explicit holding in Citizens United that corporations (and unions) may engage in political speech using their general treasuries.
These requirements will be especially burdensome to small businesses and grass-roots organizations, which typically lack the resources for compliance. So the end effect of all of this "enhanced disclosure" will be to ensure that only large corporations, unions and advocacy groups can make political expenditures—the exact opposite of what the sponsors claim to desire.
While the Disclose Act does include an exemption for major media corporations, it does not include websites or the Internet, which means the government can regulate (and potentially censor) political dialogue on the Web. Additionally, the law would require any business or organization making political expenditures to create and maintain an extensive, highly sophisticated website with advanced search features to track its political activities.
As a result, small businesses, grass-roots organizations, and union locals that maintain only basic websites would be discouraged from making any expenditures for political advocacy, because doing so would require them to spend thousands of dollars to upgrade their websites and purchase software to report information that is already readily available to the public from the FEC. Large companies and unions could probably meet this requirement, so once again the bill benefits large, institutional players over small businesses and grass-roots organizations.
The Disclose Act's abandonment of the historical matching treatment of unions and corporations will cause a substantial portion of the public to doubt the law's fairness and impartiality. It makes election law even more complex, more incomprehensible to ordinary voters, and more open to subjective enforcement by those seeking partisan gain.
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http://www.guncite.com/journals/caprec.html
A nice paper on the English Common Law origins of self defense.
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Thank you GM.
@All:
I submit the proposition that there is a Consitutional right of self-defense and that it is found in our 9th Amendment.
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Agreed.
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http://www.davekopel.com/2a/LawRev/The-Human-Right-of-Self-Defense.pdf
Well grounded in many legal systems, not just ours.
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http://www.saf.org/LawReviews/Stearns1.htm
St. Louis University Public Law Review
Gun Control Symposium
vol 18, no. 1, 1999: 13.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
THE HERITAGE OF OUR RIGHT TO BEAR ARMS
REPRESENTATIVE CLIFF STEARNS *
There is an old adage that says you need to look where you have been to learn where you are going. I believe that it is helpful, and sometimes necessary, to review the issues of the day through a political and historical perspective ¾ looking where we have been. Such a linear approach adds context to a discussion, providing an understanding as to why a sound policy in the past may or may not remain so today. This is especially applicable to the topic of this paper.
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This comes recommended to me as a research resource
http://www.constitution.org/
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a treatise penned by former Justice Benjamin Curtis, who dissented from the majority in the Dred Scott case. This work is a discussion of the executive power during war time.
http://books.google.com/books?id=2t0rAAAAIAAJ&printsec=frontcover&dq=benjamin+curtis+executive+power&source=bl&ots=7_wFRRY76R&sig=tDglLviT7OUHMxW7lHS8TC2-9gU&hl=en&ei=5mj-S9bACJbuMsn2wDs&sa=X&oi=book_result&ct=result&resnum=2&ved=0CBsQ6AEwAQ#v=onepage&q&f=false
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http://news.yahoo.com/s/ap/20100601/ap_on_go_su_co/us_supreme_court_miranda_rights
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Finally, a definitive answer to the question of who the best Supreme Court Associate Justice in history is...
http://www.scotusblog.com/2010/06/the-greatest-justice/print/
The Greatest Justice
Posted By Erin Miller On June 1, 2010 @ 2:03 pm In 30 Days of Stevens | Comments Disabled
The following essay, one of the final ones for our John Paul Stevens series, was written by Cliff Sloan [1]. Sloan clerked for Justice Stevens during the 1985 Supreme Court Term, and is now a partner at Skadden, Arps, Slate, Meagher, & Flom.
Justice John Paul Stevens is the greatest Justice in Supreme Court history.
I say this, not as hyperbole, but as a reflection of the record he has compiled in his thirty-four and one-half years on the Court. It is a description warranted by his vast influence over wide swathes of the law, especially those that go to the heart of our constitutional democracy. His contributions to our jurisprudence are profound, and will endure. And I say “greatest,” not just “great,” because even our most storied Justices have not compiled a record that rivals or surpasses Justice Stevens’ record.
At the outset, one clarifying point about the frame of reference. I am excluding Chief Justices from the comparison, for they have powers unavailable to Associate Justices. This principle, of course, takes John Marshall, Earl Warren, and the other Chiefs out of consideration.
Justice Stevens is the greatest Justice for at least four reasons. First, his record of protecting and maintaining the rule of law during the “war on terror” stands unique in Supreme Court annals. He wrote two of the three seminal decisions squarely rejecting the government’s deprivation of legal rights at Guantanamo (Rasul v. Bush and Hamdan v. Rumsfeld), and he was a key member of the five-Justice majority in the third decision of this extraordinary trilogy (Boumediene v. Bush). His galvanizing role in these cases, reaching back to his experience as a law clerk in the 1947 Term, has been well-chronicled [2]. At other times in our nation’s history, when confronted with claims of wartime authority, the Supreme Court has flinched (as in Korematsu). Under Justice Stevens’ leadership and opinions, the Court did not flinch. Instead, it stood powerfully for legal protections, even in a time of great national fear and anxiety. That achievement alone may establish Justice Stevens’ role as the greatest Justice. But it is far from his only accomplishment.
Second, Justice Stevens has fundamentally changed – and strengthened – the Court’s jurisprudence regarding personal freedom. As Jamal Greene has detailed in these pages [3], Justice Stevens has successfully re-framed the Court’s conceptual framework for personal freedom from a general “privacy” right, which is not mentioned explicitly in the Constitution, to a “liberty” right, which is prominently and explicitly protected in the Constitution. This re-orientation is more than a matter of nomenclature or constitutional tidiness. It has shifted the protection of personal freedom to a more secure and durable foundation. Not coincidentally, Justice Stevens’ corresponding impact on the protection of liberty has been enormous. To use a well-known example, Justice Stevens’ dissent in Bowers v. Hardwick, in which he disagreed with the Court’s acceptance of a criminal ban on homosexual conduct and emphasized “the abiding interest in individual liberty,” became the law of the land in Lawrence v. Texas. Justice Kennedy’s opinion for the Court in Lawrence explicitly adopted Justice Stevens’ dissent as the basis for overruling Bowers: “Justice Stevens’ analysis . . . should have been controlling in Bowers and should control here.” The remarkable seventeen-year arc of that dissent, and the more general re-fashioning of the Court’s framework from a privacy foundation to a liberty foundation, are historic triumphs. (Full disclosure: as a law clerk, I worked with Justice Stevens on his Bowers v. Hardwick dissent.)
Third, Justice Stevens has steadfastly sought to enforce the rule of law even when the Presidency hangs in the balance. His memorable dissent in Bush v. Gore excoriated the Court for failing to respect the orderly process of the Florida courts. In exactly the same vein, just a few years earlier, his often-maligned and misunderstood opinion in Clinton v. Jones stressed the orderly process of the federal courts, and rejected President Clinton’s claim that the Paula Jones lawsuit should be deferred until the expiration of his term. No other Justice has a comparable record of leadership in vigorously enforcing the rule of law against Presidents in both parties.
Fourth, Justice Stevens has powerfully re-shaped the law in an astonishing range of areas. Several examples tell the tale. His decision in Chevron v. NRDC is, quite simply, the foundation of modern administrative law. His landmark opinion on free speech and the internet, Reno v. ACLU, is justly known as “the magna carta of cyberspace.” His 1984 decision in Sony v. Universal City Studios, holding that sale of the videocassette recorder did not constitute copyright infringement, unleashed an era of technological innovation. His 2005 decision in Massachusetts v. EPA, ruling that the EPA could regulate greenhouse gases and that Massachusetts could sue the EPA for failing to do so, is the most important environmental decision in a generation. His opinion in Gonzales v. Raich, upholding Congress’s power to ban state authorization for the medicinal use of marijuana, is a seminal explication of Congress’s powers under the Commerce Clause. Justice Stevens’ opinions often have been a beacon for state courts, as Rory Little has explained [4] in the context of prosecutorial misconduct. On virtually every legal issue, Justice Stevens’ contribution has been enormous and far-reaching.
The case for Justice Stevens as a great Justice thus seems to me overwhelming. But the very greatest? Recognizing inevitable subjectivity in the evaluation, I think that a comparison of Justice Stevens’ record with the record of other contenders for the honor establishes Justice Stevens’ pre-eminence.
To my mind, five other Justices plausibly could be considered for the “greatest” laurel: Brandeis, Holmes, Brennan, Story, and the first Justice Harlan. Although all five are great Justices, they fall short of Justice Stevens in their accomplishments and their impact on the Court.
Without a doubt, Louis Brandeis was a giant in the law. For the purpose of this comparison, it is necessary to consider only his record as a Justice, and not to include his substantial additional contributions as the “People’s Lawyer” before he joined the Court. Brandeis’ record on the Court is dazzling and impressive. He was a powerful voice for vigorous First Amendment protections in the years following World War I; he stood strongly for deference to federal and state legislation at the height of the Court’s Lochner era (as in his famous deference to states as laboratories of experimentation in his New State Ice Co. v. Liebmann dissent); and he laid the groundwork for modern Fourth Amendment jurisprudence (in his Olmstead v. United States dissent, later embraced by the Court in Katz v. United States). This is unquestionably a formidable legacy. But, even giving Brandeis’ record its due, it does not match Justice Stevens’. Brandeis, for example, has no success comparable to Justice Stevens’ in leading the Court to enforce the rule of law in time of war. Nor do his opinions dominate in as many areas of the law as Justice Stevens’ opinions.
With his pithy aphorisms and confident turn of mind, the iconic Oliver Wendell Holmes is the most quotable Justice. But that does not make him the greatest. His record in opposing the Court’s Lochner jurisprudence, including his famous dissent in Lochner itself (“the Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics”) is significant and enduring. So too are his contributions to modern First Amendment doctrine (even while recognizing that they seem to have resulted, at least to some degree, from Brandeis’ influence after he joined the Court). But, again, Holmes’ role in leaving an actual body of law and doctrine does not rival or exceed Justice Stevens’. Moreover, it must be recognized that Justice Holmes, in upholding forced sterilization in Buck v. Bell, wrote one of the most noxious opinions in the Court’s history. (Holmes: “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. . . .Three generations of imbeciles are enough.”). It cannot be excused by saying that he was a product of his time. Greatness in a Justice lies in transcending the mistaken pressures of presumed exigencies, as Justice Holmes did on other occasions. Holmes’ Buck v. Bell opinion is an indelible blot on his record.
The jovial architect of the Warren Court, William J. Brennan, certainly left a far-reaching legacy. His opinions for the Court in areas such as the First Amendment (New York Times v. Sullivan), the right to vote (Baker v. Carr), congressional power (Katzenbach v. Morgan), and due process protections for recipients of government benefits (Goldberg v. Kelly) comprise an exceptional contribution. But, impressive as his opinions are in these and other areas, Justice Brennan’s glittering record also has its limits. After the Warren Court, and particularly in his last decade on the Court, he sometimes was marginalized (even while managing occasionally to cobble together majorities). Indeed, according to Joan Biskupic’s biography of Justice Sandra Day O’Connor, Brennan quickly alienated Justice O’Connor with intemperate attacks and a differing style and approach. Additionally, Brennan’s dominant judicial philosophy perhaps can be viewed as “five-ism” (in light of his famous statement that “you can do anything around here with five votes”). It is a philosophy less durable than Justice Stevens’ record as the embodiment of the “rule of law” Justice — enforcing the rule of law even-handedly in time of war, against Presidents of both parties, and in a wide variety of contexts.
Joseph Story was one of our most brilliant Justices. His three-volume Commentaries on the Constitution was the premier constitutional treatise of the nineteenth century. Story’s output for the Court, however, was relatively sparse, although it did include his opinions in Martin v. Hunter’s Lessee and the Amistad case. This relative paucity of major opinions was due in large part to the fact that Story served on the Marshall Court for most of his career, and John Marshall wrote almost all of the momentous opinions himself. Some observers have concluded that Story had a significant impact on Marshall’s opinions. But Story’s own opinions do not establish a compelling claim to the “greatest Justice” mantle.
Finally, the first Justice Harlan leaves an impressive record, if for no other reason than that he was the lone dissenter in Plessy v. Ferguson. Harlan had other powerful dissents as well, such as in The Civil Rights Cases and in Lochner. But he does not leave a body of work that compares to Justice Stevens’ record.
John Paul Stevens will leave the Court as the second oldest Justice to serve and as either the second or third longest-serving Justice (depending on when the Court rises this Term). Far more important than either of these distinctions, however, is that he will leave the Court as its greatest Associate Justice.
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"Justice Stevens has fundamentally changed – and strengthened – the Court’s jurisprudence regarding personal freedom."
What part of LIVE IN ONE'S OWN HOME is not a personal freedom?
Justice Stevens wrote the opinion Kelo v. New London that takes a situation where the constitution explicitly prohibits the government from entry, search or seizure and gives them the right to bulldoze it and gift the property title to a new, more affluent owner.
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause..." - 4th amendment to the U.S. constitution.
In the war on terror example Stevens sought to tie the hands of the Commander in Chief in a time of war and national emergency and in a situation where no prisoners were injured and culturally sensitive meals were ordered by inmates off of a menu.
In Bush v. Gore, the majority correctly noted that the U.S. Constitution gave the authority in question specifically to the "State Legislature" of Florida, not to the state in general and not to the Florida court to strike down or make new law where they may have a better idea or believe the Legislature to have erred. Stevens dissented.
"His 2005 decision in Massachusetts v. EPA, ruling that the EPA could regulate greenhouse gases and that Massachusetts could sue the EPA for failing to do so, is the most important environmental decision in a generation"
Yes, the federal government gained a new means to stop manufacturing, limit unnecessary drives to visit Grandma and keep a watchful government eye over exhaling.
For Justice Stevens, I agree with the two word title of the following piece: Good Riddance!
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Good Riddance!
By Thomas Sowell April 13, 2010 http://www.realclearpolitics.com/articles/2010/04/13/good_riddance_105145.html
When Supreme Court Justices retire, there is usually some pious talk about their "service," especially when it has been a long "service." But the careers of all too many of these retiring jurists, including currently retiring Justice John Paul Stevens, have been an enormous disservice to this country.
Justice Stevens was on the High Court for 35 years-- more's the pity, or the disgrace. Justice Stevens voted to sustain racial quotas, created "rights" out of thin air for terrorists, and took away American citizens' rights to their own homes in the infamous "Kelo" decision of 2005.
The Constitution of the United States says that the government must pay "just compensation" for seizing a citizen's private property for "public use." In other words, if the government has to build a reservoir or bridge, and your property is in the way, they can take that property, provided that they pay you its value.
What has happened over the years, however, is that judges have eroded this protection and expanded the government's power-- as they have in other issues. This trend reached its logical extreme in the Supreme Court case of Kelo v. City of New London. This case involved local government officials seizing homes and businesses-- not for "public use" as the Constitution specified, but to turn this private property over to other private parties, to build more upscale facilities that would bring in more tax revenues.
Justice John Paul Stevens wrote the Supreme Court opinion that expanded the Constitution's authorization of seizing private property for "public use" to seizing private property for a "public purpose." And who would define what a "public purpose" is? Basically, those who were doing the seizing. As Justice Stevens put it, the government authorities' assessment of a proper "public purpose" was entitled to "great respect" by the courts.
Let's go back to square one. Just who was this provision of the Constitution supposed to restrict? Answer: government officials. And to whom would Justice Stevens defer: government officials. Why would those who wrote the Constitution waste good ink putting that protection in there, if not to protect citizens from the very government officials to whom Justice Stevens deferred?
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"Justice Stevens has fundamentally changed – and strengthened – the Court’s jurisprudence regarding personal freedom."
What part of LIVE IN ONE'S OWN HOME is not a personal freedom?
Justice Stevens wrote the opinion Kelo v. New London that takes a situation where the constitution explicitly prohibits the government from entry, search or seizure and gives them the right to bulldoze it and gift the property title to a new, more affluent owner.
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause..." - 4th amendment to the U.S. constitution.
In the war on terror example Stevens sought to tie the hands of the Commander in Chief in a time of war and national emergency and in a situation where no prisoners were injured and culturally sensitive meals were ordered by inmates off of a menu.
In Bush v. Gore, the majority correctly noted that the U.S. Constitution gave the authority in question specifically to the "State Legislature" of Florida, not to the state in general and not to the Florida court to strike down or make new law where they may have a better idea or believe the Legislature to have erred. Stevens dissented.
"His 2005 decision in Massachusetts v. EPA, ruling that the EPA could regulate greenhouse gases and that Massachusetts could sue the EPA for failing to do so, is the most important environmental decision in a generation"
Yes, the federal government gained a new means to stop manufacturing, limit unnecessary drives to visit Grandma and keep a watchful government eye over exhaling.
For Justice Stevens, I agree with the two word title of the following piece: Good Riddance!
DougMacG,
My comment was meant to be tongue in cheek. My apologies for not making that clear. I do not think, however, the JPS is due as much ire as Sowell sends his way. Kelo was wrongly decided, in my opinion, but the matter was largely addressed at the state level. Moreover, the issue at hand was the Fifth Amendment's taking clause, not the Fourth Amendment as you suggest. (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=04-108).
The Bill of Rights exists, as you and Sowell correctly note, as a check on the government. A speedy trial is among those rights, and since the Framers had just come out of a war, I feel prety confident they knew what they were doing by taking steps to ensure that right.
The thing that always struck me as odd with Bush v. Gore is that the justices seemed to switch arguments. The liberals became state rights advocates and the conservatives were concerned about the individual right to vote. Of course, the Constitution also sends the outcome of the election, in the event that no one wins a majority of the electoral votes, to the House.
Thank you for your reply. I liked your discussion.
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"The thing that always struck me as odd with Bush v. Gore is that the justices seemed to switch arguments. The liberals became state rights advocates and the conservatives were concerned about the individual right to vote."
My Constitutional law prof at Columbia was Ruth Bader Gingsberg and I will vouch for this. I remember disagreeing with her over National League of Cities v. Usery. Bush v. Gore was the first time in her life she ever gave a rat's tail about States' Rights especially with regard to voting rights!
I followed Bush v. Gore QUITE closely. I read the statute in question. I watched the oral arguments in front of the Fl Supreme Court. I read serious legal analysis. In my opinion, the greatest lack of intellectual integrity was shown by the FL Supremes and IMO the case was decided correctly on the merits by the US Supremes.
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Thanks Crafty for followup on Bush v. Gore. Thanks and welcome to bigdog!
"My comment was meant to be tongue in cheek... Kelo was wrongly decided..."
Whew! I'm usually on the other side of that with people not getting my humor. 5 Justices and plenty of other people think the Kelo decision is okay, so that view would be interesting to debate as well. I hope my strong reaction came across as civil. Kelo is personal for me. I have my life savings invested in property and have had property taken under the same circumstances by the City of Minneapolis. My current home of 24 years is extremely vulnerable to the Kelo rule as well. Don't be fooled by the 5th amendment: "...nor shall private property be taken for public use, without just compensation". If they were willing to pay market price where buyers and sellers come together voluntarily, they wouldn't have to 'take' it.
"the issue at hand was the Fifth Amendment's taking clause, not the Fourth Amendment as you suggest"
You are correct on the first part, the issue was the takings portion of the 5th. I am just saying that the restrictions in the 4th on the limits of even entering the property make the stretched interpretation of the 5th, going from public use to private use, absurd.
Sowell's central point rings true to me, that public use as the justification does not round down to calling it a public purpose if the city council decides to have someone other than you build for private use on your legally purchased site. And that having the municipality determine the worthiness of the purpose defeats the purpose of limiting their power. To me the private use takings mock the meaning of the whole constitution and the process of interpreting it. You put it nicely: "wrongly decided". An understatement I think, but those too are strong words. Too many wrong decisions about limits of government power and those limits as we knew them become mere memories IMHO.
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Folks:
I am delighted to have Big Dog here with us. Agree or disagree I think we will find him to be a gracious, thoughtful and well-informed member of our conversations.
TAC!
Marc
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Thanks Crafty for followup on Bush v. Gore. Thanks and welcome to bigdog!
"My comment was meant to be tongue in cheek... Kelo was wrongly decided..."
Whew! I'm usually on the other side of that with people not getting my humor. 5 Justices and plenty of other people think the Kelo decision is okay, so that view would be interesting to debate as well. I hope my strong reaction came across as civil. Kelo is personal for me. I have my life savings invested in property and have had property taken under the same circumstances by the City of Minneapolis. My current home of 24 years is extremely vulnerable to the Kelo rule as well. Don't be fooled by the 5th amendment: "...nor shall private property be taken for public use, without just compensation". If they were willing to pay market price where buyers and sellers come together voluntarily, they wouldn't have to 'take' it.
Thank you for the welcome, DogMacG. (And thank you, Guro Crafty, for the nice introduction.) I find Kelo interesting on many levels, not the least of which is the takings clause was the section of the BoR incorporated to the states. Talk about stepping away from history!
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Fascinating discussion in the Immigration thread on P&R at the bottom of
http://dogbrothers.com/phpBB2/index.php?topic=1080.200
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The Liberal Mythology of an “Activist” Court: Citizens United and Ledbetter
Published on June 15, 2010 by Robert Alt and Hans von Spakovsky
Abstract: Liberals are currently engaged in a concerted effort to redefine judicial activism. Rather than accepting the true definition of judicial activism—when a judge applies his or her own policy preferences to uphold a statute or other government action which is clearly forbidden by the Constitution—liberals now apply the term anytime a statute is struck down or when a court delivers an unfavorable decision. This new tactic is on full display in the Left’s response to two major Supreme Court cases: Citizens United v. FEC and Ledbetter v. Goodyear Tire & Rubber Co. Yet, the facts of these cases and an examination of the legal analysis applied by the justices in their majority opinions show that there is no merit to any of these claims. Such cynical and derisive attacks are unfair to the justices who participated in these decisions and injure the public’s faith and confidence in the judicial system.
Judicial activism—real judicial activism—occurs when judges write subjective policy preferences into their legal decisions rather than apply the Constitution according to its original meaning or statutory law based on its plain text. Judicial activism may be either liberal or conservative; it is not a function of outcomes, but one of interpretation. Judicial activism does not necessarily involve striking down laws, but may occur when a judge applies his or her own policy preferences to uphold a statute or other government action which is clearly forbidden by the Constitution.
Dissatisfied with this accepted definition, liberals have engaged in a concerted effort to redefine judicial activism downward. Under one such formulation, judicial activism occurs anytime that a statute is struck down.[1] In another popular version, judicial activism is all but meaningless—a term of derision that means little more than “I don’t like the policy outcome of this decision.” Both definitions of judicial activism are incorrect, and both are on full display in the debate over two recent Supreme Court decisions: Citizens United v. FEC and Ledbetter v. Goodyear Tire & Rubber Co.[2] According to liberal critics, the Citizens United decision is “the logical expression of an activist pro-corporatist jurisprudence” and Ledbetter was part of a “campaign to restrict, rewrite, and squash anti-discrimination law.”[3] Liberal activists have labeled a majority of the justices on the Roberts Court as activists with a “rightward, pro-Big Business tilt” who have “disregarded precedents and long-held principles” in order to decide cases “in favor of large corporations.”[4]
Nor is such criticism limited to the media: Senator Arlen Specter (D–PA) launched a broadside against Chief Justice Roberts and Justice Alito on the floor of the Senate, unfairly and illegitimately portraying them as having “cavalierly set aside” the assurances they gave in their confirmation hearings of “fidelity to the law” and the principle of stare decisis in the Citizens United decision.[5] Specter’s statement demonstrates ignorance of the long line of precedents overturning bans on independent expenditures and little comprehension of the Supreme Court’s duty to enforce the Constitution and prevent Congress from abrogating the liberties of citizens through legislation. The Senator seems to believe that the Court should routinely rubber stamp whatever legislation Congress passes as long as it has had “extensive congressional hearings”—as if that justifies taking away fundamental rights like free speech that are guaranteed by the First Amendment.
Contrary to the cacophony of liberal criticism, the majority in both cases followed the original meaning of the Constitution or the applicable statute and did not engage in judicial activism. Indeed, to have ruled otherwise in these cases would have required the justices to ignore the language of congressional statutes and the original meaning of the First Amendment, and would have further ruptured a long line of precedent. Liberals, however, would have the Court do all these things in the name of their desired policy outcomes—actions that would constitute the very definition of judicial activism.
Citizens United
In Citizens United v. FEC, the Supreme Court threw out the federal ban on independent political expenditures by corporations and unions because, by effectively limiting speech, such a ban violates the First Amendment. Liberal activists and the mainstream media were swift to attack the decision as bad policy. For example, one article about the case decries the fact that it has “opened the floodgates of unlimited corporate spending in federal elections.”[6] Another discusses the terrible consequences of spending in elections by “the pharmaceutical companies, the insurance companies, Big Oil, or what President Eisenhower called the ‘military-industrial complex.’”[7]
But these policy assessments are quite skewed. First, one would never know from reading these liberal critiques that the Court’s decision applied equally to labor unions as well as corporations—a key omission which distorts the scope of the decision and the lack of even incidental favoritism for groups which could be characterized as favoring any particular political party. Perhaps relying on this mischaracterization and the public’s lack of knowledge about the applicability of Citizens United to unions, liberals in Congress have proposed legislation in the form of the so-called DISCLOSE Act,[8] which purports to “correct” Citizens United by imposing significant new restrictions on corporations, while exempting unions from many of the act’s more onerous, speech-restrictive requirements.[9]
Second, the depiction of multinational or “military industrial complex” corporations belies the actual facts of the case, and the genuine diversity of corporations whose free speech rights the Court vindicated. Just take the named party, Citizens United, a small, issue-oriented organization that will never be mistaken for, say, BP. Citizens United has an annual budget of only $12 million and most of its funds are donations from individuals.[10] It is a grass roots advocacy organization dedicated to reasserting “the traditional American values of limited government, freedom of enterprise, strong families, and national sovereignty and security.” The organization’s objective is “to restore the founding fathers’ vision of a free nation, guided by the honesty, common sense, and good will of its citizens.”[11]
By characterizing corporations exclusively as for-profit organizations, detractors fail to recognize that Americans tend to influence the political process by joining together with other like-minded individuals—something that the First Amendment, through its protection of associational rights, protects. Many times, these groups of like-minded people adopt corporate forms to take advantage of limited liability or tax advantages. Even the archetype of modern grassroots movements—the tea partiers—have adopted, through organizations like Tea Party Patriots, non-profit corporate operating structures. The fact that individuals who seek to influence the political process take a corporate form for the purposes of limited liability should not affect their ability to speak on issues of public concern. Indeed, the First Amendment does not permit government to restrict speech rights in exchange for adopting a corporate form. Were government able to do so, it could then restrict political speech of news agencies, which are almost universally corporations.
Leaving aside the misguided policy arguments made by opponents, the more serious criticism of the decision comes from those who claim that the five justices in the majority[12] were engaging in judicial activism. Specifically, these critics claim Citizens United is activist because the Court declared a federal statute unconstitutional and overturned prior precedent, Austin v. Michigan State Chamber of Commerce,[13] which had upheld a state ban on independent expenditures by a nonprofit trade association, and part of McConnell v. FEC,[14] which had upheld the “electioneering communications” provision of the Bipartisan Campaign Reform Act (a provision expanding the independent expenditure ban).
However, those criticisms ignore the fact that the Austin decision on independent expenditures and the part of the McConnell decision on electioneering communications were outliers in the Court’s First Amendment jurisprudence. The majority’s actions in Citizens United did not constitute judicial activism, but rather upheld basic First Amendment protections against unlawful encroachments by Congress. It is not judicial activism when a judge overturns two relatively recent decisions that were wrongly decided and that are in conflict with a long line of other precedents—particularly if the decision corrects constitutional errors. If this were not true, then the same critics of the Citizens United decision must believe that Plessy v. Ferguson[15] should still be the law of the land today and racial segregation should still be considered “constitutional” since under their slanted and sophomoric definition, the justices of the Supreme Court engaged in judicial “activism” in Brown v. Board of Education.[16] After all, the justices in Brown overturned Plessy and repudiated the “separate but equal” doctrine as unconstitutional—and arguably did so when they decided subsequent cases striking down similar policies by recalcitrant jurisdictions that acted contrary to Brown and its progeny.
The 100-Year Lie: Independent Expenditure Law Before Austin
The claims by some, including President Obama, that the Supreme Court’s Citizens United decision overturned 100 years of precedent are simply untrue. While Congress implemented a statutory ban on direct corporate contributions to federal candidates in 1907, a ban that Citizens United did not disturb, it did not impose a ban on independent political expenditures by corporations and unions until 1947 when it passed the Labor Management Relations Act.[17] Congress overrode President Truman’s veto of the Act even though he “warned that the expenditure ban was a ‘dangerous intrusion on free speech.’”[18] The constitutionality of such a ban was not reviewed by the Supreme Court for almost three decades after its passage, although the Court expressed its doubts about the act in more than one case.
As Justice Kennedy’s majority opinion in Citizens United points out, that question was in the background of a case considered in 1948 in which a labor union endorsed a congressional candidate in its weekly periodical. The Court did not reach the constitutional question because it held that the statute did not cover the publication, but it “stated that ‘the gravest doubt would arise in our minds as to [the federal expenditure prohibition’s] constitutionality’ if it were construed to suppress that writing.”[19] Four justices said they would have reached the constitutional question and held the expenditure ban unconstitutional, including staunch liberal Justices Hugo Black and William Douglas.
In two other later cases in 1957 and 1972, the Supreme Court refused to decide the constitutional issue, remanding one case on statutory grounds after which a jury promptly found the defendant not guilty of violating the statutory ban, and overturning another conviction under the ban again on statutory grounds without reaching the constitutional issue.[20] But in the 1957 case, three justices dissented, “arguing that the Court should have reached the constitutional question and the ban on independent expenditures was unconstitutional.”[21] The dissenters included Chief Justice Earl Warren, probably the most renowned liberal justice of the last century.
The seminal decision on campaign finance reform is without question Buckley v. Valeo,[22] the case in which the Court considered various challenges to the Federal Election Campaign Act of 1971. In addition to placing limits on direct contributions to federal candidates, this legislation also enacted a new independent expenditure ban that applied to individuals as well as associations, partnerships, corporations, and unions. The ban prohibited spending more than $1,000 “relative to a clearly identified candidate…advocating the election or defeat of such candidate.”[23] Although the Court upheld the limits on direct contributions because the governmental interest in the “prevention of corruption and the appearance of corruption” was sufficiently important, the Court threw out the limits on independent expenditures. As Justice Kennedy noted in Citizens United, the Buckley Court “explained that the potential for quid pro quo corruption distinguished direct contributions to candidates from independent expenditures. The Court emphasized that ‘the independent expenditure ceiling…fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process,’ [ ] because ‘[t]he absence of prearrangement and coordination…alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.’”[24] Only one justice dissented from this invalidation of independent expenditures limitations as a violation of the First Amendment.
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The separate 1947 ban on all independent expenditures by corporations and unions codified in §441b was not considered by the Court in the Buckley decision because it was not challenged, but as Justice Kennedy correctly states, if it had been, “it could not have been squared with the reasoning and analysis of that precedent.”[25] In fact, the Buckley case cited approvingly to the dissent authored by liberal Justice Douglas in the Automobile Workers decision from 1957.[26]
Only two years after the Buckley decision, the Court once again struck down an independent expenditure ban in Bellotti v. First National Bank of Boston.[27] In an opinion written by Justice Lewis Powell, the Court ruled that a Massachusetts statute prohibiting corporations from spending any funds to influence or affect voters’ opinions on referendum issues violated the First Amendment. According to the Court, there was no support “for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation…In the realm of protected speech, the legislature is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue.”[28] In fact, Bellotti was just the latest decision from the Court recognizing that First Amendment protections extend to corporations—Justice Kennedy cites to 22 such cases in his majority opinion in Citizens United.[29] Ironically, some of these involved corporations like the New York Times Company that have condemned the majority for its affirmation of free speech rights for corporations in Citizens United.
The Break with the Constitution and Precedent: Austin
It was not until Austin v. Michigan Chamber of Commerce[30] in 1990 that five justices of the Supreme Court suddenly overrode the long string of prior precedents and upheld a Michigan ban on corporate independent expenditures that supported or opposed a candidate for state office, a crime punishable as a felony. As Justice Kennedy notes, the Court simply bypassed Buckley and Bellotti as if they did not exist, creating a new justification for limiting political speech: “preventing the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”[31] What the Court did in Austin satisfies the very definition of judicial activism—it ignored the plain language of the First Amendment that “Congress shall make no law…abridging the freedom of speech” and ignored decision after prior decision recognizing the First Amendment rights of corporations and invalidating other independent expenditure bans.
The Court’s Consistent Rejection of Austin’s Logic
The Supreme Court’s Buckley decision made it clear that the only basis for upholding campaign finance regulations is to prevent “corruption or the appearance of corruption” in the election process. This “exception” to the rule of free speech guaranteed by the First Amendment was applied by the Court in a series of cases after Buckley. While it is not clear that the mere appearance of corruption should be sufficient to prohibit core First Amendment speech, the Court has time and again rejected other theories justifying campaign finance regulations such as “speech equalization.” In Buckley, the government argued that it had an interest in “equalizing the relative ability of individuals and groups to influence the outcome of elections” that justified limits on independent expenditures.[32] However, as the justices said in the per curiam opinion, “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”[33] This was upheld by the Court most recently in Davis v. FEC, in which the Court noted once again that preventing corruption or the appearance of corruption is the only legitimate and compelling governmental interest for restricting campaign finances and that the Court has continuously rejected equalizing the relative ability of different individuals and groups to influence elections as justification for a cap on independent expenditures.[34] Even in McConnell, the Court noted when assessing standing that there is no legal right to have the same resources to influence the electoral process.[35]
In 1985, the Court struck down a provision of the presidential public funding law that made it a criminal offense for a political committee to make an independent expenditure of more than $1,000 to further the election of a candidate receiving public financing.[36] In rejecting this ban on independent expenditures, the Court repudiated “the notion that the PACs’ form or organization or method of solicitation diminishes their entitlement to First Amendment protection. The First Amendment freedom of association is squarely implicated in these cases.”[37]
Justice Breyer, a noted liberal on the Court, wrote the opinion in Colorado Republican Federal Campaign Committee v. FEC[38] in 1996 that threw out state limitations on independent expenditures by political parties, noting that such expenditures fall “within the scope of the Court’s precedents that extend First Amendment protection to independent expenditures.”[39] When Justice Breyer authored the Court’s opinion in Randall v. Sorrell in 2006 that struck down expenditure limitations imposed by Vermont on individuals running for office, he once again cited preventing corruption and its appearance as the primary justification for governmental restrictions. Breyer noted that the Court had “considered other governmental interests advanced in support of expenditure limitations. It rejected each.”[40] Breyer pointed out, in contrast to his dissent in Citizens United, that over the past thirty years, “this Court has repeatedly adhered to Buckley’s constraints, including those on expenditure limits” and cited to seven other opinions since Buckley.[41]
All of these decisions that struck down various federal and state attempts to limit independent expenditures by individuals, political parties, candidates, political action committees, and associations make it very clear that the Court’s decision in Austin was truly an outlier that conflicted with the Court’s jurisprudence on independent expenditures. It was directly contrary to the leading and most significant precedent in this area—Buckley v. Valeo, a case that is constantly cited by proponents of campaign finance reform to support their views on this issue.
Restoring Established Precedent: Citizens United
As Justice Kennedy recognized in Citizens United, the Court was “confronted with conflicting lines of precedent: a pre-Austin line that forbids restrictions on political speech based on the speaker’s corporate identity and a post-Austin line that permits them.”[42] Yet in defending the independent expenditure ban, the Solicitor General, Elena Kagan, basically abandoned the only justification given by the five-member majority in the Austin case—the antidistortion rationale that the justices had created. As Justice Kennedy said, Kagan instead tried to claim that the ban was justified on an anticorruption rationale and a shareholder-protection interest, grounds that had never been used to justify the ban on independent expenditures. The problem, of course, with the anticorruption rationale is that such a justification—if accepted by the Court—would allow the government to “prohibit a corporation from expressing political views in media beyond those presented here.”[43]
Under the rationale advanced by those critics, the Supreme Court should have upheld this federal statute and thus the ability of the government, as conceded in oral arguments by the government, to ban books or pamphlets with a political message— a claim that crystalizes the radical, anti–free speech nature of the law. Indeed, given that media corporations are only statutorily exempted from this federal law, had the Supreme Court deviated from the well-established Buckley line of cases and upheld the burdensome speech restrictions in the law, then consistent with the opinion, Congress at some future point could have eliminated the corporate media exemption, giving the government the authority to ban political speech by any media organization availing itself of a limited liability structure—from the New York Times to Fox News. Those who would seek to uphold the restrictions on non-media corporate speech while seeking broader protection for media corporations rest their claims on the argument that the press has a greater First Amendment right than individuals or associations, a view the Court has previously correctly rejected.[44]
The shareholder protection defense also asserted by the government would present the same problem, since it “would allow the government to ban the political speech even of media corporations” based on the disagreement of shareholders “with the political views the newspaper expresses.”[45] There is also no evidence of abuse by corporations that cannot be corrected by shareholders or that would justify the Court “creating” a new rationale for approving the government’s violation of the First Amendment.
The reasons for correcting the outlier error that is Austin are clear, and were articulated by the Court in Citizens United. First, the Court noted that precedent should be respected “unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error.”[46] The Austin decision was poorly reasoned and “itself contravened this Court’s earlier precedents in Buckley and Bellotti.”[47] Second, the government did not even defend Austin’s antidistortion rationale, and when a party does not defend “the reasoning of a precedent, the principle of adhering to that precedent through stare decisis is diminished.”[48] Third, and most importantly, Austin relied on a faulty historical record of campaign finance laws and “abandoned First Amendment principles.”[49]
The majority’s opinion in Citizens United was not an act of judicial activism; it was an act of correction, overruling a twenty-year-old case erroneously decided by five justices who clearly substituted their policy views on how elections should be conducted for the dictates of the First Amendment— contravening a long line of other precedents and the Constitution itself. Instead, the Court returned to the principles that had been established in prior decisions, particularly Buckley and Bellotti, that “the Government may not suppress political speech on the basis of the speaker’s corporate identity.”[50] As Chief Justice Roberts pointed out, the Court had “no way to avoid Citizens United’s broader constitutional argument” because the applicable statute clearly applied to Citizens United and prohibited its actions.
The dissent clearly believed that Citizens United should lose the statutory and constitutional claims it was making in the case, yet those justices then bizarrely argued that “the majority should nonetheless latch on to one of them in order to avoid reaching the broader constitutional question of whether Austin remains good law… It even suggests that the Court’s failure to adopt one of these concededly meritless arguments is a sign that the majority is not ‘serious about judicial restraint.’”[51] As the Chief Justice correctly observed, this argument is based on the false premise that avoiding deciding constitutional questions “somehow trumps our obligation faithfully to interpret the law.”[52] Here, the majority faithfully interpreted the constitutional protection in the First Amendment against the abridgement of the right to speak by Congress—it would have constituted judicial activism to studiously ignore the First Amendment as the dissent urged and uphold an obviously unconstitutional federal statute.
Ledbetter
In Ledbetter v. Goodyear Tire & Rubber Co.,[53] the Supreme Court held that the discriminatory acts that triggered the time limit for filing a claim with the Equal Employment Opportunity Commission could only be discriminatory pay decisions, not later nondiscriminatory pay decisions that supposedly perpetuated the effects of the earlier discrimination. As another example of supposed judicial activism, one critic of the five-member majority’s opinion written by Justice Alito claimed the Court had ruled against a “woman paid less than her male peers for 20 years” because she failed to file her suit “within 180 days of the first instance of discrimination” (a statutory requirement) and even “though she had no way of learning about the discrimination until years later,”[54] a patently false claim. Another report criticizing the “infamous” and “outrageous” decision of the majority, again falsely stated that Ledbetter was unaware of the discriminatory treatment and claimed that the majority was “twisting employment and labor law to serve corporate wrongdoers.”[55]
Contrary to all of these criticisms, the majority’s opinion in Ledbetter was a straightforward application of the law passed by Congress governing discrimination claims. Ledbetter, a female employee of Goodyear Tire & Rubber Company, had filed a claim with the EEOC asserting that Goodyear had discriminated against her in her job evaluations because she was a woman, actions that resulted in her receiving lower pay. She then filed a lawsuit claiming violations of the Equal Pay Act and Title VII of the Civil Rights Act of 1964. The Equal Pay Act claim was dismissed but a jury found in favor of Ledbetter’s Title VII claims.[56]
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Title VII makes it unlawful to discriminate “against any individual with respect to his compensation…because of such individual’s…sex.”[57] Congress placed a statute of limitations in Title VII, requiring an employee to first file a charge with the EEOC within a specified period, either 180 or 300 days depending on the state, “after the alleged unlawful employment practice occurred.”[58] If a claim is not filed with the EEOC within that time limit, no lawsuit can be filed.[59] In trying to determine whether Ledbetter filed her lawsuit in compliance with the applicable statutory time limit, the Court emphasized “the need to identify with care the specific employment practice that is at issue.”[60] Under a disparate treatment claim such as was asserted by Ledbetter, prior precedent specified that the central element of the Court’s analysis must be determining the discriminatory intent of the defendant.[61]
Ledbetter claimed her case was timely filed because she was issued discriminatory paychecks during the 180 days before her EEOC filing, and also pointed to a decision to deny her a raise that was made during that same time period. However, she did not claim that any of these occurrences were the result of intentional discriminatory treatment by Goodyear; instead, she claimed that “the paychecks were unlawful because they would have been larger if she had been evaluated in a nondiscriminatory manner prior to the EEOC charging period. Similarly, she maintains that the 1998 decision [to deny her a raise] was unlawful because it ‘carried forward’ the effects of prior, uncharged discrimination decisions.”[62] In other words, Ledbetter was claiming that her lawsuit was timely even though the intentionally discriminatory treatment (her negative job evaluation) had occurred before the charging time period because the evaluation “had continuing effects during that period.”[63] Under her view, every paycheck that gave a woman less pay would be a separate violation of Title VII, with a new statute of limitations beginning to run with each paycheck, “regardless of whether the paycheck simply implements a prior discriminatory decision made outside the limitations period.”[64]
The problem with this view of the law was that it was completely contrary to the prior precedents of the Court, not that the five justices in the majority were engaging in judicial “activism” to “twist” the law in favor of a corporate defendant. The real hypocrisy in this case was demonstrated by Justice Stevens, a liberal lion celebrated by the Left, who dissented and seems to have completely changed his views of the law even though the law has not changed. This is demonstrated by one of the precedents cited by the majority as the basis for its interpretation of the statute of limitations, United Air Lines, Inc. v. Evans.[65]
In United Air Lines, the Court rejected an almost identical claim because it was untimely. The plaintiff, Evans, was forced to resign because United refused to employ married flight attendants, but she did not file an EEOC claim. When she was later rehired, United refused to give her credit for her prior employment for purposes of seniority. Although Evans admitted she had not filed an EEOC claim based on the original, intentional discrimination that caused her resignation, she argued that United’s refusal to give her credit for her prior service gave “present effect to [its] past illegal act and thereby perpetuated[d] the consequences of forbidden discrimination.”[66] The Court rejected the claim as untimely in an opinion authored by none other than Justice Stevens:
United was entitled to treat [Evans’ termination] as lawful after respondent failed to file a charge of discrimination within the [relevant time period]. A discriminatory act which is not made the basis for a timely charge…is merely an unfortunate event in history which has no present legal consequences.”[67]
As Justice Alito pointed out in the majority opinion in Ledbetter, “t would be difficult to speak to the point more directly.”[68]
The United Air Lines decision was simply one opinion out of a number of others that applied the same rule—that the intentional act of discrimination must occur within the relevant time period under Title VII and it is not sufficient that the later effects of that discrimination occur during the time period. The time in which to file with the EEOC begins to run from the date that the intentional discrimination occurs. In the majority’s opinion, Justice Alito pointed to Delaware State College v. Ricks,[69] in which a college professor’s claim was dismissed as untimely because he filed his claim after he was terminated, not when he was denied tenure, which was the act of intentional discrimination he was contesting. Justice Alito also noted Lorance v. AT&T Technologies, Inc.,[70] in which the claim of female union workers was dismissed as untimely because they filed their claim after they were laid off due to low seniority, not when the rules governing seniority were changed in the union contract, which was the specific act that the women were claiming was intentionally discriminatory. As Justice Alito wrote, the Court held in these prior cases “that the EEOC charging period ran from the time when the discrete act of alleged intentional discrimination occurred, not from the date when the effects of this practice were felt.”[71]
After the Lorance decision, Congress actually amended Title VII to cover the specific seniority problem in that case, allowing liability from an intentionally discriminatory seniority system both at the time of its adoption and at the time of its application.[72] But it did not amend the law to change the results of the Delaware State College or United Air Lines decisions. Critics of the Ledbetter decision apparently wanted the Court to overlook these prior precedents, the legislative history of the law, and the law’s statutory text, in order to change the results of the case for a sympathetic plaintiff.
Ledbetter’s attempt in her case to circumvent the intent requirement and the time limit imposed by Congress in the statute was “unsound.” As Justice Alito noted, this would shift intent from one act (the act that consummates the discriminatory employment practice) to a later act that was not performed with bias or discriminatory motive. The effect of this shift would be to impose liability “in the absence of the requisite intent.”[73] It would also distort the integrated, multi-step enforcement process of Title VII. Furthermore, such a holding would have violated the Court’s stated desire to be respectful of the legislative process that crafted this statute and “give effect to the statute as enacted.”[74]
Ledbetter also claimed that another Supreme Court case required different treatment of a pay claim. Bazemore v. Friday involved employees of a state agency that originally segregated its employees into “a white branch” and “a Negro branch,” with the latter receiving less pay.[75] In 1965, the branches were combined but the disparate pay continued. After Title VII was amended in 1972 to cover public employees, the black employees sued over the dual pay disparity. The Court held that those claims were not time barred because the state agency had adopted a facially discriminatory pay structure that continued after 1972. Therefore, “the employer engages in intentional discrimination whenever it issues a check to one of these disfavored employees. An employer that adopts and intentionally retains such a pay structure can surely be regarded as intending to discriminate on the basis of race as long as the structure is used.”[76]
But the situation in Bazemore was distinctly different than the situation in Ledbetter: “Bazemore stands for the proposition that an employer violates Title VII and triggers a new EEOC charging period whenever the employer issues paychecks using a discriminatory pay structure. But a new Title VII violation does not occur and a new charging period is not triggered when an employer issues paychecks pursuant to a system that is facially nondiscriminatory and neutrally applied. The fact that precharging period discrimination adversely affects the calculation of a neutral factor…that is used in determining future pay does not mean that each new paycheck constitutes a new violation and restarts the EEOC charging period.”[77] There was no evidence (and no claim) that Goodyear had adopted its pay system in order to discriminate on the basis of sex, so the Bazemore rationale did not apply to the Ledbetter case.
The claims made by critics that Ledbetter did not know about the discrimination and that the limitation should have been stayed are also not in accord with the facts in that case. The Court noted in its decision that it was not addressing the discovery issue because Ledbetter did “not argue that such a rule would change the outcome in her case.”[78] In other words, she made no claim that she did not know about the discrimination; in fact, her claims of sex discrimination “turned principally on the misconduct of a single Goodyear supervisor, who, Ledbetter testified, retaliated against her when she rejected his sexual advances during the early 1980’s and did so again in the mid-1990’s when he falsified deficiency reports about her work.”[79] It is obvious that Ledbetter could not argue that the statute of limitations for filing an EEOC claim should be stayed because she clearly knew about the unwelcome sexual advances and the deficiency reports being filed by her supervisor. The fact that the supervisor who was accused of wrongdoing had died by the time this case went to trial also provides a good example of why statutes of limitation are important—if Ledbetter had filed her claim in accordance with the time limit in the statute, the supervisor’s testimony would have been available to the EEOC and the courts. Such limitation periods put defendants on notice of claims and prevent stale claims from being brought at a time when witnesses are no longer available or documentary evidence has been destroyed under normal document retention policies.
Many of Ledbetter’s arguments in this case were “policy arguments in favor of giving the alleged victims of pay discrimination more time before they are required to file a charge with the EEOC.”[80] But those policy arguments were being made to the wrong branch of the federal government. It was Congress, not the Court, which chose a very short deadline for filing employment discrimination claims with the EEOC. Critics who did not like that short deadline apparently wanted the Court to “twist” Title VII to write that deadline out of the statute. Because the majority refused to do so, but instead applied the statute as written, they are supposedly “activist” judges who were defying Congress in favor of a corporate defendant.
These charges simply cannot be supported by what happened in this case. The decision and its legislative aftermath actually demonstrate the best features of the U.S. constitutional system and the separation of powers designed and built into it by the Framers. The Supreme Court followed stare decisis and its own precedents and interpreted Title VII’s statute of limitations as it was promulgated by Congress. Congress did not like the result and, listening to the policy (as opposed to legal) arguments made in this case, changed the law with the Lilly Ledbetter Fair Pay Act of 2009. This act amended the 180-day statute of limitations for filing a pay discrimination claim with the EEOC to make it clear that liability would accrue (and the time limit would begin to run) not just when the discriminatory employment practice occurs, but with respect to discriminatory compensation:
[W]hen a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practices, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wage, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.[81]
Conclusion
Following President Obama’s unseemly (and inaccurate) attack on the Supreme Court’s ruling in Citizens United during this year’s State of the Union address, a chorus of liberals, including Obama’s press secretary, congressional Democrats, and a number of liberal activist organizations, have mimicked the claim that the Supreme Court is controlled by “conservative activists.” This most recent attack comes on the heels of similar criticism that has been made about the Court’s ruling in the Ledbetter case.
But the facts of these cases and an examination of the legal analysis applied by the justices in their majority opinions show that there is no merit to any of these claims. These criticisms are actually evidence of the vulnerability to the charge of Left-wing activism that has been properly and correctly leveled against some liberal federal judges for refusing to follow the law and imposing their social and ideological views in the courtroom. By ascribing the “activist” label to conservative judges, liberals appear to be attempting to damage the public image of the Supreme Court and specific justices. These attacks are also clearly an attempt to propagate a moral equivalency with liberal judges who are, in actuality, activists. It is unfair to the justices on the Court who participated in these decisions and is a cynical and derisive tactic that injures the public’s faith and confidence in the judicial system.
—Robert Alt is the Deputy Director of, and Hans A. von Spakovsky is a Senior Legal Fellow in, the Center for Legal & Judicial Studies at the Heritage Foundation.
http://www.heritage.org/Research/Reports/2010/06/The-Liberal-Mythology-of-an-Activist-Court-Citizens-United-and-Ledbetter
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Note: cross posted per Crafty's request.
I'm an NRA Life Member and certified instructor and so am not usually one to argue against them. They, however, have made a Faustian bargain with Democratic lawmakers who usually seek to do them ill to exempt themselves from the "Disclose" bill soon to be voted on in the house, a bill that looks to me like it's narrowly tailored to prevent some types of political speech while leaving other unhindered.
I think the NRA's stance is tremendously short sighted. As I put it elsewhere, the good news is that the NRA struck a deal where the 3rd amendment is concerned, too, and such won't have to quarter troops at their corporate headquarters. The bad news is that the rest of us need to make up the guest bed. An article that speaks to a related sentiment follows:
NRA exemption shows campaign disclosure bill's cynical, fatal flaws
By Cleta Mitchell
Thursday, June 17, 2010; A21
The cynical decision this week by House Democrats to exempt the National Rifle Association from the latest campaign finance regulatory scheme is itself a public disclosure. It reveals the true purpose of the perversely named Disclose Act (H.R. 5175): namely, to silence congressional critics in the 2010 elections.
The NRA "carve-out" reaffirms the wisdom of the First Amendment's precise language: "Congress shall make no law . . . abridging the freedom of speech."
Congress can't help itself. Since 1798, with the Alien and Sedition Acts, incumbent politicians have yearned for legal duct tape for their opponents' mouths. The Disclose Act is a doozy of a muzzle.
For its part, the NRA -- on whose board of directors I serve -- rather than holding steadfastly to its historic principles of defending the Constitution and continuing its noble fight against government regulation of political speech instead opted for a political deal borne of self-interest in exchange for "neutrality" from the legislation's requirements. In doing so, the NRA has, sadly, affirmed the notion held by congressional Democrats (and some Republicans), liberal activists, the media establishment and, at least for now, a minority on the Supreme Court that First Amendment protections are subject to negotiation. The Second Amendment surely cannot be far behind.
Since the court's January decision in Citizens United v. Federal Election Commission that corporations cannot be constitutionally prohibited from making independent candidate-related expenditures, Democrats have been hyperventilating at the notion that corporations might spend millions of dollars criticizing them. To foreclose that possibility, the Disclose Act would impose onerous and complicated "disclosure" restrictions on organizations that dare to engage in constitutionally protected political speech and on corporations that dare to contribute to such organizations.
Democrats would effectively neuter the court's decision by requiring the names of multiple donors to be recited in ads (thus shrinking the time spent on actual speech), requiring the CEO of a corporate donor to personally appear in campaign-related ads, expanding the coverage period to virtually the entire election year, and including myriad other rules that the NRA described last month as "byzantine" and an "arbitrary patchwork of reporting and disclosure requirements."
The NRA's wheel-squeaking bought it an exemption from those requirements. Tea Party organizations arising spontaneously since 2009? Out of luck. Online organizations with large e-mail followings but perhaps no formal dues structure? Forget it.
Receiving less attention than the NRA "carve-out" but no less cynical is the bill's sop to organized labor: Aggregate contributions of $600 or more would be disclosed. Why start at $600? Why not $200 or, say, $500? Because most union members' dues aggregate less than $600 in a calendar year and thus members' contributions to labor's campaign-related spending wouldn't need to be disclosed . . . even to the union members whose dues are spent for political purposes.
In Citizens United, the court held that the First Amendment doesn't permit Congress to treat different corporations differently; that the protections afforded political speech arise from the Constitution, not Congress. Otherwise, it would be tantamount to a congressional power to license the speech of some while denying it to others.
The NRA carve-out is a clear example of a congressional speech license.
The ostensible purpose of the legislation is benign "disclosure," upheld in Citizens United as permissible under the First Amendment. Even conservative Justice Antonin Scalia has expressed skepticism about the constitutional infirmity of disclosure requirements in another case argued this term; Scalia intoned in oral argument that "running a democracy takes a certain amount of civic courage."
That's true. Indeed, the law upheld in Citizens United requires all donors to candidate-related expenditures to be publicly disclosed to the FEC in a timely manner.
But the Disclose Act isn't really intended to elicit information not currently required by law. The act serves notice on certain speakers that their involvement in the political process will exact a high price of regulation, penalty and notoriety, using disclosure and reporting as a subterfuge to chill their political speech and association.
It is only disclosure, say the authors. And box-cutters are only handy household tools . . . until they are used by terrorists to crash airplanes.
This is not just "disclosure." It is a scheme hatched by political insiders to eradicate disfavored speech. There is no room under the First Amendment for Congress to make deals on political speech, whether with the NRA or anyone else.
The writer is a partner at Foley & Lardner who works in campaign finance law and is a member of the NRA's board of directors.
http://www.washingtonpost.com/wp-dyn/content/article/2010/06/16/AR2010061604221.html
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Return of the Speech Police
Only in the Through the Looking-Glass world inside the Beltway could the DISCLOSE Act — a piece of legislation meticulously crafted to protect Washington’s two most powerful special-interest groups — be presented to the public as a courageous stand against special-interest groups. A vote on the bill scheduled for today was canceled after the Blue Dog Democrats and the Congressional Black Caucus objected, for very different reasons, but the bill’s backers promise to bring it back. They shouldn’t: Though it is cloaked in populist rhetoric, the DISCLOSE Act is, like every other piece of campaign-finance legislation, a cynical bid to secure the interests of those two powerful constituencies — incumbents and the media.
The DISCLOSE Act is a project of Rep. Chris Van Hollen (D., Md.), head of the Democratic Congressional Campaign Committee, and Sen. Charles Schumer (D., N.Y.), the most reliably anti-corporate Democrat that Wall Street money can buy. The bill is the Democrats’ response to the Supreme Court’s decision in Citizens United v. Federal Election Commission, which held that the First Amendment protects the right of an activist group to distribute a film critical of Hillary Clinton during her presidential campaign, even though some of the money for the project had come from businesses and non-profit corporations, the free-speech rights of which previously had been restricted by the McCain-Feingold Act. Citizens United restored the right of citizens to raise their voices — and money — for or against the candidate or cause of their choice, regardless of whether those citizens happen to be organized as a business or a group of businesses, a nonprofit corporation, etc. One would think that such a decision would be cause for general rejoicing in a country where free speech is the first item on the Bill of Rights. In reality, the decision sent incumbents into a panic; as it happens, most of the incumbents are Democrats this time around, but bear in mind that this mess was started by a piece of legislation named for the Republicans’ last presidential nominee.
The DISCLOSE Act is, among other things, a petty piece of corruption. It selectively applies rules about how political communications are designed and financed, and does so in such a way as to restrict the ability of independent citizens’ groups to bring their grievances to the public square. For instance, if a coalition of small banks wanted to put together an advertising campaign to go after the bipartisan architects of the bailouts, their efforts would be hobbled by onerous rules about what appears in the ads and how they are paid for. Worse, DISCLOSE goes far beyond McCain-Feingold, restricting political speech that was perfectly legal even before the Citizens United decision. By redefining thousands of businesses and non-profits as “government contractors,” it bans them from so much as mentioning an incumbent or candidate from three months before the primaries all the way through the general election — four months before the primaries in the case of presidential elections. That’s a six-month media blackout for congressional elections and more than a year in presidential races.
Advertised as an effort to restrict the influence of special-interest groups, the DISCLOSE Act in fact contains a special exemption for the special-interest group par excellence, the National Rifle Association, whose opposition the Democrats did not believe they could withstand. So while other gun-rights organizations, such as the Second Amendment Sisters, would be caught up in the legislation’s cumbrous and invasive disclosure requirements, the NRA would be exempt from the worst of them. The exemptions would cover AARP as well, while smaller organizations — or large ones formed more recently — would be disadvantaged by the rules. When Chuck Schumer teams up with the NRA, something strange is afoot. (It was the NRA carve-out, and not the bill’s attack on free speech, that drew the Congressional Black Caucus’s objections.)
The bill also includes exemptions for the union bosses who did so much to put Barack Obama in the White House and Nancy Pelosi in the speaker’s chair. Under DISCLOSE, contributions raised in aggregate — from union dues, to take one non-coincidental example — would only have to be disclosed when an individual’s annual contributions exceed $600. Most union members see slightly less than that expropriated from their wages annually. As campaign-finance lawyer Cleta Mitchell observes in the Washington Post, this means that in most cases union members’ “contributions to labor’s campaign-related spending wouldn’t need to be disclosed . . . even to the union members whose dues are spent for political purposes.” In somebody’s imagination, that strange arrangement constitutes transparency.
But this is not really about the NRA or the AARP or the SEIU. This is mainly about defending the seats of incumbents and, secondarily, protecting the influence of the mainstream media.
There are three main kinds of capital in politics: access, publicity, and money. Incumbents, firmly ensconced in positions to which they are reelected at an astonishing rate (94 percent of House incumbents were reelected in the 2008 elections), control the access. The media controls the publicity. And that leaves money — including the money needed to circulate political criticism — as the only area in which those outside the cozy nexus of politics and press have a reasonable chance to compete. Thus, campaign-finance “reformers” have been trying to diminish that source of competition for years. When independent political voices are muffled, that leaves incumbents of both parties in a relatively strong position: They already control ballot access, districting, and the Federal Election Commission. Restricting independent critics leaves the field to the two parties’ incumbents and their media surrogates. You do not want political incumbents to dominate the electoral process for the same reason you don’t want the CEO to be chairman of the executive-compensation committee: There is too much opportunity for self-dealing.
Likewise, the restriction of independents groups’ ability to craft and distribute political communications leaves the establishment media in a stronger position; though the foundation of its historical oligopoly is crumbling under the pressure of new-media competitors, the old media is determined to cling to what advantages remain to it. The legacy press resents the ability of independent groups to advance criticisms and narratives that have not been vetted in editorial offices in Washington and New York, and it jealously guards its role as public-opinion kingmaker. It is no surprise to find the DISCLOSE Act being endorsed by the likes of the New York Times.
The DISCLOSE Act goes far beyond disclosure. Too far, in fact. A bill simply requiring disclosure of contributors to electoral and issue-advocacy campaigns — timely disclosure, to be published on the FEC’s website for public scrutiny — would provide the transparency voters need without the free-speech restrictions we abhor. But such a bill would do little or nothing to advance the interests of Washington’s biggest power players, and so the Democrats propose to resuscitate the DISCLOSE Act instead, if they can cut a deal with the Blue Dogs and the Black Caucus. The health-care debate proved that the Blue Dogs can be bought off, and the Black Causus probably will not stand up to Pelosi and Schumer for very long. It will be up to Republicans to stop this bill, on constitutional and moral grounds, and they should do so.
http://article.nationalreview.com/436667/return-of-the-speech-police/the-editors
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I would like to extend some discussion here, but begin with some material from the Immigration thread. Recent discussion there has been about a literal reading of the Constitution vs. an originalist (or original intent of the Framers) reading of the Constitution. If you gents will indulge me, I would like to formulate a discussion of sorts here. It will necessitate a series of posts from me, hopefully with at least a few responses per post.
First, if I may, based on my understanding of original intent, and many posts in the Immigration thread and in other threads here (this one and the American Creed), is it safe for me to assume that all of the supporters of original intent (body-by Guinness; Guro; GM, etc.) agree
a) that the Framers of the Bill of Rights intended to extend the rights therein (speech; bear arms; etc. etc.) to individuals, and as such that these rights should not be considered group rights (as, for example, the liberal members of the Supreme Court understand the Second Amendment).
b) that the intent of the Framers of the 14th Amendment intended to guarantee these rights to former slaves and their offspring.
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Uhm, so far so good, but why can't I escape the feeling a sharp has just set up a 3 card monte table?
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Can we agree that corporations are/were not freed slaves?
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Okay. . . .
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BD, On your first point, literal reading vs. original intent, I think for me it is both, with the exact words coming first and the original intent and context used to discern meaning of the actual words. For example, if a clause used to grant rights to slave families is later used to promote lawbreaking and break down borders, I would still start with the actual reading. If it only said 'all persons born here' then they are in, until amended. But if it follows with phrases of contradiction like under the jurisdiction or state in which they would reside, I would try to look very very closely at the actual words and meaning before drawing an absurd, unintended conclusion.
On the second point, I don't follow you that right extended to individuals are not granted also to groups of individuals, a well-regulated militia bearing arms or a group of Bush-haters pooling their resources to buy a full page calling the commanding general of our forces in time of war "General Betray Us". It is an individual right and a group right by extension because the individuals in the group have that freedom of expression no matter how ugly the substance.
Corporations are not freed slaves. Probably didn't need to stop and wait for us on that one.
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As corporations are not freed slaves, is it safe to assume that the Framers of both the Bill of Rights and the 14th amendments did not originally intend corporations to have the rights guaranteed to indviduals. And, if this is true, can we agree that a Supreme Court case that were to give these rights to corporations was an activist court, that is going outside its constitutional limits?
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Let's say that I have half of enough money to buy a political ad and let's say (hypothetically) that I have a close friend named bigdog who also has half of enough money to buy a political ad and that both of us feel very strongly about some political issue, let's say we oppose the Vietnam war, and let's say that each of us individually has the constitutionally protected right of freedom of political speech, but to do this together we had to form a C-corp, an S-corp, an LLP, and LLC, a 501c3 or whatever the hell the rules of organization cause us to form in order to cooperate in the matter... Where in that little story did we lose our God-given right to speak out with all of our heart and all of our resources without being silenced by an unrestrained, oppressive government? Just curious.
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It seems to me that any organization that government has the power to destroy should have the power to speak out against such an action. Where in the literal reading of: "Congress shall make no law abridging the freedom of speech" does it say organizations will have no such protection?
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Let's say that I have half of enough money to buy a political ad and let's say (hypothetically) that I have a close friend named bigdog who also has half of enough money to buy a political ad and that both of us feel very strongly about some political issue, let's say we oppose the Vietnam war, and let's say that each of us individually has the constitutionally protected right of freedom of political speech, but to do this together we had to form a C-corp, an S-corp, an LLP, and LLC, a 501c3 or whatever the hell the rules of organization cause us to form in order to cooperate in the matter... Where in that little story did we lose our God-given right to speak out with all of our heart and all of our resources without being silenced by an unrestrained, oppressive government? Just curious.
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It seems to me that any organization that government has the power to destroy should have the power to speak out against such an action. Where in the literal reading of: "Congress shall make no law abridging the freedom of speech" does it say organizations will have no such protection?
I didn't say organizations will have no such protection.
Very nice work, and you anticipated where I was going in this. There is nothing about the Constitutional convention, the ratification of the Bill of Rights, or the ratification of the 14th Amendment that suugests that the corporations were originally intended to have the rights and liberties afforded individuals. So, according to a stict use of original intent, corporations should not have speech rights, etc. However, a literalist approach ("Congress shall make no law...") would certainly provide for this.
As you can see, there is nothing necessarily "leftist" about a literal interpretation. There is nothing inherently "rightist" about original intent. Or vice versa. However, as I have said elsewhere, I personally find the literalist approach to be the most convincing. I also attempt to be consistent with the application, rather than using original intent when it suits the political preferences I have, the literalist when I think will help me reach a preferred position, etc.
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"So, according to a strict use of original intent, corporations should not have speech rights, etc."
No, by my take on original intent or literal reading, rights don't come from government. Simultaneous with some being enumerated in the amendments it was made very clear that the enumeration of certain rights "shall not be construed to deny or disparage others". The rights of these groups of individuals aligned for business, political, religious, familial or whatever reasons would have pre-existed (IMO) and nowhere in the literal reading or original intent is the government granted the power to take them away.
"As you can see, there is nothing necessarily "leftist" about a literal interpretation."
Agree. We have to go with the words as written. As I wrote earlier, we use intent and context to help clarify the meaning of the words, as written.
One of my favorite quotes was Chief Justice Roberts during confirmation hearings. Asked what he would do "beyond loyalty to the process of law" what else he would do, he replied:
"Somebody asked me, you know, 'Are you going to be on the side of the little guy?' And you obviously want to give an immediate answer. But as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win, because my obligation is to the Constitution. That's the oath. The oath that a judge takes is not that 'I'll look out for particular interests.' . . . The oath is to uphold the Constitution and laws of the United States, and that's what I would do."
That sounds like literal reading to me and Roberts is no leftist. I think the framing of this as literal reading vs. original intent is incorrect. I think the politics of it today is literal reading with respect for original intent vs. the living breathing evolving organism view where it is appropriate to change our view of the meaning with the times or to suit our objectives. If the original document contained flaws of times like slaves being 3/5 a person or women not voting, then the literal reading and original intent was to use the amendment process to fix it, not just read new meaning into it.
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"So, according to a strict use of original intent, corporations should not have speech rights, etc."
No, by my take on original intent or literal reading, rights don't come from government. Simultaneous with some being enumerated in the amendments it was made very clear that the enumeration of certain rights "shall not be construed to deny or disparage others". The rights of these groups of individuals aligned for business, political, religious, familial or whatever reasons would have pre-existed (IMO) and nowhere in the literal reading or original intent is the government granted the power to take them away.
"As you can see, there is nothing necessarily "leftist" about a literal interpretation."
Agree. We have to go with the words as written. As I wrote earlier, we use intent and context to help clarify the meaning of the words, as written.
One of my favorite quotes was Chief Justice Roberts during confirmation hearings. Asked what he would do "beyond loyalty to the process of law" what else he would do, he replied:
"Somebody asked me, you know, 'Are you going to be on the side of the little guy?' And you obviously want to give an immediate answer. But as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win, because my obligation is to the Constitution. That's the oath. The oath that a judge takes is not that 'I'll look out for particular interests.' . . . The oath is to uphold the Constitution and laws of the United States, and that's what I would do."
That sounds like literal reading to me and Roberts is no leftist. I think the framing of this as literal reading vs. original intent is incorrect. I think the politics of it today is literal reading with respect for original intent vs. the living breathing evolving organism view where it is appropriate to change our view of the meaning with the times or to suit our objectives. If the original document contained flaws of times like slaves being 3/5 a person or women not voting, then the literal reading and original intent was to use the amendment process to fix it, not just read new meaning into it.
We are largely in agreement, it would seem. As an FYI, much of my point was not directed at you, per se.
However, there are many rights that do come from government. The right to vote, for example (and one that you reference). If it takes an amendment to fix it, then it must be government granted, yes? Women, African-Americans, and 18 year olds all were given the right to vote via amendment.
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"However, there are many rights that do come from government. The right to vote, for example (and one that you reference). If it takes an amendment to fix it, then it must be government granted, yes? Women, African-Americans, and 18 year olds all were given the right to vote via amendment."
Quibbling slightly just over perspective, but the right to participate in governing our own affairs is God-given or intrinsic (IMO) and the restrictions or barriers on that come from the mortals around us like our parents growing up and then from our government - sometimes for our own good, sometimes not. The amendments, seems to me, were removing the government's restrictions on those people's right to participate. :-)
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On which day did God create those rights? Kings used to argue their divine right to rule, too. That did not, of course, make it true.
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This is a drive by posting, I have not read everything in this conversation so maybe making a point which has been made before. The difference between God given rights and government given come down to this, if the rights come from gov't then gov't can take them away. If they come from God then they are intrinsic," inalienable", and no one can take them away.
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Ran across this goes to original intent discussed in the current conversation.
Commerce, Necessary and Proper, and Obamacare
by Jim Delaney, New York Tenth Amendment Center
Having culled through reams of often esoteric judicial analyses and rulings since ratification of the Constitution in 1787, the inescapable conclusion is that over the years the Supreme Court, Congress and the Executive have egregiously misinterpreted and progressively broadened the original and intentionally narrow meaning the Framers attached to both the Commerce Clause and the Necessary & Proper Clause. And therein lies the problem: liberal misinterpretation of these clauses has provided the national government the means to extend federal jurisdiction and control far beyond the Framers’ original intent and purpose.
Obamacare’s “individual mandate” has once again put Art 1, Sec 8, Clause 3, the Commerce Clause, front and center. And like all things Constitutional these days, even a casual observer can readily see that over the years the courts and the politicians have managed to grossly distort–indeed violate–the original meaning, intent and spirit of this clause by a litany of tortured legal argumentation and capricious social engineering justifications.
To begin with, the Commerce Clause states that the United States Congress shall have the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Not surprisingly, when linked with Art 1, Sec 8, Clause 18, aka the Necessary and Proper Clause, the federal government empowers itself to further and irresponsibly expand the original scope of the Commerce Clause
By way of background, as a direct result of the Founders’ unsettling experience with the Articles of Confederation, the Framers understood the practical need to better ensure uniformity in interstate commerce, that is to say the unencumbered “trade or exchange” of goods among the states, this in order to achieve efficient interstate commercial intercourse free of state-imposed discriminatory and retaliatory restrictions such as duties which if left unchecked could well have led to the collapse of the union itself.
As James Madison counseled, “[the federal regulation of commerce] is necessary to preserve the Union, for “without [such regulation], the Union will infallibly crumble to pieces.” Therefore, as nearly as I can deduce this effort at achieving uniformity was intended to reduce, minimize, or altogether eliminate needless and onerous state-mandated barriers and petty regulations which served to deleteriously impede the free and efficient trade or exchange of goods among the states. Period.
It is important to note that the extent of congressional jurisdiction over interstate commerce may be easily found in Clauses 5 and 9 of Art 1, Sec 9:
Clause 5: “No Tax or Duty shall be laid on Articles exported from
any state.”
Clause 6: “No Preference shall be given by any Regulation of Commerce
or Revenue to the Ports of one State over those of another: nor
shall Vessels bound to, or from, one State, be obliged to enter,
clear, or pay Duties in another.
Clearly, the emphasis is on interstate duties and revenues, not upon the articles/goods traded or produced. Thus, as originally understood the power to regulate interstate trade did not mean the authority to prohibit, nor did it in any way imply the power to impose penalties for violations of the Commerce Clause.
Important to note too is that the Necessary and Proper Clause, a clause much exploited by progressives over the years, was in no way intended by the Framers to permit the federal government to assume any authority outside its clearly defined enumerated powers in Art 1, Sec 8. Simply put, our wise Framers were careful not to permit an ends justifies the means scenario. To wit, in John Marshall’s discussion of McCulloch v Maryland, he clearly drew a distinction between the proper definition of “necessary” as meaning “indispensably requisite” versus the improper definition being that of “convenient”. In other words, the federal government could not arrogate unto itself any extraordinary implementing power other than that which was clearly “indispensably requisite” in order to execute its clearly defined enumerated powers, in this case to regulate interstate commerce. In truth, a cursory examination of case law since ratification of the Constitution demonstrates how the proper definition has often been ignored, misconstrued or grossly misinterpreted by an overweaning Congress and an enabling gaggle of misguided or politically activist jurists over the years.
Having scanned applicable Federalist papers and Samuel Johnson’s Dictionary of the English Language, the latter which guided the Framers in their choice and meaning of words, it is obvious that the Constitutional meaning of “commerce” was limited to the trafficking and exchange of goods between the states from one port to another, and not at all to the regulation of INTRAstate production, manufacturing, sale, or the quality of goods/articles; that, therefore, the central and sole purpose of the Commerce Clause was to affirmatively prevent the confusing, conflicting and disorderly imposition of duties among the states. Nothing more.
Even casual examination of founding documents underscores our Framers’ clear understanding that “regulate” in 1787 meant “to make regular or normal” or “to remove impediments” to the free flow/transportation of interstate commerce. Again, it manifestly did not mean federal control or the federal imposition of regulations over the intrastate production of goods and services.
Significantly, the US v E.C. Knight Co. ruling in 1895, aka the Sugar Trust Case, asserted the states’ sphere of power in matters of commerce thusly:
1. Production is always local, and under the exclusive domain of the states
2. Commerce among the states (interstate commerce) does not begin until goods commence their final movement from their state of origin to that of their destination.
3. The sale of any product is merely an incident of its production and is therefore under the domain of the state because its effect on interstate commerce is merely incidental.
4. Combinations or associations organized for the sale and distribution of goods are under the regulatory power of the state since the effect on interstate commerce is indirect, not direct.
Can’t get clearer than that. The ruling upheld and sharply emphasized the core restraints on federal power as intended by the 10th Amendment.
Following passage of the Interstate Commerce Act of 1887 which created the Interstate Commerce Commission, the latter which was principally intended to check railroad abuse and discrimination, the level of federal usurpation which ensued has been nothing short of mind-boggling–almost laughable if it weren’t so utterly unconstitutional. (For example, I learned that the hapless hamburger is now subject to no fewer than 41,000+ state and federal regulations, covering everything from meat production, grazing practices of cattle, conditions in the slaughterhouse, processing methods, sales to retailers, restaurants and fast-food outlets. Ketchup is another example of regulatory overreach: to be considered Grade A, it must flow no more than 9 centimeters in 30 seconds at 69 degrees Fahrenheit. Progressive insanity!)
Though Congress has cited the Commerce Clause to justify its healthcare usurpation, logic and an objective analysis of original intent clearly demonstrate that individual mandates are woefully unconstitutional. But to myopic and progressive “living constitution” adherents who care little about the original meaning of the Constitution, or, frankly, the Constitution in any of its original form, Obamacare is merely another whimsicalnecessary and proper expansion of the federal government’s implied vs enumerated powers. Where are our Founders when they are so sorely needed?! Where are our uncorrupted constitutional scholars and jurists?!
Get the New Book Today!
With particular respect to Obamacare, I couldn’t find one single court ruling in the history of the United States which remotely endorsed the right of the federal government to mandate that every person purchase a product or service or be fined for not doing so. Not one! And though it’s difficult to imagine that even a liberal Supreme Court could clear-headedly and in good conscience rule in favor of this mandate, I wouldn’t underestimate the corrosive influence of judicial activism and congressional overreach which have characterized the rule of law in these United States over the last 100 years. And should the Supreme Court uphold Obamacare, which is more likely than not, then Americans must carefully recall and take to heart these words in the Declaration of Independence:
“…But when the long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government [or abusive power], and to provide new guards for their future security.” Amen to that!
So, if the courts fail to restore constitutional governance, and the chances are better than even they won’t, what’s the answer to this unrestrained federal overreach? Very simply, we must take action to restore the sovereignty of “we the people”!!! Our merely waiting for the next election to throw the bums out and to replace them with what will likely be only slightly less progressively tainted legislators sounds good, but will accomplish nothing. Inescapably, state nullification action–with teeth–in combination with widespread civil disobedience are most likely the only way to restore constitutional order. It’s now or never…
**************
(“…whensoever the General Government assumes undelegated powers, its acts are
unauthoritative, void, and of no force; where powers are assumed by the federal government which have not been delegated by the Constitution, a nullification of the act is the rightful remedy.” James Madison, & Thomas Jefferson, Kentucky & Virginia Resolutions, 1798)
(“The true key for the construction of everything doubtful in a law is the intention of the law-makers. This is most safely gathered from the words, but may be sought also in extraneous circumstances provided they do not contradict the express words of the law.” Thomas Jefferson, ltr to Albert Gallatin, 1808)
(“The court will almost assuredly resort to the great defense shield of denial known as ’stare decisis’ as a clever way of protecting the courts own judicial malpractice from scrutiny while at the same time leaving its vast centralization of power in Congress intact.” P.A. Madison, Federalist Blog, 2010)
Jim Delaney writes for the New York Tenth Amendment Center from Rochester-Greece, and maintains the blog, Opinerlog.
Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given
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Freki nailed it: "if the rights come from gov't then gov't can take them away."
Is murder wrong because of an ordinance or statute or was it wrong - intrinsically - before the law was passed? The Declaration of Independence says some truths are self-evident and certain rights are endowed by the Creator; the constitution lays out that government powers are limited and enumerated (for congress they are in Article 1 Section 8 ) while rights are pre-existing and unenumerated.
The rights of freedom and consent of the governed do not come from government in my view. Governments are more in the business of taking our freedoms away, as with the King example and his false authority over his subjects.
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But the US government is "by the people, for the people" so it isn't really the same proposition as the king taking rights. Murder was only legally punishable with the creation of government. It might have made people mad, and been a part of the "state of nature" but it was punished in the way that we think of it before the creation of the state. Likewise, there is no reason for God to have created to right to participate in our governance without the creation of a government.
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We are arguing starting points here from which rights do, or do not, flow. I'm agnostic to the point most religious folk call me atheist and so have trouble with constructs that invoke a supreme being. With that said, I want government to pretty much leave me the frack alone and thus for utilitarian, pragmatic, and selfish reasons embrace a political ethos from which I'm most likely to derive as little interference from the state as attainable. If natural rights or whatever you care to label it take me there, that's fine by me.
Plenty of less pleasant first premises to be had. BD already alluded to the Hobbesian one, we got Mao's "power flows from the barrel of a gun," we have Marx's "from each according to his ability, to each according to his needs," to various religious schemes that would have the common folk prostrating themselves before the edicts of an imaginary omnipotent being as conveyed by well rewarded intermediaries, to the whole divine right of this or that despot crowd, to kleptocracies, oligarchies, kakistocracies, or alloys made of any of the above. There are a lot of schemas available from which the connivers, predators, lame idealists, and con persons among us can chose to create systems of governance conducive to their ends. My goal is to foil 'em and so select first principles in which despotic growths will have a hard time taking root.
We could endlessly argue from what source the right to live a life unencumbered by a malevolent government springs; philosophers haven't settled any existential question of this scope so there's little chance we'll arrive at some sort of universal agreement. The philosophes among the framers knew this and so labored instead to set up system under which despotic impulses would have a hard time coalescing. Can't defending and bulwarking that accomplishment be an end unto itself? I'll grudgingly participate in a discussion seeking to whittle down principles of governance to their root, but have little doubt that the frames from which we view this task leave little likelihood of achieving anything close to unanimity. As such I'd much rather participate in discussions examining how best to cleave back odious government than discuss the philosophical underpinnings that lead us to pick up the machete.
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"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
- 9th Amendment
How can people retain other rights if they weren't already there? Where did those rights come from? God-given to me is an expression for pre-existing. I'm happy to call them intrinsic rights, natural rights, moral rights, or inalienable rights. Government can take them away like a thief, rapist or murderer can take, but you still started with those rights of freedom, I believe.
"But the US government is "by the people, for the people" so it isn't really the same proposition as the king taking rights."
- Only if a minority takes away rights from the majority or a majority takes rights from the minority do I see a similarity. When we rob Peter to pay Paul and only get Paul's consent, there is a similarity. To the extent that one congress passes programs that cannot be undone by a later one, it fails the test of consent of the governed IMO. We didn't hire the bums to take away our rights and the founders were certainly trying to make it harder to do that.
"...no reason for God to have created the right to participate in our governance without the creation of a government."
- I am pro-government, up to roughly the limits set forth in the constitution. Like BD wrote earlier, I don't think we are that far apart.
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Although I believe in a Creator, I like BBG's post. :-D
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Government is simply human farming, the harvesting of taxes. Here in America there are theoretical feedbacks that prevent that farming from becoming to exploitive. I say theoretical because they haven't been getting used- or have been "preceeduraly modified" out of use. Individuals acting together is what made this country great, at various time individuals decide to form a union, or a new party-maybe transform and old one? Various of these originally necessary actions have gotten coopted and tranformed over the years into something other than what was intended.
We now sit in an interesting time. A major political party is going thru a transformation, So is the economy and America is also deciding on its future charachter. I am doing my part to push it in a direction I prefer since I definately do not want it to go down the Central managed road of big government, which is where it will go. I have been in a kind of watchful apathy for years, but I am feeling the necessity of doing something, and some thing are moving in the right direction. To get it moving there a lot of the silent majority has to start pushing too. I do my thing and wonder who else is going in the same general direction and hope there are enough.
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As corporations are not freed slaves, is it safe to assume that the Framers of both the Bill of Rights and the 14th amendments did not originally intend corporations to have the rights guaranteed to indviduals. And, if this is true, can we agree that a Supreme Court case that were to give these rights to corporations was an activist court, that is going outside its constitutional limits?
Is the New York Times a coporation? Yes. Does the New York Times enjoy constitutionally protected speech? Given the role of newspapers, pampleteers in the revolution, do you think the intent of the founders was to provide such protections to both for profit and non-profit entities? I think their intent is quite clear.
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As corporations are not freed slaves, is it safe to assume that the Framers of both the Bill of Rights and the 14th amendments did not originally intend corporations to have the rights guaranteed to indviduals. And, if this is true, can we agree that a Supreme Court case that were to give these rights to corporations was an activist court, that is going outside its constitutional limits?
Is the New York Times a coporation? Yes. Does the New York Times enjoy constitutionally protected speech? Given the role of newspapers, pampleteers in the revolution, do you think the intent of the founders was to provide such protections to both for profit and non-profit entities? I think their intent is quite clear.
Their was, indeed, quite clear. That is why "press" is included in the First Amendment.
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Hmm, NRA publishes a lot of news so does that mean they shouldn't have been impacted by McCain Feingold and thus don't have to embrace expediency and sell out where the Disclose Act is concerned?
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Being a literalist, how can your definition of press move beyond the printing press of the revolutionary era? Did the founding fathers mean a llc owned blog? Where did they anticipate such things?
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Hmm, NRA publishes a lot of news so does that mean they shouldn't have been impacted by McCain Feingold and thus don't have to embrace expediency and sell out where the Disclose Act is concerned?
The point of NRA's radio show was to move around BCRA.
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Being a literalist, how can your definition of press move beyond the printing press of the revolutionary era? Did the founding fathers mean a llc owned blog? Where did they anticipate such things?
Oh, a living Constitution argument!!!! Pretty liberal thiniking GM.
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You are avoiding answering my questions.
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Being a literalist, how can your definition of press move beyond the printing press of the revolutionary era? Did the founding fathers mean a llc owned blog? Where did they anticipate such things?
Well, this is kind a b.s. question from an original intentist. The freedom of press has always meant the freedom to produce political news.
http://caselaw.lp.findlaw.com/data/constitution/amendment01/06.html
"Debate in the House is unenlightening with regard to the meaning the Members ascribed to the speech and press clause and there is no record of debate in the Senate." Oh, there goes the difficulty of original intent again.
Blackstone: 'The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment.
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It's quite evident that the intent of the founders was the freedom of the press, and that it included businesses that owned such presses, and although the could not anticipate a coporate entity such as GE/NBC/MSNBC, they enjoy the same constitutional rights as a revolutionary era news sheet on a hand cranked printing press.
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The point of NRA's radio show was to move around BCRA.
I'm sorry, the NRA generates magazine, television, radio, and web content that all perform a reporting function, and has done so to one degree or another for the 40 years I've been a member. Not sure what the acronym you refer to is, but does the NRA's press credentials armor them against the free speech prohibitions contained in McCain/Feingold and the Disclose Act? If not, how does one cleave that baby? If so, why should we care what unconstitutional prohibitions congress bats around?
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The point of NRA's radio show was to move around BCRA.
I'm sorry, the NRA generates magazine, television, radio, and web content that all perform a reporting function, and has done so to one degree or another for the 40 years I've been a member. Not sure what the acronym you refer to is, but does the NRA's press credentials armor them against the free speech prohibitions contained in McCain/Feingold and the Disclose Act? If not, how does one cleave that baby? If so, why should we care what unconstitutional prohibitions congress bats around?
I am aware that the National Rifle Association presents ideas in those media, and has done so for the 12 or so years that I have been a lifetime member. That does not change the fact the NRA purposefully began its own radio program so that it could act in a manner not prevented by the BCRA. Do you remember all of the hype when it strated its radio programming. It made announcements for months that the reason for the new format was so that BCRA did not prevent it from voicing political messages.
Much of BCRA has been overturned, in Citizens United. Why are we talking abouth this now?
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Much of BCRA has been overturned, in Citizens United. Why are we talking abouth this now?
Uhm, because you brought the acronym that I'm only identifying by context up?
I don't think we are necessarily on different sides here; I'm just astounded by deconstructions that cleave out some biased information sources as "press" and others as "issue advocacy." Anyone producing a boilerplate broadsheet is the press, IMHO, and thus protected by the first among other amendments. The attempt to segregate out voices that may impede incumbency protection scams strike me as unconstitutional sleight of hand at best.
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A Few More Points on McDonald
Posted by Ilya Shapiro
I still haven’t finished reading the full 214-page opinion, but a few points to add to the statement I made yesterday:
Justice Alito’s plurality opinion, joined by the Chief Justice and Justices Scalia and Kennedy, is a tight 45-page discussion of the history of the right to keep and bear arms and how it relates to the Court’s “incorporation” doctrine under the Fourteenth Amendment’s Due Process Clause. No excess verbiage, no policy arguments, and, notably, no denial or disparagement of the Privileges or Immunities Clause — just denying to take up the issue in light of the long line of Substantive Due Process incorporation.
Justice Thomas provides a magisterial 56-page defense of the Privileges or Immunities Clause, resurrecting a long-beleaguered constitutional provision. While he doesn’t cite Keeping Pandora’s Box Sealed, Josh Blackman and I are proud to have tracked quite closely the arguments Thomas makes. Note that without Thomas’s vote, there is no majority extending the right to keep and bear arms to the states. That means P or I is relevant and enters the casebooks and Court precedent.
The dissents by Justices Stevens and Breyer, respectively (the latter joined by Justices Ginsburg and Sotomayor), rest almost exclusively on pragmatic arguments. They seem to think that the right to keep and bear arms is an inconvenient part of the Constitution in our modern (particularly urban) age. This may or may not be correct as a matter of policy or social science — the evidence I’ve seen seems to point against them — but it’s irrelevant to the legal analysis. If the dissenting justices wish to propose a constitutional amendment, I would welcome the ensuing debate. As it stands, however, their arguments are disturbingly devoid of principled constitutional interpretation. Note also that neither dissent goes into privileges or immunities analysis, though Justice Stevens argues that the Clause’s meaning is “not as clear” as the petitioners (our side) suggest.
Relatedly, both Justice Stevens and Justice Breyer invoke but misunderstand the infamous Footnote Four of the 1937 Carolene Products case, which bifurcated our rights, privileging political rights over economic liberties and property rights and deferring to the legislative branches when at all possible. One of the points Footnote Four made, however, was that enumerated rights have to have the strongest possible constitutional protection: “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.” The Second Amendment, then, if anything has to have at least as much protection as the right to privacy and other unenumerated rights.
Finally, it is startling that not only does a fundamental constitutional right hang by a one-vote thread, but its application to the states is similarly tenuous. There but for the grace of God goes any right — and any limitation on government power. As I said yesterday, “Thank God that vote is Justice Thomas’s.”
For more McDonald reaction, see Josh Blackman’s remarkable series of blogposts.
http://www.cato-at-liberty.org/2010/06/29/a-few-more-points-on-mcdonald/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Cato-at-liberty+%28Cato+at+Liberty%29&utm_content=Google+Reader
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http://www.thehighroad.org/archive/index.php/t-61355.html
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http://www.nyulawglobal.org/globalex/united_states.htm
E. Sources for Legislative Intent
Legal researchers may need to look beyond the enacted language of a statute to find the intent of the lawmakers in drafting the law. Legislative history research may be used as a means of interpreting a statute. The sources for legislative intent follow the history of the passage of the law, from introduction to committee documentation to floor debate and Presidential remarks.
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http://hotair.com/archives/2010/07/01/how-did-four-supreme-court-justices-wind-up-arguing-against-the-constitution/
Leftism trumps constitution for four.
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I would like to bring over from the Kagan thread, one paragraph at a time, the 2 columns of suggested questions from George Will that nicely summarize the differences between the main schools of thought on interpreting the constitution. Starting with the last question first, I would challenge anyone here who says they are reading only the exact words of the constitution to help us understand perhaps the most important ruling of our lifetimes, the one liberals and liberal justices (for lack of a better term) hold most dearly, the right to slaughter your young:
"In Roe v. Wade, the court held that the abortion right is different in each of the three trimesters of pregnancy. Is it odd that the meaning of the Constitution's text would be different if the number of months in the gestation of a human infant were a prime number?"
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Pasting this post by PC on the Well Armed People thread here. This is an excellent and usually overlooked point.
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Woof,
Liberal lawyers, judges, professors, and other so called Constitutional experts have for many years been poisoning the well by putting various ideas and interpretations of the Second Amendment out in the public sphere that completely goes against what the amendment was intended to protect. Any course you take in college or book you pick up on the Bill of Rights, will firmly place these ideas in your mind; things like saying the Second Amendment was put in the Bill of Rights to make sure the government had soldiers at the ready and now it is outdated for that purpose. In other words this wasn't about protecting a citizens right to keep and bear arms at all but instead it was about protecting the United States from attack and it was put there as a benefit to the government and the states to have a armed militia.
This poison pill that they have drilled into our heads and into every lawyer and Constitutional expert that comes out of our finest schools, has been what the enemies of freedom have hung their hat on in order to strip the Second Amendment of its power to protect citizens from tyranny. Of course the latest ruling from the Supreme Court of the United States, has worked as an antidote to lessen the effect of that poisonous idea. However, the poison is still there in every major work on the Bill of Rights and Constitutional law. So here I would like to counter these ideas with some simple facts that you might use to correct the record.
Let's start with first things first. What was the intended purpose of the Bill of Rights to begin with? For that we can look at the preamble to the Bill of Rights. What? Never heard of that before? I wonder why? Well, here it is:
PREAMBLE
Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine
THE Conventions of a number of States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that futher declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent starts of its institution.
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
The second paragraph states the reason and purpose for the Bill of Rights, including the Second Amendment by the way, very plainly..."in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent starts of its institution."
It makes it very clear that these amendments are intended to restrict the government and not to give it protections, but instead to ensure public confidence. Next, what the Second Amendment actually said before it was misconstructed and abused and rewritten by the poisonous pen of interpretation.
Second Amendment
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
The first part is what the interpreters deem to contain the important meaning and purpose of the amendment and the last half, according to them, is just meaningless drivel. Now, anyone who's thinking hasn't been impaired by the poisonous ideas planted in all the literature about the Second Amendment would immediately recognize the first part as being a supporting statement to what follows, and they would respect the placement of commas that separate the statement from the declaration and restriction clause. What did the Preamble say? "...in order to prevent misconstruction or abuse of its powers, that futher declaratory and restrictive clauses should be added." and what does the last half of the Second Amendment say? This is the declaratory part, note the comma: "the right of the people to keep and bear arms, And the restrictive part: shall not be infringed."
The first part that mentions the Militia as a supporting statement, is just one given reason among many as to why this declaration and restriction had its place in the Bill of Rights and it has no importance or bearing on its meaning at all, at least not if you believe the preamble. Which might explain why it is never mentioned in all those expert opinions.
Am I really that much smarter than all all those Constitutional experts? These people are despicable for intentionally misleading the public and undermining our rights by way of academic terrorism. This is intellectual dishonesty at its worse.
P.C.
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I can say P.C. begins his post with a broad generalization that is also false. It is not the case that "Liberal lawyers, judges, professors, and other so called Constitutional experts have for many years been poisoning the well by putting various ideas and interpretations of the Second Amendment out in the public sphere that completely goes against what the amendment was intended to protect. Any course you take in college or book you pick up on the Bill of Rights, will firmly place these ideas in your mind; things like saying the Second Amendment was put in the Bill of Rights to make sure the government had soldiers at the ready and now it is outdated for that purpose" (my emphasis).
I know of many college courses that neither focus on nor support this particular interpretation of the Bill of Rights and the Second Amendment in particular.
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I know of many college courses that neither focus on nor support this particular interpretation of the Bill of Rights and the Second Amendment in particular.
**Maybe as many as a dozen, I bet.** :roll:
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BD:
How do you teach this point?
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Guro Crafty, I teach my students that there is a debate, and I give the historical discussions around both a collective and an individual right. We have used many original documents, including the letter from Ashcroft to the NRA-ILA from 2001 (maybe 2002, not in my office at the moment). We also read much from the Founding period, including the Federalist and the Anti-Federalist's ideas. (This is a general overview, since I have upper and lower level classes, and I try to alter the material taught every semester in some of the classes.) I have also been asked by liberal and conservative student organizations to come to their meetings to discuss my personal feelings toward the 2nd Amendment, at which point I am never shy about providing being blunt about the way that I feel about it. I will also say that I hope to develop a class dedicated to the 2nd amendment within a few years.
I must also say that I am not the only member of the faculty at my college with a pro-2nd Amendment personal preference. Additionally, GM, for all of your eye rolling, I can tell you that there are many faculty members at many colleges and universities who do not have "liberal" agendas, some of whom are themselves conservative, and many of whom are honest enough to inform their students of competing viewpoints. So, no, not a dozen, but over the course of 10 or so years, probably more like a few hundred.
There are also colleges and universities that are known as conservative. I doubt very much that the majority of classes at Oral Roberts, James Madison, and Wheaton College, for example, are subjected to liberal ideas regarding the 2nd Amendment.
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Thank you.
PC's point about the Preamble seems to me quite strong. Indeed, IMHO it demolishes any idea that the Second is not an individual right. What do you think?
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Thank you.
PC's point about the Preamble seems to me quite strong. Indeed, IMHO it demolishes any idea that the Second is not an individual right. What do you think?
I have always thought it was an individual right.
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Understood, but I seek to push further than that. I seek to assert that there is no reasonable position to the contrary-- which would also mean that the material should be taught that way too , , , What do you think?
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Brief · July 12, 2010
The Foundation
"I want an American character, that the powers of Europe may be convinced we act for ourselves and not for others; this, in my judgment, is the only way to be respected abroad and happy at home." --George Washington
Re: The Left
"Attorney General Eric Holder and the rest of the open-borders DOJ team have invoked a 'preemption' doctrine based on the U.S. Constitution's supremacy clause to attack Arizona's anti-illegal immigration measure and oppose local and state enforcement of federal immigration laws. Never mind that the Arizona law was drafted scrupulously to comply with all federal statutes and the Constitution. You gotta love Obama's fair-weather friends of the Constitution. When a state acts to do the job the feds won't do, Obama's legal eagles run to the Founding Fathers for protection. When, on the other hand, left-wing cities across the country pass illegal alien sanctuary policies that flagrantly defy national immigration laws and hamper cross-jurisdiction enforcement, the newfound federal preemption advocates are nowhere in sight. The Obama DOJ's lawsuit against Arizona is sabotage of the people's will and the government's fundamental responsibility to provide for the common defense." --columnist Michelle Malkin
Government
"[T]o ascribe the word 'sector' to the limitless Unconstitutional and unnecessary public 'businesses' is pure subterfuge. The plunder sector is the only accurate title for what the government does outside its strict Constitutional scope. Any and all government 'stimulus' retards growth because it removes current and future wealth from its producers and gives it to central planners who are not subject to the market but to voters, a significant part of which do not pay for the bread and circuses they demand.... But if Barack Obama is trying to implode the system, and he is to succeed in doing so, how does he know that the people of this nation will not revolt? Does he assume that people will simply demand a government that makes all of their decisions for them? Perhaps he knows that this is a failing battle, but he realizes that if we manage to teeter for years on the edge, at least he will have accelerated the decline for fundamental transformation, swelling the public payroll and finances, sufficiently hobbling the private sector, weakening our morale and making people exponentially more reliant on government. Even if he cannot push all the way to totalitarian collectivism, he can still get us close enough that is almost impossible to repeal massive statism." --columnist Andrew Mellon
Liberty
"Today, Americans are stifled by big government, smothered by over-regulation, and taxed to death. Our Founding Fathers who risked everything they had -- their fortunes, their families, their lives -- to secure freedom for us would not recognize our current economic reality as anything even close to the economic liberty they worked so hard to secure. Yes, we are endowed by our Creator with the right to 'life, liberty and the pursuit of happiness'. But the government formed to protect those rights now makes it awfully hard for Americans to see economic liberty anywhere and nearly impossible to pursue financial security and the happiness that comes with it. It's time to reclaim a bit of that old time religion. It's time to secure economic liberty by cutting taxes, reducing regulations and shrinking the size of government. We've got to free individuals to use our God-given talents and imaginations to build a better life for ourselves and our children or we will eventually lose our liberty altogether." --columnist Rebecca Hagelin
Insight
"When you see that trading is done, not by consent, but by compulsion -- when you see that in order to produce, you need to obtain permission from men who produce nothing -- when you see money flowing to those who deal, not in goods, but in favors -- when you see that men get richer by graft and pull than by work, and your laws don't protect you against them, but protect them against you -- when you see corruption being rewarded and honesty becoming a self-sacrifice -- you may know that your society is doomed." --author and philosopher Ayn Rand (1905-1982)
The Gipper
"If there's any message that I wish to convey today, it is: be of good cheer. We're coming back and coming back strong. Our confidence flows not from our skill at maneuvering through political mazes, not from our ability to make the right deal at the right time, nor from any idea of playing one interest group off against the other. Unlike our opponents, who find their glee in momentary political leverage, we [nourish] our strength of purpose from a commitment to ideals that we deeply believe are not only right but that work. ... We are, and proudly so, but we are also the keepers of the flame of liberty." --Ronald Reagan
For the Record
"How might our founders have commented about [the] U.S. Supreme Court's decision upholding our rights to keep and bear arms? Justice Samuel Alito, in writing the majority opinion, said, 'Individual self-defense is the central component of the Second Amendment.' The founders would have responded 'Balderdash!' Jefferson said, 'What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms.' George Mason explained, '(T)o disarm the people (is) the best and most effectual way to enslave them.' Noah Webster elaborated: 'Before a standing army can rule, the people must be disarmed. ... The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive.' Contrary to Alito's assertion, the central component of the Second Amendment is to protect ourselves from U.S. Congress, not street thugs." --economist Walter E. Williams
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Sorry about the misunderstanding. I disagree. Teaching politics isn't the same as teaching science or math. I think we can all agree that 2+2=4, or the correct definition of a vector (for examples). And, while there are some facts about politics (100 senators; bicameral legislature), there are also opinions. There is a great deal of disagreement, among reasonable and educated people, about the meaning of the 2nd Amendment. In the same way that you wouldn't want me to teach the greatness of Warren Court (say), others wouldn't want me to teach one side of a multisided issue. In many constitutional areas (2nd Amd; privacy; expansion of presidential powers, etc. etc.) I expose students to competing views and ask them to think about it. What are logical fallacies, which side presents a better argument, which is most compatable with what you know of early and modern American history, and the like. Form an argument and support it. I can't (or won't) teach what to think.
I should add, however, that will happily discuss the decison to incorporate the 2nd to the states!
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**PC makes a very strong case, of course.**
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
**I've always wondered how those that argue the above is a collective right don't think the amendment below is also just a collective and not individual right.**
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
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BD:
So, given what the Preamble says, what does a reasonable argument against the Second being an individual right look like?
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BD, see any patterns here?
http://pajamasmedia.com/blog/concealed-carry-on-campus/?singlepage=true
http://www.discoverthenetworks.org/guideDesc.asp?type=aca
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BD:
So, given what the Preamble says, what does a reasonable argument against the Second being an individual right look like?
I didn't say there are reasonable arguments, I said that reasonable people debate. I don't say that for mere semantical reasons. I, personally, don't find anti-2nd amendments to be right. I have become convinced, through my own reading, that the right is an individual one. That does not mean that everyone feels that way. I would rather that students, if they become convinced, become convinced because of their ideas and research than me decideing it for them.
Here are some sources for the other side though: David T. Konig, "Arms and the Man: What Did the Right to 'Keep' Arms mean in the Early Republic?" Law and History Review, Spring 2007.
http://www.historycooperative.org/journals/lhr/22.1/forum_konig.html
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BD, see any patterns here?
http://pajamasmedia.com/blog/concealed-carry-on-campus/?singlepage=true
http://www.discoverthenetworks.org/guideDesc.asp?type=aca
I sure do. I see that evidence is often misconstrued and misleading. Here are some possible ways:
1, there are many states, including the one where I reside, where there is no such thing as a "registered" Republican or Democrat. According one source, FairVote.com, there are 17 such states, including Michigan, Missouri, Texas, Vermont, and Virginia. All of these states have at least one university that I would consider "elite."
2, there is no definition of an "elite" university.
3, since only about 20-30 "elite" university's are discussed, that leaves several hundred that were not discussed. I wonder about the ideological make up there, since the vast majority of college students are being educated at those types of schools.
4, just because a professor is "liberal" (or "conservative") does not mean that they bring politics into the classroom.
5, the generation that became "radicalized" and was teaching in 1964 is retiring or has retired. I can virtually guarantee that in 10-20 there will be little discussion about the politics of college professors.
6, I have been on several academic job interviews, and I wasn't asked about my political preferences at any of them.
7, there may be a self selection problem. Professors don't make much money, despite the arguments to the contrary. If may be that conservatives largely take their talents to the private sector, where the pay is better.
As for guns on campus, I am frustrated that there aren't more schools that recognize the right to carry. However, public schools are beginning to allow their students to do so, and private colleges aren't bound by the Bill of Rights.
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An interesting tangent:
Calling in the World Court against the Gun Trade
Posted by Walter Olson
Just before the holiday I sent off to Encounter Books the manuscript of my next book, tentatively titled Schools for Misrule: Law Schools and an Overlawyered America. One of the themes the book explores is how, after years of arguing that courts should read the U.S. Constitution as requiring the adoption of the liberal policy agenda of the moment (welfare rights, free health care, or whatever), cutting-edge law school thinking now promotes the idea that international human rights law requires the adoption of that same agenda. Thus the U.S. Supreme Court ruled in San Antonio v. Rodriguez (1973) and Milliken v. Bradley (1974) that the U.S. Constitution does not mandate (respectively) “Robin Hood” school finance redistribution and school busing across district lines; now it’s argued that both decisions need to be revisited and overturned as contrary to (ever-evolving) conceptions of international human rights. Similarly, there are said to be internationally recognized rights to government-provided housing, day care, and even (at least in Europe) tourism.
These notions are at odds with longstanding ideas of sovereignty and national independence, as held by (among many others) the Founders of this Republic. That they could also pose more direct dangers to individual liberty is suggested by a news item that drew only passing attention a few weeks ago: Chicago Mayor and long-time anti-gun advocate Richard Daley convened an assembly on global issues at which (per the Chicago Sun-Times) he “convinced more than a dozen of his counterparts from around the world to approve a resolution urging ‘redress against the gun industry through the courts of the world’ in The Hague.” According to another local news report, Daley “said American gun manufacturers should be held responsible in the World Court, since American-made guns are used in violent crime elsewhere in the world.” Philadelphia Mayor Michael Nutter and the mayor of Mexico City were among those endorsing the idea. David Kopel at Volokh Conspiracy has much more on the conditions that would have to be met for the World Court to assert jurisdiction.
Chicago and its mayor were in the Second Amendment spotlight most recently with the McDonald case, in which the U.S. Supreme Court struck down the city’s ultra-strict anti-gun ordinance as in violation of the Bill of Rights. But the real antecedent of Daley’s latest idea was the late-Nineties litigation ginned up by anti-gun advocates and trial lawyers on behalf of three dozen cities and counties, which mostly fared poorly in court, yet still, through sheer cost-infliction, very nearly achieved its goal of off-the-statute-books gun control through litigation). That litigation campaign was decisively rejected and stopped in its tracks by Congress in the Protection of Lawful Commerce in Arms Act, signed by then-President George W. Bush in 2005. In other words, Daley is seeking an international end run around both the Bill of Rights and the democratically expressed will of the American people. Aren’t Chicago voters tired of this yet?
http://www.cato-at-liberty.org/2010/07/12/calling-in-the-world-court-against-the-gun-trade/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Cato-at-liberty+%28Cato+at+Liberty%29&utm_content=Google+Reader
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This is an interesting post. I think I would like to read the book discussed. I think that liberals should be careful what they ask for. Brennan and Marshall began the call to allow (for lack of a better term) what became known as "new judicial federalism." The conservative justices won that battle. I think liberal justices, judges, and attorneys should have more foresight than they seem to when it comes to new ways to address judicial political use. (And before people jump down my throat, please note that I am not advocating for this, or any, interpretation, other than what is found within the document itself.)
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Think you're right, BD, re getting bit by expediency down the line. I lived in Madison, WI when PC speech codes were all the rage, and spent a lot of time explaining to sweetness and light Nazis that their prior restraint predilections cut both ways and that they wouldn't always be the ones waving the baton. Never ceases to amaze me how many folks assume the now is as it is and ever shall be.
Also respect the ethic you bring to the classroom. Far as I'm concerned a prof is doing his or her job if you have few clues as to what the true views are. Think a classroom should be thought as a smorgasbord and profs should instill good eating methodologies and let the rest take care of itself.
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My experience does not correspond with yours. As a student in non-elite schools, I've been subject to profs who felt their role was that of propagandist for post-modern neo-marxist dogma. As a criminal justice student, I took a class on sexual assault, and instead of actually getting useful information on the subject to enhance my skills as a law enforcement officer I got to read on how America was a "rape culture" and every sexual act between a man and a woman was an act of rape because no woman in our society could truly give consent, and any woman who thought she did was a victim of "false consciousness".
I took a class on "multicultural communication" which was nothing but a extended rant by the prof on the evils of America, western civilization and anything remotely christian, heterosexual and/or white.
In addition, I had a personal connection to an academic who was the product of a elite schools and seeking a tenure track position in academia in those school. She was utterly terrified of me dooming her career because of my line of work and political opinions. She was a wide-eyed believer in all the leftist drivel she had been immersed in since since her undergrad days.
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My experience does not correspond with yours. As a student in non-elite schools, I've been subject to profs who felt their role was that of propagandist for post-modern neo-marxist dogma. As a criminal justice student, I took a class on sexual assault, and instead of actually getting useful information on the subject to enhance my skills as a law enforcement officer I got to read on how America was a "rape culture" and every sexual act between a man and a woman was an act of rape because no woman in our society could truly give consent, and any woman who thought she did was a victim of "false consciousness".
I took a class on "multicultural communication" which was nothing but a extended rant by the prof on the evils of America, western civilization and anything remotely christian, heterosexual and/or white.
In addition, I had a personal connection to an academic who was the product of a elite schools and seeking a tenure track position in academia in those school. She was utterly terrified of me dooming her career because of my line of work and political opinions. She was a wide-eyed believer in all the leftist drivel she had been immersed in since since her undergrad days.
I'm not saying that it never happens, and I too was in at least 2 classes as an undergraduate where similar teachings occured. But I majored in history and political science, so 2 of the 30 or so classes I had to take didn't seem so bad to me. And, I never saw anything similar to when I was in graduate school, either in the classes I took or TA'd in. All I am saying is that I think, given all of the professors that I know, the instances are overreported (or at least overblown). Thank you for sharing your experience.
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Pasting this post by PC on the Well Armed People thread here. this is an excellent and usually overlooked point.
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Woof,
Liberal lawyers, judges, professors, and other so called Constitutional experts have for many years been poisoning the well by putting various ideas and interpretations of the Second Amendment out in the public sphere that completely goes against what the amendment was intended to protect. Any course you take in college or book you pick up on the Bill of Rights, will firmly place these ideas in your mind;
Woof bigdog,
I'm not one to nit pick but when someone states that I made a false statement I feel that it would be incumbent on them to read what I said. There is and has always been only one set of facts regarding the meaning of the Second Amendment and to render it in any other way is to distort those facts. When someone teaches these distorted ideas in the interest of fairness whether they believe the false idea or not, they are still spreading the poison none the less. It's like a math teacher saying,"Two plus two is four. However, there are many out there that say two plus two is actually 22 and there is a whole body of work done by authoritative experts that makes a compelling case for that and it's so compelling that now there is no certainty that two plus two is acually four."
I didn't say that all professors make up the false ideas or that there wasn't another side being taught; what I said was that Liberals have poisoned the well and those poison ideas have spread throughout the body of work on the Second Amendment. Which makes it very easy for guys like Michael Bellesiles to rewrite history to fit a political agenda today.
P.C.
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Woof,
By the way, the words "well regulated" in context of the times as it is written in the Second Amendment, means sufficiently equipped and had nothing to do with government regulations. You see the Federal government nor the states, provided arms to the citizen militia, so how could they arm themselves if they didn't have the right to buy and keep their own? And the "free state" that's referred to means the individual states, not the national state. Who were they worried about as far as their security and freedom? The Federal government. Which is why they put this in the Constitution. Two plus two equals?
P.C.
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P.C.,
The issue I had with your post was not the inherent message, it was the claim that "ANY class... or book" will poison the mind or some such. That is the part that isn't true. The Second Amendment Primer doesn't. Any book by John Lott doesn't. Any book written by Wayne LaPierre doesn't. And neither does every single class in college.
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Woof Bigdog,
Yes they do, by restating those ideas and making arguments against them; pro or con the ideas are planted my man.
"The Constitution preserves the advantage of being armed which Americans possess over the people of almost every other nation where the governments are afraid to trust the people with arms."
Federalist #46 Madison, author of the Bill of Rights and the Second Amendment
"A well regulated militia, composed of the gentlemen, freeholders, and other free men was necessary to protect our ancient laws and liberty from the standing army. And we do each of us, for ourselves respectively, promise and engage to keep a good fire lock in proper order and to furnish ourselves as soon as possible with and always keep by us, one pound of gunpowder, four pounds of lead, one dozen gun flints and a pair of bullet moulds, with a cartouch box or powderhorn and bag for balls."
Fairfax County Militia Plan, written by George Mason, co author with James Madison of the Second Amendment
"Little more can reasonably be aimed at with respect to the people at large than to have them properly armed and equipped."
Federalist#29 Hamilton
P.C.
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Nice confluences contained herein:
Cato Unbound: Does Evolution Imply Libertarianism?
Ronald Bailey | July 14, 2010
What relevance, if any, does Charles Darwin and evolutionary biology have for libertarianism? This issue is being debated this week over at Cato Unbound, by University of Northern Illinois philosopher Larry Arnhart, University of Minnesota biologist PZ Myers, Santa Fe Institute behaviorial scientist Herbert Gintis, and Rutgers University anthropologist Lionel Tiger.
Arnhart, author of Darwinian Natural Right: The Biological Ethics of Human Nature, argues that Darwin and the findings of evolutionary biology do offer support for the normative claims of classical liberalism. Arnhart defines classical liberalism as
the moral and political tradition of individual liberty understood as the right of individuals to be free from coercion so long as they respected the equal liberty of others. According to the liberals, the primary aim of government was to secure individual rights from force and fraud, which included enforcing laws of contract and private property. They thought the moral and intellectual character of human beings was properly formed not by governmental coercion, but in the natural and voluntary associations of civil society.
On my reading, Arnhart is arguing that classical liberalism better conforms to what evolutionary psychology is confirming about human nature. Societies whose institutions try to go against human nature will do less well than societies whose institutions enable the flourishing of our natures. But if that is so, why is it that truly liberal societies have emerged only in the past two centuries? After all, human nature has not changed much in the past several millennia. (My personal answer is the cultural evolution is a trial-and-error process that is slowly discovering institutions that increasingly conform better to human nature.)
So far, only Myers has responded to Arnhart arguing that he claims too much. Meyers asserts:
Evolution gives us only very general rules for our species. Adapt to the environment, or die. Change is inevitable.
Question to Myers: Just what social and economic systems better recognize and enable people to adapt and change? Possibly those based on the principles of classical liberalism?
Myers points out that all kinds of political tendencies have tried to wrap themselves in the blanket of Darwinian science, including the Revolutionary Communist Party. After all, Karl Marx famously asked Darwin if he might dedicate the first volume of Das Kapital to him. Darwin turned down the honor. I don't know what the Revolutionary Communists might be up to, but at least one prominent leftist, Princeton philosopher Peter Singer, argued that findings of evolutionary biology about human nature do put constraints on leftist social policies. Singer makes these limits explicit in his book, A Darwinian Left: Politics, Evolution, and Cooperation.
To illustrate Singer's thinking, let me share some excerpts from my 2000 interview with him on this topic:
Reason: Let me put it differently: What limits should be set on a program of egalitarianism?
Singer: Right, right. That's a different question. I think the limits ought to be essentially those that can be achieved without the kind of authoritarianism that would be incompatible with fairly liberal democratic traditions and without enormous costs and enormous loss. You have to consider whether you're going to trade off some element of the total overall prosperity of a society for the sake of having it be more egalitarian. I think those are questions of judgment. I think it's reasonable to trade off some measure of that, but obviously not enough to create a widespread hardship....
Reason: What does Darwinian thinking tell the left about why so many of the social programs they have favored have had difficulties or have failed?
Singer: It tells the left that some of them have failed because their goals were really unrealistic. For example, if their goals were to achieve equality and to combine that with a high degree of liberty--to have the state withering away, as Marx said--it's very difficult to see how you're going to be able to achieve that. If you let the state wither away, then humans' natural tendencies to form hierarchies and rank and so on are going to assert themselves. What happened specifically with the form of communism that was attempted in the Soviet Union and Eastern Europe was that people went into it with some vague idea that they could have this sort of society. But they kept needing to strengthen the power of the state rather than allow it to wither away. In that sense, the original idea would just collapse. You simply couldn't achieve it. Human beings are not such that you could expect them to work for the common good in the way that the theory assumed. The failure to understand that human nature is not as plastic as socialists often assume is a substantial part of why some of these schemes have failed.
Myers concludes his response to Arnhart by asserting:
Evolution does not incline us to classical liberalism; it is just one of many options that evolution allows.
Indeed, evolution per se may not so incline us, but as both Singer and Arnhart are arguing (I think convincingly) our human natures honed by evolution may do so.
Go here to enjoy the exchange on the social and political implications of evolutionary science.
http://reason.com/blog/2010/07/14/cato-unbound-does-evolution-im
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Woof Bigdog,
Yes they do, by restating those ideas and making arguments against them; pro or con the ideas are planted my man.
College isn't like a pre-K education where you point to a picture and say "Car. Can you say car? Carrrrrr." College is a place where you go to learn how to decipher, question, apply. How can one learn the weakness of an opposing argument without hearing it?
And your earlier point about 2+2 equaling 22 is just silly. There are no respected mathematicians who say something like that. There are, however, respected judges who use literalism, original intent, plain meaning of the words, foreign jurisprudence, the value of precedent and many other types of constitutional and statutory interpretation. As an example, in a Con Law class, in which the decisions/opinions of the Supreme Court are being discussed and evaluated, you can't ignore that justices do not simply use the standard that you happen to prefer.
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Woof Bigdog,
Yes they do, by restating those ideas and making arguments against them; pro or con the ideas are planted my man.
P.C.
College isn't like a pre-K education where you point to a picture and say "Car. Can you say car? Carrrrrr." College is a place where you go to learn how to decipher, question, apply. How can one learn the weakness of an opposing argument without hearing it? bigdog
Exactly my point, it can't help but spread the ideas involved and I have no problem with valid arguments but when the so called opposing argument is baseless in fact and those posing the argument do so with a fabricated premise and rest their case on a false body of evidence that misinforms, distorts, and endeavors to hide actual facts, while writing and teaching their ideas and version of rewritten history, with the authority and shroud of legitimate academic work and knowingly do so to further a political agenda to convince future generations of Americans that they don't now, and never did have, a individual right to keep and bear arms, then I call that poison!
And your earlier point about 2+2 equaling 22 is just silly. There are no respected mathematicians who say something like that. There are, however, respected judges who use literalism, original intent, plain meaning of the words, foreign jurisprudence, the value of precedent and many other types of constitutional and statutory interpretation. As an example, in a Con Law class, in which the decisions/opinions of the Supreme Court are being discussed and evaluated, you can't ignore that justices do not simply use the standard that you happen to prefer. bigdog
Yes, it is silly and again that is my point. Those that penned the Constitution and the Bill of Rights, those that debated it, ultimately ratified it, and the papers that reported on it made a number of things crystal clear, just as clear as 2+2, and one of those things was that the citizens of the United States have the right to keep and bear arms and that it shall not be infringed. Period. Definitively. With mathematical certainty. No doubt. No deciphering. No weakness. Nothing to be discussed nor evaluated or interpretation needed. That is, until these despicable ideas were intentionally planted to thwart the original intent of the Second Amendment and they have no place, no force of argument in any legitimate text book or class on the Constitution or Bill of Rights. They can argue that in their opinion we shouldn't have the right but they can't say it doesn't exist to begin with, because that is simply a flat out lie!
"Who are the militia? Are they not ourselves? Congress have no power to disarm the militia. Their swords and every other terrible implement of the soldier are the birthright of an American. The unlimited power of the sword is not in the hands of either the federal or state governments, but where I trust in God it will ever remain, in the hands of the people."
editorial, Feb. 20, 1788
Pennsylvania Gazette
"A militia when properly formed are in fact the people themselves and include all men capable of bearing arms. To preserve liberty it is essential that the whole body of people always possess arms. The mind that aims at a select militia must be influenced by a truly anti-republican principle."
Ratification debate 1788
Richard Henry Lee
"As the military forces which must occasionally be raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article (of amendment), in their right to keep and bear their private arms."
editorial overview of ratified Bill of Rights, June 18, 1789
Federal Gazette
"The said Constitution shall be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms."
ratification convention 1788
Samuel Adams
2+2, people. 8-)
P.C.
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Backtracking in the thread a bit, I want to comment on some points gone by:
Bigdog wrote: "there may be a self selection problem. Professors don't make much money, despite the arguments to the contrary. If may be that conservatives largely take their talents to the private sector, where the pay is better."
I agree with this point. Not for money alone, but there is an attraction for conservatives to the private sector and for liberals to academia.
"just because a professor is "liberal" (or "conservative") does not mean that they bring politics into the classroom"
In other disciplines such as climate science and economics they certainly seem to. I wonder how Nobel Laureates such as Obama or Krugman could describe the virtues of supply side economics in a classroom while they falsely characterize it publicly. I challenge anyone to find so much as a paragraph written by either of them that describes those arguments accurately or honestly. Very few of the best political moderators can question without exposing their own view. One firsthand classroom example I experienced was studying economics under the former chief economic adviser to Presidents Kennedy and Johnson. At the time he was positioning himself to be chief adviser to Ted Kennedy as well, advocating gas rationing and national healthcare in 1980. He taught and tested only on his view. He passed out reprints of his WSJ contributions, never opposing views which was the rest of the editorial page. That may not happen as egregiously in Law but I question how many teachers with very strongly held views can be fair to the other side of an argument.
I wonder how well lecturer Obama presented opposing views on contested constitutional issues. I question how well someone like Ruth Bader Ginsburg as a lecturer could present the arguments of Thomas on Kelo for example - or vice versa. Suppose the other side were in attendance, I wonder how they would rate the opponent's explanation of their argument.
As a sample, I wonder how BigDog (or anyone) might frame the pro-DOMA argument (federal defense of marriage act), assuming his personal view is opposite, to give us an idea of how he would frame the argument that the federal government has full constitutional authority to define the meaning of marriage, superseding any states' rights argument...
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Backtracking in the thread a bit, I want to comment on some points gone by:
Bigdog wrote: "there may be a self selection problem. Professors don't make much money, despite the arguments to the contrary. If may be that conservatives largely take their talents to the private sector, where the pay is better."
I agree with this point. Not for money alone, but there is an attraction for conservatives to the private sector and for liberals to academia.
"just because a professor is "liberal" (or "conservative") does not mean that they bring politics into the classroom"
In other disciplines such as climate science and economics they certainly seem to. I wonder how Nobel Laureates such as Obama or Krugman could describe the virtues of supply side economics in a classroom while they falsely characterize it publicly. I challenge anyone to find so much as a paragraph written by either of them that describes those arguments accurately or honestly. Very few of the best political moderators can question without exposing their own view. One firsthand classroom example I experienced was studying economics under the former chief economic adviser to Presidents Kennedy and Johnson. At the time he was positioning himself to be chief adviser to Ted Kennedy as well, advocating gas rationing and national healthcare in 1980. He taught and tested only on his view. He passed out reprints of his WSJ contributions, never opposing views which was the rest of the editorial page. That may not happen as egregiously in Law but I question how many teachers with very strongly held views can be fair to the other side of an argument.
I wonder how well lecturer Obama presented opposing views on contested constitutional issues. I question how well someone like Ruth Bader Ginsburg as a lecturer could present the arguments of Thomas on Kelo for example - or vice versa. Suppose the other side were in attendance, I wonder how they would rate the opponent's explanation of their argument.
As a sample, I wonder how BigDog (or anyone) might frame the pro-DOMA argument (federal defense of marriage act), assuming his personal view is opposite, to give us an idea of how he would frame the argument that the federal government has full constitutional authority to define the meaning of marriage, superseding any states' rights argument...
I can only tell you that my students often try to "figure out" my politics only to say at the end of the semester that they have no idea.
Pro-DOMA: (This is quick, so don't expect anything too high.) In the 1960's, the federal government decided that it could mandate that states could no longer outlaw or ban interracial marriages. Why, now, can't the federal govt. BAN same sex marriages?
Also, professors can assign readings that cover multiple ideological POV.
It really isn't as hard as you guys make it seem.
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Reynolds v. U.S.: 1879 - Congress Strengthens Anti-bigamy Law, The Supreme Court Destroys Mormons' Hopes
Read more: Reynolds v. U.S.: 1879 - Congress Strengthens Anti-bigamy Law, The Supreme Court Destroys Mormons' Hopes, Suggestions For Further Reading http://law.jrank.org/pages/2652/Reynolds-v-U-S-1879.html#ixzz0tmrwpX22
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Woof,
I mentioned Bellesiles in an earlier post and for those of you that don't know about him and the short love affair he had with the press, news media, academia and the gun rights hating Left, here is one of the many rave reviews by experts that didn't bother to check any facts; www.religion-online.org/showarticle.asp?title=2209 and after http://hnn.us/articles/691.html
P.C.
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I was in an interdisciplinary scholars undergrad program at the time Bellesiles' "research" was making news and had one of the faculty on my committee who kept waving the fake probate records in my face. I sure enjoyed it when his lack of documentation got outed.
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Alan Gura is at it again:
http://saf.org/legal.action/ny.lawsuit/kachalsky_complaint.pdf
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I was in an interdisciplinary scholars undergrad program at the time Bellesiles' "research" was making news and had one of the faculty on my committee who kept waving the fake probate records in my face. I sure enjoyed it when his lack of documentation got outed.
Woof,
Yeah, he over reached and it's a good thing he got caught at it; the problem is that there has been thousands of people like him over the years, and it continues today, they do the same thing he did but they stay below the radar by just placing a tiny drop of a lie here and there throughout their body of work. It's the old death by a thousand cuts strategy.
P.C.Woof,
I mentioned Bellesiles in an earlier post and for those of you that don't know about him and the short love affair he had with the press, news media, academia and the gun rights hating Left, here is one of the many rave reviews by experts that didn't bother to check any facts; www.religion-online.org/showarticle.asp?title=2209 and after http://hnn.us/articles/691.html
P.C.
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http://www.daybydaycartoon.com/2010/06/27/
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The Virginia Obamacare Decision
What are the limits of the federal government's power? Surely, no enactment in modern times pushes the boundary further than Obamacare. In denying the Obama administration's motion to dismiss the Commonwealth of Virginia's challenge to the constitutionality of Obamacare, US District Judge Henry Hudson thus correctly recognized that the individual mandate "literally forges new ground and extends Commerce Clause powers beyond its current high water mark." Specifically, the court recognized that there is a critical difference between the federal government regulating "a voluntary decision to perform an act" and mandating "that a person ... perform an involuntary act." Interestingly, the court also invoked the notion of enumerated powers, noting that there is no "specifically articulated constitutional authority" for imposing an individual mandate.
It's very early days. A trial court decision on a motion to dismiss is hardly dispositive of squat. Having said that, however, this opinion sets a very good tone for the lengthy battles to follow.
http://www.professorbainbridge.com/professorbainbridgecom/2010/08/the-virginia-obamacare-decision.html
http://www.concurringopinions.com/wp-content/uploads/2010/08/virginia-opinion.pdf
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Although I suspect Coulter is sometimes guilty of writing while intoxicated, this one seems sound to me:
Democrats act as if the right to run across the border when you're 8 1/2 months pregnant, give birth in a U.S. hospital and then immediately start collecting welfare was exactly what our forebears had in mind, a sacred constitutional right, as old as the 14th Amendment itself.
The louder liberals talk about some ancient constitutional right, the surer you should be that it was invented in the last few decades.
In fact, this alleged right derives only from a footnote slyly slipped into a Supreme Court opinion by Justice Brennan in 1982. You might say it snuck in when no one was looking, and now we have to let it stay.
The 14th Amendment was added after the Civil War in order to overrule the Supreme Court's Dred Scott decision, which had held that black slaves were not citizens of the United States. The precise purpose of the amendment was to stop sleazy Southern states from denying citizenship rights to newly freed slaves -- many of whom had roots in this country longer than a lot of white people.
The amendment guaranteed that freed slaves would have all the privileges of citizenship by providing: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
The drafters of the 14th amendment had no intention of conferring citizenship on the children of aliens who happened to be born in the U.S. (For my younger readers, back in those days, people cleaned their own houses and raised their own kids.)
Inasmuch as America was not the massive welfare state operating as a magnet for malingerers, frauds and cheats that it is today, it's amazing the drafters even considered the amendment's effect on the children of aliens.
But they did.
The very author of the citizenship clause, Sen. Jacob Howard of Michigan, expressly said: "This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers."
In the 1884 case Elk v. Wilkins, the Supreme Court ruled that the 14th Amendment did not even confer citizenship on Indians -- because they were subject to tribal jurisdiction, not U.S. jurisdiction.
For a hundred years, that was how it stood, with only one case adding the caveat that children born to legal permanent residents of the U.S., gainfully employed, and who were not employed by a foreign government would also be deemed citizens under the 14th Amendment. (United States v. Wong Kim Ark, 1898.)
And then, out of the blue in 1982, Justice Brennan slipped a footnote into his 5-4 opinion in Plyler v. Doe, asserting that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful." (Other than the part about one being lawful and the other not.)
Brennan's authority for this lunatic statement was that it appeared in a 1912 book written by Clement L. Bouve. (Yes, the Clement L. Bouve -- the one you've heard so much about over the years.) Bouve was not a senator, not an elected official, certainly not a judge -- just some guy who wrote a book.
So on one hand we have the history, the objective, the author's intent and 100 years of history of the 14th Amendment, which says that the 14th Amendment does not confer citizenship on children born to illegal immigrants. On the other hand, we have a random outburst by some guy named Clement -- who, I'm guessing, was too cheap to hire an American housekeeper.
Any half-wit, including Clement L. Bouve, could conjure up a raft of such "plausible distinction(s)" before breakfast. Among them: Legal immigrants have been checked for subversive ties, contagious diseases, and have some qualification to be here other than "lives within walking distance."
But most important, Americans have a right to decide, as the people of other countries do, who becomes a citizen.
Combine Justice Brennan's footnote with America's ludicrously generous welfare policies, and you end up with a bankrupt country.
Consider the story of one family of illegal immigrants described in the Spring 2005 Journal of American Physicians and Surgeons:
"Cristobal Silverio came illegally from Oxtotilan, Mexico, in 1997 and brought his wife Felipa, plus three children aged 19, 12 and 8. Felipa ... gave birth to a new daughter, her anchor baby, named Flor. Flor was premature, spent three months in the neonatal incubator, and cost San Joaquin Hospital more than $300,000. Meanwhile, (Felipa's 19-year-old daughter) Lourdes plus her illegal alien husband produced their own anchor baby, Esmeralda. Grandma Felipa created a second anchor baby, Cristian. ... The two Silverio anchor babies generate $1,000 per month in public welfare funding. Flor gets $600 per month for asthma. Healthy Cristian gets $400. Cristobal and Felipa last year earned $18,000 picking fruit. Flor and Cristian were paid $12,000 for being anchor babies."
In the Silverios' munificent new hometown of Stockton, Calif., 70 percent of the 2,300 babies born in 2003 in the San Joaquin General Hospital were anchor babies. As of this month, Stockton is $23 million in the hole.
It's bad enough to be governed by 5-4 decisions written by liberal judicial activists. In the case of "anchor babies," America is being governed by Brennan's 1982 footnote.
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I regret to say that Ann Coulter makes more sense on this than our friends here who argued the opposite. Quotes like this if actual are very persuasive:
The very author of the citizenship clause, Sen. Jacob Howard of Michigan, expressly said: "This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers."
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Perhaps I am missing it but every time I watch CNN, who bills it self as non partisan all I ever see is partisinship on this issue. When they discuss the issue of anchor babies, we see anchors, guests, pundits one after the other say with a shit eating grin after another and snickering that it is clearly in the constitution that the babies of two illegal parents are citizens and end of story.
Then we see over and over the 4 foot tall Guatemalan working in a yard shoveling dirt breaking his back living in a room with only clothes to his name as the example of all illegals and how can anyone with a heart deny this poor man the "right" to be in America and work and struggle and dream for a better life like all of the rest of us who were all from other countries? How could anyone but a Republican be so heartless.
No where or never have I seen them ever discuss the displacement of American workers (many of whom quite naturally sit back and collect unemployment), try to get disability, etc, discuss the benefits the illegal's children get, schooling, health in ER, free births and child care, food stamps, welfare, medicaid.
I want to see networks start to hire bilingual illegals for far less wages than these G-D assholes on these stations and make them news anchors. Then and only then, when it hits them in the wallet will they change their tune.
Comon Soledad you American hating white hating jerk. Instead of cherry picking the adorable Latino family why don't you give us the real objective picture about illegals. And why are we not talking about illegals from all countries rather than making Latinos believe this is all about them. It isn't!!!
Comon you dumb Republican "leaders" what about all the illegals including those who overstay their visas. Those from Asia, from Europe, From Africa, From the Carribbean. By keeping silent about this and making it solely a "border" issue you feed the concept that it is about people who look Mexican.
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As I understand it a Calif. Federal judge struck down Prop.8 which was the right of the state to define the participants in a marriage. The judge recognized marriage as a fundamental right and therefore too heavy a burden for any other factor to justify denying anyone that right.
But the fundamental part of marriage is that one man and one woman can make this commitment to become what we call husband and wife. Anything else is a new right, a new definition, a new tradition.
There was an important point made on another issue on the board about equal circumstance that applies and the entire progressive tax collection systems and entitlement payment systems are built on it, called equal circumstance One taxpayer is taxed differently on his next dollar earned than another taxpayer. The reason that passes for 'equal protection' is that IF either person were in the other's circumstance, they would be treated the same as the other.
Isn't that EXACTLY the same as a gay person's opportunity to marry. One gay man has the same right to fall in love and marry one woman and become husband and wife as anyone else does, and receive all the rights, burdens and privileges.. A former governor of New Jersey comes to mind; he had children, filed joint returns, spousal privilege, all of it. Same with Billie-Jean King, a married woman who happened to be lesbian, and I assume thousands or millions of other people. They didn't get all they wanted in life out of their marriage; neither do plenty of heteros, but they did have the fundamental right. Man-woman marriage for a gay person is just as likely and accessible as other areas of established law such as the possibility of an actively practicing physician qualifying for food stamps of a homeless man being levied with a yacht tax. It is what we call equal protection, different circumstances.
This issue will be settled once and for all just like all the other great divisive issues of our time. It will come down to what mood Anthony Kennedy is in that day.
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Dear E-Team,
I have been battling the McClatchy newspapers this month over the "anchor baby" crisis in which the babies of illegal immigrants are granted automatic citizenship. Today, eight percent of babies born in the United States fall into this category. The McClatchy newspapers branded any discussion of reforming this law "racist." Here's what I wrote in response:
In an editorial last week, the Bee tries to smear the supporters of birthright citizenship reform as "heirs" to white supremacists of the 1920's. To make this outrageous comparison, the editors resort to the tactic of equating legitimate concern over illegal immigration with opposition to all immigration.
Having constructed this straw man, the Bee then feels free to tar supporters of birthright citizenship reform HHas racists in the mold of Senator James Phelan who sought to ban all legal immigration from Asia. It then falsely insinuates that today's reformers would have opposed the landmark 1898 Supreme Court decision that correctly upheld the birthright citizenship of Wong Kim Ark, the child of legal – repeat, legal – Chinese immigrants and their descendants.
I challenge the editors to cite one statement that any Congressional advocate of reform has made that even remotely suggests barring legal immigrants to our nation or denying their children all the rights of citizenship. Indeed, I have extolled the virtues of legal immigration throughout my entire career in public office.
Unlike most nations, our immigration laws were not written to keep people out. They were written to assure that as immigrants come to America, they come with the intention to become Americans and to fully assimilate into American society by acquiring a common language, a common culture and a common allegiance to American constitutional principles. Illegal immigration undermines the entire process of legal immigration that makes our nation of immigrants possible.
One cannot support both legal and illegal immigration at the same time. If illegal immigration is to be rewarded with birthright citizenship, public benefits and amnesty, it becomes impossible to maintain our immigration laws and the process of assimilation that they assure. Indeed, there is no surer way of destroying a nation of immigrants than by Balkanizing them by language, ethnicity, culture and allegiance.
The Pew Center reported this week that eight percent of babies in the United States today are born to illegal aliens and accorded instant citizenship. The issue is whether the 14th Amendment, a Reconstruction measure to assure citizenship for the children of slaves, should continue to be used to provide automatic citizenship to babies born to parents who, under federal law, are themselves subject to immediate deportation.
Should an illegal act be rewarded by granting a legal right? If the answer is "yes," then how does the Bee suggest that we maintain the rule of law at all? If we stopped enforcing the speed limit and rewarded speeders with automatic license renewal – what would be the point of keeping the signs?
In recent years, the United Kingdom, Australia, Ireland, New Zealand, France and India have all modified their birthright citizenship laws to require that one parent at least be a legal resident in order to confer birthright citizenship. According to a June 2010 Rasmussen poll, the American people support such a reform by a margin of 58 to 33 percent. Do the Bee's editors seriously contend that 58 percent of the nation's voters are actually white supremacists?
Abraham Lincoln once observed, "You cannot disprove Euclidian geometry by calling Euclid a liar." At a time when our nation desperately needs a civil discussion over an issue that has profound implications for the very sovereignty of our nation, it is a shame that the Bee's editorial staff has chosen instead to hurl accusations of racism against those with whom it disagrees.
Since my response was published, I have received a flood positive emails and phone calls supporting our position that we need to reform birthright citizenship. It is clear that American people are overwhelmingly in favor of our positions.
That is why we are in such a good position to retake the majority in the House in November.
But I still need your help.
My two opponents in November are from the far Left. In fact one is a Green Party member and the other is a Democrat they imported from Florida who is closely tied to the Progressive Democrats of America.
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Commentary: When freeing criminal defendants is conservative
Marie Gryphon
September 08, 2010
Criminal defendants can't get a break from conservative judges, according to conventional wisdom. Former Chief Justice William Rehnquist reinforced the stereotype with his famously inartful remark that a "judge who is a 'strict constructionist' in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs — the latter two groups having been the principal beneficiaries of the Supreme Court's 'broad constructionist' reading of the Constitution." But Rehnquist was speaking specifically of constitutional claims at a time when expansive, policy-driven readings of the Fourth, Fifth and Sixth amendments were, for better or worse, revolutionizing police and courtroom procedures.
Not all criminal cases involve constitutional issues. When a case involves a disagreement about how to interpret a criminal law, a judge who takes a "strict constructionist" or textualist approach to interpreting the law is very likely to side with a criminal defendant. There is nothing inherently unconservative about reversing the conviction of a defendant who has not clearly violated the law. On the contrary, one of the oldest mandates of the common law is to protect the public from arbitrary prosecutions under vague statutes.
The Court's decisions during this past year undermine the common claim that its Republican appointees decide criminal cases based on the identity of the parties rather than the content of the law. In the nine criminal cases the Court decided last term that raised questions of statutory rather than constitutional interpretation, Justice Antonin Scalia, Chief Justice John Roberts Jr. and Justice Anthony Kennedy were among the most "liberal" on the Court: They sided with the criminal defendants in these cases eight out of nine times. The only justice with a more pro-defendant record on these cases last term was John Paul Stevens.
The opinions in these cases demonstrate why Scalia and Roberts, both "textualist" judges, so often side with criminal defendants. Scalia and Roberts take the same literal approach to interpreting federal statutes that they take to interpreting constitutional provisions. In neither case are they inclined to expand the meaning of a provision beyond its clear terms in order to effectuate some overarching policy goal. Although Kennedy is less wedded to a textualist interpretive approach in general, he also prefers to read criminal statutes narrowly.
In Johnson v. U.S., Scalia rejected the government's claim that defendant Curtis Darnell Johnson was subject to an enhanced penalty under the Armed Career Criminal Act (ACCA) after pleading guilty to illegal possession of ammunition. The ACCA makes draconian sentences available to prosecutors if defendants have been convicted of three prior "violent felonies." In an opinion joined by Roberts and Kennedy, Scalia considered Black's Law Dictionary among other sources to determine that Johnson's prior conviction for battery required only "actually and intentionally touching" another person without their consent, and that mere touching was not "physical force" — a required element of a "violent felony" under the ACCA.
In Bloate v. U.S., Roberts, Scalia and Kennedy joined Justice Clarence Thomas' majority opinion holding that the Speedy Trial Act of 1974 required dismissal of the prosecution's case against Taylor James Bloate on federal drug and firearms charges because no criminal case may be delayed by more than 70 days unless the trial judge explicitly finds that further delay would serve the ends of justice. Any other interpretation of the act would render the statutory language concerning the "ends of justice" meaningless in contravention of an important canon of statutory interpretation, the Court held, unmoved by the policy argument offered by the dissent that the requirement would be pointless in practice.
In Dolan v. U.S., Roberts, joined by Scalia and Kennedy, strongly dissented from the Court's decision that a federal judge may order a criminal defendant to pay restitution to a crime victim under the Mandatory Victims Restitution Act of 1996 even after the statute's 90-day deadline had passed. Roberts wrote: "The Court appears to reason that [the act] confers the authority to add a restitution provision for at least 90 days…ut that is not what [it] says. It provides 90 days for a final determination of the victims' losses, not a free pass to impose restitution whenever the trial court gets around to it."
Certainly, the court's so-called "conservative" justices are less likely than their peers to favor criminal defendants in cases concerning constitutional limits on police activity. The Court decided three cases last term about Miranda warnings: Maryland v. Shatzer; Florida v. Powell; and Berghuis v. Smith. In each of these cases, the Court's Republican appointees favored the government's narrower view of the scope of constitutional protection. But criminal cases involving statutory interpretation show that most of these jurists readily side with criminal defendants when careful textual interpretation leads them to do so.
As another Republican-appointed justice, Pierce Butler, wrote for the Court in 1939, "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids." By rigorously interpreting the words of Congress in criminal cases, Roberts, Scalia and Kennedy are protecting this important conservative legal principle.
Marie Gryphon is a senior fellow at the Manhattan Institute's Center for Legal Policy.
http://www.law.com/jsp/nlj/PubArticleSCI.jsp?id=1202471760830&slreturn=1&hbxlogin=1
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Ok Det. BBG, here is your case:
You are called out to a suburban home in a middle class neighborhood. Patrol officers and the coroner's office is on scene. You have a deceased middle aged female in the home with visible blunt force trauma to the face and neck. She is partially clad, underwear pulled down to her ankles. The decedent's husband made the initial call to 911, reporting that he found his home burglarized and his wife deceased when he returned home from work. He gave an initial statement to patrol to this effect, complained of chest pains and was taken by ambulance to a local ER.
Ok, so please tell me how you would investigate this case without doing anything you feel to be unconstitutional.
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Meh, not my cup of tea so I'm not gonna flounder around making a fool of myself.
My concerns, moreover, are misconstrued. If there is a body left cooling on the ground by all means use the tools at hand to reconstruct the crime. My concern involves the megagigterragobs of info being salted away by who know whom and correlated who knows how to who knows what end. It's not very difficult to extrapolate all sorts of very unsavory results as examples already abound. Kids take pictures down their pants and get arrested for child pornography and are forced to register wherever they move for the rest of their lives. Companies bounce folks for their Facebook warblings. Employers google prospective hires and see what emerges, and so on.
Couples get arrested for kissing in public in Qatar. What happens when the customs person can pull up your FB page as you disembark in a foreign land? I've posted pieces about people being arrested and prosecuted by the feds here for laws they were ignorant of in other countries that they ran afoul of via a third party. What happens when your online opposition via post like this to say the ground zero mosque is made illegal in Pakistan? I was a chef for a lot of years in the 70s, 80s, and a piece of the 90s when standards of sensitivity were quite different. So say some waitress tweets "I asked Chef BBG if my tenderloin was coming and he said it was still involved in foreplay." Imagine that incident arising during a job interview at a university 10 years later.
And this is just stuff that's more or less happening today. I've already pointed out to you that there were times and places where things a person wrote a decade or two earlier lead to their execution under Stalin, Mao, Hitler, or whoever. I've written tons of stuff that pisses people off; who's to say some echo of that isn't archived somewhere ready to bite my fanny a couple decades hence? Perhaps some surf to the silly girls gone naked splashpage, and the resultant surf history is squirreled away. Whoopsy, we find out several years later one of the lasses lied about her age and you had been surfing what is now called child porn. Explain that one away should you run for office and have the opposition research get ahold of that tidbit. This circumstance has already occurred in the porn industry.
We haven't even gotten to the current circumstances yet when any number of intelligence agencies can grab your email, surf history, locational data, google searches, credit info, cell phone calls, land line calls, online haunts, and who know what else about you and all around you and put it to work towards some national security end for which there is little oversight and scant likelihood of appeal. Perhaps the American government is so benign that a citizen should have little to worry about. But, as you've pointed out, intelligence agencies share data to skirt prohibitions, not all governments are as benign as our putatively is, and data committed to the digital maw will still be there after this or that regime changes.
This morning I got a Linkedin update--Linkedin is a business contact online service that I got roped into--where it was suggested I invite various, specific Facebook friends to join my Linkedin network. I have my FB account locked down pretty tight, as I do my Linkedin on, yet somehow they had compared who my business contacts were against my FB friends and then filled in the blanks. Small potatoes yes, but it bodes larger things that I will make any sized wager you'd like will someday soon prove antithetical to American freedoms most citizens consider sacrosanct.
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Well, the point was that today there would be technological elements to the investigation, but much of it would be the same as decades ago. You talk to people, look for witnesses. The husband might be placed at the scene by a cell phone tower ping, or even better by old Mrs. Jones across the street that heard a loud fight from the residence at the estimated time of death.
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Another hot issue I would love to hear Bigdog's take on is Prop. 8 Gay marriage in California. In that case the judge did strike down the will of the people so I would think the Court will step in or else it becomes settled law by one lower judge.
The 'fundamental right' at stake is marriage, but marriage has always been recognized as one man and one woman becoming husband and wife so some new combination of that a new right and a new recognized relationship(IMO).
The legal concept at stake is Equal Protection, that is, equal protection if similarly circumstanced.
Progressive taxation allows one taxpayer to be taxed on their last or next dollar of income at very different rates and in some cases to be taxed not at all. This passes constitutional muster in terms of equal protection under the law because it is 'equal protection, but different circumstances.
Jumping to gay marriage, a law (state constitutional amendment) that allows a citizen to marry only only person of the opposite gender fits that exact mold in my view. Gay people coupled and single people without a partner are not denied the right to marry one person of the opposite gender, they are just in a different circumstance.
I don't see how the Supreme Court can reject the equal protection - different circumstance argument without undermining our uneven taxation system and a host of other unequally distributed programs. But it does sounds like a pretty good trade to me.
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Isn't a core belief of libertarianism personal responsibility? No one makes you join facebook or any other social network. The interwebs is dangerous and all sorts of beasties lurk in it's depths. I assume that I'm always being looked at on the web and act accordingly.
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DougMacG
It bothers me to no end if a judge is using the equal protection clause in such a way. It is my understanding the income tax is derived from the 16th amendment. They had to pass it to get around the equal protection clause.
Here is the 16th amendment:
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.
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Isn't a core belief of libertarianism personal responsibility? No one makes you join facebook or any other social network. The interwebs is dangerous and all sorts of beasties lurk in it's depths. I assume that I'm always being looked at on the web and act accordingly.
Sure, but that's only a small piece of what's looming. Just about our every interaction will soon be leaving a digital trace in its wake, those traces are already being collated and correlated in manners that don't see much sunlight or accountability, and it's only going to get worse.
Guess I don't see how the concept of personal responsibility somehow leads to letting folks rummage through your digital dandruff without complaint.
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Because it's not the same as someone rummaging through your sock drawers in your home. You have a reasonable expectation of privacy in your home. You sure don't in the net.
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I've been rummaging around my mind for a reply, but it keeps coming up "no sale." No reasonable expectation of privacy in my online banking? In my online purchases? In the sweet nothings I email my wife when out of town? The list could go on for quite some time, and I've little doubt as to how the nation's founders would weigh in.
I'm not sure we can have constructive exchanges about this stuff, GM. It sounds like you favor some sort of Chinese model light when it comes time to monitor the 1s and 0s everyone is tossing about these days. Assuming everything digital is in plain sight and thus monitorable--after the feds have worked long and hard with the telecoms to make sure that is the case--has all sorts of scary implications. The US has one of the largest per capita incarceration rates on the planet; the feds are indicting, prosecuting, and bankrupting people for breaking obscure laws in other countries; the executive branch is headed by a gent who has his DOJ ignore blatant acts of polling place intimidation as his secretary of health warns of dire consequences if insurance companies raise rates, yet have no problem setting precedents that allow the current administration to rummage around everyone's digital underwear drawer? Got a petard? Ready to be hoisted by it?
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Again, the standard is reasonable expectation of privacy. Email, unless it's encrypted is just as private as a postcard. Anyone can read it from place to place. Your bank transactions are hopefully encrypted and require a subpeona or search warrant.
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Hmm, okay, make that your mantra when they come for you.
Meanwhile back at the ranch, here are our pals at the FBI who can't even be bothered to come up with a convincing lie:
And Of Course They Won’t, No Not Until The Next Time
Posted by Julian Sanchez
Here is the test of whether we still live in a society governed by the rule of law: Will anyone at the FBI be fired over the latest report out of the Office of the Inspector General?
Let’s review. Earlier this year, a comprehensive OIG report revealed that for years the FBI had ignored the paper-thin procedures demanded by our National Security Letter statutes to obtain sensitive telecommunications records of thousands of Americans, not just without a court order—because apparently we’re fine with that now—but without any kind of legitimate process at all. With nothing more elaborate than a Post-It Note requesting the data. As far as the public record is concerned, nobody has suffered any consequences for this massive abuse of the public trust.
Now we learn that an FBI supervisor, in an exercise of spectacularly poor judgment, sent a rookie out to monitor an antiwar rally—evading the charge of monitoring Americans based exclusively on the basis of First Amendment protected activity only because of the laughable pretext that said rookie was there to eye the crowd for any international terrorists who might be in attendance. Fine. But when Congress got wind of this and began to inquire into why this had occurred—and why said rookie had filed a report on “antiwar activity” that focused on whether any persons of apparent “Middle Eastern descent” had been involved—the OIG found that someone at the FBI had utterly fabricated a retroactive justification for the investigation, involving dubious “terror suspects” that nobody had actually believed at the time might be present at this rally.
According to the FBI, this fabrication was then offered up by FBI Director Robert Mueller before the Bureau’s overseers in Congress. This leaves us with a limited number of possibilities. One is that the head of the FBI was aware of and welcomed what the OIG determined to be a complete invention designed to cover up for an improper investigation. If that’s what happened, the head of the FBI committed perjury and should be prosecuted for it. But the OIG doesn’t believe that’s how it went, and I’m inclined to believe them: It would be irrational to risk perjuring oneself before the Senate Judiciary Committee over a minor error like this, however foolish.
But then someone gave the FBI director a pack of lies to feed to Congress, and the OIG was inexplicably unable to trace this fabrication to its source—which even allowing for the FBI’s massively dysfunctional computer systems seems implausible. So now we have a pressing question: If we don’t think the head of the FBI decided to lie to Congress, who concocted the lies he told them? Are we to believe that the nation’s top cops are either so inept or so indifferent to the question that they can’t answer it? I suspect they very well could find out if they were so inclined. If they don’t, and if there are no consequences for this clumsy cover-up, why should we believe that congressional oversight of intelligence will ever discover or check abuse of investigative power? The message will be clear: Concoct lies to protect your bosses, and your colleagues will wink at your deception, perhaps grateful for having been spared the obligation of making up their own lies. One lie out of a hundred might be called out in an OIG report—they only have so much time and so many resources—but even if it is, no harm will come of it. The investigators will be mysteriously unable to identify the liar, and everything will blow over. Why risk telling the truth? The initial fuss will subside, and Americans will soon enough be distracted by the next episode of Jersey Shore.
I think we’ve had quite enough of that. Someone at the FBI decided that it was a good idea to lie to Congress in order to cover up improper monitoring of an unpopular political group. In this case, it was pacifists, but who knows who’ll be next. If brazen lies aren’t punished the one case out of a dozen or a hundred that draw the attention of the overseers, why should they ever bother to observe the rules? So watch the Department of Justice. If someone is fired over this, maybe we still live in a country governed by the rule of law. If not, they’re convinced we’re so dim and besotted by reruns of Friends that they no longer even feel obliged to put up a good show.
http://www.cato-at-liberty.org/and-of-course-they-wont-no-not-until-the-next-time/
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A postcard is protected by federal law if it sits in your mailbox and would require a search warrant if it sat on your kitchen counter and the authorities were not already in your kitchen, it seems to me. Email boxes are password protected, an expectation of privacy at least at your end. At work, the email account, the network and all the hardware may likely be the property of the employer - more like setting your postcard on someone else's counter.
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http://law.jrank.org/pages/8385/Mail-Cover.html
The process governed by the U.S. Postal Regulations (39 C.F.R. § 233.3) that allows the recording of all the information that appears on the outside cover of mail in any class, and also allows the recording of the contents of second-, third-, and fourth-class mail, international parcel post mail, and mail on which the appropriate postage has not been paid.
Mail covers may be granted by the chief postal inspector, or a delegate of the inspector's, and are allowed upon the request of a law enforcement agency. The law enforcement agency's purpose must be to protect national security, locate a fugitive, obtain evidence of the commission or attempted commission of a crime, or help identify property, proceeds or assets forfeitable under law.
Read more: Mail Cover - Court, Amendment, Held, Regulations, Law, and Postal http://law.jrank.org/pages/8385/Mail-Cover.html#ixzz10JdOLrst
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http://supreme.justia.com/us/442/735/
The telephone company, at police request, installed at its central offices a pen register to record the numbers dialed from the telephone at petitioner's home. Prior to his robbery trial, petitioner moved to suppress "all fruits derived from" the pen register. The Maryland trial court denied this motion, holding that the warrantless installation of the pen register did not violate the Fourth Amendment. Petitioner was convicted, and the Maryland Court of Appeals affirmed.
Held: The installation and use of the pen register was not a "search" within the meaning of the Fourth Amendment, and hence no warrant was required. Pp. 442 U. S. 739-746.
(a) Application of the Fourth Amendment depends on whether the person invoking its protection can claim a "legitimate expectation of privacy" that has been invaded by government action. This inquiry normally embraces two questions: first, whether the individual has exhibited an actual (subjective) expectation of privacy; and second, whether his expectation is one that society is prepared to recognize as "reasonable." Katz v. United States, 389 U. S. 347. Pp. 442 U. S. 739-741.
(b) Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not "legitimate." First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does, in fact, record it for various legitimate business purposes. And petitioner did not demonstrate an expectation of privacy merely by using his home phone, rather than some other phone, since his conduct, although perhaps calculated to keep the contents of his conversation private, was not calculated to preserve the privacy of the number he dialed. Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as "reasonable." When petitioner voluntarily conveyed numerical information to the phone company and "exposed" that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information
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Hmm, okay, make that your mantra when they come for you.
When did the US become a totalitarian country? 1890, When law enforcement first started communications intercepts? In 1979, When SMITH V. MARYLAND was decided?
Facts are good. Police-state-Hypochondria isn't.
http://www.mayoclinic.com/health/hypochondria/DS00841
Hypochondria is a chronic mental illness in which you fear having an undiagnosed serious or life-threatening disease. Hypochondria is currently considered a psychosomatic disorder, which means it's a psychological disorder with physical symptoms. However, some researchers believe hypochondria is a form of obsessive-compulsive disorder, and its designation may eventually change.
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Yes, and ignore the IG report that followed my quote, and all my points that at given times and places--INCLUDING IN THE US--various folks have used questionably obtained information to excuse or fuel all sorts of heinous behavior.
As you ought to know in view or your interest in intelligence gathering, when assessing an opponent or other entity, intelligence pros deal in capabilities instead of stated intentions. The capabilities that concern me have been documented throughout various threads, as repeatedly pointed out yet not spoken to by you, the current administration--one that you have serious qualms with--has made many a sketchy call, while progressives in general have brought us all sorts of joys such as eugenics and communism, yet veering into hypochondria garnished name calling is the best you can do when the obvious is outlined?
I know, the policeman if our friend, there's nothing to see here so we should move along, and only paranoiacs worry that creating the infrastructure that would allow the government to monitor anyone most all the time will be used in a wholesale manner rather than the retail one already well demonstrated. Clearly reeducation is in order, or perhaps the sort of mental health therapies the former Soviet Union use to offer those who objected to the deeply inserted tendrils of the state.
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As much as our current president and friends might not like it, we still are a nation of laws. Unlike the KGB, Chinese Ministry for State Security or any other real totalitarian entity, the FBI and other federal/state/local entities face legal review of their actions. The agencies face legal liabilities, individual LEOs face both civil and criminal liabilities at both the state and federal levels.
Everything you do as a LEO faces scrutiny. You face judges and juries who can nullify your investigative work, sometimes on a whim. Every training class I've taken with a legal update consists of deputy DA's reminding you to not screw up on search and seizure or you'll ruin the case and potentially open yourself up to a 42 USC 1983 action, which cannot be discharged by bankruptcy. I've never heard one say "Hey, we have the PATRIOT act, do whatever you want."
The FBI and other federal agencies have "Offices of Professional Responsibility" (Internal Affairs) as well as IGs offices. I'm pretty sure the Khmer Rouge didn't have any such things. The Khmer Rouge didn't have computers, cell phones or probably much in the way of technological surveillance capabilities, right?
42 U.S.C. § 1983 : US Code - Section 1983: Civil action for deprivation of rights http://codes.lp.findlaw.com/uscode/42/21/I/1983
Stalin and Mao did their thing without much in the way of technology. Why the neo-ludditism here?
You've never seen me argue that law enforcement should operate without scrutiny. You don't need re-education, just education on the topic. This is why I bother to drag all the applicable laws and caselaw here.
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http://www.justice.gov/opa/pr/2010/August/10-crt-968.html
http://www.justice.gov/opa/pr/2010/August/10-crt-944.html
http://www.justice.gov/opa/pr/2010/August/10-crt-919.html
http://www.justice.gov/opa/pr/2010/July/10-crt-876.html
http://www.justice.gov/opa/pr/2010/July/10-crt-871.html
http://www.justice.gov/opa/pr/2010/July/10-crt-791.html
http://www.atf.gov/press/releases/2010/08/082410-dal-former-fbi-agent-sentenced-on-firearms-violations.html
See the accountability?
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Again, I'm not arguing intention, I'm arguing capability, with current capabilities being so vast few can wrap their heads around them. Not sure how it's 'sposed to be a comfort that Mao, Stalin, Hitler, Pol Pot, et al did what they did without these sorts of resources. These kinds of capabilities make a totalitarian's job easier, yes?
If arguing for transparency and accountability makes me a neo-Luddite then I guess I'm guilty as charged and a lot of dictionaries need to update the meaning of that term.
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History shows that totalitarians do not need technology to do their worst. Does technology potentially make a totalitarian state stronger? Maybe. Technology is a double edged sword. Despite the great firewall of China, technology has done much to empower the Chinese people.
Bad guys make use of technology. It would be negligent for law enforcement not to move to counter that, while using the limits set by the applicable laws and rulings by the courts.
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Prosecutors' conduct can tip justice scales
By Rhyne Piggott, USA TODAY
Antonino "Nino" Lyons spent almost three years in jail before his case was thrown out because of prosecutorial misconduct.
"The scary part is it probably does happen every day, and nobody ever figures it out"
-Robert Berry,
Nino Lyons' attorney
Prosecutors are "the A+ students. They're not used to losing."
-Laurie Levenson,
Loyola Law School professor
ORLANDO — The jurors who helped put Nino Lyons in jail for three years had every reason to think that he was a drug trafficker, and, until July, no reason to doubt that justice had been done.
For more than a week in 2001, the jurors listened to one witness after another, almost all of them prison inmates, describe how Lyons had sold them packages of cocaine. One said that Lyons, who ran clothing shops and nightclubs around Orlando, even tried to hire him to kill two drug suppliers.
But the federal prosecutors handling the case did not let the jury hear all the facts.
Instead, the prosecutors covered up evidence that could have discredited many of Lyons' accusers. They never revealed that a convict who claimed to have purchased hundreds of pounds of cocaine from Lyons struggled even to identify his photograph. And they hid the fact that prosecutors had promised to let others out of prison early in exchange for their cooperation.
VIDEO: Wrongfully jailed man: 'It can happen to you'
EXPLORE CASES: Investigate the misconduct cases we identified
JUSTICE DEPARTMENT: Prosecutors must brush up on duties
FULL COVERAGE: Federal prosecutors series
Federal prosecutors are supposed to seek justice, not merely score convictions. But a USA TODAY investigation found that prosecutors repeatedly have violated that duty in courtrooms across the nation. The abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions.
Judges have warned for decades that misconduct by prosecutors threatens the Constitution's promise of a fair trial. Congress in 1997 enacted a law aimed at ending such abuses.
Yet USA TODAY documented 201 criminal cases in the years that followed in which judges determined that Justice Department prosecutors — the nation's most elite and powerful law enforcement officials — themselves violated laws or ethics rules.
In case after case during that time, judges blasted prosecutors for "flagrant" or "outrageous" misconduct. They caught some prosecutors hiding evidence, found others lying to judges and juries, and said others had broken plea bargains.
Such abuses, intentional or not, doubtless infect no more than a small fraction of the tens of thousands of criminal cases filed in the nation's federal courts each year. But the transgressions USA TODAY identified were so serious that, in each case, judges threw out charges, overturned convictions or rebuked prosecutors for misconduct. And each has the potential to tarnish the reputation of the prosecutors who do their jobs honorably.
In July, U.S. District Judge Gregory Presnell did more than overturn Lyons' conviction: He declared that Lyons was innocent.
Neither the Justice Department nor the lead prosecutor in the Lyons case, Bruce Hinshelwood, would explain the events that cost Lyons his home, his businesses and nearly three years of freedom. The department investigated Hinshelwood but refused to say whether he was punished; records obtained by USA TODAY show that the agency regulating Florida lawyers ordered him to attend a one-day ethics workshop, scheduled for Friday.
Asked about Presnell's ruling exonerating Lyons, Hinshelwood said only, "It is of no concern to me."
The circumstances of Lyons' conviction did trouble Presnell, who oversaw his trial nine years ago. Presnell savaged the Justice Department in a written order for "a concerted campaign of prosecutorial abuse" by attorneys who, he wrote, covered up evidence and let felons lie to the jury.
Records from the Justice Department's internal ethics watchdogs show the agency has investigated a growing number of complaints by judges about misconduct they observed. In 2001, the department investigated 42 such complaints; last year, 61.
The department will not reveal how many of those prosecutors were punished because, it said, doing so would violate their privacy rights. USA TODAY, drawing on state bar records, identified only one federal prosecutor who was barred even temporarily from practicing law for misconduct during the past 12 years.
Even high-profile cases have been affected. Last year, a judge in Washington, D.C. — saying the department could not be trusted to investigate its own prosecutors — launched his own probe of the attorneys who handled the corruption trial of former Alaska senator Ted Stevens. After a jury found Stevens guilty, the department admitted that prosecutors had hidden evidence, then dropped the charges. (Stevens died in an August plane crash.)
Stevens' lawyers question how misconduct could have tainted such a closely watched case — and what that might mean for routine prosecutions. "It's a frightening thought and calls into question the generally accepted belief that our system of justice performs at a high level and yields just results," said Brendan Sullivan, Stevens' attorney.
Pattern of 'glaring misconduct'
Unlike local prosecutors, who often toil daily in crowded courts to untangle routine burglaries and homicides, Justice Department attorneys handle many of the nation's most complex and consequential crimes.
With help from legal experts and former prosecutors, USA TODAY spent six months examining federal prosecutors' work, reviewing legal databases, department records and tens of thousands of pages of court filings. Although the true extent of misconduct by prosecutors will likely never be known, the assessment is the most complete yet of the scope and impact of those violations.
USA TODAY found a pattern of "serious, glaring misconduct," said Pace University law professor Bennett Gershman, an expert on misconduct by prosecutors. "It's systemic now, and … the system is not able to control this type of behavior. There is no accountability."
He and Alexander Bunin, the chief federal public defender in Albany, N.Y., called the newspaper's findings "the tip of the iceberg" because many more cases are tainted by misconduct than are found. In many cases, misconduct is exposed only because of vigilant scrutiny by defense attorneys and judges.
However frequently it happens, the consequences go to the heart of the justice system's promise of fairness:
• Innocent people are punished. In Arizona, a woman spent eight years in prison for her conviction in a 2000 bank robbery because the prosecution never told her that another woman —who matched her description almost exactly — had been charged with robbing banks in the area. In Washington, D.C., a court in 2005 threw out murder charges against two men who had spent two decades in prison for a murder they didn't commit, in part because prosecutors hid evidence that two others could have committed the crime.
They were among 47 cases USA TODAY documented in which defendants were either exonerated or set free after the violations surfaced.
Among the consequences of misconduct, wrongful convictions are the most serious, said former U.S. attorney general Dick Thornburgh. He said, "No civilized society should countenance such conduct or systems that failed to prevent it."
Even people who never spent a day in jail faced ruinous consequences: lost careers, lost savings and lost reputations. Last year, a federal appeals court wiped out Illinois businessman Charles Farinella's 2007 conviction for changing "best when purchased by" dates on bottles of salad dressing he sold to discount stores. The judges ruled that what he had done wasn't illegal and blasted lead prosecutor Juliet Sorensen for violations that robbed Farinella of a fair trial. Exoneration came too late to salvage his business or to help the 20 or so employees he had laid off.
"It's the United States government against one person," Farinella said in his first public comment on the case. "They beat you down because they are so powerful. They have trillions of dollars behind them. Even someone who's innocent doesn't have much of a chance."
• Guilty people go free or face less punishment. In Puerto Rico, a federal court blocked prosecutors from seeking the death penalty for a fatal robbery because they failed to turn over evidence; the defendant was sentenced to life in prison instead. In California, a double agent accused of sharing defense secrets with China was sentenced to probation instead of prison because prosecutors refused to let her lawyer talk to her FBI handler, a key witness. Dozens of other defendants — including drug dealers and bank robbers — left prison early because their trials were tainted.
• Taxpayers foot the bill. The Justice Department has paid nearly $5.3 million to reimburse the legal bills of defendants who were wrongly accused. It has spent far more to repeat trials for people whose convictions were thrown out because of misconduct, a process that can take years, although the full price tag is impossible to tally.
In one California case, for example, it took prosecutors four years and three trials to convict a man of tax fraud. Then an appeals court set aside his conviction because it said a prosecutor "sat silently as his witness lied."
The violations happened in almost every part of the nation, though USA TODAY found the most cases in federal courts in San Diego; Massachusetts; Washington, D.C.; and Puerto Rico. That pattern means misconduct is "not an isolated problem," said Laurie Levenson, a Loyola Law School professor and former federal prosecutor in Los Angeles.
Trial, jail and vindication
The American legal system puts enormous faith in juries: Give 12 men and women the facts, and they will separate the guilty from the innocent.
The Constitution, Congress and courts have set elaborate rules to ensure jurors get the facts and aren't swayed by emotion or fear. Rules are particularly exacting for prosecutors, as they act with government authority and their mistakes can put people in prison.
One of those rules, established by the Supreme Court nearly 50 years ago in a case called Brady v. Maryland, is that prosecutors must tell defendants about evidence that could help prove their innocence. Withholding that evidence is "reprehensible," the court later said.
Nonetheless, USA TODAY identified 86 cases in which judges found that prosecutors had failed to turn over evidence to defendants. That's what happened to Nino Lyons.
Lyons, now 50, grew up in the public housing projects of Cocoa, Fla., outside Orlando; his father spent time in prison, and for several years, his mother raised him alone. Even so, Lyons thrived: He graduated from college and worked briefly at the nearby Kennedy Space Center. In the 1990s, he opened clothing stores and nightclubs in Cocoa and Orlando. He was vice president of the local NAACP chapter.
How Lyons also became a drug suspect is unclear. But five days before Christmas in 2000, police stormed his Rockledge house, searching for an illegal machine gun. They did not find a machine gun or any drugs. What they did find was suspicious: an assortment of legal guns and $185,000 in cash, some of it counterfeit. Lyons said he was saving for a down payment on an Orlando nightclub.
Within a year, prosecutors put together a procession of more than two dozen inmates willing to testify that Lyons was a major drug trafficker. Jurors convicted Lyons of almost every charge, including carjacking, selling counterfeit clothing and a drug conspiracy that could have put him in prison for life.
"With all the evidence they had brought forth in this trial, I didn't have any choice but to vote guilty on him," said one juror, Harold Newsome.
The evidence prosecutors hid from Newsome and the other jurors did not fully come to light until 2004, during Lyons' third year in jail. It surfaced only because of one line in a government sentencing report that hinted at undisclosed evidence. When it emerged, the Justice Department agreed to drop the drug charge against Lyons, and Presnell, the judge who oversaw the trial, threw out the rest.
It was a drastic step and meant Lyons could never be retried. Presnell wrote that he had no other option: "The Government's protracted course of misconduct," he wrote, "caused extraordinary prejudice to Lyons, exhibited disregard of the Government's duties, and demonstrated contempt for this court."
By then, Lyons had spent 1,003 days in a county jail north of Orlando. He was never sentenced, but remained locked up while courts sorted through the problems in his case. He saw his son and daughter, then in middle school, only through the thick glass windows of the visiting room, and spoke to them only via telephone.
His businesses folded while he was in jail. His wife, Debbie, was demoted from her job as principal of an elementary school, a move the school said was unrelated to the case. She sold the couple's house and took a night job tutoring the children of migrant farm workers to pay the bills.
"It was bad for me, but I didn't realize until I came home how bad it had been for my wife and my kids, people that really loved me," Lyons said.
Records show the Justice Department eventually paid $150,000 of Lyons' legal bills in a settlement that was never made public. It admitted in a court filing that prosecutors made "serious errors" in their handling of the case. The attorney who replaced Hinshelwood as the case dragged on, Lee Bentley, personally apologized to Lyons.
For Debbie Lyons, 51, it wasn't enough. "When they targeted him, they targeted me. They targeted my kids," she said. Prosecutors "don't have the courtesy to say, 'We're wrong, our agents were wrong, we pursued this case wrong. We know we lied, we know we withheld evidence.' "
Lyons said he's "thankful to God" that Presnell finally declared him innocent. But almost nine years after he was first found guilty, exoneration hasn't repaired the damage to his reputation.
In the six years since he was released from jail, he hasn't been able to find a regular job or even land an interview. Now he works part time for a church program in Orlando that finds mentors for kids whose parents are in jail. The grant that pays for the program will run out at the end of the month.
"Even if the president comes out tomorrow and says this man is 1,000% innocent, you're going to have somebody somewhere say, 'I'm not sure about that. I don't think the government would have did that if he was innocent,' " Lyons said.
'The scary part'
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Sniffing out misconduct can be a matter of serendipity — or luck, as Lyons' attorneys discovered.
The evidence that eventually set Lyons free came to light only because of one sentence buried in a 40-page draft of a probation officer's sentencing report. Those drafts are dense and at times ignored, but this one offered a tantalizing clue: an account by one of Lyons' accusers, a federal inmate, that differed from his testimony during the trial.
That stuck out to Robert Berry, one of Lyons' attorneys, who wondered what else he hadn't been told. His digging led to hundreds of pages of other evidence prosecutors had never disclosed.
"If it wasn't for that one sentence, he would be in prison right now, probably for the rest of his life," Berry said. "The scary part is it probably does happen every day and nobody ever figures it out."
One reason violations may go undetected is that only a small fraction of criminal cases ever get the scrutiny of a trial, the process most likely to identify misconduct. Trials play a "very important" role, said former deputy attorney general David Ogden, because they force judges and attorneys to review a case in far more exacting detail.
The number of people charged with crimes in federal district courts has almost doubled over the past 15 years. Yet the number whose cases actually go to trial has fallen almost 30%, to about 3,500 last year, USA TODAY found. Last year, just four defendants out of 100 went to trial; the rest struck plea bargains that resolved their cases quickly, with far less scrutiny from judges.
"We really should be more concerned about the cases we don't know about," said Levenson, the Loyola professor. "Many of the types of misconduct you identified could happen every day, and we'd never know about it if defendants plead out."
Deliberate violations
In a justice system that prosecutes more than 60,000 people a year, mistakes are inevitable. But the violations USA TODAY documented go beyond everyday missteps. In the worst cases, say judges, former prosecutors and others, they happen because prosecutors deliberately cut corners to win.
"There are rogue prosecutors, often motivated by personal ambition or partisan reasons," said Thornburgh, who was attorney general under Presidents Reagan and George H.W. Bush. Such people are uncommon, though, he added: "Most former federal prosecutors, like myself, are resentful of actions that bring discredit on the office."
Judges have seen those abuses, too. "Sometimes, you get inexperienced and unscrupulous assistant U.S. attorneys who don't care about the rules," said U.W. Clemon, the former chief judge in northern Alabama's federal courts.
How often prosecutors deliberately violate the rules is impossible to know. The Justice Department's internal ethics watchdog, the Office of Professional Responsibility, insists it happens rarely. It reported that it completed more than 750 investigations over the past decade, and found intentional violations in just 68. The department would not identify the cases it concluded were marred by intentional violations, and removes from its public reports any details that could be used to identify the prosecutors involved.
State records, however, offer a glimpse into what can go wrong. Three years ago, two federal prosecutors in Illinois, each with more than a decade of experience, were ordered to answer to the state Attorney Registration and Disciplinary Commission for problems that almost torpedoed a drug case. The lawyers failed to turn over information to defense attorneys that could have discredited a key witness. That tactic, the U.S. Court of Appeals for the 7th Circuit concluded, was "designed to deliberately mislead the court and defense counsel."
Both prosecutors told authorities that they knew the rules, and both admitted that they didn't turn over the evidence, according to a transcript of the hearing. One, Bradley Murphy, said he was counting on the witness to reveal the damaging information himself during his testimony. The other, John Campbell, apologized. "It's embarrassing, to say the least," he told the commission.
State records show that the Justice Department suspended both prosecutors for a day. Both also were censured by the Illinois Supreme Court.
They remain federal prosecutors.
Attorney General Eric Holder declined to be interviewed; earlier this year, he told judges that officials "must take seriously each and every lapse, no matter the cause." The head of the department's criminal division, Lanny Breuer, said, "Obviously, even one example of real misconduct is too many. … If you've engaged in misconduct, the response of the department has to be swift and strong."
In practice, however, the response — by the Justice Department and the state officials who oversee lawyers — has frequently been neither. Department records show that its internal investigations often take more than a year to complete, and usually find that prosecutors, at worst, made a mistake, even when judges who presided over the trials ruled that there was serious misconduct.
In one rare exception, the department in 2007 prosecuted one of its former attorneys, Richard Convertino, for obstructing justice in his handling of a Detroit terrorism case. He was acquitted, and he unsuccessfully accused the attorneys who prosecuted him of misconduct. The department called Convertino "unmanageable" in one court filing, but still kept its internal review of the case secret.
In the one case in which USA TODAY found that state officials suspended a federal prosecutor from practicing law, the punishment lasted only a year. In that case, Florida's Supreme Court found that Karen Schmid Cox had let a witness lie about her name during a trial, making it impossible for defense attorneys to check the witness's background. If they had, they would have found that the witness had been previously accused of lying to a judge and filing a false police report.
Pressures on prosecutors
In some cases, Justice Department records and court documents suggest that prosecutors broke the rules inadvertently, often because they were inexperienced or unsupervised.
Former prosecutors from offices across the nation insist that the Justice Department never put pressure on them to cut corners — "there wasn't any pervasive attitude of win-at-any-cost," said Rick Jancha, a former prosecutor in Orlando.
But there are other pressures. For one thing, prosecutors are taking on more cases than ever. In the mid-1990s, the offices had one attorney for every 14 defendants; last year, they had one attorney for every 28. Even though most of those cases end in plea bargains, the increase can be taxing, because prosecutors often are responsible not just for conducting trials but overseeing investigations.
And prosecutors put pressure on themselves. "They're the A+ students. They're not used to losing," Levenson said.
"Prosecutors think they're doing the Lord's work, and that they wear the white hat. When I was a prosecutor, I thought everything I did was right," said Jack Wolfe, a former federal prosecutor in Texas and now a defense lawyer. "So even if you got out of line, you could tell yourself that you didn't do it on purpose, or that it was for the greater good."
Beyond that, most federal prosecutors do their jobs with little day-to-day supervision, said Michael Seigel, the second-in-command of the U.S. attorney's office in Tampa from 1995 to 1999.
And, until last year, prosecutors were not required to get regular training in ethics such as their constitutional duty to share evidence with defendants. That training is important: Many of the legal rules prosecutors must follow are complex, and not everyone agrees on the boundary between aggressive lawyering and misconduct.
Last year, Ogden, Holder's second-in-command, headed a review of problems with prosecutors' failure to turn over evidence to defendants, the issue that ultimately undermined the Lyons case. It concluded that most violations were "not the product of people who intentionally set about to cheat but … more of a lack of training and a lack of resources," said Ogden, who left the department this year. That review prompted a new requirement that prosecutors get two hours of annual training in their duty to share evidence.
'Real sloppy and lazy'
Before Bruce Hinshelwood became a federal prosecutor, he tried murder cases and those involving other high-profile crimes as a state attorney. He headed the Justice Department's Jacksonville office, and was briefly second-in-command of the middle district surrounding Tampa. Later, he tried drug cases in Orlando. In all that time, there is no indication Hinshelwood was faulted for misconduct. The Lyons case changed that.
Hinshelwood's former boss, Paul Perez, became U.S. attorney in Tampa in 2002, shortly after Lyons' trial ended. When the case against Lyons fell apart, it was his job to figure out why.
Perez said in an interview that he personally never doubted that Lyons was guilty. He said the problems came down to inattention: Hinshelwood was "an experienced but very lazy prosecutor," but didn't break the rules on purpose. He was, Perez said, "real sloppy and lazy."
Judge Presnell drew harsher conclusions. In a 2004 order, he said the Justice Department's failures in the case could be explained, "at best, by its agents' sloppy investigative work or, at worst, by their knowing failure to meet constitutional duties." He later faulted prosecutors not just for failing to turn over evidence but for "brazenly" defying court orders and presenting witnesses who were "allowed, if not encouraged, to lie under oath."
Records from the Florida Bar, which regulates the state's lawyers, show that the Justice Department investigated Hinshelwood's handling of the Lyons case, a fact the department refused to confirm for fear of invading his privacy. The department completed its report in 2007 and referred its findings to the bar in 2009, a step Justice Department policies say it takes when it finds misconduct.
Despite Presnell's rebuke and its own investigation, there is no evidence that the Justice Department ever punished Hinshelwood. He continued prosecuting cases until he retired in February 2008 to open his own law practice in Orlando.
The Florida Bar investigated Hinshelwood last year — seven years after Presnell accused him of misconduct by name in a court order — but concluded that too much time had passed to take action for what happened at the trial. It let Hinshelwood resolve the complaint by paying $1,111.80 in costs and attending Friday's ethics workshop.
"That's the extent of it?" Lyons said.
The bar opened a second investigation of Hinshelwood in July after Presnell declared Lyons innocent, an uncommon step that officials would not explain publicly.
To Lyons, nothing the bar can do would be strong enough. Hinshelwood "should suffer or go to jail," Lyons said. "The justice system not only didn't work initially in my case, it's still not working. Bruce Hinshelwood has his pension. He still works every single day. His life is not miserable. I'm not saying mine is, but it's nothing like it was before."
McCoy reported from New York. Contributing: Rhyne Piggott.
http://www.usatoday.com/news/washington/judicial/2010-09-22-federal-prosecutors-reform_N.htm
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http://pajamasmedia.com/blog/lawless-legislators-the-federal-rupture-of-the-rule-of-law/?singlepage=true
Lawless Legislators: The Federal Rupture of the Rule of Law
In recent years, it has succumbed to the rule of men.
September 24, 2010 - by Jeff Perren
If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
James Madison, Federalist Paper No. 51 (1788)
The Rule of Lawlessness
In the American system the legislature is tasked with making laws, and the executive with executing them. For those rules to be just laws they have to be comprehensible and apply equally to all. Following them must entail reasonably predictable results. To be valid they must not contradict the Constitution; they must not violate the basic rights it outlines.
Lately, Congress and the Obama administration alike fail on all those criteria. While that’s been a problem in the U.S. for generations now, that trend has worsened since the 2006 elections, and accelerated in the past 20 months. The Democratic majority that came to power in 2006 has violated the rule of law at every turn. The administration has upped the ante: from the petty to the critical, their actions have often been lawless in a very literal sense of the term.
In a dozen small ways, the ruling class expresses its contempt for the law and its intended function of protecting the rights of citizens.
Obama’s aunt flagrantly violates immigration law for years but is not deported, thanks to her family connection. Timothy Geithner neglects to pay his taxes and is still appointed Treasury secretary. Chris Dodd gets a sweetheart real estate loan from Countrywide and remains in office years afterward to retire with a comfy pension.
There is, unfortunately, a treasure trove of major examples from which to choose.
ObamaCare violates the Constitution in at least three different ways, and still passed. The financial reform bill lets regulators force any bank in the country out of business whenever they decide it represents an undue risk to “the system.” Obama himself violated long-standing bankruptcy laws by giving preference to union interests during GM’s reorganization. He appointed Ken Feinberg to hand out billions of BP’s dollars according to that petty dictator’s personal sense of fair play.
Maybe most worrisome of all is the half-complete CyberSpace National Asset Act, which would allow the president to shut down the Internet whenever deemed necessary for “national security.” (As it stands, the bill would limit the shutdown period to 120 days, but that can be extended by Congress. Cold comfort.) A more dangerous affront to free speech and the property rights of hundreds of millions of users would be hard to imagine.
This is the rule of men — and not good men at that — run amok.
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http://reason.com/blog/2010/10/13/i-could-kill-you-but-then-id-h
Reason Magazine
I Could Kill You, But Then I'd Have to Keep It a Secret
Jacob Sullum | October 13, 2010
On Friday the Center for Constitutional Rights and the American Civil Liberties Union, which are challenging President Obama's claim that he can order the killing of anyone he unilaterally identifies as an enemy of the United States, responded to the Justice Department's arguments for dismissing the lawsuit. The government argues that Obama's policy of "targeted killings" is a "political question" unsuited for judicial review and that allowing the case to proceed would risk revealing "state secrets." Hence Obama is not only claiming a license to kill; he is asserting that the license can never be revoked, suspended, or even examined by the courts. ACLU Deputy Legal Director Jameel Jaffer sums up the situation:
If the government's arguments were accepted, the current administration and every future administration would have unreviewable authority to carry out targeted killings of Americans deemed to be enemies of the state. While that power would be limited to contexts of armed conflict, the government has argued that the armed conflict against al Qaeda extends everywhere, indefinitely. This is an extraordinary and unprecedented claim, and one that we urge the courts to reject unequivocally. The courts have a crucial role to play in ensuring that the government's counterterrorism policies are consistent with the Constitution.
Glenn Greenwald notes that even David Rivkin, a Bush I administration lawyer who routinely defends executive power in the service of the War on Terror, thinks Obama is going too far by claiming his summary executions must remain secret. "I'm a huge fan of executive power," Rivkin told The New York Times last month, "but if someone came up to you and said the government wants to target you and you can't even talk about it in court to try to stop it, that's too harsh even for me."
The government's motion to dismiss is here (PDF). The CCR/ACLU reply brief is here (PDF). Last week David Harsanyi criticized Obama's use of the state secrets privilege to bar litigation over targeted killings. Last month I discussed Obama's use of the privilege to block lawsuits by torture victims.
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So, should we have to have a trial before we can send drones out to zap a haji? Should there have been a due process requirement before we shot down Yamamoto?
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I wasn't aware Yamamoto was an American citizen.
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We had American citizens fighting for the Axis powers. Should they have a different status than anyone else were were fighting?
http://www.discoverthenetworks.org/individualProfile.asp?indid=811
* Recruiter and ringleader of the New York-based al Qaeda cell, the Buffalo Six
* Trained in Yemen as a terrorist
* Communicated with Tawfiq bin Atash, a planner of the 2000 attack on the USS Cole
* In 2001, he persuaded six followers to accompany him and train at an al Qaeda camp in Afghanistan
In 2001 Kamal Derwish recruited six young people into an al Qaeda "sleeper" cell of would-be terrorists popularly known as the Buffalo Six or Lackawanna Six. Like his recruits, Derwish was a native of the region of Lackawanna, New York on the shore of Lake Erie just to the south of Buffalo. Lackawanna is home to a community of approximately 3,000 Yemeni Muslims.
Born in Buffalo in 1973, Derwish, the son of a steelworker, was taken by his family to live in Yemen when he was five. Soon thereafter his father died in a car accident. The boy was then sent to live with relatives in Saudi Arabia, where he was educated under the influence of the kingdom's fundamentalist Wahhabist sect of Islam. The Saudi government deported him to Yemen in 1997 because of his radical political activity.
Derwish returned to Lackawanna in 1998 and began giving lectures at a local mosque. He preached about the evils of listening to popular music, watching television, engaging in loose relations with women, and other behaviors forbidden by Wahhabism. He also made periodic visits to the Middle East. In 1999 he married in Yemen and thereafter returned to the U.S.
Reputedly a charismatic speaker, Derwish's fervor and passion for Islam attracted a small circle of young male disciples in Lackawanna. He persuaded six followers in particular -- Mukhtar Al-Bakri, Sahim A. Alwan, Faysal Galab, Shafal Mosed, Yasein Taher and Yahya A. Goba -- to make a pilgrimage to Afghanistan with him in early 2001. While there, they attended for several weeks an al Qaeda training camp where they were instructed in weapons use and terrorist tactics. During their stay, the camp was visited by the revered Osama bin Laden.
In the wake of the 9/11 terrorist attacks, the FBI and CIA began to find threads of evidence linking Derwish and his six followers to al Qaeda. For instance, intelligence agents learned that Derwish had received advanced weapons training at an al Qaeda camp, and that during the mid-1990s he had fought alongside Muslim rebels in Bosnia. The agents also became aware of communications between Derwish and bin Laden's son Saad, as well as between Derwish and Tawfiq bin Atash; the latter was one of the planners of the deadly 2000 terror attack against the U.S.S. Cole in Yemen.
On November 3, 2002, an unmanned CIA Predator drone flying high above the Yemeni desert unleashed a Hellfire missile at a car that was carrying Kamal Derwish, instantly killing him and four others. Also among the dead was Salim Sinan al Harethi (a.k.a. Abu Ali), the suspected mastermind of the U.S.S. Cole attack.
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Noting how the Chamber of Commerce, the Tea Party, and so on are being vilified by the present administration, do we really want to give the President the power to kill anyone he declares enemy of the state without any sort of review allowed?
I would imagine this would be a bit of a conundrum for you on the order of "can God make a rock so big that He Himself can't move it?" Should an administration you hold in contempt be allowed to summarily execute those who display the ultimate form of contempt toward it? Let the dividing by zero begin.
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Let me know when Obama starts sending drones after Sarah Palin or Glenn Beck.
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Kinda hoping to avoid that by imposing checks against summary executions before Barry starts going all Putin on us.
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Section 2.
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States
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Do you seriously think O-Barry would use the US military to target political opposition? If he was, do you think some sort of law would stop him?
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Isn't that exactly what he's doing every time he launches a predator at an American citizen said to be playing pattycake with the Taliban?
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No. There is a huge difference between someone engaging in war against the US and engaging in constitutionally protected speech.
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You mean the war against man made disasters?
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No. There is a huge difference between someone engaging in war against the US and engaging in constitutionally protected speech.
Cognitive dissonance is rearing its head here. You've made it quite clear you have huge issues with this admin. I've already listed a couple instances where Barry has made vilifying the opposition a centerpiece of his engagement strategy, and many more could be found without too much effort. We've had instances before where Presidents, notably Clinton in Sudan, launched missile strikes for reasons that appear at least as much political as they were tactical. And you can't understand why I might be concerned about decisions made to off citizens that are not subject to any sort of review whatsoever?
The dude already launches unprincipled verbal attacks on a regular basis that the media frequently averts its eyes from, but you want him to be able to do the same with drones sans any modicum of oversight whatsoever? Sounds like the height of folly to me.
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I have huge issues with this administration. In a sane world, Obama should only see the inside of the white house as part of a public tour. However, he is the elected president and thus has the lawful authority of that position as commander in chief of the US military.
You can have any reservations you want about his decisionmaking and ethics, of lack thereof, but I see no valid claim regarding the use of the military to make war on those who have made war on us. Were Barry to have airstrikes called in on Tea Party gatherings, then you would have a point.
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And who decides who "makes war on us" and who reviews that decision? When you are spreading citizen's thin in distant lands, some form of accountability would seem in order.
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Although not as constitutionally pure as a declaration of war, we have the congressional authorization to use force.
Authorization for Use of Military Force
September 18, 2001
Public Law 107-40 [S. J. RES. 23]
107th CONGRESS
JOINT RESOLUTION
To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.
Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and
Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and
Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and
Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and
Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This joint resolution may be cited as the `Authorization for Use of Military Force'.
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
(b) War Powers Resolution Requirements-
(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.
Approved September 18, 2001.
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Important in these matters to not weaken the Presidency just because we have a bad one. The pre-oversight is the congressional authorization. The ongoing oversight may be the congressional appropriations that fund operations. Also we can have congressional review of actions taken by our military to expose past actions and influence the future ones, but still the Commander makes the real-time decision in war, not a committee. The ultimate oversight is that new elections here are always coming.
Very little good has come out of this Presidency other than the rise of opposition to them, but one thing good IMO is to just imagine the uproar of left activists and lamestream media if these unmanned drone attacks in Paki-Waziristan tribal villages were being conducted by Bush or other R. administration.
The 9/18/2001 authorization looks like it covers these strikes unless rescinded. After that we need to put some trust in the Commander in Chief in spite of the folly of who we last chose.
The real abuse was the threat or reality of siccing the IRS on political opponents, a much greater power than our military.
There are competing philosophies to defense and the war on terror (human caused disasters) to ague elsewhere and settle in the elections. There is surrender entirely and unilaterally as many far leftists prefer. There is the so-called Fortress-America view that some on the far right would like, meaning defend strongly here but end the missions outside our borders, and there is take the battle to the enemy. Even the far leftist Obama believed war in Afghanistan is necessary, which should mean strikes anywhere harboring terrorists who threaten America are necessary too, until another viewpoint wins over at least one branch.
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Why Liberals Don't Get the Tea Party Movement
Our universities haven't taught much political history for decades. No wonder so many progressives have disdain for the principles that animated the Federalist debates.
By PETER BERKOWITZ
Highly educated people say the darndest things, these days particularly about the tea party movement. Vast numbers of other highly educated people read and hear these dubious pronouncements, smile knowingly, and nod their heads in agreement. University educations and advanced degrees notwithstanding, they lack a basic understanding of the contours of American constitutional government.
New York Times columnist Paul Krugman got the ball rolling in April 2009, just ahead of the first major tea party rallies on April 15, by falsely asserting that "the tea parties don't represent a spontaneous outpouring of public sentiment. They're AstroTurf (fake grass-roots) events."
Having learned next to nothing in the intervening 16 months about one of the most spectacular grass-roots political movements in American history, fellow Times columnist Frank Rich denied in August of this year that the tea party movement is "spontaneous and leaderless," insisting instead that it is the instrument of billionaire brothers David and Charles Koch.
Washington Post columnist E. J. Dionne criticized the tea party as unrepresentative in two ways. It "constitutes a sliver of opinion on the extreme end of politics receiving attention out of all proportion with its numbers," he asserted last month. This was a step back from his rash prediction five months before that since it "represents a relatively small minority of Americans on the right end of politics," the tea party movement "will not determine the outcome of the 2010 elections."
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Washington Post Columnist E.J. Dionne
In February, Mr. Dionne argued that the tea party was also unrepresentative because it reflected a political principle that lost out at America's founding and deserves to be permanently retired: "Anti-statism, a profound mistrust of power in Washington goes all the way back to the Anti-Federalists who opposed the Constitution itself because they saw it concentrating too much authority in the central government."
Mr. Dionne follows in the footsteps of progressive historian Richard Hofstadter, whose influential 1964 book "The Paranoid Style in American Politics" argued that Barry Goldwater and his supporters displayed a "style of mind" characterized by "heated exaggeration, suspiciousness, and conspiratorial fantasy." Similarly, the "suspicion of government" that the tea party movement shares with the Anti-Federalists, Mr. Dionne maintained, "is not amenable to 'facts'" because "opposing government is a matter of principle."
To be sure, the tea party sports its share of clowns, kooks and creeps. And some of its favored candidates and loudest voices have made embarrassing statements and embraced reckless policies. This, however, does not distinguish the tea party movement from the competition.
Born in response to President Obama's self-declared desire to fundamentally change America, the tea party movement has made its central goals abundantly clear. Activists and the sizeable swath of voters who sympathize with them want to reduce the massively ballooning national debt, cut runaway federal spending, keep taxes in check, reinvigorate the economy, and block the expansion of the state into citizens' lives.
In other words, the tea party movement is inspired above all by a commitment to limited government. And that does distinguish it from the competition.
But far from reflecting a recurring pathology in our politics or the losing side in the debate over the Constitution, the devotion to limited government lies at the heart of the American experiment in liberal democracy. The Federalists who won ratification of the Constitution—most notably Alexander Hamilton, James Madison and John Jay—shared with their Anti-Federalist opponents the view that centralized power presented a formidable and abiding threat to the individual liberty that it was government's primary task to secure. They differed over how to deal with the threat.
The Anti-Federalists—including Patrick Henry, Samuel Bryan and Robert Yates—adopted the traditional view that liberty depended on state power exercised in close proximity to the people. The Federalists replied in Federalist 9 that the "science of politics," which had "received great improvement," showed that in an extended and properly structured republic liberty could be achieved and with greater security and stability.
This improved science of politics was based not on abstract theory or complex calculations but on what is referred to in Federalist 51 as "inventions of prudence" grounded in the reading of classic and modern authors, broad experience of self-government in the colonies, and acute observations about the imperfections and finer points of human nature. It taught that constitutionally enumerated powers; a separation, balance, and blending of these powers among branches of the federal government; and a distribution of powers between the federal and state governments would operate to leave substantial authority to the states while both preventing abuses by the federal government and providing it with the energy needed to defend liberty.
Whether members have read much or little of The Federalist, the tea party movement's focus on keeping government within bounds and answerable to the people reflects the devotion to limited government embodied in the Constitution. One reason this is poorly understood among our best educated citizens is that American politics is poorly taught at the universities that credentialed them. Indeed, even as the tea party calls for the return to constitutional basics, our universities neglect The Federalist and its classic exposition of constitutional principles.
For the better part of two generations, the best political science departments have concentrated on equipping students with skills for performing empirical research and teaching mathematical models that purport to describe political affairs. Meanwhile, leading history departments have emphasized social history and issues of race, class and gender at the expense of constitutional history, diplomatic history and military history.
Neither professors of political science nor of history have made a priority of instructing students in the founding principles of American constitutional government. Nor have they taught about the contest between the progressive vision and the conservative vision that has characterized American politics since Woodrow Wilson (then a political scientist at Princeton) helped launch the progressive movement in the late 19th century by arguing that the Constitution had become obsolete and hindered democratic reform.
Then there are the proliferating classes in practical ethics and moral reasoning. These expose students to hypothetical conundrums involving individuals in surreal circumstances suddenly facing life and death decisions, or present contentious public policy questions and explore the range of respectable progressive opinions for resolving them. Such exercises may sharpen students' ability to argue. They do little to teach about self-government.
They certainly do not teach about the virtues, or qualities of mind and character, that enable citizens to shoulder their political responsibilities and prosper amidst the opportunities and uncertainties that freedom brings. Nor do they teach the beliefs, practices and associations that foster such virtues and those that endanger them.
Those who doubt that the failings of higher education in America have political consequences need only reflect on the quality of progressive commentary on the tea party movement. Our universities have produced two generations of highly educated people who seem unable to recognize the spirited defense of fundamental American principles, even when it takes place for more than a year and a half right in front of their noses.
Mr. Berkowitz is a senior fellow at Stanford's Hoover Institution.
http://online.wsj.com/article/SB10001424052748704631504575531913602803980.html
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THE PATRIOT POST
Alexander's Essay -- October 28, 2010
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On the Web: http://patriotpost.us/alexander/2010/10/28/rights-endowed-by-whom/
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http://patriotpost.us/alexander/2010/10/28/rights-endowed-by-whom/print
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Rights Endowed by Whom?
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What is really at stake in this election?
"The preservation of the sacred fire of liberty, and the destiny of the republican
model of government, are justly considered deeply, perhaps as finally, staked on the
experiment entrusted to the hands of the American people." --George Washington
Next Tuesday's 2010 midterm election marks the first major battle in a fired-up
grassroots effort to restore constitutional integrity, one with a fervor not seen
since the election of Ronald Reagan (http://reagan2020.us/ ) 30 years ago.
The stakes in this election and those to follow are much higher than a mere contest
between competing political platforms and personas. These elections will determine
who is this nation's arbiter of "Life, Liberty and the pursuit of Happiness."
Perhaps unwittingly, Barack Hussein Obama, by way of omission in several recent
speeches, has made it abundantly clear whom he and his comrades reject as the source
of the rights of all men. On three separate occasions, when speaking at fundraisers
for his Leftist comrades, Obama has referenced the Declaration of Independence
(http://patriotpost.us/document/the-declaration-of-independence/ ).
Speaking at the Hispanic Caucus Institute's Annual Awards Gala, Obama said, "We hold
these truths to be self-evident, that all men are ... endowed with certain
inalienable [sic] rights: life, liberty and the pursuit of happiness." When
questioned about the omission of who, precisely, endowed those rights, the White
House press office claimed that Obama went off script ... unlikely for a man who has
been glued and tattooed to his Teleprompters.
A few days later, speaking at a fundraiser for the Democratic Congressional Campaign
Committee, Obama said, "If we believe that ... everybody is endowed with certain
inalienable [sic] rights and we're going to make those words live, and we're going
to give everybody opportunity, everybody a ladder into the middle class..." For the
record, that utterance was not "off script." Rather, it was precisely how the White
House posted his speech.
At the Democratic Senatorial Campaign Committee fundraiser, he did it again, saying,
"What makes this place special is not something physical. It has to do with this
idea that was started by 13 colonies that decided to throw off the yoke of an empire
and said, 'We hold these truths to be self-evident, that all men ... are endowed
with certain inalienable [sic] rights.'"
In each instance, Obama omitted the Declaration's clear affirmation that the rights
of all people are "endowed by their Creator," not by some potentate or government.
Our Declaration of Independence was derived from inherent common law, and in its
first sentence, our Declaration establishes the rights of man as "which the Laws of
Nature and Nature's God entitle them."
When asked again about Obama's omission, White House Press Secretary Robert Gibbs
asserted, "I can assure you the president believes in the Declaration of
Independence."
So, Obama "believes in the Declaration"? The Declaration is a piece of paper, one
that expresses a self-evident Truth. Were it destroyed today, or had it never been
written, the right of all people to "Life, Liberty and the pursuit of Happiness,"
among other rights, would still be endowed by our Creator.
Mr. Gibbs' assurances notwithstanding, Obama's subtle but telling omissions expose
the underbelly of the political beast that is intent on devouring Essential Liberty
(http://patriotshop.us/index.php?cPath=85 ) and replacing it with the rule of men.
With his omissions now a matter of public interest, Obama has now tossed "our
Creator" into a stump speech before Election Day. But make no mistake: That would be
subterfuge. Obama believes that the rights of men are subject to the rule of men,
and the terminus of the unabated rule of men is always tyranny.
The election of Barack Hussein Obama was the worst of insults to our nation's
heritage of Liberty, but in one important way, it has proven a blessing in disguise.
It has drawn millions of Americans to the frontlines of the eternal war for Liberty
and Rule of Law
(http://patriotpost.us/alexander/2010/09/16/the-enshrinement-of-essential-liberty/
), as enshrined in our national Constitution. Still, this midterm election cycle is
different than the knee-jerk response to Bill Clinton that seated a Republican
majority back in 1994.
There is a Great Awakening across our nation, one being spearheaded by Tea Party
Patriots (http://patriotpost.us/alexander/2010/06/24/the-tea-party-movement/ ) who
are armed with, among other things, the right tools
(http://patriotshop.us/index.php?cPath=78 ) to articulate the difference between
Rule of Law and rule of men, and who are willing to passionately fight for the
former over the latter.
In the words of Thomas Paine, "I call not upon a few, but upon all: not on this
state or that state, but on every state; up and help us; lay your shoulders to the
wheel; better have too much force than too little, when so great an object is at
stake."
At this moment, the future of Liberty is at stake.
Our Declaration of Independence concludes, "And for the support of this Declaration,
with a firm reliance on the protection of divine Providence, we mutually pledge to
each other our Lives, our Fortunes and our sacred Honor." (I suspect Obama would
omit "with a firm reliance on the protection of divine Providence.")
I know that you have "pledged your sacred honor
(http://patriotpost.us/alexander/2008/11/14/our-sacred-honor-to-support-and-defend/
)" for the defense of Liberty. I beseech you to help us muster
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Happy birthday, Stephen J. Field!
Today is the birthday of one of the great figures in the history of American liberty—Stephen Johnson Field, who was born on this day in 1816.
Field was born into an illustrious family; his brother, Cyrus, laid the first transatlantic telegraph cable (and is mentioned in 20,000 Leagues Under The Sea), and his other brother, David Dudley Field, was perhaps the most famous and influential lawyer in his day. But unlike his brothers, Stephen came west to California in 1849, arriving in San Francisco, where he started a law firm. It failed quickly, and he moved to Marysville, where he was soon elected alcalde—something similar to mayor. After serving in the state legislature, Field was elected to the California Supreme Court in 1857, and soon achieved wide respect, although he clashed with his colleague, Chief Justice David S. Terry. When Terry shot and killed California Senator David Broderick in a duel two years later, Field replaced him as Chief Justice of California.
In 1863, needing a western Democrat for the Supreme Court, Abraham Lincoln appointed Stephen Field to the new 10th seat, making him the first Californian on the Supreme Court. Field soon distinguished himself as a defender of economic freedom and a friend to the Chinese immigrants who were so severely persecuted in California at the time. While riding circuit in the state, for instance, Field struck down the San Francisco “queue ordinance.” This was a law requiring any person who was thrown in jail to first have his head shaved. Although the government claimed this was a health measure intended to prevent lice infestation, Field recognized that it was really an attempt to allow the cutting off of the Chinese workers’ long hair braids, or queues, that they prized for traditional reasons: “we cannot shut our eyes to matters of public notoriety and general cognizance,” Field wrote. “When we take our seats on the bench we are not struck with blindness, and forbidden to know as judges what we see as men.” Ho Ah Kow v. Nunan, 12 F. Cas. 252, 255 (C.C.D. Cal. 1879).
Field was a champion of the individual’s right to earn a living without unreasonble interference by the government. (Which is why I dedicated my book to him.) In a persuasive dissenting opinion in Munn v. Illinois, 94 U.S. (4 Otto.) 113 (1877), Field argued that a law limiting how much the owners of grain silos could charge for storing grain was a violation of the due process clause, because it violated the owners’ right to do with their property as they pleased—not to protect the general public, but simply to benefit a group that managed to exercise greater political influence than their rivals. The Court majority devised a new test, saying that any business “affected with a public interest” could be regulated by the government in this way, but Field pointed out that the storage of grain was simply “a private business,” and if the legislature could dictate the prices owners could charge simply by declaring that the business is “affected with a public interest,” then “all property and all business in the State are held at the mercy of a majority of its legislature,” which might just as easily
fix the rent of all tenements used for residences, without reference to the cost...[or set prices for] cotton, woollen, and silken fabrics, in the construction of machinery, in the printing and publication of books and periodicals, and in the making of utensils of every variety, useful and ornamental; indeed, there is hardly an enterprise or business...in which the public has not an interest in the sense in which that term is used by the court...and the doctrine which allows the legislature to interfere with and regulate the charges which the owners of property thus employed shall make for its use...has never before been asserted, so far as I am aware, by any judicial tribunal in the United States.
Field rightly saw that Munn would open the door to a flood of government control over businesses, and in the decade that followed (virtually every state held a constitutional convention in the 1870s) legislatures declared industries willy-nilly to be affected with a public interest so that bureaucrats could control large segments of industry. Likewise, in what is probably his most famous opinion—his dissent in The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873)—Field insisted that the privileges or immunities clause protected, among other rights, the right to engage in a business without unreasonable government interference—a right protected by the common law for more than two and a half centuries at that time.
It’s ironic that Progressive legal theorists like Roscoe Pound later accused the pro-free market judges like Field of being “formalists.” Field was anything but a formalist, as the quote from the queue case suggests. In Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867), he struck down a Missouri law that required people to swear they’d never been a supporter of secession before they could take certain jobs. This scheme was just a clever attempt at double-punishment for the same offense, Field wrote, and
what cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows. Its inhibition was levelled at the thing, not the name. It intended that the rights of the citizen should be secure against deprivation for past conduct by legislative enactment, under any form, however disguised. If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding.
Field ended up serving on the Court longer than any other justice except John Marshall. (William O. Douglas later surpassed him.) During that time, his influence on American law was profound—far greater than is usually recognized by legal historians. Upon his retirement from the bench, Field explained that in his view, the Supreme Court was actually the most democratic of the branches of the government, because while the legislature represents the will of temporary majorities that change over time, the Supreme Court’s job is to preserve the Constitution—the true will of the people—and protect it from legislatures that often abuse their constituents and ignore their constitutional limits.
Field also had a very colorful personal life. He ran for President several times while serving on the Supreme Court, and he’s the only Supreme Court justice ever arrested for murder. David Terry—the Chief Justice of California who had resigned after killing Senator Broderick—threatened Field’s life after Field ruled against Terry’s girlfriend in a divorce case. Field was then assigned a bodyguard, a U.S. Marshal named David Neagle. Not long afterwards, when Field was traveling through Lathrop, California, on judicial business, he happened upon David Terry, who walked up to Field and slapped him in the face. Marshal Neagle immediately pulled out his revolver and shot Terry dead. Although the sheriff arrested both Field and Neagle on murder charges, Field was immediately released and never charged. Neagle, however, was charged, and appealed to the U.S. Supreme Court, which held that the Marshal could not be tried under state law.
For more on this remarkable figure, check out Paul Kens’ book Stephen Field: Shaping Liberty from The Gold Rush to The Gilded Age, or Carl Brent Swisher’s book Stephen Field: Craftsman of The Law. Field also wrote a memoir of his early days in California. And not long ago I visited his gravesite.
http://sandefur.typepad.com/freespace/2010/11/happy-birthday-stephen-j-field.html
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Repeal the Seventeenth Amendment
From the November 15, 2010, issue of NR
Joe Miller, Alaska’s Republican nominee for the United States Senate, recently expressed support for an idea that is rapidly gaining steam in Tea Party circles: the repeal of the Seventeenth Amendment. Miller subsequently backtracked from his statement, but he shouldn’t have: Repealing the Seventeenth Amendment would go a long way toward restoring federalism and frustrating special-interest influence over Washington.
Ratified in 1913, the Seventeenth Amendment replaced the election of U.S. senators by state legislators with the current system of direct election by the people. By securing the Seventeenth Amendment’s ratification, progressives dealt a blow to the Framers’ vision of the Constitution from which we have yet to recover.
The Constitution did not create a direct democracy; it established a constitutional republic. Its goal was to preserve liberty, not to maximize popular sovereignty. To this end, the Framers provided that the power of various political actors would derive from different sources. While House members were to be elected directly by the people, the president would be elected by the Electoral College. The people would have no direct influence on the selection of judges, who would be nominated by the president and confirmed by the Senate to serve for life or “during good behavior.” And senators would be elected by state legislatures.
Empowering state legislatures to elect senators was considered both good politics and good constitutional design. At the Constitutional Convention in Philadelphia, the proposal was ratified with minimal discussion and recognized as the approach “most congenial” to public opinion. Direct election was proposed by Pennsylvania’s James Wilson but defeated ten to one in a straw poll. More important than public opinion, however, was that limitations on direct popular sovereignty are an important aspect of a constitutional republic’s superiority to a direct democracy. As Madison observes in Federalist 51, “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”
Election of senators by state legislatures was a cornerstone of two of the most important “auxiliary precautions”: federalism and the separation of powers. Absent some direct grant of federal influence to state governments, the latter would be in peril of being “swallowed up,” to use George Mason’s phrase. Even arch-centralizer Hamilton recognized that this institutional protection was necessary to safeguard state autonomy. In addition, the Senate was seen as a means of linking the state governments together with the federal one. Senators’ constituents would be state legislators rather than the people, and through their senators the states could influence federal legislation or even propose constitutional amendments under Article V of the Constitution.
The Seventeenth Amendment ended all that, bringing about the master-servant relationship between the federal and state governments that the original constitutional design sought to prevent. Before the Seventeenth Amendment, the now-widespread Washington practice of commandeering the states for federal ends — through such actions as “unfunded mandates,” laws requiring states to implement voter-registration policies that enable fraud (such as the “Motor Voter” law signed by Bill Clinton), and the provisions of Obamacare that override state policy decisions — would have been unthinkable. Instead, senators today act all but identically to House members, treating federalism as a matter of political expediency rather than constitutional principle.
There is no indication that the supporters of the Seventeenth Amendment understood that they were destroying federalism. But they failed to recognize a fundamental principle of constitutional design: that in order for constraints to bind, it is necessary for politicians to have personal incentives to respect them. “Ambition,” Madison insisted in Federalist 51, “must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”
Under the original arrangement, senators had strong incentives to protect federalism. They recognized that their reelection depended on pleasing state legislators who preferred that power be kept close to home. Whereas House members were considered representatives of the people, senators were considered ambassadors of their state governments to the federal government and, like national ambassadors to foreign countries, were subject to instruction by the parties they represented (although not to recall if they refused to follow instructions). And they tended to act accordingly, ceding to the national government only the power necessary to perform its enumerated functions, such as fighting wars and building interstate infrastructure. Moreover, when the federal government expanded to address a crisis (such as war), it quickly retreated to its intended modest level after the crisis had passed. Today, as historian Robert Higgs has observed, federal expansion creates a “ratchet effect.”
Just as important as its role in securing federalism, the Senate as originally conceived was essential to the system of separation of powers. Bicameralism — the division of the legislature into two houses elected by different constituencies — was designed to frustrate special-interest factions. Madison noted in Federalist 62 that basing the House and Senate on different constituent foundations would provide an “additional impediment . . . against improper acts of legislation” by requiring the concurrence of a majority of the people with a majority of the state governments before a law could enacted. By resting both houses of Congress on the same constituency base — the people — the Seventeenth Amendment substantially watered down bicameralism as a check on interest-group rent-seeking, laying the foundation for the modern special-interest state.
Finally, the Framers hoped that indirect election of senators would elevate the quality of the Senate, making it a sort of American version of the House of Lords, by bringing to public service men of supreme accomplishment in business, law, and military affairs. There is some evidence that the indirectly elected Senate was more accessible to non-career politicians than today’s version is. And research by law professor Vikram Amar has found that during the 19th century, accomplished senators such as Webster and Calhoun frequently rotated out of the Senate and into the executive branch or the private sector, with an understanding among state legislators — and, notably, the senator selected to fill the seat — that they could return to service if they wished to do so or were needed. Foes of the Seventeenth Amendment argued at the time that its enactment would spawn a deterioration in the body’s quality. Whether the modern titans of the Senate such as Trent Lott, Bill Frist, Harry Reid, and the late Ted Kennedy are superior to Webster, Clay, and Calhoun is to some extent a matter of taste. But it is likely that reinstating the original mode of selection would change the type of individuals selected — and it is not implausible to think that the change would be positive.
Establishment media and liberal politicians have mocked tea partiers’ calls for repeal of the Seventeenth Amendment as anti-democratic. To be sure, indirect election would be less democratic than direct election, but this is beside the point. Notably, those who are most shocked by the proposal to repeal the Seventeenth Amendment are also the most vociferous in denouncing democratic election of judges. The Framers understood what today’s self-interested sloganeers of democracy do not: What matters is not whether a given method of selecting governmental officials is more or less democratic, but whether it will safeguard the constitutional functions bestowed upon each branch and conduce to their competent execution. Indeed, certain of the Senate’s duties — such as its role as a type of jury for impeachment proceedings — make sense only if it is somewhat insulated from the public’s passions of the moment, as was well demonstrated by the farcical Senate trial of Bill Clinton.
Critics of repeal have also contended that election of senators by state legislatures was, and would be today, unusually prone to corruption and bribery. But research by historian C. H. Hoebeke found that of the 1,180 Senate elections between 1789 and 1909, in only 15 cases was fraud credibly alleged, and in only seven was it actually found — approximately one-half of 1 percent. Moreover, it is absurd to think that even this modest degree of corruption would be tolerated in the modern media age, any more than politicians can today sell judgeships or other appointed offices, as they frequently did in the past. And even in the progressive era it was not believed that direct election of senators would prevent corruption. Among the Seventeenth Amendment’s staunchest supporters were urban political machines (hardly advocates of clean government), which understood that direct election would boost their control of the Senate as they drove and bribed their followers to the polls.
Repealing the Seventeenth Amendment would not be a panacea for what ails the American political and constitutional system. As during the era before the Seventeenth Amendment, many states would probably adopt either de facto direct election of senators, in which legislatures essentially agree to ratify the popular vote, or attenuated forms of it, such as primaries or conventions to select party nominees from whom the legislatures choose. And much work would remain to be done to restore the public’s understanding of the difference between a direct democracy and a democratic constitutional republic. But repeal would be a step in the direction of restraining an imperialistic central government and frustrating special-interest influence. Whether or not it is good politics, it remains sound constitutional design.
—Mr. Zywicki is a George Mason University Foundation professor of law and a senior scholar of the Mercatus Center. He has written several law-review articles examining the history and impact of the Seventeenth Amendment. This article first appeared in the November 15, 2010, issue of National Review.
http://www.nationalreview.com/articles/252825/repeal-seventeenth-amendment-todd-zywicki?page=1#
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Breyer: Founding Fathers Would Have Allowed Restrictions on Guns
Published December 12, 2010
If you look at the values and the historical record, you will see that the Founding Fathers never intended guns to go unregulated, Supreme Court Justice Stephen Breyer contended Sunday.
Appearing on "Fox News Sunday," Breyer said history stands with the dissenters in the court's decision to overturn a Washington, D.C., handgun ban in the 2008 case "D.C. v. Heller."
Breyer wrote the dissent and was joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg. He said historians would side with him in the case because they have concluded that Founding Father James Madison was more worried that the Constitution may not be ratified than he was about granting individuals the right to bear arms.
Madison "was worried about opponents who would think Congress would call up state militias and nationalize them. 'That can't happen,' said Madison," said Breyer, adding that historians characterize Madison's priority as, "I've got to get this document ratified."
Therefore, Madison included the Second Amendment to appease the states, Breyer said.
"If you're interested in history, and in this one history was important, then I think you do have to pay attention to the story," Breyer said. "If that was his motive historically, the dissenters were right. And I think more of the historians were with us."
That being the case, and particularly since the Founding Fathers did not foresee how modern day would change individual behavior, government bodies can impose regulations on guns, Breyer concluded.
In July 2008, the concurring opinion in "D.C. v. Heller" written by Justice Antonin Scalia and shared by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. found that the district's ban on handgun possession at home "violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense."
The ruling raised concerns by dissenters like Breyer that gun laws nationwide would be thrown out. That has not happened yet.
Breyer, who just published "Making Our Democracy Work," a book about the role of the court in American life, outlined his judicial philosophy as one in which the court must take a pragmatic approach in which it "should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances."
Since the Founding Fathers could not foresee the impact of modern day communications and technology, the only option is to take the values of the Founding Fathers and apply them to today's challenges.
"The difficult job in open cases where there is no clear answer is to take those values in this document, which all Americans hold, which do not change, and to apply them to a world that is ever changing," Breyer said. "It's not a matter of policy. It is a matter of what those framers intended."
He suggested that those values and intentions mean that the Second Amendment allows for restrictions on the individual, including an all-out ban on handguns in the nation's capital.
"We're acting as judges. If we're going to decide everything on the basis of history -- by the way, what is the scope of the right to keep and bear arms? Machine guns? Torpedoes? Handguns?" he asked. "Are you a sportsman? Do you like to shoot pistols at targets? Well, get on the subway and go to Maryland. There is no problem, I don't think, for anyone who really wants to have a gun."
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Health Suits Stir Concerns on Court Partisanship
http://www.nytimes.com/2010/12/16/health/policy/16health.html?_r=2&src=twt&twt=nytimes
Representative Pete Stark, a California Democrat who leads the Ways and Means subcommittee on health, added, “Apparently Republicans are now for judicial activism after they were against it.”
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"Instead of this crucial question being decided by one conservative judge in Virginia, it will likely be decided by one bizarre, unpredictable judge in Washington, Anthony Kennedy." From DougMacG, in a different thread
There has been a recent fascination with Justice Kennedy, no doubt spurred by Justice SDO retiring in 2006. Her retirement left Kennedy as the "swing" justice. As a result of this, there has been a fair amount of research done by political scientists, journalists, and law professor types. Most of them conclude that Kennedy is not as unpredicatable as is popularly understood.
Some examples:
Linda Greenhouse's "Is the 'Kennedy Court' Over?" which can be found here: http://opinionator.blogs.nytimes.com/2010/07/15/rethinking-the-kennedy-court/
Frank Colucci's Justice Kennedy's Jurisprudence: The Full and Necessary Meaning of Liberty reviewed here: http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/colucci0110.htm
Helen Knowles' The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty reviewed here:
http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/knowles0509.htm
Vol. 19 No. 5 (May, 2009) pp.347-350
THE TIE GOES TO FREEDOM: JUSTICE ANTHONY M. KENNEDY ON LIBERTY, by Helen J. Knowles. Lanham, Maryland: Rowman & Littlefield, 2009. 312pp. Hardback. $44.95/£30.00/€44.50. ISBN: 9780742562578.
Reviewed by Tobias T. Gibson, Department of Political Science, Monmouth College. Tgibson [at] monm.edu.
With the recent announcement that Justice David Souter is retiring from the United States Supreme Court, there has been a great amount of wordage from journalists and judicial scholars about the type of justice that President Barack Obama will nominate to fill Souter’s seat. There is much discussion about the strength of decisions that the new justice will pen, especially given Souter’s reserved judicial demeanor. However, many court watchers believe that junior justices, like children in days past, are to be seen but not heard. Helen J. Knowles, in her excellent book, offers some insight into how a junior justice can have profound impact on the Supreme Court. Knowles suggests that Kennedy, as a junior justice, made significant jurisprudential arguments when still a junior justice on the Court, and continues to do so today.
Knowles chronicles Justice Anthony Kennedy’s career and jurisprudential views, especially as they relate to three important areas of civil liberties: privacy, race and speech.
Knowles uses the Introduction of the book to suggest that Kennedy’s reputation of writing opinions which are “doctrinally weak” does not do justice to the Justice. Instead, the purpose of this book is “to try to identify some of the most prominent and important philosophical and legal threads that are woven into the cloth from which Justice Kennedy’s jurisprudence is cut” (p.2). Knowles starts from the assertion that Kennedy is a “moderate libertarian.” This assertion stems from Kennedy’s avoidance of radical legal positions, coupled with his belief in diverse views and protection of human dignity.
Importantly, Knowles approaches this study from a perspective related to neo-institutionalism and the strategic model of judicial decision making. Knowles views this as a key element in the book, because like the adherents of these models, she is “interested in asking why justices vote the way they do and how they are constrained and/or influenced by the broad political, historical, and cultural contexts within which they work” (pp.9-10).
In Chapter 1, Knowles begins to attack her overall hypothesis by defining libertarianism, with the assistance of such luminaries and Robert Nozick, Jeremy Bentham, John Locke and John Stuart Mill (whose ON LIBERTY is purposefully part of the title of the current book). Following the definition, the challenge is to see Kennedy’s application of libertarianism. Knowles uses interviews and speeches to convince the reader that Kennedy is a moderate libertarian who believes in tenets of libertarianism, such as toleration and personal responsibility. More importantly, in direct contrast to [*348] Justice Antonin Scalia and failed Supreme Court nominee Judge Robert Bork, Knowles notes that during his confirmation, Kennedy testified to the Senate about his broad understanding of rights that are not specifically enumerated in the Constitution.
The second chapter begins the heart of the book and focuses on Justice Kennedy’s views on the freedom of speech, which, for Kennedy, is particularly sacred because he sees speech as the “beginning of thought.” Knowles introduces this chapter with a quote from Justice Kennedy in INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS v. LEE (1992): “The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech” (p.53). This is an important belief for Kennedy and can be seen throughout his defense of speech. Knowles predictably, and correctly, also utilizes Kennedy’s famous concurring opinion in TEXAS v. JOHNSON (1989). The most interesting portion of this chapter, however, is the discussion about Kennedy’s views about the use of “strict scrutiny,” which was first made public in SIMON & SCHUSTER v. CRIME VICTIMS BD. (1991). Kennedy makes the argument, again in a concurrence, that the strict scrutiny test, applied in the opinion of the court, is unnecessary. Kennedy feels this way because he believes that the strict scrutiny test “has no real or legitimate place when the Court considers the straightforward question whether the state may enact a burdensome restriction of speech based on content only” (p.69). Knowles acknowledges that Kennedy’s position toward the freedom of speech is not absolute, but carefully notes also that even when his view is “tempered by the realities of the different cases he has confronted” (p.87), he remains true to his root belief that government should not try to control the thoughts or expression of its citizens.
In the third chapter, Knowles then turns to individual dignity, rather than “membership” in a group, based on race, sexuality or other particular characteristics. Knowles again does a convincing job of illustrating Kennedy’s dedication to libertarian ideals in this chapter. She effectively draws upon ROMER v. EVANS (1996) and LAWRENCE v. TEXAS (2003) to make the point that in this area of law, Kennedy views too much governmental intrusion to be at odds with individual freedom. At issue in ROMER was a Colorado state constitutional amendment that prevented discrimination on the basis of sexual orientation. Kennedy wrote that the amendment was “so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects” (p.110). Similarly, in LAWRENCE, Kennedy takes the Court’s decision in BOWERS v. HARDWICK to task by writing “Bowers was not correct when it was decided, and it is not correct today” (p.116). His reasoning for this is that “Liberty protects the person from unwarranted government intrusions into a dwelling or other private place. . . . And, there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial boundaries” (p.121). [*349]
In the following chapter, Knowles extends the discussion of Kennedy’s aversion to group based characterization of the individual. Here, the focus turns to race. The case at the heart of the discussion in this chapter is METRO BROADCASTING v. FEDERAL COMMUNICATIONS COMMISSION (1990), in which preferential treatment for minority owned communications companies was given in issuing federal communications licenses. Kennedy dissented from the majority opinion which upheld these preferences in support of diversity. Kennedy voiced his preference for strict scrutiny here, which was at odds with the less exacting test employed by Brennan. Kennedy, in writing what one commentator described as an “apocalyptic” dissent, compares the majority opinion to the infamous PLESSY and KOREMATSU decisions. He elaborates on this by stating “[p]erhaps the Court can succeed in its assumed role of case-by-case arbiter of when it is desirable and benign for the Government to disfavor some citizens and favor others based on the color of their skin. Perhaps the tolerance and decency to which our people aspire will let the disfavored rise above hostility and the favored to escape condescension” (p.137). Knowles presents an impressive discussion of several cases here to make the point that Kennedy’s real concern is that, by focusing on group characteristics, the individual’s freedom is jeopardized because the individual cannot have all of the characteristics of the group.
The fifth chapter focuses on abortion cases, with a particular nod to PLANNED PARENTHOOD v. CASEY (1992) in which Kennedy coauthored the opinion of the Court with Justices O’Connor and Souter. Because Kennedy’s view is that there is no clear boundary of where individual liberties lie with regard to abortion, Knowles makes the argument that Kennedy’s understanding of abortion rights is based on the “relationships between (1) libertarianism and abortion and (2) libertarianism and personal responsibility” (p.163). Knowles supports this, observing that, while Kennedy and the other authors note the importance of the woman’s liberty to have an abortion, the decision is not “isolated in privacy.” This observation allows Knowles to come full circle from the first chapter, where she defines and describes Kennedy’s limited libertarian view.
The conclusion serves to reiterate the points made in the prior chapters. Knowles also uses this opportunity to note the political importance of understanding Kennedy’s views. For example, in the first term since John Roberts and Samuel Alito took their seats on the bench, Knowles reports that Kennedy was the sole justice to be in the majority in all 5-4 decisions. Perhaps the best indication of Knowles’ view of Kennedy on the current Court is the title of the concluding chapter: “It all Depends on Justice Kennedy.”
In THE TIE GOES TO FREEDOM, Knowles utilizes several sources. The primary sources come from Justice Kennedy’s opinions written during his tenure on the High Bench. Additionally, Knowles uses material from Kennedy’s speeches and written articles, and interviews he has given. Another strength of this work is Knowles’ ability to buttress her arguments between and among chapters. Although the chapters [*350] facially are unique, there are clear connections through the book. Additionally, Knowles does a wonderful job of displaying that Kennedy is not inconsistent with his jurisprudence or that he falls victim to the “Greenhouse Effect” by trying to please the reporters on the Supreme Court beat.
This book serves an important purpose. While Knowles focuses on Justice Kennedy, because of his position on the Supreme Court as the median justice, THE TIE GOES TO FREEDOM is also suggestive of the policies we are likely to see coming from the Court for years to come. Knowles’ work packs a punch and could be considered required reading for any number of undergraduate and graduate courses, including the typical constitutional law and jurisprudence classes, but also those related to the institution of the Supreme Court. This book is one of the more interesting and well written books that I have read in recent years.
CASE REFERENCES:
BOWERS v. HARDWICK, 478 U.S. 186 (1986).
INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS v. LEE, 505 US 672 (1992).
KOREMATSU v. US, 323 U.S. 214 (1944).
LAWRENCE AND GARNER v. TEXAS, 539 U.S. 558 (2003).
METRO BROADCASTING v. FEDERAL COMMUNICATIONS COMMISSION, 497 U.S. 547 (1990).
PLESSY v. FERGUSON, 163 U.S. 537 (1896).
PLANNED PARENTHOOD v. CASEY, 505 U.S. 833 (1992).
ROMER v. EVANS, 517 U.S. 620 (1996).
SIMON & SCHUSTER v. CRIME VICTIMS BOARD, 502 U.S. 105 (1991).
TEXAS v. JOHNSON, 491 U.S. 397 (1989).
*********************
© Copyright 2009 by the author, Tobias T. Gibson.
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"“Apparently Republicans are now for judicial activism after they were against it.”"
I was trying to make the same point from the other direction. One judge or one court far away strikes down the age-old and majority approved idea that marriage means a man and woman become husband and wife or that Sharia Law law foreign law should not be considered in state court and the action receives pundit and scholar applause. Now we have one instance of a conservative judge saying the constitution doesn't give the federal government a power that the constitution certainly didn't give in any clear or direct way anywhere in its articles or amendments - and those who applauded earlier receive back a taste of the judicial review they were applauding. Activist? Yes, he over-ruled out elected representatives. The question to me though is whether he got it right upholding constitutional limits on federal government powers.
"it will likely be decided by one bizarre, unpredictable judge in Washington, Anthony Kennedy."
Bizarre and unpredictable would be from my point of view; I'm sure it all makes sense from his.... I will read the links posted and come back better informed. (Learning more about Anthony Kennedy though will be hours of my life I can never get back.) In the meantime I accept this description from Knowles (bigdog post) as better worded: Kennedy is a “moderate libertarian” and I agree to make no wisecracks about that sounding like a very clever oxymoron...
If in 1988 Reagan's top constitutional advisers had reassured the President, even in the earliest stages of Alzheimer's, that this man Kennedy will be a moderate for in the defense of individual liberties for this nation for the rest of his life, I am wondering if he would have gotten that job. (sad face)
Forgive me as I go nuts over Kelo again: Knowles on Kennedy in Lawrence (from bigdog post): "His reasoning for this is that “Liberty protects the person from unwarranted government intrusions into a dwelling or other private place. . . ." But Kelo (the taking of your private property on a government whim for other private ownership) is not an "unwarranted government intrusions into a dwelling or other private place"??!! It is a warranted intrusion (in Kennedy's opinion) for the government to force out private property owners to accommodate a different private owners whose purpose is at that moment is believed to be preferable to the [all-knowing, all-caring, with sarcasm] City government. We should all go right now to the New London site and see how warranted that intrusion and displacement turned out to be and how great a city can become with greater central government powers. It is vacant land, they never broke ground on the residential site and Pfiser left New London in 2009. (http://www.openlettersmonthly.com/issue/wp-content/uploads/2009/10/photo-by-www.dr5.org.jpg)
FYI to Kennedy and other Kelo supporters from one who has had his property taken by a city to transfer ownership to politically connected private ownership: We didn't need a new government power to transfer private ownership of private property. We already have something - it's called a purchase agreement and it gets signed by consenting parties, with an agreed price [in a free society]. Seller's consent is one liberty that this 'moderate libertarian' Justice Kennedy failed to recognize, and now the legitimate power of government to acquire property necessary to build needed public facilities and right-of-ways can now run wild across the municipalities buying and selling access to government power for preferred private ownership.
If Kennedy is not "bizarre and unpredictable" as I wrote, and some thread runs through his logic and values, and if the different sides of the issue of individual mandate are already known, then maybe one of the scholars linked will already know how Kennedy will come down on the healthcare mandate.
In the meantime, someone please tell me what is wrong with having the 2/3rds and 3/4th majorities required to amend the constitution to grant the federal government a new power - do so - before exercising that power against unwilling Americans.
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http://volokh.com/2010/12/14/sixth-circuit-rules-that-e-mail-protected-by-the-fourth-amendment-warrant-requirement/
Sixth Circuit Rules that E-Mail Protected by the Fourth Amendment Warrant Requirement
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Justice Scalia and the Tea Party
Published: December 18, 2010
When the Tea Party holds its first Conservative Constitutional Seminar next month, Justice Antonin Scalia is set to be the speaker. It was a bad idea for him to accept this invitation. He should send his regrets.
Related
Times Topic: Antonin Scalia
The Tea Party epitomizes the kind of organization no justice should speak to — left, right or center — in the kind of seminar that has been described in the press. It has a well-known and extreme point of view about the Constitution and about cases and issues that will be decided by the Supreme Court.
By meeting behind closed doors, as is planned, and by presiding over a seminar, implying give and take, the justice would give the impression that he was joining the throng — confirming his new moniker as the “Justice from the Tea Party.” The ideological nature of the group and the seminar would eclipse the justice’s independence and leave him looking rash and biased.
There is nothing like the Tea Party on the left, but if there were and one of the more liberal justices accepted a similar invitation from it, that would be just as bad. This is not about who appointed the justice or which way the justice votes. Independence and the perception of being independent are essential for every justice.
Justice Scalia has been particularly assertive that the American public should trust his ability to handle ethical questions. Incidents like this seminar emphasize that it is in the interest of the Supreme Court to provide him and every justice with more specific guidance. The court remains the only federal court not covered by the Code of Conduct for United States Judges. The court and the country would be better off if the justices were responsible to the code. Even without a duty to the code, each justice has a duty to its principles. Each has a duty to promote the judiciary’s impartiality. That means avoiding any activity that could raise reasonable doubts about his or her ability to decide cases fairly.
By presiding over this seminar, Justice Scalia would provide strong reasons to doubt his impartiality when he ruled later on any topic discussed there. He can best convey his commitment to the importance of his independence, and the court’s, by deciding it would be best not to attend.
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ACLU 2008 Membership Conference
Agenda
Sunday, June 8th
2 PM Registration Opens
3 PM Youth reception
3:30 PM LGBT reception
5 PM Opening Plenary: “Looking Ahead: Political Realities of a Post-Bush America” Glenn Greenwald, Arianna Huffington, Rachel Maddow
6:30 PM Dinner
7:30 PM Comedy by Judy Gold
8 PM “Rights, Camera, Action” Alex Gibney, Ariel Dorfman, Johanna Blakley
Monday, June 9th
8 AM “Reflections on a Post 9/11 World” Keynote address by Anthony Romero, ACLU Executive Director
9:15 AM “Principled and Proud: Standing Up for Core Values”
10:30 AM Workshops
12:30 PM “The War on Terror: Protecting Rights and Liberties Beyond Our Border”
Justice Arthur Chaskalson, John Hutson, reading by Ariel Dorfman
2:30-4:30 Workshops
6:30-9 PM ACLU Gala
Tuesday, June 10th
8 AM Breakfast Plenary: “The Hero Next Door: Challenging Abuse of Power in the Neighborhood”
10:15 AM Workshops
12:30 PM Closing Plenary Lunch: “Our Lady Liberty: Celebrating Nadine Strossen”
Supreme Court Justice Ruth Bader Ginsburg, Supreme Court Justice David Souter, Supreme Court Justice Antonin Scalia, Kathleen Sullivan, Rev. Barry Lynn, Aryeh Neier, Norman Dorsen – with a special performance by musician John Hiatt
2-5 PM Hill Visits
Don’t miss exciting workshops on a wide variety of civil liberties issues including: racial justice and affirmative action, women’s rights, technology and liberty, LGBT issues, reproductive freedom, youth engagement, immigrants’ rights and government intrusion into private matters. Plus trainings for Hill Visits will be held throughout the conference.
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I thought the ACLU conference opened with the Pledge of Allegiance ... to the U.N.
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I thought the organizing idea of the tea party, 1773 or 2010, was a return to founding principles. Who better than Justice Antonin Scalia (or any of 8 other justices) to speak? Just like the tea party, they have it in their job description (I thought) to return us to our founding principles.
Problem with Pravda / NY Times is that they were told the tea party meant something else - starve the poor, return blacks to slavery, make gays learn hetero, and kick Grannny off her meds - that kind of thing.
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GM:
Well that certainly makes for a pithy rejoinder to the POTH claptrap!
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"If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions." --James Madison
Liberty
"- ne reason the Founding Fathers decided to break with England was their dismay with England's mercantilist system, which generally required colonists to purchase manufactured goods from, or through, England rather than produce them in the colonies. Hatred for this system inspired a Virginia farmer named George Washington to try to convert his colonial farm into a self-sufficient unit -- where ... he could produce and consume what he wanted without trading with others, especially those in England. The Framers, who had not forgotten English mercantilism, wrote the Commerce Clause of the Constitution to create a free-trade zone among the American states. Their aim was to facilitate freedom, not restrict it. ... [Judge Henry] Hudson, while carefully staying within the Supreme Court precedent of Wickard v. Filburn, correctly understood that the issue raised by Obamacare's individual mandate ... is freedom itself. 'The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers,' Hudson wrote in his opinion. ... And you thought liberals believed in freedom of choice?" --columnist Terence Jeffrey
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second post of the morning:
POTH:
The same people driving the lawsuits that seek to dismantle the Obama administration’s health care overhaul have set their sights on an even bigger target: a constitutional amendment that would allow a vote of the states to overturn any act of Congress.
Under the proposed “repeal amendment,” any federal law or regulation could be repealed if the legislatures of two-thirds of the states voted to do so.
The idea has been propelled by the wave of Republican victories in the midterm elections. First promoted by Virginia lawmakers and Tea Party groups, it has the support of legislative leaders in 12 states. It also won the backing of the incoming House majority leader, Representative Eric Cantor, when it was introduced this month in Congress.
Like any constitutional amendment, it faces enormous hurdles: it must be approved by both chambers of Congress — requiring them to agree, in this case, to check their own power — and then by three-quarters of, or 38, state legislatures.
Still, the idea that the health care legislation was unconstitutional was dismissed as a fringe argument just six months ago — but last week, a federal judge agreed with that argument. Now, legal scholars are handicapping which Supreme Court justices will do the same.
The repeal amendment reflects a larger, growing debate about federal power at a time when the public’s approval of Congress is at a historic low. In the last several years, many states have passed so-called sovereignty resolutions, largely symbolic, aimed at nullifying federal laws they do not agree with, mostly on health care or gun control.
Tea Party groups and candidates have pushed for a repeal of the 17th Amendment, which took the power to elect United States senators out of the hands of state legislatures. And potential presidential candidates like Mitt Romney and Sarah Palin have tried to appeal to anger at Washington by talking about the importance of the 10th Amendment, which reserves for states any powers not explicitly granted to the federal government in the Constitution.
“Washington has grown far too large and has become far too intrusive, reaching into nearly every aspect of our lives,” Mr. Cantor said this month. “Massive expenditures like the stimulus, unconstitutional mandates like the takeover of health care and intrusions into the private sector like the auto bailouts have threatened the very core of the American free market. The repeal amendment would provide a check on the ever-expanding federal government, protect against Congressional overreach and get the government working for the people again, not the other way around.”
Randy E. Barnett, a law professor at Georgetown who helped draft the amendment, argued that it stood a better chance than others that have failed to win ratification. “This is something state legislatures have an interest in pursuing,” he said, “because it helps them fend off federal encroachment and gives them a seat at the table when Congress is proposing what to do.”
Professor Barnett, considered by many scholars to be the intellectual godfather of the argument that the health law is unconstitutional, first proposed the repeal amendment in a column published by Forbes.com in 2009.
Tea Party groups in Virginia contacted him. Virginia’s governor, attorney general and speaker of the House, all Republicans, then expressed their support. The speaker, William J. Howell, joined Professor Barnett in an op-ed article proposing the amendment in The Wall Street Journal in September.
Virginia was a particularly ripe place to start the argument. The attorney general, Kenneth T. Cuccinelli II, was among the first attorneys general to try to overturn the federal health care law, filing a lawsuit minutes after President Obama signed the measure last spring.
Mr. Cuccinelli argued that the federal provision establishing a health insurance mandate was against a law the legislature had recently passed decreeing that no resident could be required to have health insurance. The judge who declared the mandate unconstitutional last week was ruling in that case.
This month, Mr. Cuccinelli wrote to the attorneys general of every state for their support of the repeal amendment.
The measure was introduced in the House by Representative Rob Bishop, Republican of Utah, who was a founder of the Western States Coalition, which advocates states’ rights.
Sanford V. Levinson, a professor of constitutional law at the University of Texas, called the proposal “a really terrible idea” because it would give the same weight to small states as it would to large ones, allowing those with a relatively small proportion of the national population to have outsize influence.
“There’s not the slightest chance it would get through Congress” or be ratified by the states, he said. “You can bet the ranch that there are enough state legislators in the large states who will not consider it a good idea to reinforce the power of small parochial rural states in which most Americans do not live.”
Even if it were approved, it would be extremely unlikely to have any practical effect, Professor Levinson said. “Any bill that can get through the byzantine, gridlocked process of being approved by two houses and the presidential signature is wildly unlikely to be opposed by two-thirds of the states,” he said.
Marianne Moran, a lawyer in Florida who runs RepealAmendment.org, said that legislative leaders in Florida, Georgia, Indiana, Iowa, Minnesota, Missouri, Montana, New Jersey, South Carolina, Texas and Utah, as well as Virginia, were backing the amendment.
“Considering we’ve had 12 states get on board in the last two or three months that we’ve been pushing this, I think we’re getting some speed,” she said. “No amendment has ever been ratified without a broad national consensus — it’s an uphill battle — but we’ve done it 27 times as a country, and I think we can get enough states to agree.”
Proponents say their effort is not directed at any one law or set of laws. “Our desire is to have it in place so we can repeal as things come up,” Ms. Moran said. “What we’re trying to do is to draw a line in the sand saying the federal government has gone too far.”
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"Sanford V. Levinson, a professor of constitutional law at the University of Texas, called the proposal “a really terrible idea” because it would give the same weight to small states as it would to large ones, allowing those with a relatively small proportion of the national population to have outsize influence."
Yes, we are much better off with a few large cities on either coast having disproportionate influence on the country. :roll:
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Those "few large cities on either coast having disproportionate influence on the country" :?
Disproportionate? What happened to one man/woman one vote concept? Sounds "proportional" to me...
Or are cows now going to vote in TX?
If you are not happy with Congress, then vote them out. There was a major cleaning this last election.
The system seems to work pretty well...
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Sandy Levinson is an extremely influential constitutional scholar. Some of his more interesting work deals with what he calls "constitutional stupidities." Here is one of his articles:
http://digitalarchive.gsu.edu/cgi/viewcontent.cgi?article=3252&context=colpub_review
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I enjoyed the Levinson article though I see it differently.
The theme seems to be the disproportionality aka checks and balances(?).Every few election cycles there seems to be major talk (mostly out of New York and California) to end the electoral college and elect the President by direct popular vote. There is a fear that the one who wins the popular vote (like Al Gore) may not win in the electoral college. Like saying the football team with the best time of possession or total yards needs to win even though the rules say we only count points on the board. Regardless of the merits I always laugh it off because all it will to take to change that is to ask more than half the states to voluntarily give up their 'disproportional' power. Same argument would go for the senate. Why abandon the electoral college when, until Levinson(?), I never hear a proposal to end the Senate and go to a strictly proportional (unicameral?) legislative branch. I have never found the House to be a better governing body than the Senate and don't find the argument that a proportional body would not have confirmed to Clarence Thomas to the Supreme Court to be at all helpful.
The details of the 12th amendment and the story of 1824 are both quite interesting. Maybe electoral tiebreakers are quirky or unfair, but then it reinforces something I have come to know since Gore-Bush Florida and the crazy Al Franken recount here: margin of victory matters. A party or potential coalition can't run 3 candidates or be still fighting amongst themselves on election day and expect their views to prevail. The Gore Bush contest in Florida mattered because the country was also evenly divided across the other 49 states. Even if that had ended in a tie to be decided in the House of Representatives with each state getting just one vote, that would only happen after each candidate had every opportunity to win outright in the conventional manner. Because margin of victory matters, every vote really matters. I didn't use to know that.
Levinson alleges (if I read him correctly) one sign of the constitutional stupidity is that mountain states, sparsely populated but fully represented in the Senate, take in far more federal funding than they pay in. I assume that includes Alaska with their majestic mountains and notoriety for bridges and spending to nowhere.
I would reply emphatically that those spending bills originate in the fully proportional House of Representatives and end with the mostly proportional chief executive. The remedy is easily available within the current framework: STOP DOING THAT. Like the cornhusker kickback to bring us healthcare, draw up a bill we honestly support instead of buying off small state Senators. We don't want coercion by the majority or from the east or west coast anymore than we wanted it from the King. What we want is limited government and consent of the governed.
Ideas like life, liberty and pursuit of happiness were also Jeffersonian.
There is a longer story in these states in my opinion. The federal government owns the beautiful forests at the Top of the Rockies and a majority of the land in many regions of the west. Like the Clinton takeover of a coal region, Grand Staircase - Escalante in Utah, I don't think these federal ownerships were the choice of the state or the people in and around the land. The federal government after the takeover chooses to leave resources in the ground, restricts what Utah or Alaska can do for revenues, operates its own land at a loss, while keeping industrious, private sector, taxpaying Americans from building and living there. (Then complain about the loss.) That is a choice that comes out of places like New York, Washington, California etc. IMO, not so much from the states affected. In the Boundary Waters of Minnesota - Superior National Forest , not just non-motorized and very limited access, it is illegal to operate a sailboat on a lake or construct a canoe rest on a portage for fear of ... damage to the environment? Separate from the merits, these are not laws that are set by the locals nor are they laws that lead to bringing in revenues or covering the federal operating costs of a million acre park, as an example.
Life tenure of Federal judges is easily amended because it doesn't a have a state against state component to it. Supreme Court Justices or any federal judgeship could be limited to one 20 year term or any other number as easy as passing the 22nd amendment limiting the President to two terms - if that is what people want. It is not a structural problem in the constitution, IMO.
The 3 examples of amendments failing, balanced budget, flag burning and equal gender rights were all (well intended, but) flawed proposals IMO. There are amendments now I would support that also lack the votes. I noted recently that proponents of granting the federal government new powers never first seek to amend the constitution. That is not because of no constitutional need IMO; it is because they know they lack the votes, and then proceed with the legislation anyway.
Constitutional conventions: beware, IMO. These are for those like this author/scholar who want major changes and you cannot predict the result when you call one. These are not for those of us who 'venerate' the original document.
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Finally I just finished the Levison article. Good to re-examine one's precepts from time to time, but I come down on the particulars pretty much as Doug does. I would add that we are averaging about one amendment every ten years which counters the notion that our C. is too hard to amend, and that we have the world's longest running constitutional republic.
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Is there a constitutional right of having someone provide services to you? If it is a good idea that everyone have a right to free this or affordable that, is that right already in the constitution or is that a change requiring amendment? Does congress have the power to compel you to buy a private contract? Is it an unenumerated power?
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Obamacare and the risk of ‘positive rights’
By E. THOMAS McCLANAHAN
The Kansas City Star
Last week’s court decision striking down the linchpin provision of the health care bill is a reminder that what’s at stake is larger than the future of Obamacare. If this law passes constitutional muster, the question is whether the federal government can be constrained by any limits at all.
At issue is the personal mandate, the part of the law that says everyone must buy health insurance or pay a penalty. The implications were aptly captured by U.S. District Judge Henry Hudson, ruling in Virginia vs. Sebelius — one of several lawsuits challenging Obamacare.
Two other federal judges have upheld the personal mandate, but Hudson saw the law differently. He pointed out that neither the Supreme Court nor any federal court of appeals has held that Congress’ power to regulate commerce means people can be compelled to buy a product from a private company.
If that provision is upheld, the implications are deeply troubling.
Up to now, defenders of the health care law have airily dismissed such concerns. House Speaker Nancy Pelosi, asked to name the constitutional provision on which the personal mandate was based, famously replied in an outraged tone: “Are you serious? Are you serious?”
During the health care debate, it was common to hear people piously assert that health care should be a right, perhaps unaware of the full implications. The ongoing strikes and riots in Europe, however, represent the long-term risks of the progressive vision, in which government-delivered social benefits are portrayed as personal rights.
No wonder they’re rioting in Europe. They believe their personal rights are being violated by budget cuts brought on by the sovereign debt crisis.
Government benefits expressed in this way are known to political scientists as positive rights, which differ from the negative rights with which we’re more familiar. Negative rights generally describe things the government cannot do — take your stuff without due process, stifle your right to express your point of view, lock you up without cause, etc.
Positive rights describe things the government says it will do for you. A good example was the Second Bill of Rights pushed by President Roosevelt. Everyone, he said, should have the right “to a useful and remunerative job … to earn enough to provide adequate food and clothing … to adequate medical care … to a good education” and more.
Worthy goals, all. Who’s against such things?
Certainly a highly developed economy should not be without social welfare programs — pensions and health care for seniors, aid to the indigent and the like. The problem is that elevating benefits to the level of rights confers an unlimited grant of power to the government. In the legislative process, laudable sentiments too often emerge as programs with unconstrained costs — or, in the case of the personal mandate in Obamacare, policies that rely on coercion.
As federal lawyers told Judge Hudson, the personal insurance requirement is the “vital kinetic link that animates Congress’s overall regulatory reform of interstate health care.”
From government’s point of view, positive rights are marching orders. Heaven and earth must be moved to deliver the promises. The state grows rapidly and ultimately it outruns the capacity of the tax base to pay for it all, endangering the financial security of everyone.
Thirty years ago, Portugal’s government cost its taxpayers about 20 percent of GDP. Then a new constitution was written, chock full of positive rights — the right to housing, education, health, social security. The size of government doubled. Portugal’s borrowing costs, like that of Greece and Ireland, have ballooned.
It’s no coincidence that those who believe health care is a “right” were, like Pelosi, initially flummoxed by the notion that a serious constitutional challenge was even possible. Who could worry about legal niceties when the noble goal of universal health care is within reach?
Once upon a time, Barack Obama seemed to understand the kind of opposition a personal mandate would generate. That’s why when he ran for president, he was against it — and criticized Hillary Clinton for proposing such a thing.
http://www.kansascity.com/2010/12/18/2529544/obamacare-and-the-risk-of-positive.html#ixzz1937oHwrO
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Can congress mandate you get a haircut, hippie?
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Uhhh , , , at whom is that directed GM?
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Just a joking reference to the federal healthcare mandate. Could congress pass a law requiring every male in the US to purchase a weekly haircut? Hey, good grooming is important!
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The historians will long be fighting over the legislative legacy of the 111th Congress. As to its legal legacy, the only real question is whether this just-finished Democratic Congress was the most unserious in decades, or the most unserious in history.
That much is clear from the recent ObamaCare court proceedings. Federal Judge Henry Hudson, responding to a lawsuit by the state of Virginia, last week struck down the core of the law, the individual mandate. His decision came the same week that a coalition of 20 states presented oral arguments against the health law in front of Florida federal Judge Roger Vinson. In October, Judge Vinson ruled against the Obama Justice Department's motion to dismiss the states' lawsuit.
The law professors and think-tankers and media folk who initially ridiculed these lawsuits have now had to dream up sinister reasons for why they are succeeding. Judges Hudson and Vinson, we are told, were both appointed by Republicans and obviously can't be trusted to fairly interpret the law. Some commentators have gone further, suggesting that we are witnessing a cabal of right-wing activists, lawyers and judges conspiring to kill not just ObamaCare, but the entire New Deal. If only.
What the observers seem not to have done is read the briefs, arguments or rulings. Had they done so, they'd see a far simpler explanation for what's going on: Congress earlier this year punched through audacious yet unvetted health legislation, a slapdash political product that is now proving to be an historic embarrassment in its legal shoddiness. The Justice Department is in fact having to play games to defend it, which has only further provoked the courts.
And really, is that such a surprise? The Patient Protection and Affordable Care Act is one of the bigger, more complex pieces of legislation in U.S. history. Yet Democrats never gave it the respect it deserved.
View Full Image
Chad Crowe
.Look at any other consequential piece of legislation, and the record is brimming with sober congressional investigations into its legal merits and ramifications. ObamaCare? It was a largely unread, 2,700-page fiend—crafted in secret, fed on deal-making, birthed on late-night votes. The Senate and House judiciary committees didn't hold hearings. The record is bereft of letters from congressional chairmen requesting Justice Department legal analyses of the bill. Senate Finance Chairman Max Baucus actually ruled out of order an amendment that would have required expedited judicial review of the individual mandate. Asked about the bill's constitutionality, House Speaker Nancy Pelosi's only retort was: "Are you serious?"
The result is a bill that is "in its design, the most profoundly unconstitutional statute in American history; in its execution, one of the most incompetent ones," says David Rivkin, the lawyer who represents the 20 state plaintiffs in the Florida suit. The best example is the individual mandate, the requirement that all Americans buy insurance or pay a penalty.
Democrats' first drafts of ObamaCare all decisively called this penalty a "tax." Legally, that made sense; few dispute Congress's authority to tax. But as the unpopularity of the bill grew, fewer Democrats wanted to vote for a "tax," and President Obama didn't want to own one.
So Democrats went to plan B. That was to make up an entirely new legal theory—to wit, that the federal government is allowed, under the Commerce Clause, to penalize Americans who do not take part in a specific economic activity (buying insurance).
Put another way, in order to avoid the political inconvenience of a "tax," Democrats based the very core of their bill on a new and untested legal premise—one that is a far bigger affront to the Constitution than New Deal legislation. That's why Judge Hudson struck it down. And since Congress adopted this theory sloppily, in response to political pressure, it has left a record that is killing the Justice Department in court.
Knowing how audacious the commerce-clause theory is, Justice has been trying to argue that the penalty is, in fact . . . a tax. This has only annoyed Judge Vinson, who is well aware of the history, and in fact rapped the Justice Department for the bait-and-switch.
"Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing," Judge Vinson wrote in October, "after which the defenders of that legislation take an 'Alice-in-Wonderland' tack and argue in court that Congress really meant something else entirely." Ouch.
And yet the Justice Department has continued to put forward wild theories in court—about the Commerce Clause, about the Necessary and Proper Clause—that have no basis in the statutory language of ObamaCare. And it is now playing games with the appeal of Judge Hudson's ruling, arguing against having it go straight to the Supreme Court, where the nation could get some quick clarity. The administration believes its best shot is to drag out the litigation, and hope that time pressures the courts to leave the law alone.
But what else can the Justice Department do? It's stuck defending a steaming pile of a statute. This is the 111th Congress's legacy, one that will last long after its 535 members finish their term.
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http://www.prospect.org/cs/articles?article=humanoid_rights
Humanoid Rights
The ACLU looks to science fiction to prepare for future threats to civil liberties
A few months ago I watched Moon, a 2009 indie science-fiction film, with a friend who works on public relations for the American Civil Liberties Union. The movie centers on Sam Bell, a solitary laborer who spends his days extracting helium from moon rocks and drawing comfort from correspondence with his pregnant wife on Earth. That is, until he discovers he's actually one of a series of short-lived and expendable human clones bred for the dangerous, repetitive work of moon mining. After Bell outsmarts the automated systems and escapes on a vessel bound for Earth, a tangle of audio broadcasts lets us know that the mining company's stock is crashing due to charges of crimes against humanity.
As the credits rolled, my friend said to me, "I'd like to think that when that guy got to Earth, the ACLU would have taken his case."
The idea of the ACLU battling a private corporation over whether clones are human beings or pieces of property may seem far-fetched. But almost a decade ago, the organization started thinking about how to do it.
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Scalia interview:
http://www.callawyer.com/story.cfm?eid=913358&evid=1
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http://www.prospect.org/cs/articles?article=humanoid_rights
Humanoid Rights
The ACLU looks to science fiction to prepare for future threats to civil liberties
A few months ago I watched Moon, a 2009 indie science-fiction film, with a friend who works on public relations for the American Civil Liberties Union. The movie centers on Sam Bell, a solitary laborer who spends his days extracting helium from moon rocks and drawing comfort from correspondence with his pregnant wife on Earth. That is, until he discovers he's actually one of a series of short-lived and expendable human clones bred for the dangerous, repetitive work of moon mining. After Bell outsmarts the automated systems and escapes on a vessel bound for Earth, a tangle of audio broadcasts lets us know that the mining company's stock is crashing due to charges of crimes against humanity.
As the credits rolled, my friend said to me, "I'd like to think that when that guy got to Earth, the ACLU would have taken his case."
The idea of the ACLU battling a private corporation over whether clones are human beings or pieces of property may seem far-fetched. But almost a decade ago, the organization started thinking about how to do it.
So, does the ACLU think a human fetus has more or less rights than a clone?
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That is a good question, GM. I don't claim to have any information on the ACLU decision making process, but seemingly the answer is yes.
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I guess this goes here:
This a link to National Center for State Courts. I haven't delved too deeply, but it looks interesting.
http://www.ncsconline.org/D_Research/gaveltogavel/
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Alexander's Essay – January 6, 2011
Mr. Boehner, et al., Honor Your Oath!
"If congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions." --James Madison
The U.S. ConstitutionThe new Speaker of the House, John Boehner, took charge of a Republican majority (242-193) Wednesday, proclaiming, "I stand today in awe of our great nation, humbled by the opportunity to defend the Constitution and serve the American people as Speaker of the House. We must restore the House as an open institution that listens to the people and does their will. We must end D.C. rituals that have made it easy to dodge tough decisions, then make the choices necessary to return our economy to prosperity."
For the record, Mr. Boehner, the first obligation of every member of Congress is to defend the Constitution, which authorizes the House to do the will of the people only to the extent that it comports with the plain language of our Constitution. The current state of the central government, bloated to the point of implosion, is the direct result of political machinations doing the bidding of special interest groups, to the great detriment of our Constitution and the Rule of Law it enshrines.
Our Constitution specifies, "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution..."
Speaker Boehner and the other 434 Members of the House took this oath in accordance with Article VI, clause 3 of our Constitution: "I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."
While every member of the House and Senate should be bound by their sacred honor to "support and defend" our Constitution, most returning members have dishonored their oath willfully and repeatedly.
There is good news, however. The once dwindling ranks of steadfast conservatives in Congress -- those who have honored their oaths in years prior -- have been greatly bolstered in the most recent election cycle by dozens of newly elected representatives and senators, who, I assure you, will abide by their oaths, and do so vociferously.
While it will certainly take many more election cycles to restore constitutional Rule of Law, the grassroots "Tea Party" movement has changed, and will continue to change, the political composition of the Executive, Legislative and Judicial branches of our government. It will do so by encroachment, the steady replacement of those who have forsaken their oath with those who will honor their oath to support our Constitution.
Mr. Boehner's first order was to require the 112th Congress to open its proceedings with a full reading of our Constitution. While all leftists and most centrists take this as symbolic only, no member of the House of Representatives can now say that they have not, at the least, heard every word of the Constitution of the United States of America. Gloriously, it also sets a firm foundation for the upcoming session and a yardstick by which we can measure Republican leadership.
Of course, Democrats have strenuously objected to the notion that constitutional authority limits the role of the central government, and have done so with great resolve.
When asked by a reporter in 2009 about constitutional authority for the central government's takeover of the U.S. health care system, former House Speaker Nancy Pelosi responded, "Are you serious? Are you serious?" When the reporter persisted, Pelosi moved on to another question while her press spokesman said, "You can put this on the record: That is not a serious question. That is not a serious question."
Democrat Patrick Leahy, then-Chairman of the Senate Judiciary Committee (where Rule of Law should prevail), added, "We have plenty of authority. ... I mean, there's no question there's authority. Nobody questions that."
Pelosi and Leahy believe they have unbridled authority because they subscribe to the so-called "living constitution" which, as Thomas Jefferson warned, has become "a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please."
Some ranking Democrats were a bit more brazen. Former Majority Whip James Clyburn (D-SC) proclaimed, "There's nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do." California Rep. Pete Stark added, "The federal government can, yes, do most anything in this country."
Well, folks, there's a new sheriff in town, and his posse is prepared to ask a lot of questions about constitutional authority for congressional legislation, and hold the line.
By opening the 112th Congress with the Constitution reading, perhaps those members who shun constitutional constraints will now pay more special attention to Article I, Section 2, which specifies, "All legislative powers herein granted [emphasis added] shall be vested in a congress of the United States, which shall consist of a Senate and House of Representatives."
They should then pay close attention to Article I, Section 8, which specifically enumerates those powers, and recall the words of its principal scribe, James Madison: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."
Jefferson added, "I consider the foundation of the Constitution as laid on this ground that 'all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people.' To take a single step beyond the boundaries thus specially drawn around the powers of congress is to take possession of a boundless field of power, not longer susceptible of any definition. ... [The Constitution] was intended to lace them up straightly within the enumerated powers. ... In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."
Though this has received scant attention, Mr. Boehner also pledged to pass legislation requiring the enumeration of constitutional authority for every bill considered by the House.
If the Republican House will pass an enumerated powers act requiring all legislation to stipulate its specific constitutional authority (as first and subsequently proposed by just-retired Rep. John Shadegg in every Congress since the 104th), that will elevate the national discourse about what the Constitution does and does not authorize. Enhancing that discourse, which is a primary driver of the Tea Party's momentum, will put the restoration of constitutional authority on a faster track.
Enumerating authority for legislation has been a primary Patriot Post objective since our inception. Indeed, it was the basis for our petition of the Bush administration for an Enumerated Powers Amendment. This proposed amendment is also a primary component of the Patriot Declaration, which stipulates "that all legislation explicitly cite its compliance with the Tenth Amendment to our Bill of Rights, 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,' thus prohibiting the central government from usurping the powers reserved to the States or the People."
If the Speaker succeeds with enumerated powers enactment, the next step should be an amendment as this would make the enumeration of constitutional authority binding on both the House and Senate, and not be subject to legislative revocation.
In 1776, a great insurrection was mounted against the throne of tyranny, and from that revolution was birthed our Constitution. We face the prospect of such tyranny again, and the solution now, as then, is government constrained by the Rule of Law as enshrined in our Constitution.
Moving forward, those politicos of any stripe who forsake their solemn oath to support and defend our Constitution, and abide by its constraints, should be subject to censure and removal from office. The momentum of the Tea Party movement will increase, despite efforts by the Leftmedia to undermine its grassroots drive, and we will further expand the ranks of constitutional conservatives in 2012. Barack Hussein Obama, the days of your regime are numbered, as are those of every elected official who fails to honor their oath.
Semper Vigilo, Fortis, Paratus et Fidelis!
Mark Alexander
Publisher, The Patriot Post
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http://www.aolnews.com/2011/01/04/opinion-will-the-new-congress-target-judges/
Opinion: Will the New Congress Target Judges?
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Maybe judges should not be ruling that gay marriage is consitutionally compelled just like they should not have ruled that abortion is constitutionally compelled?
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Dennis Prager
For the Left, There Are No Sacred Texts
A number of well-known spokesmen on the left have voiced reservations not only about the Republican decision to have members of Congress -- both Republicans and Democrats -- read the Constitution aloud at the opening of the latest session of Congress. They have also voiced reservations about the American veneration of the Constitution.
Three examples:
In a recent appearance on MSNBC, Washington Post staff writer Ezra Klein said: "The issue with the Constitution is that the text is confusing because it was written more than a hundred years ago and what people believe it says differs from person to person."
Joy Behar asked her guests on CNN's Headline News, "Do you think this Constitution-loving is getting out of hand?"
Congressman Jerrold Nadler, D-N.Y., complained that "They are reading it (the Constitution) like a sacred text."
What troubles Klein, Behar and Nadler?
The answer is that for leftism -- though not necessarily for every individual who considers himself a leftist -- there are no sacred texts. The two major examples are the Constitution and the Bible.
One cannot understand the left without understanding this. The demotion of the sacred in general and of sacred texts specifically is at the center of leftist thinking.
The reason is that elevating any standard, any religion, any text to the level of the sacred means that that it is above any individual. Therefore, what any one individual or even society believes is of secondary importance to that which is deemed sacred. If, to cite the most obvious example, the Bible is sacred, then I have to revere it more than I revere my own feelings in assessing what is right and wrong.
But for the left, what is right and wrong is determined by every individual's feelings, not by anything above the individual.
This is a major reason why the left, since Karl Marx, has been so opposed to Judeo-Christian religion. For Judaism and Christianity, God and the Bible are above the self. Indeed, Western civilization was built on the idea that the individual and society are morally accountable to God and to the moral demands of that book. That was the view, incidentally, of every one of the Founders including deists such as Thomas Jefferson and Benjamin Franklin.
This is entirely unacceptable to the left. As Marx and Engels said, "Man is God, and God is man." Therefore, society must rid itself of the sacred, i.e., God and the Bible. Then each of us (or the society, party or judiciary) takes the place of God and the Bible.
Morality is then no longer a God-given objective fact; it becomes a human-created subjective opinion. And one no longer needs to consult an external source to know right and wrong, only one's heart. We are then no longer accountable to God for transgressions, only to ourselves.
That is why when there is God-talk on the left, it is usually about "the God that is within each of us," not a God external to, let alone above, us, as Judaism and Christianity have always taught.
This explains the belief that is universally held on the left that the Constitution is an "evolving text," meaning that it says what anyone (on the left) wants it to say.
Conservatives, on the other hand, do not share this view. They do not believe the Constitution has something to say about everything they believe in. While the left sees the right to abortion in the Constitution (because the left believes in the right to abortion), those who oppose abortion do not believe that the Constitution prohibits abortion. They believe that the Constitution is silent on the issue. Precisely because the right does believe the Constitution is to be treated as sacred, it does not claim that whatever it supports is in the Constitution or that whatever it opposes is unconstitutional.
There are humble individuals and arrogant individuals on the right and on the left. But there is no arrogance like leftist arrogance. If you hold a Leftist position, you know that you are smarter, wiser and more moral not only than conservatives, but more so than the Bible, more so than the Constitution, indeed often more so than everyone who lived before you.
Same-sex marriage is a perfect example. The fact that neither Moses nor the Hebrew prophets, nor Jesus nor the Buddha nor any great secular humanist thinker ever advocated defining marriage as between members of the same sex does not cause the left to rethink its advocacy of same-sex marriage; it only proves to them how morally superior they are to Moses, Jesus, the prophets and everyone else who lived before them.
That is why we must to treat the Constitution as sacred text. Because the bottom line is this: If it is not regarded as sacred, it is nothing more than what anyone believes about any social issue. Which is precisely what the left wants it to be -- providing, of course, that the "anyone" is a liberal.
For the left, there are no sacred texts. There are only sacred (liberal) feelings.
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Here is something by Walter Williams I found interesting...
A MINORITY VIEW
BY WALTER WILLIAMS
RELEASE: WEDNESDAY, JANUARY 12, 2011
What Our Constitution Permits
Here's the House of Representatives new rule: "A bill or joint resolution may not be introduced unless the sponsor has submitted for printing in the Congressional Record a statement citing as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution." Unless a congressional bill or resolution meets this requirement, it cannot be introduced.
If the House of Representatives had the courage to follow through on this rule, their ability to spend and confer legislative favors would be virtually eliminated. Also, if the rule were to be applied to existing law, they'd wind up repealing at least two-thirds to three-quarters of congressional spending.
You might think, for example, that there's constitutional authority for Congress to spend for highway construction and bridges. President James Madison on March 3, 1817 vetoed a public works bill saying: "Having considered the bill this day presented to me entitled 'An act to set apart and pledge certain funds for internal improvements,' and which sets apart and pledges funds 'for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense,' I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States and to return it with that objection to the House of Representatives, in which it originated."
Madison, who is sometimes referred to as the father of our Constitution, added to his veto statement, "The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers."
Here's my question to any member of the House who might vote for funds for "constructing roads and canals, and improving the navigation of water courses": Was Madison just plain constitutionally ignorant or has the Constitution been amended to permit such spending?
What about handouts to poor people, businesses, senior citizens and foreigners?
Madison said, "Charity is no part of the legislative duty of the government."
In 1854, President Franklin Piece vetoed a bill to help the mentally ill, saying, "I cannot find any authority in the Constitution for public charity. (To approve the measure) would be contrary to the letter and spirit of the Constitution and subversive to the whole theory upon which the Union of these States is founded."
President Grover Cleveland vetoed a bill for charity relief, saying, "I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the General Government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit."
Again, my question to House members who'd vote for handouts is: Were these leaders just plain constitutionally ignorant or mean-spirited, or has our Constitution been amended to authorize charity?
Suppose a congressman attempts to comply with the new rule by asserting that his measure is authorized by the Constitution's general welfare clause. Here's what Thomas Jefferson said: "Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated."
Madison added, "With respect to the two words 'general welfare,' I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators."
John Adams warned, "A Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever." I am all too afraid that's where our nation stands today and the blame lies with the American people.
Walter E. Williams is a professor of economics at George Mason University. To find out more about Walter E. Williams and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.
COPYRIGHT 2011 CREATORS.COM
Boyo
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Important questions raised here.
I confess to being surprised at Madison's comments about no roads, bridges, waterway improvements etc. I was aware of various examples of "no charity power to be found in the Constitution".
Perhaps BD would be so kind as to set the stage for this conversation?
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What I will write here likely will lead to backlash and consternation from at least some of you.
Williams sets up the article in a sort of straw man. Asking the the question of whether the the father of the Constitution was constitutionally ignorant is silly. And you and I both know it, and so does he. However, as I often say, Madison was not the only person attending the convention, not the only person writing the Constitution, not the only person voting on the document in convention, and most certainly not the only person voting to ratify the document. While I want to give Madison his due, it is important to note that even Madison is not solely, or even mostly (despite Williams' set up) responsible for the Constitution. By the way, Constitution signer Rufus King was in the Senate at the time of Madison's veto. I can't quickly find if he voted to support the bill, but pretending that he did, he would not be constitutionally ignorant.
Also, it is worth noting that the president, by design, is intended to check congressional power, and no where is this seen more than in the veto. (Quick note: I like this. I think the veto is incredibly important and worthwhile.) Just because Madison SAID he vetoed for a particular reason does not mean that this is the real reason. Perhaps the House had managed to upset him, and he vetoed for a personal or politcal reason.
Another important innovation, by President Andrew Jackson, is the veto for strictly political reasons. He, unlike his predecessors, did not feel the need to even try to justify some of his vetoes with a nod to the Constitution. While I realize that Jackson postdates Madison, that cannot be said for the other two presidents that Williams uses to support his argument. Pierce and Cleveland certainly may have felt that a veto was required by constitutional standards, or they could just have used constitutional language to support their politics. I am not sure why either Pierce or Cleveland would be considered any more constitutionally literate than any other particular president. Moreover, it is worth noting that Cleveland hardly met a bill he didn't want to veto, and that over half of Pierce's were overridden: http://www.infoplease.com/ipa/A0801767.html.
Finally, the Constitution has changed. Not always in a formal way, and I realize that that it the only way that many of you see it as legitimate. However, states, in many instances, have asked the national government to step in many different instances, many of which involve "charity." Moreover, whether Madison likes it or not, we have an interstate highway system, and railroads, and planes. A far higher percentage of the commerce of today is interstate. If I drink a Coke, based out of Georgia at a McDonald's, based out of Illinois, out of a cup made in ???, on my way to Maine, it is interstate commerce. If I order a Dog Brothers DVD and it is shipped to my home, it is interstate.
Things are different now, politically, environmentally, etc.
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http://www.latimes.com/news/nationworld/nation/sc-dc-0121-court-conflict-20110120,0,2463815.story
http://www.nytimes.com/2011/01/20/us/politics/20koch.html?_r=1
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I saw that BD. I could be wrong but my initial reaction is typical liberal/progressive hypocrisy. Where are they when the libs meet with the ACLU et al?
Returning to whether the C. grants the Federal Govt the right to build roads, etc. this passage from "A Patriot's History of the United States" by Schweikart and Allen (recommended by Glenn Beck :-D ) on page 233 says
"Like Calhoun and other disaffected Jacksonians, Harrison had once stood with the Democrats, and shared their states' rights sentiments. Also like Calhoun, he thought the federal government well within its constitutional rights to improve harbors, build roads, and otherwise fund internal improvements."
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I mostly agree with you Guro. I read these articles about 4 hours after talking about the politics of recusal in class. I am often struck at the sheer dumb luck of what I teach and what goes in politics. At any rate, I found them interesting, but mostly due to timing.
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By DAVID B. RIVKIN JR.
AND LEE A. CASEY
Last week, liberal activists at Common Cause called on the United States Justice Department to investigate Supreme Court Justices Antonin Scalia and Clarence Thomas for a supposed ethical lapse.
The case at issue is Citizens United v. Federal Election Commission (2010), involving an unflattering film about then-presidential candidate Hillary Clinton distributed by a conservative nonprofit corporation in 2008. The Supreme Court ruled that limits on corporate spending unconnected to any candidate's campaign were unconstitutional.
Common Cause took exception and is now seeking to overturn the decision. In a letter to the Justice Department, the group claims that Justices Scalia and Thomas, who voted with the majority of the Court to strike down the challenged spending limits, violated ethical rules requiring a judge to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned."
The reason: Both justices purportedly attended (Mr. Scalia in 2007 and Mr. Thomas in 2008) "invitation-only" programs sponsored at least in part by the Koch family, owners of Koch Industries and frequent supporters of free-market and libertarian causes. Neither justice, the letter claimed, had disclosed any travel reimbursements by the Kochs.
Common Cause got its facts wrong. The Justices did not disclose reimbursements by the Kochs because they were actually the guests of the nonpartisan Federalist Society (a regular sponsor of public debates and speeches on legal and policy issues), which they did report.
Neither justice attended the conference. Both spoke at a dinner hosted separately from the conference. And neither spoke about the First Amendment, let alone restrictions on corporate spending. Mr. Scalia discussed international law, while Mr. Thomas delivered a speech on his recent memoir and life story.
Mr. Scalia's speech took place in January 2007, nearly a year before Citizens United was filed in the federal courts. Mr. Thomas spoke in January 2008, a few weeks after the case was filed but well before it reached the Supreme Court in 2009.
UCommon Cause's letter to the Justice Department is just the latest salvo in a long campaign by left-wing groups to intimidate conservative judges, academics and activists. For years, groups like Common Cause have assailed nonprofits that provide judges, lawyers and students with education in economics, law and American history. They have pushed for onerous disclosure regulations and even proscriptions against judges attending conferences sponsored by groups with corporate donors. The goal, of course, is to restore the monopoly on such educational forums to the law schools and the more reliably left-leaning American Bar Association.
Just this month, liberals sought to manufacture a controversy over Justice Scalia's speech to the House Tea Party Caucus. His topic: the constitutional limits of Congress's powers and those of the court. Although it is difficult to think of a more appropriate topic on which a justice might speak, the New York Times called it "outlandish" and "dismaying."
Of course, conservative judges aren't the only ones who give speeches. Justice Stephen Breyer, for instance, spoke recently at a private retreat for members of the House Judiciary Committee.
Such engagements are appropriate and healthy. Judges are not, and should not behave as, members of a cloistered religious order. They are citizens and voters as well as powerful public officials, and they should participate in the greater society on which their decisions often have a profound impact.
This would be impossible if the rule championed by Common Cause were adopted. Attendance of educational and professional events by members of the federal judiciary is common and has never been held as a basis for recusal. Judicial decisions, especially those of the Supreme Court, may have any number of effects on any number of groups. Recusal ordinarily is required only when a judge has a direct and personal economic interest in one of the parties to a case.
Common Cause's letter isn't only an unfair attack on two Supreme Court justices. It is an assault on the judiciary and an effort to silence conservative voices.
Messrs. Rivkin and Casey served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations.
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Further evidence that the independent judiciary should remain as such. And, even if Justices Scalia and Thomas "should" have recused themselves, it would hardly have been the most egregious examples of a justice sitting on a decision in a case where he had obvious ties.
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The Declaration guarantees the *pursuit* of happiness not happiness. If we listened to the Democrats one would think everyone is guaranteed a home, health care, retirement, easy work, equal income, and every protection from every bad thing anyone could imagine is wrong with the world. It is like a relative of mine said, everyone should be guaranteed equal chance in life not equal outcome.
***IN CONGRESS, JULY 4, 1776
The unanimous Declaration of the thirteen united States of America
hen in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.
He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil Power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For quartering large bodies of armed troops among us:
For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefit of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences:
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies
For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.
— John Hancock
New Hampshire:
Josiah Bartlett, William Whipple, Matthew Thornton
Massachusetts:
John Hancock, Samuel Adams, John Adams, Robert Treat Paine, Elbridge Gerry
Rhode Island:
Stephen Hopkins, William Ellery
Connecticut:
Roger Sherman, Samuel Huntington, William Williams, Oliver Wolcott
New York:
William Floyd, Philip Livingston, Francis Lewis, Lewis Morris
New Jersey:
Richard Stockton, John Witherspoon, Francis Hopkinson, John Hart, Abraham Clark
Pennsylvania:
Robert Morris, Benjamin Rush, Benjamin Franklin, John Morton, George Clymer, James Smith, George Taylor, James Wilson, George Ross
Delaware:
Caesar Rodney, George Read, Thomas McKean
Maryland:
Samuel Chase, William Paca, Thomas Stone, Charles Carroll of Carrollton
Virginia:
George Wythe, Richard Henry Lee, Thomas Jefferson, Benjamin Harrison, Thomas Nelson, Jr., Francis Lightfoot Lee, Carter Braxton
North Carolina:
William Hooper, Joseph Hewes, John Penn
South Carolina:
Edward Rutledge, Thomas Heyward, Jr., Thomas Lynch, Jr., Arthur Middleton
Georgia:
Button Gwinnett, Lyman Hall, George Walton***
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"Common Cause's letter isn't only an unfair attack on two Supreme Court justices. It is an assault on the judiciary and an effort to silence conservative voices."
Yesterday, Rachal Madcow was manic with glee discussing Thomas's apparant failure in not disclosing some tax issue with his wife.
I almost wanted to prescribe her depakote to get her to stop drooling over the non issue.
The liberals are going after the conservative court in a big way lately. They must be quite fearful of the possibility of a HC strike down.
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http://www.argusleader.com/article/20110131/UPDATES/110131031/Bill-would-require-all-S-D-citizens-buy-gun?odyssey=mod|mostview
Bill would require all S.D. citizens to buy a gun
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http://www.washingtonpost.com/wp-dyn/content/article/2011/02/07/AR2011020706032.html?hpid=topnews
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It would have been nice if the article had bothered to mention the history of the politicization (sp?) of all this which IMHO the Dems deserve the substantial majority of the credit. Also it would have been nice if the article had bothered to delve into what kind of people Obama, who IMO is a genuine radical when it comes to Constitutional Law (see his Chicago Public Radio interview of 2003 or so for a hair-raising glimpse at just how radical he is) is nominating. Oh well, tis Pravda on the Potomac reporting, so no surprise.
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"Recognizing the vulnerability of relying on the Commerce Clause alone [to justify ObamaCare], the Obama administration in the Florida case shifted its emphasis to the Necessary and Proper Clause of the Constitution. That clause empowers Congress to enact 'all Laws which shall be necessary and proper for carrying into Execution' its enumerated powers. As the Supreme Court has repeatedly explained, the Necessary and Proper Clause does not expand the scope of Congress's enumerated powers. Instead, it gives Congress the ability to select among various means of exercising them. ... The Obama administration claimed that the individual mandate is a necessary and proper means of carrying out its reforms in the health-insurance market. These reforms include requiring insurers to offer coverage to those with pre-existing conditions, to extend coverage to dependents up to age 26, and to eliminate lifetime coverage caps. Because these reforms make health insurance more expensive, the government's lawyers claim that unless everyone is forced to buy health insurance, too many healthy people will sit on the market sidelines as 'free riders' until they become ill. So in order to make the 'reformed' health-insurance market work, it's necessary and proper to force everyone to buy insurance. Judge [Roger] Vinson flatly rejected the administration's attempt.... His decision acknowledges that, while reforming an insurance market is a regulation of commerce, Congress cannot artificially create its own 'free rider' crisis in the insurance market and then use that crisis to justify an otherwise unconstitutional mandate as 'necessary and proper' to save the market from collapse. This novel use of the Necessary and Proper Clause, if allowed to stand, would fundamentally transform our constitutional scheme from limited to unlimited federal power, narrowing the scope of individual liberty." --law professors Randy Barnett and Elizabeth Price Foley
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The motivation here is, as previously noted, unprincipled and political. However, has Common Cause found a chink in Thomas's armor?
===========Common Cause Asks Court About Thomas Speech
POTH
By ERIC LICHTBLAU
Published: February 14, 2011
WASHINGTON — Discrepancies in reports about an appearance by Justice Clarence Thomas at a political retreat for wealthy conservatives three years ago have prompted new questions to the Supreme Court from a group that advocates changing campaign finance laws.
When questions were first raised about the retreat last month, a court spokeswoman said Justice Thomas had made a “brief drop-by” at the event in Palm Springs, Calif., in January 2008 and had given a talk.
In his financial disclosure report for that year, however, Justice Thomas reported that the Federalist Society, a prominent conservative legal group, had reimbursed him an undisclosed amount for four days of “transportation, meals and accommodations” over the weekend of the retreat. The event is organized by Charles and David Koch, brothers who have used millions of dollars from the energy conglomerate they run in Wichita, Kan., to finance conservative causes.
Arn Pearson, a vice president at the advocacy group Common Cause, said the two statements appeared at odds. His group sent a letter to the Supreme Court on Monday asking for “further clarification” as to whether the justice spent four days at the retreat for the entire event or was there only briefly.
“I don’t think the explanation they’ve given is credible,” Mr. Pearson said in an interview. He said that if Justice Thomas’s visit was a “four-day, all-expenses paid trip in sunny Palm Springs,” it should have been reported as a gift under federal law.
The Supreme Court had no comment on the issue Monday. Nor did officials at the Federalist Society or at Koch Industries.
Common Cause maintains that Justice Thomas should have disqualified himself from last year’s landmark campaign finance ruling in the Citizens United case, partly because of his ties to the Koch brothers.
In a petition filed with the Justice Department last month, the advocacy group said past appearances at the Koch brothers’ retreat by Justice Thomas and Justice Antonin Scalia, along with the conservative political work of Justice Thomas’s wife, had created a possible perception of bias in hearing the case.
The Citizens United decision, with Justice Thomas’s support, freed corporations to engage in direct political spending with little public disclosure. The Koch brothers have been among the main beneficiaries, political analysts say.
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A high tech lynching? We know how Common Cause members feel about that.
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Nonetheless, if the accusation is true then Justice Thomas acted inappropriately by failing to disclose.
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"Common Cause maintains that Justice Thomas should have disqualified himself from last year’s landmark campaign finance ruling in the Citizens United case, partly because of his ties to the Koch brothers."
Maybe bigdog can elaborate but I think recusal on the highest court is largely a personal decision. The way to put pressure on Thomas would be for Elena Kagan to recuse herself from review of all policies she helped advise, write and enact, like healthcare, which is not likely to happen. If Thomas took expense money or money for a speech, I still don't think his is a vote that can be bought. I doubt Common Cause thinks so either.
I wonder if this public interest group will push NASA's Hansen for disclosure of monies he received for his work on 'An Inconvenient Truth' or is just selectively offended. Common Cause: "Nonprofit, nonpartisan citizen's lobbying organization promoting open, honest and accountable government."
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The left is trying to prepare the battlefield before Obamacare comes before the court.
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http://oceanaris.wordpress.com/2011/02/15/the-lefts-attempt-to-delegitimize-the-supreme-court/
The Left’s attempt to Delegitimize the Supreme Court
Posted on February 15, 2011 by Matt Holzmann
On February 4, the New York Times fired the first salvo in the Left’s quest to delegitimize Justices of the Supreme Court in the runup to what is to be expected to be one of the premier cases of the early century; that of the health care bill. In an editorial they slanted the story on Justices Antonin Scalia and Clarence Thomas so blatantly and dishonestly that they stepped over the line into base propaganda.
Late last week, seventy-four Democratic Members of Congress led by noted moderate (yes, I’m kidding) Anthony Weiner sent a letter to Justice Thomas demanding that he recuse himself from any case before the Court related to the bill. This follows a more muted comment by Senator Orrin Hatch suggesting the recusal of Justice Kagan on the grounds that she was Solicitor General of the United States until her appointment on August 10 last year to the Court.
In the case of Justice Thomas, the demand has been made because of his wife’s outspoken opposition to the bill and her involvement in Tea Party activities. The pretext being used is that Justice Thomas did not disclose her employment at the conservative Heritage Foundation from 1998 to 2003 until recently, even though she is well-known in Washington. In the case of Justice Kagan, it is because her role as Solicitor General would have involved discussions on the legal aspects and perhaps strategy, of the bill. One the one hand, the Democrats are demanding, on the other a Senator suggested. Therein lies the issue.
This morning, Eric Lichtblau of the Times continues the hit job with a sweetheart interview with Arn Pearson, a vice president of Common Cause, who have been fanning the flames of this nontroversy in their effort to boot both Justices off the Health Care case. This time, Common Cause is challenging Justice Thomas’ travel expenses when he spoke to a conservative legal foundation 3 years ago.
Justices Thomas and Scalia are well-known to be conservative, just as Justice Kagan is known to be more liberal. While Senator Hatch may have a point that Justice Kagan was a major party to the process of forming and passing the health care bill, the case against Justice Thomas first involves his wife, and second, is a pretext to delegitimize his participation in the decision. The case against Justice Scalia is even more specious, as the event where he was supposed to have violated his judicial ethics was attended by two of the most liberal members of Congress, who gave him a clean bill of health.
As an American, I have reasonable faith in the objectivity of our judges. While I expect their political and world views to be reflected in their decisions, I also trust that we are a nation of laws.
But as demonstrated by the unprecedented manner in which the health care was passed I most certainly do not have faith in the good intentions of 74 of the legislators who tied up the rules of Congress like a pretzel and rammed a deeply flawed bill through Congress in the dark of night. Even Speaker Pelosi, one of the architects, admitted she had not read the bill before the vote. The bill was written behind closed doors in an insult to our democratic process. Now the usual suspects wish to pursue their aims through extralegal means.
I know they will hate the term, but this is a “Hail Mary” play as they watch as 26 states have filed suit and two Federal judges have struck down the bill. Popular opposition to the bill is over 60%, and the bill just cost the Democrats their Congressional majority. There has rarely been such a divisive issue.
And now the gloves are well and truly off. The Left has made the Supreme Court a battlefield since the Thomas nomination. In 2000, they further damaged the credibility of the Court by claiming bias in the most convoluted and partisan case in American political history.They have done their best to demonize and belittle the credentials and opinions of the more conservative justices on the court. We can expect the vitriol to fly faster than ever before in this case. Health care is the centerpiece of the Left’s political agenda whether achieved legally and legitimately or not.
And that is the heart of the matter. The Left is doing its best to destroy those institutions which it opposes. This is not about the rule of law. It is about power and privilege. Intimidation, threats, deception and blackmail are the order of the day. We saw that with the passage of the health care bill on a scale that will keep the historians busy for decades. The Left wants tame courts and the ability to venue shop for them in order to pass any old thing they want. The use of executive orders and the regulation process are part and parcel of this process.
The system has been abused almost to the breaking point. Now one of the last unquestioned institutions has come under assault. Where do we go from here?
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"I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense. And that the language of our Constitution is already undergoing interpretations unknown to its founder, will I believe appear to all unbiassed Enquirers into the history of its origin and adoption." --James Madison, letter to Henry Lee, 1824
Associated Press
WASHINGTON—In a major policy reversal, the Obama administration said Wednesday that it will no longer defend the constitutionality of a federal law banning recognition of same-sex marriage.
Attorney General Eric Holder said President Barack Obama has concluded that the administration cannot defend the federal law that defines marriage as only between a man and a woman.
View Document
See the letter that Attorney General Eric Holder sent to Speaker of the House John Boehner (R., Ohio) regarding the Defense of Marriage Act.
..
Previously
Wash Wire: Biden: U.S. Is Warming to Gay Marriage
Battles Remain for Gay-Rights Proponents
Gay-Marriage Ban Goes Back on Trial
.Mr. Holder noted that the congressional debate during passage of the Defense of Marriage Act "contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships—precisely the kind of stereotype-based thinking and animus the [Constitution's] Equal Protection Clause is designed to guard against."
The Justice Department had defended the act in court until now.
"Much of the legal landscape has changed in the 15 years since Congress passed" the Defense of Marriage Act, Mr. Holder said in a statement. He noted that the Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional and that Congress has repealed the military's "don't ask, don't tell" policy.
Mr. Holder wrote to House Speaker John Boehner (R., Ohio) that Mr. Obama has concluded the Defense of Marriage Act fails to meet a rigorous standard under which courts view with suspicion any laws targeting minority groups who have suffered a history of discrimination.
The attorney general said the Justice Department had defended the law in court until now because the government was able to advance reasonable arguments for the law based on a less strict standard.
At a December news conference, in response to a reporters' question, Mr. Obama revealed that his position on gay marriage is "constantly evolving." He has opposed such marriages and supported instead civil unions for gay and lesbian couples. The president said such civil unions are his baseline—at this point, as he put it.
"This is something that we're going to continue to debate, and I personally am going to continue to wrestle with going forward," he said.
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http://opinionator.blogs.nytimes.com/2011/02/23/is-anyone-watching/?emc=eta1
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http://online.wsj.com/article/SB10001424052748704071304576160763576641114.html?mod=djem_jiewr_PS_domainid
The Supreme Court seemed ready Tuesday to hand criminal defendants a new weapon against federal prosecutors, allowing them to contend they were charged under laws that usurp authority the Constitution reserves for state governments.
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"President Obama says DOMA is unconstitutional, and yet the “law professor” says he will continue to enforce it. In a properly ordered constitutional republic, this would be a scandal. But in America today, it’s cause for eye-rolling, shrugs, and platitudes about the demands of politics."
I think it is likely a political move. He needs the gay hordes led by MSNBC as his poll numbers are falling again. I think he is holding back on support for gay marriage for the political opportune time not for their benefit but for his. Just IMHO.
***Jonah Goldberg
February 25, 2011 12:00 A.M.
Throwing in the Towel on the Constitution
Obama violates his oath of office
Article 2 of the U.S. Constitution requires that each new president take the following oath:
I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.
President Obama announced this week that he will violate that oath.
In a decision hailed by gay-rights activists, the White House announced that it will no longer defend the Defense of Marriage Act (DOMA) on the grounds that it has suddenly dawned on the president and attorney general that the law is unconstitutional.
DOMA, signed into law by President Clinton, bars the federal government from recognizing same-sex marriages. Obama has always opposed the law, but as president his administration has enforced it and defended it in court. Although it should be noted that Obama’s Justice Department has not defended DOMA vigorously, as Justice Department guidelines require.
As Ed Whelan, a legal scholar and president of the Ethics and Public Policy Center, has detailed at some length, the DOJ has been, in effect, tanking the fight in court for the last two years by tailoring its arguments in ways beneficial to gay-marriage activists. Now Obama’s lawyers are simply taking a dive by flatly declaring the unconstitutionality of the law.
Obama, who fancies himself a scholar of the Constitution, never said a peep about the law being unconstitutional until this week.
Why the public change of heart?
There’s good reason to believe that Obama has always been lying — yes, lying — about opposing gay marriage. For example, in 1996, he told the Windy City Times, “I favor legalizing same-sex marriages, and would fight efforts to prohibit such marriages.” But by 2004, Obama very much wanted to be president, and he understood that supporting gay marriage would be a political liability. So he opted for something other than honesty. And in a 2004 interview with a gay publication, Obama strongly hinted his opposition was strategic, not philosophical.
“Everything we know and admire about President Obama makes the claim that he doesn’t support the freedom to marry very unconvincing,” Evan Wolfson, the director of the gay-rights group Freedom to Marry, told the Huffington Post last August.
White House Press Secretary Jay Carney insists that the president still opposes same-sex marriage. But Carney was quick to note that the president has said his views on the matter are “evolving.” Translation: He could completely change his mind at any moment.
And you know what? That’s fine. Lots of people change their minds about issues like these. Support for gay marriage and gay rights generally has been on the rise for years. My own views have been evolving as well.
But that is all irrelevant. The politics are irrelevant too. I don’t know if this is a politically smart move on Obama’s part or a dumb one, though I have my theories.
Either way, what Obama is doing is flatly outrageous. Carney says that “the president is constitutionally bound to enforce the laws and enforcement of the DOMA will continue.”
No, he is not.
There’s a myth out there that only the Supreme Court determines what is, or is not, constitutional. It’s a bipartisan myth. “We can’t have presidents deciding what laws are constitutional and what laws are not,” Sen. Scott Brown (R., Mass.) said in a statement. “That is a function of the judicial branch, not the executive.”
President Bush made a similar, indefensible error when he signed the McCain-Feingold campaign-finance bill, even though he believed portions of it were unconstitutional (and he was right; the Supreme Court overturned it in Citizens United v. Federal Election Commission last year).
The problem is that the Constitution doesn’t say any such thing (and, no, it’s not in Marbury v. Madison either). The president doesn’t take an oath to “preserve, protect and defend” the Supreme Court. He takes an oath to defend the Constitution.
Imagine if Congress passed — hopefully over a presidential veto — a law that brought back slavery. Such a law would be plainly unconstitutional, and no president worthy of the job would wait for the Supreme Court to tell him as much. More to the point, once the president concluded that the law was unconstitutional, he would be bound by his oath to ignore it, and challenge it in every way possible.
President Obama says DOMA is unconstitutional, and yet the “law professor” says he will continue to enforce it.
In a properly ordered constitutional republic, this would be a scandal. But in America today, it’s cause for eye-rolling, shrugs, and platitudes about the demands of politics.
—Jonah Goldberg is editor-at-large of National Review Online and a visiting fellow at the American Enterprise Institute. © 2011 Tribune Media Services, Inc.***
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BD:
Interesting question presented there , , ,
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"Without liberty, law loses its nature and its name, and becomes oppression. Without law, liberty also loses its nature and its name, and becomes licentiousness." --James Wilson
Opinion in Brief
Obama's next plan for America?"Attorney General Eric Holder announced that President Obama had concluded that the administration would no longer defend Section 3 of DOMA [Defense of Marriage Act]. ... As he has in so many other areas (EPA, the offshore drilling ban, IMF), Obama has usurped the authority of the other two coequal branches of government to make himself, in effect, not just chief executive but super-legislator and a supreme judicial authority. Holder admitted in his statement that the Justice Department 'has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense,' but not otherwise. But it is preposterous to suggest there are no reasonable arguments to defend the statute when 5,000 years of human history and the express act of Congress fly in the face of that statement. According to professor John Yoo, 'in the few cases that the Supreme Court has heard gay rights cases, it has never adopted (the standard Obama is applying).' In announcing a new standard, Obama claims that the legal landscape has changed in the 15 years since DOMA was passed. You know the drill: Society has 'evolved.' ... t is not Obama's place to make this determination, especially when the people have already done so in such emphatic terms through their duly elected congressmen. ... [W]e have an imperial president who is refusing to enforce a law passed by powerful congressional majorities while persisting in enforcing a law (Obamacare) that two federal courts have already invalidated. The only common denominator is that Obama believes he is the law." --columnist David Limbaugh
Culture
"One of the most insidious practices of the insidious Obama Justice Department is the sabotaging of litigation -- i.e., DOJ purports to defend some statute or government policy so that it can appear to be moderate, but uses its resulting control over how the case gets litigated to forfeit some of the best legal arguments supporting the statute/policy. This way, DOJ can steer the case toward the radical outcome the Obama base desires rather than the outcome DOJ is ostensibly pursuing. On balance, I far prefer that Obama's Justice Department openly advocates for the outcome desired by Obama's base, as it is finally doing with DOMA [Defense of Marriage Act]. This way, the court can appoint lawyers who will truly defend the statute with the best legal arguments available. ... Regardless of where the DOMA litigation goes from here, what's interesting is the administration's political calculation as the president gears up for the 2012 campaign. Obama has clearly decided that it's more important to be publicly aligned with his base -- which he desperately needs to drum up enthusiasm for his reelection -- than to pursue the more subtle (and effective, albeit unethical) strategy of masquerading as DOMA's defender while actually undermining the statute." --columnist Andrew C. McCarthy
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Another federal judge ruled last week that ObamaCare is constitutional, and Democrats are saying this makes the score 3-2 for their side. We disagree with the decision, but it's worth noting the judge's reasoning because it so neatly illustrates the constitutional stakes.
View Full Image
Associated Press
U.S. District Judge Gladys Kessler
.The crux of these cases is whether the government's power to regulate "Commerce . . . among the several States" is so broad that it can mandate that everyone buy health insurance. Judge Gladys Kessler of the D.C. district court says in her 64-page opinion that this power includes regulating even "mental activity, i.e., decision-making."
The distinction between activity and inactivity is "of little significance," Judge Kessler writes. "It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not 'acting' . . . Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin."
Whoa. In other words, there is no constitutional principle that limits federal coercion. Any decision that doesn't conform to what the government thinks you should do is an economic decision and therefore everything is subject to regulation. Though she may not have intended it, Judge Kessler has shown that the real debate is between a government of limited and enumerated powers as understood by the Founders, and a government whose reach includes "mental activity."
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Crafty (and others) I think will recognize the author of this piece published today at the American Thinker. (I see other writings by Fay at: http://simplyfayth.blogspot.com/) Fay is pointing out correctly I think that this President does not respect the judiciary as a co-equal branch. It remains to be seen whether the Obama administration would continue to implement 'Obama Care' if the Supreme Court strikes it down.
It is quite a contradiction to me that DOMA Defense of Marriage Act signed by a previous President is not binding on this administration, but healthcare should be binding on this congress because it was passed by a previous congress.
http://www.americanthinker.com/2011/03/courting_disaster.html
March 01, 2011
Courting Disaster
By Fay Voshell
There is a malodorous wind wafting its way from the White House. It bodes ill for the fate of the US judiciary and the Republic of these United States.
The whiff of gunfire was obvious when President Obama publically dressed down the Justices of the Supreme Court during his State of the Union address, saying to his captive audience, "With all due deference to separation of powers, last week the supreme court reversed a century of law that I believe will open the floodgates for special interests -- including foreign corporations-to spend without limit in our elections...I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I'd urge Democrats and Republicans to pass a bill that helps to correct some of these problems."
The fight between Obama and the courts was on. Much more was to follow.
This would not be the first time an American president found himself at odds with the judiciary, including the Supreme Court. In fact, the august Supreme Court may be in jeopardy in a way it has not been since Franklin Roosevelt, whom Obama deeply admires and seeks to imitate, tried to pack the court in 1937.
At that time, angered over its decisions vitiating his favorite programs, FDR threatened to completely remake the Court's image and its constitutional mandate in order it become more amenable to his legislative agenda. The President's fireside chat on the subject left no doubt in his listeners mind he was impatient with the judiciary.
He said, "Last Thursday I described the American form of government as a three-horse team provided by the Constitution to the American people so that their field might be plowed. The three horses are, of course, the three branches of government - the Congress, the executive, and the courts. Two of the horses, the Congress and the executive, are pulling in unison today; the third is not."
The howls of rage that met his attempt to get the "third horse" in tandem with the other two branches of government eventually forced FDR to back down.
A similar assault on the judiciary would wait until another day.
That day has come.
Obama has already indicated his hostility toward court decisions he doesn't like, but more than verbal hostility has transpired since Obama's State of the Union speech, which found an obviously roiled Judge Alito mouthing responses to the president's antagonistic and historically unprecedented dress down of the high court.
Indications are the high court, along with the entirety of the judicial branch of government, may be facing more than a verbal showdown as the Obama administration is determined by any and every means to salvage its end goals, particularly its health care plan, from the counterattacks of the judiciary.
As the whole world knows, recently Justice Roger Vinson of the U.S. District Court in Pensacola ruled the individual mandate central to the implementation of Obama Care is illegal. If Justice Vinson's ruling stands, it would make the 2,700 page, $938 billion health reform bill null and void.
Vinson wrote:
"Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void. This has been a difficult decision to reach, and I am aware that it will have indeterminable implications."
Vinson's ruling, along with one which was delivered by Judge Henry Hudson in Virginia, means it is probable that the U.S. Supreme Court will make the final decision about the constitutionality of ObamaCare. So far the auguries do not bode well for its fate.
Regardless, it has been noticeable that the Obama administration has paid no particular mind to the Vinson decision. On the contrary, the WH has ignored the ruling, proceeding as if it never happened, hell bent on continuing the implementation of Obama Care. As Mark Levin and others have noted, the president is in contempt of court by continuing to implement a law declared unconstitutional. In fact, while the rest of the real estate market languishes, the boom in Washington, D.C. continues unabated, due in a large part to the need for office space for the multitudinous agencies, some 159 in number, mandated by the health care bill.
It's worth noting the disregard for judicial rulings concerning the Health Care bill has been paralleled by the Obama administration's quiet ignoring of the judicial decisions overturning the moratoriums on drilling for oil.
But perhaps the most ominous sign the judicial branch of our government may be in danger of being entirely overridden by the executive branch of our government is the recent decision by the Department of Justice not to defend the Defense of Marriage Act on the grounds that part of the act is unconstitutional.
In one fell swoop, the Obama administration has abrogated to itself the role of the judiciary and has thereby announced to the judiciary the executive branch will decide whether or not to uphold the decisions of the courts, including the Supreme Court.
The Obama administration has basically executed a coup against the judiciary and due process of law by taking to itself the duties of the executive, legislative and judicial branches of government. For if the administration can decree a given law as unconstitutional without the evaluation of its constitutionality or non-constitutionality residing in the hands of the judiciary, the process of judicial review is unnecessary. Worse, the entire system of governmental checks and balances is completely wrecked. The executive branch would reign as supreme arbiter of law. Law would be what the executive branch deems law: law by decree, by fiat.
Further, the administration's refusal to defend an established law which has not yet been decreed unconstitutional by the courts means it may also refuse to obey the courts when and if it upholds Judge Vinson's decision, declaring Obama Care unconstitutional. It is not hard to see an administration which has declared one law unconstitutional; regardless of the fact the courts have not ruled it to be so, declaring the Health Care bill as constitutional regardless of what the Supreme Court rules.
And that may be the end game. Declaring the Defense of Marriage Act unconstitutional and refusing to defend it may well be the presage for further defiance of the courts, as the Obama administration is determined not to allow its crowning achievement to be gutted by anyone or any entity, including the Supreme Court.
We have seen the Obama administration's defiance of the courts from the inception of his administration. From day one the president has ignored or openly opposed the restraints of the judiciary.
The ultimate battle will be enjoined should the Supreme Court declare Obama Care unconstitutional. When and if the administration chooses to defy the ruling of our most august judicial body, FDR's attempt to pack the court will seem a picayune maneuver compared to what will be an all out assault on the Republic, an assault which could conceivably send it to the graveyard of history.
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This article seems to be a non-starter for me. Here are some reasons: 1, there is no real reason for the Obama administration to end the implementation of "Obamacare" based on the decision of a district court. If you disagree, and that is fine, please recall that the Bush administration did not alter the course of the war on terror when district courts made constitutional decisions about issues such as prisoners' rights. 2, any auther who writes as though the Supreme Court/judicial branch has a monopoly on constitutional interpretation is either pretending or is ignorant. The executive branch interprets the Constitution all the time (see, for example, "Office of Legal Counsel"). (Side note: additional proof of the auther not being the most informed court watcher comes early in the article when referring to "Justice" Vinson.) 3, it never ceases to amaze me when conservatives decry the role that the Supreme Court plays in the constitutional schema in one breath, and then, when convenient, want to uphold the rule of law (or however it is worded) when the Court (or a court) decides a case in a manner that they like. You can't have it both ways. 4, the elected branches often ignore decisions handed down by the judiciary. (Google INS v. Chandha legislative veto).
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1st Amendment protects military funeral protesters
By MARK SHERMAN, Associated Press Mark Sherman, Associated Press
WASHINGTON – The Supreme Court ruled Wednesday that the First Amendment protects fundamentalist church members who mount anti-gay protests outside military funerals, despite the pain they cause grieving families.
The court voted 8-1 in favor of the Westboro Baptist Church of Topeka, Kan. The decision upheld an appeals court ruling that threw out a $5 million judgment to the father of a dead Marine who sued church members after they picketed his son's funeral.
Chief Justice John Roberts wrote the opinion for the court. Justice Samuel Alito dissented.
Roberts said free speech rights in the First Amendment shield the funeral protesters, noting that they obeyed police directions and were 1,000 feet from the church.
"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker," Roberts said. "As a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate."
Alito strongly disagreed. "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," he said.
Matthew Snyder died in Iraq in 2006 and his body was returned to the United States for burial. Members of the Westboro Baptist Church, who have picketed military funerals for several years, decided to protest outside the Westminster, Md., church where his funeral was to be held.
The Rev. Fred Phelps and his family members who make up most of the Westboro Baptist Church have picketed many military funerals in their quest to draw attention to their incendiary view that U.S. deaths in Afghanistan and Iraq are God's punishment for the nation's tolerance of homosexuality.
They showed up with their usual signs, including "Thank God for dead soldiers," "You're Going to Hell," "God Hates the USA/Thank God for 9/11," and one that combined the U.S. Marine Corps motto, Semper Fi, with a slur against gay men.
The church members drew counter-demonstrators, as well as media coverage and a heavy police presence to maintain order. The result was a spectacle that led to altering the route of the funeral procession.
Several weeks later, Albert Snyder was surfing the Internet for tributes to his son from other soldiers and strangers when he came upon a poem on the church's website that attacked Matthew's parents for the way they brought up their son.
Soon after, Snyder filed a lawsuit accusing the Phelpses of intentionally inflicting emotional distress. He won $11 million at trial, later reduced by a judge to $5 million.
The federal appeals court in Richmond, Va., threw out the verdict and said the Constitution shielded the church members from liability.
Forty-eight states, 42 U.S. senators and veterans groups sided with Snyder, asking the court to shield funerals from the Phelps family's "psychological terrorism."
While distancing themselves from the church's message, media organizations, including The Associated Press, urged the court to side with the Phelps family because of concerns that a victory for Snyder could erode speech rights.
Roberts described the court's holding as narrow, and in a separate opinion, Justice Stephen Breyer suggested in other circumstances, governments would not be "powerless to provide private individuals with necessary protection."
But in this case, Breyer said, it would be wrong to "punish Westboro for seeking to communicate its views on matters of public concern."
Margie Phelps, a daughter of the minister and a lawyer who argued the case at the Supreme Court, said she expected the outcome. "The only surprise is that Justice Alito did not feel compelled to follow his oath," Phelps said. "We read the law. We follow the law. The only way for a different ruling is to shred the First Amendment."
She also offered her church's view of the decision. "I think it's pretty self-explanatory, but here's the core point: The wrath of God is pouring onto this land. Rather than trying to shut us up, use your platforms to tell this nation to mourn for your sins."
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Bigdog makes good points in rebuttal of Fay's piece. Perhaps I should have posted this as political criticism of the President rather than here in issues of constitutional law. The article I thought introduced questions in both areas.
The constitutional questions regarding the Defense of Marriage Act have not changed since the campaign of 2007-2008. Obama knew full well how he felt about it then (unless he was 'pretending or ignorant' :-)). He gave a political wink to one side, told the rest of us a lie about his position, then proceeded with the playbook of revealing his real views incrementally. Contention between these two branches is normal and intended; his view just doesn't happen to be the one he told us to get the job. He also strongly opposed and ridiculed the individual mandate, lying directly into the camera in a Nov 2007 debate I remember watching with a room full of largely independent voters. He made similar points then to those in Judge Vincent's decision. (Fay correctly refers to him as Judge Vincent later in the article.) Obama believed (IMO) that if he had told the truth then about his views he wouldn't be President now, pushing this question as slowly as he can through the judicial process.
Your point 3 (hypocrisy) has definite validity and DOMA is a pretty good example. The criticism works just as well aimed at the other end of the political spectrum. Privacy unenumerated is gospel when killing the unborn, but meaningless for other personal choices like two centuries of pay as you go healthcare.
Point 4 "the elected branches often ignore decisions handed down by the judiciary" - isn't that the central thesis of Fay's piece, a warning to readers that this President may press on with Obamacare even if struck down by the Supreme Court. I don't agree with her on that but we may find out soon enough.
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From DougMacG: "Your point 3 (hypocrisy) has definite validity and DOMA is a pretty good example. The criticism works just as well aimed at the other end of the political spectrum. Privacy unenumerated is gospel when killing the unborn, but meaningless for other personal choices like two centuries of pay as you go healthcare."
Yes, yes. And I thought I had made a similar point with free speech when I replied this morning. I did not. My apologies for the oversight.
"Point 4 'the elected branches often ignore decisions handed down by the judiciary' - isn't that the central thesis of Fay's piece, a warning to readers that this President may press on with Obamacare even if struck down by the Supreme Court. I don't agree with her on that but we may find out soon enough."
No. The point of the article is that Obama is somehow single handedly causing the largest constitutional crisis since FDR's court packing scheme, or words to that general effect. My point is that the hypothetical reaction by Obama does not portend a crisis, because presidents consistently ignore Supreme Court rulings, and have for years. There is nothing about THIS policy or president's reaction that should constitute a crisis.
Now, if the article was talking about the gradual erosion of the separated powers, or some similar thesis, then there might be a worthy discussion.
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Doug:
If you are in touch with Fay, please give her my warm greetings.
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@ All: As usual, BD brings soundly reasoned analysis.
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We joke about famous people reading the forum but apparently no Justices were moved by the armchair dissent I posted regarding Rev. Phelps. Justice Alito's dissent is interesting and worth reading IMO:
http://www.law.cornell.edu/supct/html/09-751.ZD.html
His concern was the intentional infliction of emotional distress (or IIED) onto the plaintiff which I find persuasive. Rights end where they start to harm others IMO. My point previously was that the point of these demonstrations is to recruit and incite more killings, in this case the celebration of killing Catholics and military personnel, but that was not the standing of Snyder or the issue in this case.
I would hope that if 8 Justices can protect speech this vile, harmful, they could also get a little stronger and stricter at interpreting the rest of the constitution as a restraining order against big and intrusive government that I believe it was intended to be.
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Alito's powerful conclusion:
"Respondents’ outrageous conduct caused petitioner great injury, and the Court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered.
In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner. I therefore respectfully dissent. "
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Maybe Prof Big Dog will comment?
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One rough measure of how any Supreme Court term is going is to track the decibel level of Justice Antonin Scalia’s dissenting opinions. In a case last week, the question was whether statements made to the police by a shooting victim as he lay bleeding to death in the parking lot of a Detroit gas station were properly used at trial to obtain a murder conviction of the man he named as the gunman.
The court’s answer, by a vote of 6 to 2, was yes. Writing for the majority in the case, Michigan v. Bryant, Justice Sonia Sotomayor explained that what was all-important was the context in which the police-victim interaction occurred. Rather than trying to obtain a dying man’s testimony for later use in a courtroom, she said, the police were urgently investigating what they believed to be an “ongoing emergency,” someone with a gun on the loose on the streets of Detroit. Under that view of the facts, the victim’s statements were not “testimonial,” meaning that their use at trial did not violate the defendant’s right under the Sixth Amendment to “confront” an accuser who was unavailable for cross-examination.
That conclusion enraged Justice Scalia. Of course the police officers knew they were gathering evidence for potential use at trial, he objected, and to maintain otherwise was “so transparently false that professing to believe it demeans this institution.” With this decision, the Supreme Court “makes itself the obfuscator of last resort,” he complained. A “gross distortion of the facts,” “utter nonsense,” and “unprincipled” were a few of the other zingers the dyspeptic justice aimed at Justice Sotomayor’s opinion.
Granted, Justice Scalia has long been the court’s leading champion of a categorical view of the Sixth Amendment confrontation clause, one that admits of only the narrowest of exceptions to a defendant’s right to face his accuser. And no less than any other member of the court, Justice Scalia doesn’t like to lose. (The other dissenter, Justice Ruth Bader Ginsburg, notably did not join Justice Scalia’s opinion, instead filing a bland two-paragraph one of her own. Justice Elena Kagan did not participate.) But what strategic sense could lead a justice to administer such a public thrashing to a junior colleague?
Antonin Scalia, approaching his 25th anniversary as a Supreme Court justice, has cast a long shadow but has accomplished surprisingly little.
.I was reminded of how, in a crucial abortion case years ago, Justice Scalia lashed out at Justice Sandra Day O’Connor for refusing to provide a fifth vote for an outcome that would have left Roe v. Wade a hollow shell. It was the Webster case in 1989. Justice Scalia was then only in his third term on the court. Justice O’Connor, the court’s only female member, had written critically of Roe v. Wade in earlier opinions. But she found this case an inappropriate vehicle for overturning the decision. When the right case came along, she said pointedly, “there will be time enough to re-examine Roe. And to do so carefully.”
With the result he desired having slipped from his grasp, a furious Justice Scalia wrote in a separate opinion that Justice O’Connor’s position was “irrational” and “cannot be taken seriously.” Would he have aimed those particular put-downs at a male colleague? Maybe. As the ensuing years have demonstrated, male colleagues, including Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., have not escaped Justice Scalia’s barbs. He recently described a majority opinion by Justice Alito as incoherent and as displaying such sleight of hand as to be worthy of Alfred Hitchcock. But in the innocence of 1989, the insults he delivered to Justice O’Connor appeared shocking.
They also proved wildly inefficacious. Just three years later, in Planned Parenthood v. Casey, Justice O’Connor did “carefully” consider whether to retain the constitutional right to abortion and voted with four other justices to do so.
In fact, I can’t think of an example of one of Justice Scalia’s bomb-throwing opinions ever enticing a wavering colleague to come over to his corner. Certainly his angry prediction in a dissenting opinion three years ago that granting habeas corpus rights to the Guantánamo detainees “will almost certainly cause more Americans to be killed” did not lead Justice Anthony M. Kennedy, author of the majority opinion in that case, Boumediene v. Bush, to switch sides. Publishing such an inflammatory statement once it was clear that it would not shake the majority loose was an exercise in self-indulgence that could serve only to undermine the court’s own legitimacy.
So the question raised by Justice Scalia’s most recent intemperate display remains: what does this smart, rhetorically gifted man think his bullying accomplishes?
It’s a puzzle. But having raised the question, I will venture an answer. Antonin Scalia, approaching his 25th anniversary as a Supreme Court justice, has cast a long shadow but has accomplished surprisingly little. Nearly every time he has come close to achieving one of his jurisprudential goals, his colleagues have either hung back at the last minute or, feeling buyer’s remorse, retreated at the next opportunity.
The area of property rights is a prime example. A 1992 Scalia opinion, Lucas v. South Carolina Coastal Council, had raised the prospect that even temporary restrictions on a land owner’s right to develop property can amount to a “taking” for which the owner is entitled to compensation, as if the government had physically seized possession of the property. But within a decade, the court was backing away from this unsettling position, treating the Lucas decision as an exception rather than a rule.
Justice Scalia did have a moment of triumph with his majority opinion three years ago in District of Columbia v. Heller, interpreting the Second Amendment to convey an individual right to own a gun, at least for a law-abiding person, in the home, for self-defense. Because so few jurisdictions have stringent gun-control laws of the sort that the ruling invalidated, it remains to be seen whether the Heller decision will have much practical impact. Just last week, the federal appeals court in Philadelphia rejected a Heller-based constitutional challenge to the federal prohibition on gun use by convicted felons.
Justice Scalia’s real shining moment had come four years earlier, on the subject of the Sixth Amendment’s confrontation clause. His opinion in Crawford v. Washington ushered in a revolution in criminal procedure. While under the Supreme Court’s prior approach, statements by unavailable witnesses could be admitted at trial if a judge deemed the statements sufficiently “reliable,” the Crawford decision established a contrary bright-line rule: confrontation means confrontation. If a statement was “testimonial” in character and the witness could not appear in court, the statement stayed out unless the defendant had an earlier opportunity for cross-examination. Speaking for seven justices, Justice Scalia said that this was the only interpretation of the confrontation clause that was true to the original understanding of the Constitution’s framers.
The Crawford opinion left open the crucial question of what kinds of statements were “testimonial.” A series of decisions drawing various distinctions followed. Two years ago, to the consternation of prosecutors around the country, another Scalia opinion held that the affidavits of crime laboratory technicians, attesting to a substance’s identity as an illegal drug, were testimonial, inadmissible unless the individual analyst appeared at trial or had previously been available for cross-examination. “This case involves little more than the application of our holding in Crawford v. Washington,” Justice Scalia wrote in this case, Melendez-Diaz v. Massachusetts. Not all his colleagues were persuaded. His margin shrank to 5 to 4, with Chief Justice Roberts and Justices Alito, Kennedy and Stephen G. Breyer in dissent.
Like Justice Alito, Justice Sotomayor is a former prosecutor. She replaced Justice David H. Souter, a reliable member of the Scalia majority in these cases. A new case, argued last week, gives the court an opportunity to revisit the Melendez-Diaz precedent if a new majority is so inclined. The question in the new case, Bullcoming v. New Mexico, is whether for confrontation clause purposes a laboratory supervisor who did not actually perform the analysis is an acceptable substitute for the individual technician.
Which brings us to last week’s decision and dissent in Michigan v. Bryant. While Justice Sotomayor’s majority opinion purported to accept Crawford as binding precedent, the opinion is suffused with an attitude of pragmatism. In the originalist cosmos of Antonin Scalia, pragmatism has no place. With the highest achievement of his originalist jurisprudence now in peril, fear as well as anger was palpable in his dissenting opinion as he suggested that the majority was not only wrong but was composed of hypocrites.
“Honestly overruling Crawford would destroy the illusion of judicial minimalism and restraint,” he said, wondering aloud whether the court instead was now embarked on a course that would, through “a thousand unprincipled distinctions,” resurrect the old “reliability” test “without ever explicitly overruling Crawford.”
This Friday, March 11, is Justice Scalia’s 75th birthday. It doesn’t promise to be a happy one.
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http://definitions.uslegal.com/d/dying-declaration/
Dying Declaration
Law & Legal Definition
A dying declaration is an exception to the hearsay rule, which prohibits introducing evidence of out-of-court statements made by unavailable witnesses. The Federal Rules of Evidence have relaxed the common law standards for dying declarations and require the following conditions be met before introducing a dying declaration into evidence:
1. Awareness of imminent death: The declarant must, at the time he made his statement, believe that his death is imminent.
2. Actual death: At common law, the declarant must in fact be dead by the time the evidence is offered. But this is not required under the Federal Rule, although the declarant must be unavailable.
3. Homicide: At common law, the declaration may be used only in a homicide case. Under the Federal Rules, dying declarations are usable in civil suits and homicide cases, but not in non-homicide criminal cases.
4. Declarant is victim: At common law, declaration may be offered only in a trial for the killing of the declarant, not the killing of someone else. The Federal Rules no longer include this requirement.
5. Relating to circumstances of killing: Both at common law and under the Federal Rules, the declaration must relate to the causes or circumstances of the killing.
6. For accused: The statement may be admitted on behalf of the accused (though usually, it is admitted against him.)
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I'm not sure what comments to add on the Scalia piece. It seems about right to me. There is a long literature related coalition formation on the Supreme Court (and many other multi-player institutions). Supreme Court specific: perhaps the most famous example of an extremely smart, highly regarded, non-influential justice was Felix Frankfurter. A former law professor, he lacked people skills, and had difficulty convincing others to join him. The most famous counter example was William Brennen. He was able to convince justices to join him, in large part, because he had abilities to compromise in mutually beneficial ways to him and the other justices on a coalition.
I suspect that Scalia will be influential in the long run, though, not unlike Justice Brandeis. Brandeis famously dissented in a case called Olmstead. The dissent went on to form the legal understanding of wiretaps beginning in the 1960's. I suspect that Scalia's dissents, which might be scathing, but are also well written and clear, may have an impact similar to that of Brandeis.
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The layman (PhD Princeton) makes far more sense to me than the law review article and judge's ruling that he rebuts. I added those links back in to the article.
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http://www.washingtonpost.com/wp-dyn/content/article/2011/03/11/AR2011031105815.html
The Supreme Court and the health-care mandate muddle
By George F. Will
Sunday, March 13, 2011
When the Supreme Court considers whether Congress has the constitutional power to compel individuals to buy health insurance, the argument supporting Congress may rest on a non sequitur and a semantic fiat. A judge's recent ruling argues that the insurance mandate must be constitutional because Obamacare would collapse without it. A forthcoming law review article agrees with this and with the judge's idea that, regarding commerce, being inactive is an activity.
Obamacare does indeed require the mandate: Because the law requires insurance companies to sell coverage to people regardless of their preexisting conditions, many people might delay buying insurance until they become sick. But is the fact that the mandate is crucial to the law's functioning dispositive?
U.S. District Judge Gladys Kessler's ruling (http://sblog.s3.amazonaws.com/wp-content/uploads/2011/02/J.-Kessler-on-ACA-2-22-11.pdf) that the mandate is constitutional conflates moral, policy and constitutional considerations. She says that people who choose "not to purchase health insurance will benefit greatly when they become ill, as they surely will, from the free health care which must be provided by emergency rooms and hospitals to the sick and dying who show up on their doorstep." So "those who choose not to purchase health insurance will ultimately get a 'free ride' on the backs of those Americans who have made responsible choices to provide for the illness we all must face."
Her disapproval is neither a legal argument nor pertinent to one. The question remains: Does Congress's power to regulate interstate commerce entitle it to create a health-care regime that requires the mandate?
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Mark Hall of Wake Forest University, in an article for the University of Pennsylvania Law Review (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1747189), says there would be constitutional "uncertainty over the mandate in isolation." But it is "inextricably intertwined" with Obamacare's "other insurance regulations" - e.g., those pertaining to preexisting conditions - "which indisputably are constitutional." So the "strongest defense" of Congress's power to enact the mandate is "the acknowledged undesirability, if not impossibility" of the regulations regarding preexisting conditions, absent the mandate.
Hall says that the mandate "meets a high threshold of necessity to accomplish the overall reform scheme, clearly within congressional power, to create a market structure in which no one is ever again medically uninsurable." But unless we postulate that Congress has whatever power is required to create such a market structure, this question remains: Does the fact that Congress has the constitutional power to do X - say, guarantee universal access to insurance - make Y constitutional merely because Y is necessary for doing X?
Congress has the constitutional power to combat political corruption, the "appearance" thereof and the "circumvention" of laws for this purpose. But suppose Congress, exercising this power by regulating campaign finances, decides that abridging freedom of speech is necessary for its anti-corruption measures. This necessity, defined by this preference, does not make such abridgement constitutional. The Supreme Court said as much concerning McCain-Feingold.
The mandate's defenders note that the Constitution says Congress has the power to "make all laws which shall be necessary and proper for carrying into execution" its enumerated powers, one of which is to regulate interstate commerce. "Necessary and proper." An unconstitutional law is improper.
Does the mandate acquire derivative constitutionality merely by Congress making the mandate necessary for something Congress wants to do in the exercise of the enumerated power of regulating interstate commerce? If so, what would not acquire such constitutionality?
Madison's constitutional architecture for limited government will be vitiated unless the court places some limits on what constitutes commerce eligible for regulation. So the question becomes: Is the inactivity of not buying insurance a commercial activity Congress can proscribe because it has economic consequences?
Hall says it is unclear what constitutes "pure inaction." But virtually nothing qualifies as "pure" inactivity if, as he says, "the passivity of non-purchasing decisions does not rob them of their inherently economic nature." Judge Kessler disdains the distinction between activity and inactivity as "of little significance." Her Orwellian theory is that government can regulate the activity - the mental activity - of choosing not to participate in a commercial activity.
Hall perfunctorily says that "some limit" on Congress's commerce power "is necessary" but then says "democratic electoral constraint" - trusting "the political process itself to set limits" - will suffice to restrain government.
The question about the mandate is, however, whether a political institution has traduced constitutional limits placed on it. Because the Framers prudently doubted the sufficiency of "democratic electoral constraint" - because they were wary about "the political process" policing itself - the Constitution was written.
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Written from the progressive POV (well, its POTH so no surprise there) this piece analyzes the law from the POV of the nature of the parties more than the legal questions presented, but at least it has the honesty to admit to itself that not all of its prejudices are accurate:
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Among common impressions of the current Supreme Court are that Justices Antonin Scalia and Clarence Thomas are joined at the hip and that the majority tilts reflexively in favor of corporations and employers.
As the court heads into the current term’s final three months, I looked at the statistics. What I found surprised me:
• In decisions that have split the court in any direction, Justices Scalia and Thomas have voted on opposite sides more often than they voted together. They differed in all three of the non-unanimous criminal-law cases that the court has decided so far.
.• Employees suing companies for civil rights violations have won all three cases decided so far, two of them by votes of 8-0 (with Justice Elena Kagan recused).
.• By wide margins, the court has rejected arguments put forward by corporate defendants in several cases. It refused to permit corporations to claim a personal-privacy exemption from disclosure of law-enforcement records under the Freedom of Information Act. It permitted a liability suit to proceed against an automobile manufacturer for not installing the safest kind of back-seat passenger restraint. And in a unanimous opinion on Tuesday, the court refused to throw out a lawsuit by investors alleging that a drug manufacturer’s failure to disclose reports that some patients using its cold remedy had lost their sense of smell amounted to securities fraud.
.What accounts for the topsy-turvy world of the Supreme Court’s 2010-2011 term?
One answer might be that the deviation from expected behavior is just an illusion, based on a small number of decisions that might not prove representative of the term as a whole. The court has decided 25 cases so far, with about twice that many yet to come by the time the term ends in late June. Some of the term’s more important cases, including Wal-Mart’s appeal in a huge class-action sex-discrimination suit, have not yet even been argued.
Still, when the court decides so few cases — 73 last year — 25 decisions count for something. At the very least, this preliminary snapshot reminds those of us (and I include myself) who think they have taken the court’s measure that assumptions are a poor substitute for close observation. So that’s what this column is: a portrait of a term in progress.
When I looked at voting patterns, I was surprised by what the numbers revealed: that in the divided cases, Chief Justice John G. Roberts Jr. has voted more often with Justices Stephen G. Breyer and Sonia Sotomayor than with Justices Thomas, Scalia or Samuel A. Alito Jr. The number of cases is small, only nine, and there was no particular ideological spin to most of the decisions, so this is not to suggest that the term will disprove characterizations of the Roberts court, or the chief justice himself, as conservative.
Even so, it is worth noting that in eight of these nine cases (not all the same eight), the chief justice and Justices Breyer, Sotomayor and/or Anthony M. Kennedy saw things the same way. (Justice Kagan’s previous service as solicitor general has required her to stay out of so many cases — 15 of the 25 decided so far — that I am not using her votes in these calculations.)
Chief Justice Roberts has yet to cast a dissenting vote this term; with the exception of Justice Kagan, every other justice has dissented at least once (probably the most eye-catching dissent so far is Justice Alito’s solitary dissent in Snyder v. Phelps, the 8-to-1 decision according First Amendment protection to the obnoxious funeral-picketing activities of the Westboro Baptist Church). And every justice, including Justice Kagan, has written more than one majority opinion, with one glaring exception: Justice Thomas, who has yet to write for the majority in any case this term.
That’s not to say that Justice Thomas has been silent (except on the bench during oral argument). He has written three dissenting and four concurring opinions. He gave the keynote address last month in Charlottesville, Va., at the annual student symposium of the Federalist Society, a national organization of conservative law students and lawyers. There, he offered a vigorous defense of his wife, Virginia, against criticism of her political activism.
“There is a price to pay today for standing in defense of your Constitution,” he said. Recognizing his wife in the audience, Justice Thomas said that the two of them were “equally yoked,” “believe in the same things” and were “focused on defending liberty.” Their critics, he warned, “seem bent on undermining” the court itself.
Assuming that Justice Thomas has received the same number of opinion-writing assignments as his colleagues — one or two cases from each of the court’s monthly argument sittings — the absence of majority opinions in his name is striking.
Granted, once a justice gets an assignment, the timing of the release of the opinion is not completely under his or her control. The need to satisfy a fractious majority can require multiple drafts, or those justices writing dissenting opinions can take their time, perhaps hoping to peel off a fifth vote and change the outcome.
The court’s eventual opinion in a case called Connick v. Thompson, argued back on Oct. 6, may be revealing. It is the only undecided case left from among the 12 the justices heard during the first month of the term, so by deduction, the opinion assignment should have gone to Justice Thomas, the only justice without a majority opinion from that session (Justice Kennedy and Justice Ruth Bader Ginsburg each have two.)
This is not to suggest that the term will disprove characterizations of the Roberts court, or the chief justice himself, as conservative.
.The question in the case is a tricky one: whether a district attorney’s office can be held liable for damages based on a prosecutor’s intentional withholding of evidence that casts doubt on the defendant’s guilt. It’s easy to imagine the court deeply split over a case with disturbing facts (the defendant spent 14 years on death row and came close to being executed before the previously withheld blood evidence came to light) that nonetheless runs up against the court’s extreme reluctance to permit damage suits of this kind, even for egregious official misbehavior. Perhaps Justice Thomas, having received the initial assignment to write the majority opinion, has been unable to hold four other justices to his approach to this case. Or perhaps a dissenting opinion is taking a long time to incubate.
As a case about civil damages, the Connick case does not directly involve criminal law. No one disputes the prosecution’s duty to turn over exculpatory evidence; the question is whether the prosecutor’s office can be held liable for failing to train its staff to observe this very basic requirement. On issues of pure criminal law and procedure, including sentencing, Justices Thomas and Scalia have for some time demonstrated distinctly different points of view. Earlier this month, Justice Scalia joined Justice Sotomayor’s opinion permitting district judges in resentencing proceedings to grant leniency to defendants who have managed to rehabilitate themselves after the initial sentencing. In a solitary dissent, Justice Thomas wrote that he still regarded the federal sentencing guidelines as mandatory, despite the court’s ruling six years ago that rendered the guidelines “advisory.” Justice Thomas expressed sympathy for the defendant in this case, but said the district judge had no discretion to give a lighter sentence than the guidelines provided.
The two justices also diverged on the confrontation clause issue that provoked Justice Scalia’s vigorous dissent last month from another majority opinion by Justice Sotomayor. The question was whether a dying man gave the equivalent of testimony when he told the police the name of the man who shot him; if so, the victim’s statements to the police could not be introduced at trial because cross-examination would not be possible. In a separate opinion, Justice Thomas agreed with the majority that the encounter between the victim and the police was not testimonial. Justice Scalia, whose view of the Sixth Amendment confrontation right is categorical, insisted otherwise.
In all of the last term, Justices Scalia and Thomas were on opposite sides only six times. Already this term, they have split in five cases. An aberration or a trend? Watch and wait.
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I am disappointed in Linda Greenhouse here. She knows better than to say some of the things that she wrote in this article. She is almost always spot on, and if anything over-informed. But here, she seems to forget information she used to know.
1. "When I looked at voting patterns, I was surprised by what the numbers revealed: that in the divided cases, Chief Justice John G. Roberts Jr. has voted more often with Justices Stephen G. Breyer and Sonia Sotomayor than with Justices Thomas, Scalia or Samuel A. Alito Jr. The number of cases is small, only nine, and there was no particular ideological spin to most of the decisions, so this is not to suggest that the term will disprove characterizations of the Roberts court, or the chief justice himself, as conservative." This means nothing. While she admits that it might mean nothing, by including it she draws attention to nothing. Here is why: if in the majority at the conference stage (when the justices meet post-oral argument to preliminarily hash out the votes), the CJ will assign the majority opinion. It is entirely possible that Roberts is voting with the "liberal wing" more often simply because he wants to assign the opinion. CJ Burger was known to do this same thing.
2. "Justice Thomas... has yet to write for the majority in any case this term. ... The court’s eventual opinion in a case called Connick v. Thompson, argued back on Oct. 6, may be revealing. It is the only undecided case left from among the 12 the justices heard during the first month of the term, so by deduction, the opinion assignment should have gone to Justice Thomas, the only justice without a majority opinion from that session (Justice Kennedy and Justice Ruth Bader Ginsburg each have two.) " There is NO SUCH THING AS "SHOULD" HAVE ASSIGNED AN OPINION. Here is why: first of all, while balancing the workload is important, the Chief Justice (see above for why) can assign opinions for many reasons. Who writes the fastest, who is closest ideologically, who can support the majority, who is an expert in the area of law being questioned, etc. etc. Moreover, if Justice Thomas did not vote with the majority, he wouldn't be assigned the majority opinion. Greenhouse has no way of knowing if he was in the majority or not, so she can't know that he "should" have been assigned the opinion.
3. "Perhaps Justice Thomas, having received the initial assignment to write the majority opinion, has been unable to hold four other justices to his approach to this case. Or perhaps a dissenting opinion is taking a long time to incubate." While all true reasons why an opinion announcement might be slow in coming, since she can't know that Justice Thomas was assigned the opinion, this is also meaningless.
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The quality of your commentary is appreciated BD.
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Some amusing, inside baseball endgame stuff going on over the Heller:
MARCH 23, 2011
D.C. Judge Requests Three Firms' Rates in Legal Fee Dispute
A judge in Washington said today he wants the three law firms that provided pro bono service to the District of Columbia in the landmark gun rights case to open up their books to provide billing data to the court.
Judge Emmet Sullivan of Washington's federal trial court is trying to determine a fair and reasonable fee for the plaintiffs’ team that represented a group of District residents, including Dick Heller, in the suit in which the U.S. Supreme Court in 2008 overturned the city’s ban on handguns.
The plaintiffs’ lawyers, led by Alan Gura of Alexandria, Va.’s Gura & Possessky, said a review of the records will undercut the government’s argument that the plaintiffs’ petition for more than $3.1 million in fees is unreasonable.
Sullivan said today in court he’s spent a “great deal” of time reviewing the fee petition and has struggled over assessment of the prevailing market rate for complex civil litigation. Last year, Sullivan denied without prejudice Gura’s request to inspect the records. Sullivan reversed course today, saying the records, while perhaps not dispositive, will aid his work.
Three firms—O’Melveny & Myers, Covington & Burling and Akin Gump Strauss Hauer & Feld—provided pro bono work for the District in the litigation. O’Melveny partner Walter Dellinger III argued for the District in the high court. A fourth firm, Sidley Austin, quickly dropped out before any work was initiated, a District lawyer, Samuel Kaplan, said at today’s hearing.
Sullivan said he wants to avoid “full-blown litigation” over the three firms’ billing records, and he said he’s not interested in having names attached with the financial data. “Anonymity is fine with the court,” Sullivan said. “I do not need initials. I don’t need names.”
The judge also said he is hopeful he will not have to authorize subpoenas to compel Covington, Akin and O’Melveny to provide the standard billing rates for the lawyers who worked on the gun case for the District.
“I hope it doesn’t come to that,” Sullivan said. “But if it does, we’ll cross that bridge when we get there.”
Kaplan cautioned that O’Melveny’s rates vary per client and case and that a “standard rate” for any lawyer on the gun case may not be helpful to Sullivan. The District, Kaplan said, is concerned about what he called the “intrusive” nature of the request for billing rates from the three firms.
Kaplan said the city only accepted help from O’Melveny, Covington and Akin because it was free. Otherwise, he said, the District’s lawyers—he mentioned Todd Kim, the District’s solicitor general, in particular—would have worked on the case in the Supreme Court.
“The city was very fortunate to get outstanding lawyers from outstanding firms,” Sullivan said in court today.
At the end of the hearing, Sullivan asked the lawyers to get him the data in 10 days. Sullivan said he wants to resolve the fee dispute as soon as possible.
Posted by Mike Scarcella on March 23, 2011 at 04:13 PM
http://legaltimes.typepad.com/blt/2011/03/dc-judge-requests-three-firms-rates-in-legal-fee-dispute.html
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If the Government Gives Your Election Opponent More Money the More Money You Spend, It Burdens Your Speech
Posted by Ilya Shapiro
Yesterday the Supreme Court heard oral arguments in the Arizona matching-public-campaign-funding case, McComish v. Bennett, spearheaded by our friends at the Goldwater Institute and the Institute for Justice.
Here's the background: In 1998, after years of scandals ranging from governors being indicted to legislators taking bribes, Arizona passed the Citizens Clean Elections Act. This law was intended to “clean up” state politics by creating a system for publicly funding campaigns. Participation in the public funding is not mandatory, however, and those who do not participate are subject to rules that match their “excess” private funds with disbursals to their opponent from the public fund. In short, if a privately funded candidate spends more than his publicly funded opponent, then the publicly funded candidate receives public “matching funds.”
Whatever the motivations behind the law, the effects have been to significantly chill political speech. Indeed, ample evidence introduced at trial showed that privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. Notably, in a case where a privately funded candidate is running against more than one publicly assisted opponent, the matching funds act as a multiplier: if privately funded candidate A is running against publicly funded candidates B, C, and D, every dollar A spends will effectively fund his opposition three-fold. In elections where there is no effective speech without spending money, the matching funds provision unquestionably chills speech and thus is clearly unconstitutional. For more, see Roger Pilon's policy forum featuring Goldwater lawyer Nick Dranias, which Cato hosted last week and you can view here .
The oral arguments were entertaining, if predictable. A nice debate opened up between Justices Scalia and Kagan about the burden that publicly financed speech imposes on candidats who trigger that sort of financing mechanism under Arizona law. Justice Kennedy then entered the fray, starting out in his usual place — open to both sides — but soon was laying into the Arizona’s counsel alongside Justice Alito and the Chief Justice.
The United States was granted argument time to support Arizona’s law, but Justice Alito walked the relatively young lawyer from the Solicitor General's office right into what I consider to be his (Alito's) best majority opinion to date, the federal "millionaire's amendment" case (paraphrasing; here's the transcript ):
Alito: Do you agree that "leveling the playing field" is not a valid rationale for restricting speech?
US: Sort of.
Alito: Have you read FEC v. Davis?
Note to aspiring SCOTUS litigators: try not to finesse away direct precedent written by a sitting justice.
My prediction is that the Court will decide this as they did Davis, 5-4, with Alito writing the opinion striking down the law and upholding free speech. Cato’s amicus briefs in this case, which you can read here and here , focused on the similarities to Davis, so I'm keeping my fingers crossed that we'll get cited.
NB: I got to the Court too late to get into the courtroom today but live-tweeted (@ishapiro) the oral arguments from the (overflow) bar members' lounge, which has a live audio feed. I was later informed that such a practice violates the Court rules, however -- ironic given how pro-free-speech this Court is -- so I will not be repeating the short-lived experiment. (That said, you should still follow me on Twitter -- and also be sure to follow our friends @IJ and @GoldwaterInst!)
http://www.cato-at-liberty.org/if-the-government-gives-your-election-opponent-more-money-the-more-money-you-spend-it-burdens-your-speech/
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Perhaps Big Dog can comment here, but this is an area in Constitutional law where I am not clear in my thinking. The Bill of Rights was written and passed it did not apply to the States and many States (a majority?) did support particular religions without oppressing other religions. With Incoporation this changed, but I am not getting the distress of Kagan and the NY Times editorial board here; the State is not directing the money to a particular religion, the citizen is. What is the problem?
===========================================
In the Supreme Court’s 5-to-4 ruling about a school-choice program in Arizona, Justice Anthony Kennedy’s opinion leaves intact a program that has disbursed almost $350 million of state funds, most of it to schools choosing students on the basis of religion.
The holding all but overrules a landmark decision of the Warren court, Flast v. Cohen. As Justice Elena Kagan says powerfully in her first dissent, “by ravaging Flast in this way,” the majority “damages one of this nation’s defining constitutional commitments.”
The First Amendment’s establishment clause — “Congress shall make no law respecting an establishment of religion” — is meant to protect citizens even when they are not harmed. Before, under Flast, a taxpayer could ask a court to enforce this central right. Now, under this ruling, a taxpayer all but can’t, and any government can use the tax system to avoid challenges to financing of religion.
The only difference between cases considered under Flast since 1968 and the current one is the means of government spending. In past cases, it has come through appropriations. In this case, the money comes through a tax credit: any taxpayer can redirect up to $500 of what he or she owes the state to a nonprofit that uses the money for scholarships. What the court calls a tax credit and Arizona calls a voluntary cash contribution is, concretely, a redirected tax payment.
Justice Kennedy, in an opinion clearly intended to overturn legal precedent, says that the program’s financing comes from taxpayers taking advantage of this credit, not from the state, so the taxpayers bringing the lawsuit can claim no harm from the state and lacked standing to sue. To Justice Kagan, “this novel distinction,” has “as little basis in principle as it has in our precedent.” Whether a state finances a program with cash grants or targeted tax breaks, the effect is the same. Taxpayers bear the cost.
Since the Flast case, she writes, “no court — not one — has differentiated between these sources of financing in deciding about standing.” In five cases where taxpayers challenged tax expenditures, the court has dealt with the merits “without questioning the plaintiffs’ standing.” The court has relied on some of these decisions as “exemplars of jurisdiction” in other cases. (“Pause on that for a moment,” the justice entreats.)
When this case was argued last fall, the convolutions of the Arizona program seemed intended to mask its violation of the Constitution. The court’s ruling is another cynical sleight of hand, which will reduce access to federal courts while advancing endorsement of religion.
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In the Kennedy opinion I found this explanation:
"Like contributions that lead to charitable tax deductions, contributions yielding STO tax credits are not owed to the State and, in fact, pass directly from taxpayers to private organizations. Respondents’ contrary position assumes that income should be treated as if it were government property even if it has not come into the tax collector’s hands. That premise finds no basis in standing jurisprudence."
http://www.supremecourt.gov/opinions/10pdf/09-987.pdf
NY Times: "Justice Kennedy, in an opinion clearly intended to overturn legal precedent..."
But Scalia wrote exactly that and Kennedy did not sign on with him: "Flast is an anomaly in our jurisprudence, irreconcilable with the Article III restrictions on federal judicial power that our opinions have established. I would repudiate that misguided decision and enforce the Constitution.
Kagan: In five cases where taxpayers challenged tax expenditures, the court has dealt with the merits “without questioning the plaintiffs’ standing.”
Yet in Hein 2007: "It has long been established, however, that the payment of taxes is generally not enough to establish standing..."
http://www.law.cornell.edu/supct/html/06-157.ZO.html
The first sentence from the NY Times makes me wonder if the editorialists all went to Hogwarts; they think school choice means the school chooses the student. "...state funds, most of it to schools choosing students on the basis of religion".
I recall looking up that the despicable Phelps church celebrating fallen soldiers pays zero property taxes, a state/local tax credit of sorts?
On the merits, it seems to me that accreditation should be the question, not the money. If the state accepts the quality of the education, allows choice, and takes the responsibility of paying for K-12, has measured the cost to educate one child for one year separate from religious training, and wants that money to go with the student to the school chosen, where is the problem?
A bit of a stretch to say that a program constitutes establishment if it treats all religions along with no religion at all exactly the same under the law, all are eligible for the exact same benefits of the same program. Sounds more like establishment to me if they required all kids to go to the state school system for a different kind of indoctrination and teach things reprehensible to my religious beliefs.
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DougMacG: "I recall looking up that the despicable Phelps church celebrating fallen soldiers pays zero property taxes, a state/local tax credit of sorts?" Churches of all sorts, even the ones you (or I) don't like have tax exempt status. Although I do not agree with the message, or even Christianity of Westboro Baptist, the religious rights of parishioners are imperiled when the state gets to pick and choose between types of "legitimate" religious messages.
Guro: There is a long line of SC case law that relates to funding/choice/aid to religious schools, which, of course, make up many (although not exclusively) private schools. Perhaps this was Kagan's worry. In particular, look to Everson v. Bd. of Ed. (1947); Lemon v. Kurtzman (1971); Agostini v. Felton (1997); and Zelman v. Simmons-Harris (2002) for frames of reference. These are the "biggies." There are many other cases that could add to the discussion.
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Kagan’s Recusal Manuevers
Jonathan H. Adler • April 9, 2011 11:14 am
While serving as Solicitor General, Justice Elena Kagan allegedly began maneuvering to avoid having to recuse in any eventual challenges to the Patient Protection and Affordable Care Act, months before her nomination was announced — indeed, even before she was told she was under consideration — according to a series of documents released in response to a Freedom of Information Act request. The National Law Journal reports on the disclosures here (registration required).
The documents, mainly in the form of printouts of internal email chains, show that now-Acting Solicitor General Neal Katyal – not Kagan herself — was the point person within the office on discussions of the new health care reform law and how to defend it in court. Released to CNSNews.com, a conservative-oriented news outlet, the emails also reveal how Kagan was walled off from discussions of the law — possibly because she already knew she might be nominated to the high court, where a challenge to the statute would ultimately be decided.
The release has raised eyebrows among lawyers familiar with the long tradition of the solicitor general’s office resisting release of internal documents so as not to hamper deliberations on cases. . . .
In a March 15 letter releasing the documents, Valerie Hall, executive officer of the solicitor general’s office, said they could have been withheld under [a FOIA exemption for “inter-agency or intra-agency memorandums or letters”], but the department was releasing them anyway as “a matter of agency discretion.” CNSNews.com published a story on the documents March 29
Another puzzle is that if these documents could be released under FOIA, why were they not disclosed to the Senate Judiciary Committee in preparation for Kagan’s confirmation hearing? Nothing reported to be in the documents would have prevented Kagan’s confirmation, nor does anything seem likely to force her recusal should the health care litigation reach the High Court, so the sudden disclosure is curious.
At NRO’s Bench Memos, Carrie Severino comments further on the disclosed documents here and here.
http://volokh.com/2011/04/09/kagans-recusal-manuevers/
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A Supreme Court justice cannot be forced to recuse him- or herself from a case.
Two examples: Marbury v. Madison and from 2004 from then Chief Justice William Rehnquist:
"While a member of the court will often consult with colleagues as to whether to recuse in a case, there is no formal procedure for court review of a justice in an individual case,” Chief Justice Rehnquist wrote. “This is because it has long been settled that each justice must decide such a question for himself.”
Kagan’s Recusal Manuevers
Jonathan H. Adler • April 9, 2011 11:14 am
While serving as Solicitor General, Justice Elena Kagan allegedly began maneuvering to avoid having to recuse in any eventual challenges to the Patient Protection and Affordable Care Act, months before her nomination was announced — indeed, even before she was told she was under consideration — according to a series of documents released in response to a Freedom of Information Act request. The National Law Journal reports on the disclosures here (registration required).
The documents, mainly in the form of printouts of internal email chains, show that now-Acting Solicitor General Neal Katyal – not Kagan herself — was the point person within the office on discussions of the new health care reform law and how to defend it in court. Released to CNSNews.com, a conservative-oriented news outlet, the emails also reveal how Kagan was walled off from discussions of the law — possibly because she already knew she might be nominated to the high court, where a challenge to the statute would ultimately be decided.
The release has raised eyebrows among lawyers familiar with the long tradition of the solicitor general’s office resisting release of internal documents so as not to hamper deliberations on cases. . . .
In a March 15 letter releasing the documents, Valerie Hall, executive officer of the solicitor general’s office, said they could have been withheld under [a FOIA exemption for “inter-agency or intra-agency memorandums or letters”], but the department was releasing them anyway as “a matter of agency discretion.” CNSNews.com published a story on the documents March 29
Another puzzle is that if these documents could be released under FOIA, why were they not disclosed to the Senate Judiciary Committee in preparation for Kagan’s confirmation hearing? Nothing reported to be in the documents would have prevented Kagan’s confirmation, nor does anything seem likely to force her recusal should the health care litigation reach the High Court, so the sudden disclosure is curious.
At NRO’s Bench Memos, Carrie Severino comments further on the disclosed documents here and here.
http://volokh.com/2011/04/09/kagans-recusal-manuevers/
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No doubt, but in these days of "appearance of impropriety" and as the federal takeover of health care was looming, it suggest to me some long term planning was going on.
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Overcriminalization and the Constitution
Published on April 13, 2011 by Brian Walsh and Benjamin Keane LEGAL MEMORANDUM #64
Abstract: Although the Constitution’s great structural principles of federalism and separation of powers are designed to guard against the abuse of governmental power and secure individual liberty, Congress routinely flouts these constitutional safeguards by enacting vague, overly broad, and other improper and unconstitutional criminal laws. Thomas Jefferson warned that “concentrating” or combining the powers of the legislative, executive, and judicial branches of government “in the same hands is precisely the definition of despotic government.” Yet overcriminalization invites and effectively requires prosecutors, judges, and even unelected federal bureaucrats to engage in lawmaking to determine the scope and severity of criminal punishment. In order to preserve the rights of innocent Americans, the unbridled and unprincipled growth of federal criminal statutes and regulations must be contained.
Congress’s “tough on crime” rhetoric has almost routinely resulted in the proliferation of vague, overbroad federal offenses that have only theoretical or highly attenuated connections to the federal government’s constitutional powers. This proliferation is a central feature of the “overcriminalization” phenomenon. It undermines justice and destroys the lives of individual Americans—consequences that are often directly related to lawmakers’ disregard for or circumvention of the language and limitations of the U.S. Constitution.
Overcriminalization in Action
The overcriminalization phenomenon is well illustrated by the federal prosecution of Wisconsin civil servant Georgia Thompson.[1] Thompson was charged with federal “honest services” fraud after she awarded a state contract for travel services to the bidder with the best price and second-best service rating.[2] Thompson and her team of decision makers had no financial interest in the winning company and no conflict of interest, and federal prosecutors made no allegations to the contrary. Instead, the U.S. Attorney’s office alleged that the contract award technically violated Wisconsin state procurement rules—an argument that by no means supports the exercise of federal jurisdiction.
Unfortunately for Ms. Thompson, the language of the federal “honest services” fraud statute is an egregious example of overcriminalization.[3] It criminalizes vast swaths of conduct unrelated to any constitutional power or interest. Federal prosecutors thus were able to build their theory of Thompson’s guilt on allegations that the contract she granted made her supervisors look good and thus “improved her job security.”[4] A jury convicted Ms. Thompson under this preposterous theory, and a federal judge sentenced her to four years in federal prison.
By the time a federal court of appeals reversed the conviction of this hard-working civil servant with a previously unblemished record, Ms. Thompson had lost her job, career, and reputation; had fallen into bankruptcy; and had spent four months in a federal prison. Indeed, until the U.S. Supreme Court held that the language of the “honest services” statute is unconstitutionally vague and imposed a limiting construction on it,[5] prosecutors with the U.S. Department of Justice had used it for 23 years to prosecute thousands of individuals, many of whose conduct had no real connection either to the federal interest or to powers defined by the Constitution.
Injustices such as those Georgia Thompson suffered are increasingly common in America[6] and, sadly, unsurprising. Express constitutional provisions, as well as the federal–state governmental structure that the Constitution created, are intended to protect liberty.[7] Over the past several decades, however, federal lawmakers have often circumvented or even disregarded these limitations. Lawmakers who are genuinely concerned about preserving America’s remarkable freedoms and safeguarding individuals’ most basic liberties must take stock of the damage that overcriminalization is doing to the nation’s constitutional structure.
Constitutional Powers and Federalism
The unbridled growth of federal criminal law disrupts the basic balance of constitutional government. First and foremost, unprincipled expansion of federal criminal law runs afoul of the fundamental constitutional principle that the federal government is a government of limited and enumerated powers.[8] Likewise, the development of duplicative and overlapping criminal statutes and regulations at the federal level disregards the proper constitutional equilibrium between state and federal powers.
Constitutional Powers
It is a fundamental constitutional tenet that every law enacted by Congress must be based on one or more of the powers specifically enumerated in the Constitution. In McCulloch v. Maryland,[9] Chief Justice John Marshall described this limitation on federal authority in the following manner:
This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent…. [T]hat principle is now universally admitted.[10]
Marshall’s statement means that Congress does not have a general federal police power to criminalize conduct.[11] As such, Congress lacks constitutional authority over the vast majority of violent, non-economic activity that, in any event, is routinely governed by state criminal law and state law enforcement.[12] Rather than combating street crime or other purely local matters, federal criminal law should address problems reserved to the national government in the Constitution such as treason, currency counterfeiting, military activities, and specific offenses that require proof of an actual (not theoretical or highly attenuated) nexus with interstate commerce.
Unfortunately, recent congressional approaches to federal criminal law have not abided by such limitations. In most cases, Congress never identifies what legislative power, if any, undergirds its exercise of criminal authority. When Congress does expend the time and effort to cite a constitutional provision to justify criminal-law legislation, it most frequently cites to the Constitution’s Commerce Clause (which grants Congress authority to “regulate Commerce…among the several States”[13]) and flatly asserts that the conduct the federal law covers has a constitutionally sufficient nexus to interstate commerce.
Congress then leaves it to the courts to decide whether the federal legislature’s improper, unjustified exercises of its power to criminalize will be held unconstitutional. The lower federal courts almost uniformly refuse to do so, despite some recent precedents from the Supreme Court reaffirming the limits on federal power to criminalize.[14] Over the past century, Congress and the federal courts have relied on expansive and unsound readings of the Commerce Clause to justify the federal government’s broadening of the scope of its limited legislative authority to regulate more and more truly local conduct and also to expand the scope of federal criminal law.
Indeed, the number of federal crimes has increased almost exponentially. The sheer size of the federal criminal law is so great that no one has been able to produce an exact count of the thousands of statutory criminal offenses in federal law. The best scholarly estimates are that by 2008, the U.S. Code included at least 4,450 federal crimes[15] and that the Code of Federal Regulations includes tens of thousands of regulations that can be enforced with criminal penalties.[16] Many of these laws were passed by Congress based upon dubious or, at best, attenuated claims of constitutional authority and are beyond Congress’s enumerated powers.
Federalism
The current growth of federal criminal law also runs afoul of the fundamental tenets of federalism. Constitutional federalism is no mere theoretical nicety; like all limitations on the power of government, it is a vital safeguard for Americans’ essential rights and liberties. The preeminent Framer, James Madison, writing to explain and defend the Constitution in order to persuade Americans to ratify it, called constitutional federalism a “double security…[for] the rights of the people.”[17] The proliferation of vague and overbroad federal criminal laws that are unconnected to the federal government’s constitutionally defined powers and interests threatens this double security. It circumvents state sovereignty and undermines the authority of state and local law enforcement officials to combat common street crime.
Given that the federal government has no general or plenary police power, it is universally accepted that the power to punish crimes belongs primarily to the states. In fact, criminal justice is at the very core of the governmental powers and responsibilities that are predominately left to the states. The criminal justice burden borne by the 50 states dwarfs the burden undertaken by the federal government.[18] In 2003, state and local governments were responsible for 96 percent of those under correctional supervision—that is, in prison or jails, on probation or parole.[19] Similarly, in 2004, just 1 percent of the over 10 million arrests made nationwide were for federal offenses.[20]
Members of Congress consistently demonstrate a willingness to increase the scope and power of the federal government at the expense of state sovereignty. Whether such practices are the result of a desire to appear “tough on crime” or of a collective mentality that societal harms can be solved only through criminalization, the result is the same: a labyrinthine collection of vague and overbroad statutes and regulations that sometimes duplicate and often conflict with state priorities for criminal law and law enforcement.
Separation of Powers and Overcriminalization
The unchecked growth of the federal criminal code has led to a dangerous reallocation of power from elected representatives in Congress to unelected bureaucrats. For example, in recent decades, an increasing number of criminal regulations have been created by executive agencies composed of unelected political appointees and career bureaucrats. The purported authority for promulgating these regulations is often broad congressional language delegating authority to administrative agency officials to impose criminal sanctions.[21]
While such “delegation” may be politically expedient, it is also a severe abdication of Congress’s authority and leads to the unrestrained and unprincipled use of criminalization as a regulatory mechanism. Although the courts have permitted this sort of delegation in civil matters,[22] it is an especially pernicious trend when Congress’s decisions to delegate its authority to unelected bureaucrats in federal agencies involve criminal offenses and penalties that place Americans’ most basic freedoms and liberties at stake. A proper understanding of the federal legislature’s role would lead Congress to reject these sorts of delegations of its own authority even if the courts do not bind them to do so.
Delegating Power to Federal Prosecutors
Improper delegation is also evident in the manner in which overcriminalization provides federal prosecutors with unfettered control over broad swaths of criminal adjudication and legislative interpretation. The proliferation of vague and overly broad laws has given federal prosecutors the ability to stack criminal charges against defendants in a way that diminishes the likelihood of a criminal trial and increases the probability of either a guilty plea or a jury verdict.
Harvard law professor Bill Stuntz has described charge stacking as the ability “to charge a large number of overlapping crimes for a single course of conduct.”[23] The potential for injustice is heightened when each of the crimes is vague and overly broad. However:
Even if each of these offenses is narrowly defined to cover only serious misconduct, combining crimes enables prosecutors to get convictions in cases where there may be no misconduct at all. When deciding whether to plead guilty, any rational defendant (more to the point, any rational defense lawyer) takes account of the sentence the defendant may receive if he goes to trial and loses.… By stacking enough charges, prosecutors can jack up the threat value of trial and thereby induce a guilty plea, even if the government’s case is weak.[24]
In the federal system, where over 95 percent of defendants already plead guilty, overcriminalization thus gives prosecutors vast latitude to secure guilty verdicts. In the interpretive context, the proliferation of vague and overbroad criminal laws has given federal prosecutors in the U.S. Attorneys’ offices and Department of Justice the ability to apply vague, overly broad criminal laws to a vast array of conduct. The prosecutor essentially becomes a lawmaker, providing meaning and context to an otherwise open-ended statute or regulation.[25] Such a situation runs afoul of the proper assignment of federal power under the Constitution.
Delegating Power to the Judiciary
The unprincipled growth of federal criminal law has also led to the inappropriate delegation of legislative authority to the judicial branch. Judges often must take it upon themselves to create meaning from vague, unbounded criminal offenses such as the “honest services” fraud statute. When “interpreting” the large number of imprecise and unclear mens rea (criminal-intent) requirements in statutory and regulatory criminal offenses, for examplejudges are essentially co-opted into rewriting the laws and “finding” meaning where there is none.
There are judicially created safeguards that federal courts could (and should) apply to grant the benefit of the doubt to a person accused of a vague, ambiguous, or overly broad criminal law. These safeguards include the constitutional void-for-vagueness doctrine that the Supreme Court used to narrow the “honest services” fraud statute as well as the common-law rule of lenity.
Regrettably, overcriminalization often induces the courts to assume instead the responsibilities of the legislature. The Supreme Court pinpointed the hazards arising from this sort of separation-of-powers violation well over a century ago:
It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government.[26]
In 1784, Thomas Jefferson warned that “concentrating” or combining the powers of the legislative, executive, and judicial branches of government “in the same hands is precisely the definition of despotic government.”[27] James Madison echoed this same conclusion a few years later.[28]
It is undoubtedly convenient and expedient for Congress to create imprecise, hastily drafted criminal laws and allow prosecutors and judges to interpret them as they will.[29] The same can be said about authorizing unelected bureaucrats in federal agencies to make the crucial criminal-law decisions that will affect Americans’ most fundamental rights and liberties. However, the fundamental duty for full deliberation over and precise crafting of every criminal law belongs to Congress. When Congress carries out this duty in a haphazard, imprecise manner—or expressly delegates it away to federal agencies—both individual Americans and the nation’s system of constitutional government are harmed.
Conclusion
Perhaps the central question that the Framers of the Constitution and Bill of Rights debated—a question to which they gave painstaking consideration—was how best to protect individuals from unfettered government power. They were well acquainted with abuses of the criminal law and criminal process and so endeavored to place in America’s founding documents significant safeguards against unjust criminal prosecution, conviction, and punishment. In fact, the Framers understood so well the nature of criminal law and the natural tendency of government to abuse it that two centuries later, the most important procedural (as opposed to substantive) protections against unjust criminal punishment are derived directly or indirectly from the Constitution itself, notably the Fourth, Fifth, Sixth, and Eighth Amendments.
Despite these protections, the wholesale expansion of federal criminal law—in both the number of offenses and the subject matter they cover—has become a major threat to American civil liberties. When laws are vague, are overbroad, or lack adequate mens rea requirements, the procedural protections of the Bill of Rights are inadequate to protect individual Americans from unjust criminal prosecution and punishment. This inadequacy is evidenced by the terrible toll that overcriminalization has taken on the lives of individuals such as Georgia Thompson,[30] as well as the manner in which the expansion of federal criminal law has eaten away at the wide range of structural constitutional protections put in place by the Framers.
Congress’s overcriminalization expands the power of the federal government beyond its constitutional limits and disrupts constitutional federalism’s proper balance of power between the federal and state governments. The proliferation of vague, overly broad federal criminal laws results in separation-of-powers violations and encroaches upon the rights of innocent Americans. The destructive constitutional implications of overcriminalization are one more compelling reason for Congress to rein in the unbridled and unprincipled growth of federal criminal statutes and regulations.
—Brian W. Walsh is Senior Legal Research Fellow and Benjamin P. Keane is a Visiting Legal Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation.
http://www.heritage.org/Research/Reports/2011/04/Overcriminalization-and-the-Constitution
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Agreed.
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Ever since the Supreme Court's misguided 2005 decision in Kelo v. City of New London, states have been passing their own laws to protect property owners from abuses of eminent domain. One of those laws was enforced this month in California, and the decision is a major victory for property rights.
In Community Youth Athletic Center v. National City, San Diego Superior Court Judge Steven R. Denton ruled that National City, California's designated blight zone is "invalid and unenforceable." The decision means the city will not be allowed to seize property belonging to CYAC, a local boxing gym that sponsors programs for at-risk kids.
The tale began in 2005 when National City gave private developer Jim Beauchamp the right to build a condo project on the gym's land. The Community Development Commission threatened that if the CYAC were "unable to come to terms with the developer on the sale of your property," then "the developer may request that the CDC proceed directly with the acquisition of your property."
In 2007, the city extended an ordinance designating some 692 properties, including the gym, as "blighted" and therefore subject to eminent domain for 10 years. Facing a slew of bad publicity, National City Mayor Ron Morrison downplayed any threat to the gym itself, but the eminent domain threat hovered around developers' plans for surrounding neighborhood properties, including churches, schools and small businesses.
This was exactly the scenario California legislators had in mind when they passed a post-Kelo law in 2006 requiring the government to show "specific and quantifiable" evidence of blight and that the blight couldn't be improved without eminent domain. The court's ruling chastised the city for failing to document exactly why the targeted properties should qualify as "blighted." "Lack of parking" doesn't qualify, Judge Denton noted dryly.
California has been a leading abuser of eminent domain and the case should resonate with California Republican lawmakers, who have been in the odd position of rejecting an effort by Governor Jerry Brown to jettison the state's some 400 redevelopment agencies because they opposed his overall budget. Getting rid of the redevelopment agencies would save the state roughly $1.7 billion a year amid a roughly $25 billion budget deficit.
According to the Institute for Justice, which represented CYAC, nearly 200 California development projects have used or threatened to use eminent domain laws for private developments, often on the grounds of economic improvement. The victims of the law are often minorities and economically disadvantaged residents, who are unable to protect their businesses and neighborhoods from politically connected developers.
Property takings rarely produce the economic growth their developers promise, and any gentrification of a neighborhood is little consolation to those whose homes and businesses are seized. We're glad average citizens are fighting for their property rights, and we hope GOP lawmakers take Governor Brown up on the offer to send redevelopment agencies to the knackery.
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http://mises.org/daily/4811
Nullification: What You'll Never Learn in School
Mises Daily: Friday, October 29, 2010 by Thomas E. Woods, Jr.
Having just finished a course on the New Deal for the Mises Academy, I'm now offering one on state nullification, the subject of my most recent book. I thought my New Deal course covered issues and sources left out of the typical classroom, but in that respect this course has that one beat.
Nullification is the Jeffersonian idea that the states of the American Union must judge the constitutionality of the acts of their agent, the federal government, since no impartial arbiter between them exists. When the federal government exercises a particularly dangerous power not delegated to it, the states must refuse to allow its enforcement within their borders.
I can hear people saying that such a response doesn't go nearly far enough. No argument there. The trouble with nullification is not that it is too "extreme," as the enforcers of opinion would say, but that it is too timid. But it gets people thinking in terms of resistance, which has to be a good thing, and it defies the unexamined premise of the entire political spectrum, according to which society must be organized with a single, irresistible power center issuing infallible commands from the top.
That's at least a pretty good start.
The course, Nullification: A Jeffersonian Bulwark Against Tyranny, will cover the basics, to be sure, and after the first week everyone will be well-grounded in the relevant issues. But then I want to dig into the primary sources. I want to examine the long-forgotten debates on this subject in detail. In particular, we'll study the exchanges between Daniel Webster and Robert Hayne, Andrew Jackson and Littleton Waller Tazewell, and Joseph Story and Abel Upshur.
Hardly anyone, including graduate students in American history, has actually read these texts as opposed to just knowing of their existence — and if my own experience at Columbia University is any indication, even that is more than some grad students know.
The various commissars who have taken it upon themselves to ensure that no one strays from officially approved opinion — or to appropriately scold anyone who in fact does so — have become apoplectic at the return of nullification. I confess to taking mischievous delight in this. They are accustomed to setting the terms of debate. They are not used to seeing people promote ideas of their own.
And the commissars have not read these sources, either. But you will. You will know the arguments of both sides inside and out.
You will also enjoy the discussions that ensue at the end of each lecture. You can sign off whenever you like, of course, but during the course I just completed on the New Deal I stayed around for an hour and a half to two extra hours answering questions and directing discussion, and then shooting the breeze about anything people wanted to discuss. We had a great time. As always, the lectures are available for viewing, along with a full transcript of the chat box, for people who cannot watch them live.
I understand the impatience that many of us feel regarding nullification, particularly the complaints that
the Constitution per se isn't what matters anyway; what matters is freedom; and
the states are no angels, either.
These criticisms are by no means misplaced. But nullification remains a useful quiver in the liberty arsenal all the same. As I've said, it gets people thinking in healthy ways. And it can be employed for good purposes, as when the Principles of '98 (as the ideas culminating in nullification came to be known) were cited on behalf of free speech and free trade, and against unconstitutional searches and seizures, military conscription, and fugitive-slave laws. In our own day, Janet Napolitano said the reason the Real ID Act failed was that the states refused to cooperate in its enforcement.
And the states are indeed rotten, too — which is why we may as well put them to some good use by pursuing nullification. Liberty is more likely to have room to flourish in a world of many competing jurisdictions rather than under a single, irresistible jurisdiction.
In short, this course will introduce you to a chapter of American history that has fallen down the memory hole but which is much too interesting and valuable to leave down there. In the process of pulling it out, you'll acquire a much deeper understanding of American history.
I hope you'll join me.
Here is the Mises Institute's Jeffrey Tucker interviewing me on the subject: [see this link for the video interview]
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(From Health Care Policy thread)
Crafty: "This seems to me to be a very pertinent and troubling question."
Doug: "...given the equal protection clause of the 14th amendment, why isn't a waiver for one - automatically a waiver for all?
The Equal Protection Clause... "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"... As written it applied only to state governments, but it has since been interpreted to apply to the Federal Government of the United States as well.
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I would like a waiver from the 16th amendment (federal power to tax income) if waivers are available and equal protection is subordinated.
BD?
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DougMacG, I am not exactly sure what you are asking me. Having looked at the HCP thread, I can certainly see why people would question Pelosi's role in the passage of the law. Are you asking me about the equal protection clause? Its applicabilty to individuals? States? Companies? Or if you have to pay taxes?
(From Health Care Policy thread)
Crafty: "This seems to me to be a very pertinent and troubling question."
Doug: "...given the equal protection clause of the 14th amendment, why isn't a waiver for one - automatically a waiver for all?
The Equal Protection Clause... "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"... As written it applied only to state governments, but it has since been interpreted to apply to the Federal Government of the United States as well.
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I would like a waiver from the 16th amendment (federal power to tax income) if waivers are available and equal protection is subordinated.
BD?
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I think Doug is asking if equal protection means that everyone should be granted a waiver, rather than Chicago-style favoritism.
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Jewish World Review May 5, 2011 / 1 Iyar, 5771
Supreme Court steps into White House-Congress feud over Jerusalem status
By Warren Richey
Our contributor's child, born in Jerusalem to American parents, was told that his passport must list "Jerusalem" -- without a country -- as the place of his birth. Why? Because America doesn't recognize the Holy City as the Jewish State's capital. Dr. Ari Zivotofsky, and his wife Naomi, found that obscene, particularly because a law of Congress agrees with them. For years they waded through a maddening bureaucracy. Their case, which could potentially have a serious impact on any future Muddle East peace negotiations, was just accepted by the High Court. It's being framed as a dispute concerning the separation of powers within the US government
The US Supreme Court agreed this week to take up a case that could greatly complicate the delicate Middle East peace process in a legal challenge to the US State Department's policy of neutrality over the disputed status of Jerusalem.
The case arises out of a clash between Congress and the White House over which branch of government is empowered to decide how best to conduct sensitive issues of diplomacy overseas.
In addition to fundamental questions concerning the separation of powers within the US government, the case involves an example of the president issuing a signing statement announcing his intent not to enforce a portion of a law passed by Congress.
At the center of the case is the thorny question of how to record the birth of a child to American citizens when the happy event takes place in Jerusalem.
When a child is born to American citizens in Jerusalem, US government protocol is to list the place of birth as simply "Jerusalem."
It is done for diplomatic reasons, to avoid having to take sides between competing Arab and Israeli claims to the holy city.
Congress, on the other hand, has eschewed such diplomatic niceties. In September 2002, it passed a law directing the State Department — whenever requested — to record a birth in Jerusalem as having taken place in "Israel." The congressional action sparked protests and condemnation in the Middle East among those who interpreted the new law as a shift from a long-held US position.
The status of the city of Jerusalem is one of the most difficult and sensitive issues in the quest for peace between Arabs and Israelis.
Palestinians maintain that Jerusalem is an indivisible part of Arab lands they recognize as Palestine. Israelis counter that Jerusalem is not only an Israeli city, but Israel's capital.
The US diplomatic corps, seeking to maintain credibility as a mediator in the peace process, has remained neutral on the issue.
Into this delicate diplomatic dance came the infant child of Ari and Naomi Zivotofsky. The child, identified in court papers as MBZ, was born Oct. 17, 2002, in Jerusalem. When the boy's mother applied for documents verifying the birth abroad of a US citizen, she asked that the certificate reflect that the birth occurred in "Jerusalem, Israel."
State Department officials pointed out that, for political and diplomatic reasons, US policy is to record the place of birth as simply "Jerusalem."
The parents filed a lawsuit asking a federal judge to order the US government to list the birthplace of their son on official documents as "Jerusalem, Israel." They noted that in September 2002, a month before the birth, Congress had passed the law instructing US officials to list the place of birth as Israel.
It is that dispute that the Supreme Court has agreed to decide. At issue is whether US officials must comply with the congressional action or, instead, enforce the diplomatic protocol favored for the past 60 years by all presidents.
The child, Menachem Binyamin Zivotofsky, is now eight years old.
The law in question is a provision of the Foreign Relations Authorization Act for fiscal year 2003. The relevant portion of the law is entitled "United States Policy with Respect to Jerusalem as the Capital of Israel."
President Bush signed the Authorization Act into law but simultaneously issued a signing statement to emphasize that US policy regarding the status of Jerusalem had not changed. Bush wrote that the congressional mandate would "impermissibly interfere with the president's constitutional authority to formulate the position of the United States, speak for the nation in international affairs, and determine the terms on which recognition is given to foreign states."
In the federal court case, government lawyers argued that "if 'Israel' were to be recorded as the place of birth of a person born in Jerusalem, such 'unilateral action' by the United States on one of the most sensitive issues in the negotiations between Israelis and Palestinians would critically compromise the United States' ability to help further the Middle East peace process."
Supporters of the congressional action argue that once Congress passes a law it is up to the executive branch to faithfully uphold and enforce it. They say Congress has the authority to undertake a policymaking role in foreign affairs.
A federal judge threw out the Zivotofskys' case, ruling that the issue is a political question related to an aspect of foreign affairs that is constitutionally assigned to the executive branch of government. An appeals court panel affirmed the decision.
In agreeing to take up the case, the high court asked the parties to also address whether the 2002 congressional mandate "impermissibily infringes the president's power to recognize foreign sovereigns."
The case, MBZ v. Clinton, will likely be scheduled for oral argument sometime in the court's next term, which begins in early October.
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I know that if you are born in Taiwan, the USG calls your place of birth "China".
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If I am not mistaken, China regards Taiwan as part of China too :lol:
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Indeed they do, to the great consternation of many Taiwanese.
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Which means that the example is not on point :lol:
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WSJ
U.S. Supreme Court Justice Anthony Kennedy's majority opinion forcing California to cut its inmate population sharpened his divide with conservative colleagues over what constitutes cruel and unusual punishment.
Backed by the court's four liberals, Justice Kennedy has delivered a series of opinions since 2005 that have abolished the death penalty for minors and for adult criminals who left their victims alive. A Kennedy ruling also required that juvenile offenders be given an opportunity to seek parole unless their crimes included murder.
And on Monday, the Reagan appointee wrote the decision prohibiting California from housing inmates in prisons incapable of providing with them essential medical care—even if that requires the release of felons before they complete their sentences.
The prisoner-rights decisions mark a striking contrast to the court's trajectory since the mid-2000s, when President George W. Bush elevated Chief Justice John Roberts and Justice Samuel Alito.
View Full Image
Associated Press
Justice Anthony Kennedy
.Together with them and veteran justices Antonin Scalia and Clarence Thomas, Justice Kennedy has formed a majority to uphold gun rights, permit unfettered corporate and union political spending and undo certain limits on governmental support of religion.
But when it comes to the Constitution's Eighth Amendment, which prohibits "cruel and unusual punishments," Justice Kennedy has championed a doctrine that echoes the liberal Warren Court of the 1950s and '60s: that the prohibition be applied, as Chief Justice Earl Warren wrote in 1958, according to "the evolving standards of decency that mark the progress of a maturing society."
“To incarcerate, society takes from prisoners the means to provide for their own needs. … A prison's failure to provide sustenance for inmates may actually produce physical torture or a lingering death.
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Justice Anthony Kennedy
The Warren opinion referred to English precedents dating to the Magna Carta and said the "basic concept underlying the Eighth Amendment is nothing less than the dignity of man."
Justice Kennedy cited Chief Justice Warren's opinion Monday, then applied it to the California case. "Prisoners retain the essence of human dignity inherent in all persons," Justice Kennedy wrote.
More Eighth Amendment cases could reach the high court in coming years. While the court approved a three-drug recipe for lethal injections in 2008, some suppliers of the narcotics have dropped out of the business and states have substituted other chemicals.
That could invite challenges from condemned prisoners alleging that untested formulas would cause unconstitutional levels of pain.
And new cases may test the implications of Justice Kennedy's earlier opinions limiting punishments for underage offenders. This month, the Wisconsin Supreme Court found it constitutional to sentence a 14-year-old to life imprisonment with no chance of parole.
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Associated Press
Justice Antonin Scalia
.Justice Kennedy has looked to social science and modern practices in his earlier decisions outlawing the harshest punishments. "By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons," he wrote in the 2005 opinion Roper v. Simmons, abolishing the death penalty for juveniles.
Such positions have put him at odds with Justice Scalia, who misses no opportunity to stress his contempt for Chief Justice Warren's "evolving standards" formula.
"I detest that phrase," Justice Scalia said at a law-school forum in 2005, "because I'm afraid that societies don't always mature. Sometimes they rot." In his Monday dissent—joined only by Justice Thomas—Justice Scalia wrote that Justice Kennedy's opinion was unprecedented, even under "our judge-empowering 'evolving-standards of decency' jurisprudence."
“t would absurd to suggest—that every single one of those prisoners has personally experienced torture or a lingering death.
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Justice Antonin Scalia
Justice Scalia says he construes constitutional provisions according to their original meaning. Dissenting from Justice Kennedy's Roper opinion, Justice Scalia said "cruel and unusual" originally meant that judges could only impose punishments authorized by the legislature, rather than fashion their own.
On Monday, Chief Justice Roberts and Justice Alito filed a separate dissent that avoided mention of the "evolving standards" or "dignity" concepts.
Justice Kennedy's opinion included an array of anecdotes regarding prison conditions in California, where "as many as 54 prisoners may share a single toilet" and a psychiatric patient was "held in a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic."
Justice Scalia replied that the Constitution doesn't authorize judges to prescribe "rules for the 'decent' running of schools, prisons and other government institutions." He offered his own vivid image, saying that many of those released wouldn't be ill inmates but "fine physical specimens who have developed intimidating muscles pumping iron in the prison gym."
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It would nice if Justice Kennedy balanced in the human diginity and health and safety of the general public into his opinion on the 8th.
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I got this in my inbox today. Some of you might be interested.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1825543
What is Originalism? The Evolution of Contemporary Originalist Theory
Lawrence B. Solum
University of Illinois College of Law
April 28, 2011
Abstract:
Debates over “originalism” have been a central focus of contemporary constitutional theory for three decades. One of the features of this debate has been disagreement about what “originalism” is. More worrisome is the possibility that the arguments between contemporary originalists and their opponents, the “living constitutionalists”, are confused – with each side of the debate making erroneous assumptions about the content of their opponent’s theories.
The aim of this chapter is to clarify these debates by providing a history of contemporary originalism and then developing an account of the core or focal content of originalist theory. The history reveals that contemporary originalist theory has evolved – the mainstream of originalist theory began with an emphasis on the original intentions of the framers but has gradually moved to the view that the “original meaning” of the constitution is the “original public meaning” of the text. Even today, originalists disagree among themselves about a variety of important questions, including the normative justification for a constitutional practice that adheres to original meaning. Despite evolution and continued disagreement, however, contemporary originalist theory has a core of agreement on two propositions. First, almost all originalists agree that the linguistic meaning of each constitutional provision was fixed at the time that provision was adopted. Second, originalists agree that our constitutional practice both is (albeit imperfectly) and should be committed to the principle that the original meaning of the Constitution constrains judicial practice.
The question whether living constitutionalists actually disagree with these core principles of originalist theory is a complex one. On one interpretation, living constitutionalism and originalism are (mostly) compatible: the constitution lives inside the “construction zone,” the boundaries of which are marked by the original meaning of the text. On another interpretation, living constitutionalism is incompatible with originalism: living constitutional doctrine and practices can override even original meaning of the text, even when that meaning is clear.
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Besides being a paleo-conservative I am now a contemporary-originalist. Reading the pdf I am more informed and more confused than ever about what that means.
"originalists continue to disagree about the role of “original intentions” and “original public meaning"
Original meaning to me is something that laymen are capable of understanding, not just the Court's best trained and closest observers.
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I also believe the constitution is a living, breathing, growing, changing, evolving document - and it does that seldom and slowly through the AMENDMENT process, exactly as the framers designed it, as the ratifiers ratified it and as the public understood it to mean. :-)
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http://games.toast.net/independence/
I got 29 of 30. Makes me mad, because I violated a rule about changing answers. Should have been 30. :x :x
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29
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27
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(From liberalism thread, BD post)
Stossel: "The Founders knew [where government should end and personal responsibility begins]. Government should end at keeping the peace, enforcing contracts, and property rights." I wonder if Stossel has read Article I, section 8 and the vesting clause of Article II.
Okay, I'll bite. Where does it say the federal government shall run all aspects of private housing? I've read it twice now and still can't find it.
The closest I could come is: "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections..." with Fannie Mae being the militia and private contracts being the insurrection. Am I close?
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To borrow money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and Post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
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"The executive Power shall be vested in a President of the United States of America...."
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Now Doug, if you can find where I said that the federal government shall run all aspects of private housing, then we can discuss this. I didn't see that mentioned in the Stossel piece either. What was it that was said last week about apples meeting kumquats???????
But make sure you tell me exactly and directly how the following powers "end at keeping the peace, enforcing contracts, and property rights."
To establish Post Offices and Post Roads
To establish an uniform Rule of Naturalization
To promote the Progress of Science and useful Arts
To constitute Tribunals inferior to the supreme Court;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
disciplining, the Militia
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof
(From liberalism thread, BD post)
Stossel: "The Founders knew [where government should end and personal responsibility begins]. Government should end at keeping the peace, enforcing contracts, and property rights." I wonder if Stossel has read Article I, section 8 and the vesting clause of Article II.
Okay, I'll bite. Where does it say the federal government shall run all aspects of private housing? I've read it twice now and still can't find it.
The closest I could come is: "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections..." with Fannie Mae being the militia and private contracts being the insurrection. Am I close?
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To borrow money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and Post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
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"The executive Power shall be vested in a President of the United States of America...."
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Bigdog, Thanks for the invitation to revise and extend ...
"Now Doug, if you can find where I said that the federal government shall run all aspects of private housing, then we can discuss this."
I hope I didn't say you said that. You express well and the written record provided by our generous host is always available. Let me backtrack and see if I can explain my concerns more accurately.
Stossel said, as you quoted: "end at keeping the peace, enforcing contracts, and property rights."
Sometimes I say I am pro-government - in the sense that government should defend our shores and keep the roads and libraries open. But I know it's more than that.
Here you are being the literalist, which is good in constitutional law, and sometimes you pull our leg a little, which is also good in the human spirit and sometimes I can follow you and sometimes it flies over my head. In this case I don't believe and I don't believe that you believe that Stossel thinks the constitution authorizing federal government powers is 8 words long. I took that as a figure of speech meaning that government has gone way beyond where it should have gone or where it was authorized to go.
The exercise of finding, reading and posting the passages you referenced was good for me. It didn't say what Stossel said (an admission of my guilt and my answer to your direct question), it didn't say exactly what I thought it said, and it certainly doesn't authorize (IMO) all the crap that is coming our of Washington today or over the last several decades, unless the reader has quite an imagination.
An example of what it doesn't authorize is the housing mess that I think was the first card to fall bringing down the economy this most time. I invite you to address that...
Of the roughly $3.8 trillion a year that we are spending right now, of which I think over 60% of it is the federal government writing taxpayer based checks to individuals, how much of that do you think is directly authorized in those sections or envisioned by the framers?
Specifically, let's figure out what authorized the federal takeover of housing, the issue of the most recent collapse. (I would be happy to expand the question to health care or auto manufacturing or a host of other things.) What authorized the federal government to take over the mortgage business, 90% then and nearly 100% now. It isn't spelled out; was it envisioned or intended?
I think it was Freki who pointed out something that a lot of people are missing. Yes, we have read into the constitution through the interstate commerce clause the power to regulate almost anything including something that is grown by yourself and consumed by yourself on your own private property and sold to no one. But the power to regulate commerce is not the power to participate in the market, unless words have no meaning.
The most telling clause I re-discovered about how large and intrusive a federal government the framers envisioned IMO was where they wrote that the congress needs to convene at least once each year, on the first Monday of December, if they haven't already made other plans to get together. How does that compare with what we do today?
On a more positive note, if we can all agree that the constitution as written or as interpreted does NOT limit the size, scope or intrusiveness of government in any meaningful way (I know no one else said that), maybe we can all work together and amend it until it does.
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"Here you are being the literalist, which is good in constitutional law, and sometimes you pull our leg a little, which is also good in the human spirit and sometimes I can follow you and sometimes it flies over my head. In this case I don't believe and I don't believe that you believe that Stossel thinks the constitution authorizing federal government powers is 8 words long. I took that as a figure of speech meaning that government has gone way beyond where it should have gone or where it was authorized to go."
Here I took him literally, as he was invoking the Framers when he made the argument. I could be wrong, of course. My overall point was that there are expansive powers, not just a list of powers, provided to Congress and the President in the Constitution. I should note that I believe that these powers have been expanded too much. I also believe that Congress has largely abdicated is role in the separations of power and checks and balances.
"The most telling clause I re-discovered about how large and intrusive a federal government the framers envisioned IMO was where they wrote that the congress needs to convene at least once each year, on the first Monday of December, if they haven't already made other plans to get together. How does that compare with what we do today?"
Agreed, although much of the "extra" activity is posturing, reelection activities, and Sunday morning talk shows (and potentially tweeting pics of your junk to college girls).
P.S. You've not addressed the vesting clause in Article II, in my mind an even more important issue that Congress.
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First, I see I have not answered all questions asked of me, probably because I don't know the answer...
This is a right-wing conservative editorial (Washington Times) covering new oral arguments on healthcare. I don't know if this adds anything new to the discussion we've already had. Just painfully working its way through the system. Meanwhile the country has no idea what the law of the land is as different courts have already made opposite conclusions. I suppose the Supreme Court has more pressing matters on their mind and their docket.
Audio from the courtroom: http://www.ca6.uscourts.gov/internet/index.htm
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http://www.washingtontimes.com/news/2011/jun/2/obamacares-unlimited-power/
Obamacare’s unlimited power
White House health care plan represents massive government expansion
By THE WASHINGTON TIMES Thursday, June 2, 2011
The White House defense of Obamacare hinges on the claim that Congress essentially has unlimited power to force Americans to spend their personal money on a cause of the government’s choosing. Oral arguments before the 6th Circuit Court of Appeals on Wednesday made this all the more clear.
Administration lawyers argued that uninsured individuals can be compelled to buy health care coverage under the Commerce Clause of the Constitution. If that’s so, what else could Congress compel people to do? As Judge James L. Graham asked acting Solicitor General Neal Katyal, “Where ultimately is the limit on congressional power?” The question sounds rhetorical but is not.
The judicial high-water mark for advocates of federal management of personal economic activity was the 1942 case of Wickard v. Filburn. Roscoe Filburn was an Ohio farmer fined for the crime of growing too much wheat. Mr. Filburn insisted the New Deal-era crop quotas did not apply to his particular circumstances because he was growing feed for his chickens, not for sale. The Supreme Court declared that the Commerce Clause applied to non-commerce because “control of total supply, upon which the whole statutory plan is based, depends upon control of individual supply.” The notion that a farmer should be free to grow grain on private property for personal use was not compelling, given the court’s belief in the overwhelming benefits of a centrally managed marketplace. Since “as the result of the wheat programs” Mr. Filburn was able to sell his other crops at a price “far above any world price based on the natural reaction of supply and demand,” he should be thanking the government for usurping his freedom, not suing it. To the activist liberals on the high bench, farmer Filburn was simply an ingrate.
The pernicious logic of Wickard v. Filburn has been used to justify other examples of stretching the Commerce Clause, such as the assertion of federal jurisdiction over homegrown medical marijuana. In the 2005 case Gonzales v. Raich, the court reaffirmed that “Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.”
The Obama administration is taking this a step further. The White House claims that the burden placed on the health care system by the uninsured justifies coercing them into action. The “class of activity” that undermines the regulation of the “interstate market” in health care is inactivity. Since there is no interstate commerce to regulate, the government mandates it.
That’s why Obamacare isn’t just a threat to the private health care system. It strikes at the very foundation of our nation. In our earliest days, Chief Justice John Marshall warned that if Congress can exercise powers that are in practice unlimited, then “written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.” It is “a proposition too plain to be contested” that the Constitution cannot be used to justify an act that destroys the very limits on which constitutional government is founded, he wrote. The courts should move expeditiously to throw out the president’s unconstitutional power grab.
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Some, including constitutional attorney Mark Levin consider the War Powers act unconstitutional. Listening to Mark Levin discuss this issue he points out every President has acted without the permission of Congress and for national security reasons this was the way the founders wanted it. If congress later decided the military action was wrong they could simply "defund" it. In his opinion Ron Paul doesn't have the faintest clue what he is talking about. I agree:
It Growing GOP Opposition to Presidential War Powers? →Thomas Woods vs. Mark Levin On Presidential War Powers
Posted on March 27, 2011 by Chad
Mark Levin has apparently jumped into the fray over presidential war powers. It’s been a hot topic of debate lately, thanks to Obama’s involvement in Libya. As you may have guessed, Levin favors presidential power to authorize military action- without consulting congress. To be fair, Levin is not alone in his view. Thomas Woods takes apart Levin’s argument in a recent article. You can read the whole thing here. It’s an excellent read. One particular part stands out where he quotes Levin as saying:
The constitutional convention was “never going to give war-making power to Congress.”
“You think my view is odd? Well that’s funny, because every single president of the United States has embraced this view—very damn one of em’, from Reagan to Obama.”
Woods’ response is great:
Yes, it is simply unthinkable that the two political parties could both defy the Constitution in the same way for 30 whole years. I mean, we have no precedent for such a thing elsewhere in government, where both parties have scrupulously observed constitutional limits for decades and decades.
Some of you are fans of Mark Levin I’m sure. I have nothing against him personally, but am concerned by what he represents. He’s part of a growing number of political pundits on both sides of the aisle who have spent time working in Washington D.C.
Mark Levin is a lawyer who once worked in Washington in a president’s administration. Having spent a significant portion of his career working under a very popular president, can we really expect Levin (and the many others like him in BOTH PARTIES) to distrust presidential authority?
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There are a great many who feel that the WPR is unconstitutional. Levin is hardly the only one, and not all of those who feel this way are former adminstration members.
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This is my understanding as well.
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http://arstechnica.com/tech-policy/news/2011/06/tenn-law-bans-posting-images-that-cause-emotional-distress.ars
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http://arstechnica.com/tech-policy/news/2011/06/tenn-law-bans-posting-images-that-cause-emotional-distress.ars
That law offends me and causes me emotional distress. Can I get an arrest warrant sworn out for the TN. legislature and Gov.?
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"Obama killed the War Powers Resolution
« Reply #967 on: June 07, 2011, 10:02:16 AM »
http://www.nationalreview.com/articles/268973/obama-kills-war-powers-act-rich-lowry"
(From Bigdog - Political Economics)
How could anyone confuse our presence in Libya with war. Obviously it is only a kinetic stationing of military equipment and personnel...
Let's say a President believes the War Powers resolution to be unconstitutional, what is the proper way to challenge it? Defy it and let congress take you to court?
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Ignore it. Let Congress defund or not.
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I don't think the WPA is valid, however, exactly how could the Libya fiasco be defunded without killing all funding to the DoD?
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Isn't spending targeted? e.g. $X for the XYZ plane, $Y for Iraq, $Z for toilet seats, etc?
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I don't know exactly what the legal boundaries are if there was a real conflict between the congress and the executive in a scenario like that. BD?
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The answer is that it depends. The budget itself can be broken down into pieces, hence the theoretical ability for a line item veto. However, there are many instances, most famously in places like the NSA and CIA funding, where the budget simply says something like "operations." This is for funding, but a very select few know how the funding actually is used.
A pretty good place to begin is here: http://www.gpoaccess.gov/usbudget/fy12/pdf/BUDGET-2012-BUD-7.pdf (defense specific) or http://www.gpoaccess.gov/usbudget/fy12/index.html (with links to many different portions of the budget).
Is this the info you want Guro and/or GM?
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I believe my point is supported, i.e. that the House of Reps, where spending originates, can specify to what purpose the spending is to be put and to specify that spending can not be put to other purposes.
Was this not the root of Iran-contragate? That the Ollie North and other Reagan folks were looking to raise money that they could not get from Congress?
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http://www.ft.com/cms/s/0/11d5624c-920f-11e0-b8c1-00144feab49a.html
The document, entitled the “United States Contribution to Operation Unified Protector’’, adds that US costs are running at a rate of about $2m a day or $60m a month. The memo has been circulating on Capitol Hill since last week. The DoD declined to comment on the increased costs of the operation.
The pace of spending is higher than reported by the DoD comptroller’s office in late March. In a congressional hearing, Pentagon officials said the US had spent about $550m on Libya, at a rate of about $40m a month.
If spending remains at the increased rate until the end of the recently extended Nato authorisation period, the DoD could face an extra bill of about $274m to pay for a combination of air strikes, refuelling operations and intelligence-gathering missions, putting further strain on its budget.
Any extra spending will further strain the DoD’s budget, which is under pressure from cost overruns on procurement programmes and under threat from significant cuts as part of Congressional efforts to address the federal deficit.
Despite continuing to press the White House for additional funding for Libya operations, in his May comments Secretary Gates suggested that “in the case of Libya, unfortunately, we’re fundamentally having to eat that one.”
Any additional costs could also add to pressure on the US to limit its mission in Libya. Last week, the House of Representatives passed a non-binding resolution demanding that President Obama explain the US involvement in Libya, forestalling a more radical measure seeking an end to US involvement.
Although it is working under Nato, the US is by far the largest contributor to operation Unified Protector. As of mid-May it was conducting 70 per cent of reconnaissance missions, over 75 per cent of refuelling flights and 27 per cent of all air sorties.
The US has about 75 aircraft, including drones, involved in the operations and since the end of March has conducted about 2,600 aircraft sorties and about 600 combat sorties. In addition the US military can call on a number of naval assets in the Mediterranean.
As well as its contribution to the Nato operation, US spending on Libya includes its twelve day operation Odyssey Dawn that took place before Nato took over.
In total the US military has fired about 228 missiles as of mid-May. For comparison the US Navy plans to buy 196 or so missiles this year for about $300m or about $1.5m each, according to US budget documents.
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Today is the 45th anniversary of the Miranda decision.
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Today is the 45th anniversary of the Miranda decision.
Boo! :wink:
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That was all for you, GM!!! :wink:
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GM:
If I understand correctly your point in posting that about the DoD budget (and noted that we are burning up missile inventory) it is to imply that Congress cannot order on what money is to be spent or not because in Libya we see the DoD showing discretionary actions. Is that correct?
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Crafty,
I don't really know how the budgeting works. As our Libyan war "kinetic military activity" wasn't approved or funded by congress, where does the money for it come from? If congress really wanted to use the "power of the purse" to stop it, how could they?
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I wish I could speak with more certainty on the point, but my understanding is what you are seeing now is the Pentagon using general purpose $ for whatever it is we are doing in Libya but that it IS possible for the Congress to say "No $ for Activity X".
Any help here BD?
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You have it about right Guro. There are discretionary funds built into a budget. There are also funds available that do not officially count against the budget. Congress is funding any military action. And, in theory, that funding can be cut.
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So, would a law have to be passed that said "No funds may be spent for KMA Libya"?
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http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1862984
This Foreword to a Tennessee Law Review symposium on the implications of a federal constitutional convention surveys a number of proposals for reining in the growth of federal government power and spending, ranging from the creation of a new house of Congress with the sole power to repeal bills, to more mundane proposals such as a balanced budget amendment and term limits.
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So, would a law have to be passed that said "No funds may be spent for KMA Libya"?
Yes.
http://blogs.wsj.com/washwire/2011/06/02/pentagon-to-congress-dont-cut-funds-for-libya-operation/
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A download of the entire Encyclopedia of the United States Constitution. It is a BIG file.
http://www.suppressedreality.net/files/Docs/0816067635%20Constitution.pdf
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Case on Criminalizing Violations of Computer Use Policies
Orin Kerr • June 14, 2011 2:21 am
A petition for rehearing was recently filed in United States v. Nosal, the Ninth Circuit decision holding that an employee who violates his employer’s computer use policy is guilty of “exceeding authorized access” to the employer’s computer. I have posted a copy here. I hope the Ninth Circuit grants rehearing, as I think the Nosal case is both wrong on the law and deeply troubling for civil liberties in the Internet age.
Overstatement? I don’t think so. It seems to me that if the federal government can arrest you and throw you in jail for violating a computer use policy — any computer use policy — then the government can arrest pretty much anyone who uses a computer. Most people who use computers routinely violate computer use policies: While we understand that such policies may have force from the standpoint of breach of contract, no one thinks that breaching a computer use policy is the same as hacking into the computer. The Nosal case would change that. Under its reasoning, breaching a written policy is treated the same way as hacking. And as computers become more and more ubiquitous, the power to arrest anyone who routinely uses a computer is the power to arrest anyone.
It’s true that the Nosal appeal happens to involve a prosecution under 18 U.S.C. 1030(a)(4), which requires more than just unauthorized access to a computer. But as the petition for rehearing notes, the unauthorized access “trigger” is common to several crimes in Section 1030(a), and other sections of 1030(a) don’t require much if anything beyond unauthorized access. The most obvious concern is 1030(a)(2), which makes it a crime to have any unauthorized access to anything on the planet with a microchip so long as some information is either seen or collected. For now it’s usually just a misdemeanor crime, so each breach of a policy would only mean you spend up to a year of your life in federal prison, but note that (1) Congress may make that crime a felony soon and (2) even the misdemeanors can be sentenced conseccutively (remember that DOJ wanted Lori Drew to be sentenced to a three year prison term for her three misdemeanor convictions of violating three MySpace terms of service).
You might think that as long as you avoid the Ninth Circuit, you’re probably okay. But that won’t help much: Lots of Internet communications go through the Ninth Circuit, meaning that the Ninth Circuit has venue over much of the rest of the country to prosecute computer use policy breaches elsewhere. Again, remember the Lori Drew case. Everything in the case happened in Missouri, and the Missouri state and federal authorities declined to prosecute because they thought no crime was committed, but the case was charged in Los Angeles because that’s where MySpace’s servers (and some extremely aggressive prosecutors) were located. It probably won’t help to move to Canada, either: Section 1030 covers all computers in the world that can be reached under the Constitution, even computers outside the United States, so the computer use policy breach doesn’t even need to be in the US for the feds to prosecute.
Given the stakes, I hope the Ninth Circuit will grant rehearing, revisit the panel decision, and come out the other way. Stay tuned.
http://volokh.com/2011/06/14/petition-for-rehearing-filed-in-united-states-v-nosal-ninth-circuit-case-on-criminalizing-violations-of-computer-use-policies/
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Concerning the defunding in order to lend Executive Kinetic Action :roll: please see post 136 (today) at http://dogbrothers.com/phpBB2/index.php?topic=2158.100
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Obama Overruled 2 Top Lawyers on War Power in Libya
President Obama rejected the views of top lawyers at the Pentagon and the Justice
Department when he decided that he had the legal authority to continue American
military participation in the air war in Libya without Congressional authorization,
according to officials familiar with internal administration deliberations.
Read More:
http://www.nytimes.com/?emc=na
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I'm of the opinion that Obama SHOULD seek authorization, but "war" after war, this has been going on since Truman.
That doesn't make it right.
http://www.americanforeignrelations.com/A-D/The-Constitution-The-continuing-war-powers-controversy.html
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Our conversation here is moot; they don't admit we are part of any hostilities.
The denial and deceit reminds me of the long line of two faced Dems who voted for the Iraq war, caved and blamed when the going got tough, then continued the war 2 1/2 years and counting after they took power. The Obama camp thinks they own our language. They put out terms like kinetic action with straight face, ignore this law, but hold open the opportunity to criticize the next President should they someday attempt the same thing.
Bush jumped through all the hoops, House, Senate and UN. Then gets ripped by the same people who first supported it for conducting an illegal war. If the Obamites admitted that war powers law is unconstitutional, challenged it and won, they would be robbed of using the issue back against the next President. Who can still take these people seriously?
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10th amendment case of significance: "... the [federal law] interferes with the powers reserved to States."
http://www.supremecourt.gov/opinions/10pdf/09-1227.pdf
When petitioner Bond discovered that her close friend was pregnant byBond’s husband...Bond put caustic substances on objects the woman was likely to touch.
Bond was indicted for violating 18 U. S. C. §229, which forbids knowing possession or use, for nonpeaceful purposes, of a chemical that “can cause death, temporary incapacitation or permanent harm to humans,” §§229(a); 229F(1); (7); (8), and which is part of a federal Act implementing a chemical weapons treaty ratified by the United States. The District Court denied Bond’s motion to dismiss the §229 charges on the ground that the statute exceeded Congress’ constitutional authority to enact. She en-tered a conditional guilty plea, reserving the right to appeal the rul-ing on the statute’s validity. She did just that, renewing her Tenth Amendment claim. The Third Circuit, however, accepted the Gov-ernment’s position that she lacked standing. The Government has since changed its view on Bond’s standing.
Held: Bond has standing to challenge the federal statute on grounds that the measure interferes with the powers reserved to States.
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http://www.msnbc.msn.com/id/43451712/ns/politics-the_new_york_times
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http://www.nytimes.com/2011/06/18/world/africa/18powers.html?_r=1
2 Top Lawyers Lost to Obama in Libya War Policy Debate
By CHARLIE SAVAGE
Published: June 17, 2011
WASHINGTON — President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.
Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.
But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.
Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch.
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Picking through the 'news' about Justice Thomas with my own bias I found: "ethically sensitive", "financing of the museum", "justices [are] exempt from the code of conduct for federal judges", 'judges “should not personally participate” in raising money for charitable endeavors', "Legal ethicists differ", "in the case of Justice Thomas...the ethical complications appear more complex.", “I’ve been in the company of the two of them together...and they certainly really are friends.”, "One item not required to be reported in Justice Thomas’s financial disclosures is the millions of dollars Mr. Crow is spending on the museum." ( - I suppose not!)
The whole thing reminds me of false hit pieces the NYT has run on the Koch brothers, and then halfway through, sure enough, they tied Thomas to the (evil) Koch brothers - as if that is al qaeda of the mafia.
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I posted a link previously in Media Issues of a long worthwhile read (actually a series) regarding the Koch brothers and their ties to their congressman in Wichita in Powerline called 'The Anatomy of a Smear':
http://dogbrothers.com/phpBB2/index.php?topic=1066.msg47345#msg47345
http://www.powerlineblog.com/archives/2011/03/028666.php
Also: http://www.powerlineblog.com/archives/2011/03/028733.php
NY Times retraction: http://www.powerlineblog.com/archives/2011/04/028775.php?format=print
http://www.nytimes.com/ref/pageoneplus/corrections.html
More: http://www.powerlineblog.com/archives/2011/04/028803.php
No response to my post then but we could take that side of it up on media issues if anyone is interested. People should read that story all the way through; there is no way to summarize how that process actually works.
One theme throughout this piece(this is my take) is that ties to conservatism or ties to money are bad. My own biased reading of it is that they kept pointing out ties to great Amercans doing great work, including his wife.
The idea that justices with life appointments should stay in robes behind curtains and not come out and advance good causes is never made in the piece, by the NYT or by Thomas' critics. That Thomas voted alone on one case I doubt is unusual. IIRC I have often read dissents from him that no one joined. He certainly did not use his inferred wrongful influence to persuade other justices.
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There is a reason I call the NY Slimes/Times "Pravda on the Hudson" (POTH)
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http://althouse.blogspot.com/2011/06/nyt-goes-after-clarence-thomas-over.html
The NYT goes after Clarence Thomas over "an unusual, and ethically sensitive, friendship."
It's a long article, and you have to comb through it to try to grasp what we're supposed to think Justice Thomas did wrong. I'd just like to highlight the historical preservation that is at the center of the insinuations. You have to get to the 3rd screen of this 4-screen-long article to read:
At first glance the Pin Point Heritage Museum, scheduled to open this fall, would seem an unlikely catalyst for an ethical quandary. That Pin Point’s history is worthy of preservation is not in dispute.
Part of the Gullah/Geechee Cultural Heritage Corridor designated by Congress, it is representative of tight-knit Southern coastal settlements that trace their roots to freed slaves and were often based around fishing. In Pin Point, the Varn crab and oyster cannery, founded in the 1920s, was a primary source of jobs until it closed in 1985....
Justice Thomas, 62, was born and raised near the cannery overlooking the Moon River, where it was not uncommon for babies to rock in bassinets made of crab baskets while their mothers shucked oysters.
Imagine a liberal justice raised under such circumstances. Imagine this historical preservation project without any connection to conservative politics. What article would appear in the New York Times?
But Clarence Thomas is the man that liberals would love to discredit. Here, the idea is that although the judicial code of conduct does not apply to Supreme Court justices, the justices do purport to follow it, and:
The code says judges “should not personally participate” in raising money for charitable endeavors, out of concern that donors might feel pressured to give or entitled to favorable treatment from the judge.
Here's the actual text of the code:
A judge should not solicit funds for any educational, religious, charitable, fraternal, or civic organization, or use or permit the use of the prestige of the judicial office for that purpose, but the judge may be listed as an officer, director, or trustee of such an organization. A judge should not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or is essentially a fund-raising mechanism.
Note how the "personally participate" language relates to "membership solicitation" and there's nothing in the article about that. At most, the article has Thomas saying "I’ve got a friend I’m going to put you in touch with" to the owner of the cannery. So "a judge should not solicit funds..." — let's use the actual text. How is that soliciting funds? You can see the interest in sliding over to the "personally participate" language that relates to "membership solicitation." Pretty sleazy.
And all in the context of preserving a site in the Gullah/Geechee Cultural Heritage Corridor designated by Congress!
The Times notes: "The justices are not bound by the federal judiciary’s conduct code, because it is enforced by a committee of judges who rank below the justices." Right. Of course, that's the way it has to be. Imagine a committee of judges unleashed to have at Clarence Thomas!
The constitutional check on a Supreme Court Justice is impeachment. Picture Congress going after Thomas for playing some background role in preserving a valuable black history site.
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I don't have much time at the moment but let me say that I agree (mostly) with Charlie Savage, that I posted the Thomas piece because his name being in the news in this manner interests me a fair amount for a few reasons (including the loop that seems to exist with it in there), DMG is right about Thomas' voting record, and there are many checks on SC justices.
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By DAVID B. RIVKIN JR. AND LEE A. CASEY
The Supreme Court's most important ruling this year may have been its unanimous decision in Bond v. United States, which held that individual citizens can challenge federal statutes when they encroach on authority the Constitution reserves to the states. The decision, authored by Justice Anthony Kennedy, has far-reaching implications—especially for the government's efforts to defend ObamaCare.
The facts of the case were curious, to say the least. Defendant Carol Bond, having discovered that her close friend was pregnant by her husband, sprinkled caustic substances on a mailbox, car-door handle and door knobs. The substances worked: The hated paramour suffered minor burns.
Instead of being held liable under one of the more common federal criminal laws, Ms. Bond was subjected to federal prosecution under a statute designed to implement the Chemical Weapons Convention. In defense, she argued that the law exceeded Congress's power because its violation required no link to interstate commerce or any other specific federal interest. The government argued that because the state (Pennsylvania) was not party to the suit, Ms. Bond could not defend herself by attacking that law on federalism grounds. The government prevailed in the Third Circuit Court of Appeals.
The Supreme Court disagreed. With an unusual unanimity, the court held squarely that individual citizens have every right to challenge federal laws on the ground that they exceed the limited and enumerated powers vested in Congress by the Constitution. The court stated without equivocation that "y denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When the government acts in excess of its lawful powers, that liberty is at stake."
"Fidelity to principles of federalism," Justice Kennedy further noted, "is not for the States alone to vindicate."
For Supreme Court watchers, Bond is a profound reaffirmation of the centrality of the state-federal "dual sovereignty" system. That's why the decision is bad news for those who defend ObamaCare—the most extravagant challenge to that dual system in our history.
View Full Image
Images.com/Corbis
.In enacting the ObamaCare law, Congress seized for itself the very type of power—the ability to regulate individual conduct regardless of any significant connection to interstate commerce or another legitimate federal regulatory interest—that the Constitution reserves solely to the states. In defending the law in court, the Obama administration has persistently sought to narrow the Constitution's federalism principles and to trivialize the Supreme Court's recent decisions supporting those principles.
What Bond makes clear is that those principles and cases are meant to be read broadly to achieve their original purpose: securing "the freedom of the individual" by allowing the states to respond "to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power."
Justice Kennedy's opinion posits a vision of federalism in which "[t]he principles of limited national powers and state sovereignty are intertwined." The decision makes it particularly clear that "impermissible interference with state sovereignty is not within the enumerated powers of the National Government." It adds, "an action that exceeds the National Government's enumerated powers undermines the sovereign interests of States."
The long and short of this critical ruling is that, as the various legal challenges to ObamaCare make their way through the courts of appeal, all nine justices have emphatically reaffirmed the importance of the Constitution's federal architecture and the very real limitations that structure imposes on Congress. Stay tuned as those challenges reach the Supreme Court—as early as next term.
Messrs. Rivkin and Casey filed an amicus brief on behalf of six states in the Bond case, and they represent 26 states challenging ObamaCare's constitutionality. They served in the Justice Department under Presidents Reagan and George H.W. Bush.
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TIME on the Constitution: 'Does It Still Matter?'
Only if Liberty still matters
"The Constitution, which at any time exists, 'till changed by an explicit and authentic act of the whole People, is sacredly obligatory upon all." --George Washington, September 19, 1796
Unmitigated IgnoranceIn celebration of the 235th anniversary of the signing of our Declaration of Independence, Time Magazine, the "journal of record" for the Leftist Illiterati (or as they prefer to be known, "the intelligentsia"), published a cover story featuring their errant interpretation of our Constitution. On an image of the shredding of that venerable old document Time posited this question: "Does it still matter?"
The short answer is, only if Liberty and the Rule of Law still matter. But Time's managing editor, Richard Stengel, begs to differ, having discarded Rule of Law for the rule of men.
In his boorish 5,000-word treatise on the issue, Stengel unwittingly exposes the Left's patently uninformed and self-serving interpretation of our Constitution, and he aptly defines their adherence to a "living constitution." That adulterated version of its original intent is the result of revision by decades of radical judicial diktats, rather than in the manner prescribed by our Constitution's Article V.
Stengel opined, "To me the Constitution is a guardrail. It's for when we are going off the road and it gets us back on. It's not a traffic cop that keeps us going down the center." According to Stengel, then, our Constitution just exists to keep us between the ditches and entitles us to swerve all over the road without consequence. Of course, that is hardly what our Founders intended, but Stengel insists that to ask "what did the framers want is kind of a crazy question."
Exhibiting a keen sense of the obvious, Stengel observes that times have changed and that our Founders "did not know about" all the advancements of the present era. Thus he concludes our Constitution must be pliable, or, as Thomas Jefferson forewarned in 1819, "a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please."
Stengel insists, "The Constitution works so well precisely because it is so opaque, so general, so open to various interpretations," rather than, as "originalists contend ... a clear, fixed meaning."
To assert that our Founders intended the Constitution to be "so opaque, so general, so open to various interpretations" is beyond any accurate reading of history. As noted previously, our Founders provided a method to amend our Constitution in Article V. The problem, of course, is that Stengel and his Leftist cadres know their agenda would never pass a Constitutional Convention and, thus, they circumvent Article V by discarding Rule of Law in deference to their own rules.
Consequently, we now have a Constitution in exile, one that is little more than a straw man amid increasingly politicized courts that serve the special interests of political constituencies rather than interpreting the document's plain language, as judges are bound by sacred oath to do (Article VI, Section 3).
While it is highly tempting, any effort to rebut Stengel's erroneous claims point by point would violate my own rule against swapping spit with a jackass. However, as it is the eve of Independence Day, let us, for the record, revisit Essential Liberty as "endowed by our Creator" according to our Declaration.
Signing of the DeclarationThe natural rights of man outlined in our Declaration are enshrined in our Constitution as evident in its most comprehensive explication, The Federalist Papers, a defense of that venerable document by its author, James Madison, and Founders Alexander Hamilton and John Jay.
Here is what our Founders actually did write about our Constitution and Rule of Law.
George Washington: "The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution, which at any time exists, 'till changed by an explicit and authentic act of the whole People, is sacredly obligatory upon all. ... If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed."
Thomas Jefferson: "Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction. ... If it is, then we have no Constitution. ... [T]o consider the judges as the ultimate arbiters of all constitutional questions ... would place us under the despotism of an oligarchy. ... In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."
Alexander Hamilton: "If it were to be asked, 'What is the most sacred duty and the greatest source of our security in a Republic?' The answer would be, 'An inviolable respect for the Constitution and Laws -- the first growing out of the last. ... A sacred respect for the constitutional law is the vital principle, the sustaining energy of a free government. ... [T]he present Constitution is the standard to which we are to cling. Under its banners, bona fide must we combat our political foes -- rejecting all changes but through the channel itself provides for amendments."
James Madison: "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers."
Stengel's biggest whopper, however, is one I simply can't let pass without rebuttal. He writes, "If the Constitution was intended to limit the federal government, it sure doesn't say so. Article I, Section 8, the longest section of the longest article of the Constitution, is a drumroll of congressional power."
My chief witness against this ridiculous claim would be James Madison, "the Father of our Constitution." As Madison wrote in Federalist No. 45, "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement and prosperity of the State."
That piece of trenchant prose would, of course, became the basis for the Tenth Amendment, which clearly and tightly limits the authority and scope of the federal government.
Before Stengel next ventures to opine on our Constitution, which for him is clearly uncharted territory, perhaps he should read a copy of "Essential Liberty."
Shredding Rule of LawTime magazine is but one of a surfeit of liberal propaganda tools which play supporting roles in the primary assault on our Constitution.
The lead actor is Barack Hussein Obama who, along with his cadre of "useful idiots," are systematically dismantling the last vestiges of our Constitution's Rule of Law mandate.
As we prepare to observe this Independence Day anniversary, our nation is once again confronting a perilous threat to Liberty.
Thomas Paine once wrote, "[A]n unwritten constitution is not a constitution at all." I beg you take note: Our Constitution is being "unwritten" at an unprecedented pace. Obama has mounted a well-organized and well-funded effort to "fundamentally transform" our nation into a socialist state by thus deconstructing our Constitution. He has deserted his oath to "preserve, protect and defend the Constitution of the United States," in accordance with Article II, Section 1, and clearly never intended to "take care that the Laws be faithfully executed," as specified in Section 3.
As was the case at the Dawn of American Liberty, we are but a small band of American Patriots facing an empire of statists, but we are steadfast in our sacred oath to sustain our Constitution. Please help us combat the ideology and propaganda of the Left in order to restore the integrity of our Constitution.
On behalf of Liberty, if you are able, please support our Independence Day Campaign. We still must raise $112,448 to meet our goal and there are just 4 days left.
Semper Vigilo, Fortis, Paratus et Fidelis!
Mark Alexander
Publisher, The Patriot Post
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A federal appeals court on Friday struck down Michigan’s 2006 ban on the consideration of race and gender in public-university admissions and government hiring in the latest round of the decade-long fight over the University of Michigan’s affirmative action policies.
Affirmative ActionThe 2-to-1 ruling by the United States Court of Appeals for the Sixth Circuit, in Cincinnati, said the voter-approved ban “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.”
“This is a tremendous victory,” said George B. Washington, who represented the coalition challenging the ban. “We think we’ll win in the end, however many appeals there are.”
But Michigan’s attorney general, Bill Schuette, promised Friday that he would indeed appeal the decision overturning the ban — known as the Michigan Civil Rights Initiative — through a formal request for rehearing en banc, by all 16 judges of the court.
“The Michigan Civil Rights Initiative embodies the fundamental premise of what America is all about: equal opportunity under the law,” he said. “Entrance to our great universities must be based upon merit, and I will continue the fight for equality, fairness and rule of law.”
Kelly Cunningham, a spokeswoman for the university, said it was too soon to know whether the ruling would lead to a change in admissions policies. “The university is reviewing the possible implications of the court’s decision, and recognizes that there may be further legal steps as well,” she said.
Affirmative action got a lift in Texas last month, when the full Fifth Circuit Court of Appeals voted, 9 to 7, not to hear an appeal of a three-judge panel’s decision upholding the use of race as a “plus factor” in admission to the University of Texas. And another case is pending before the Ninth Circuit in California, where Mr. Washington predicted Friday’s ruling would “have a big impact.”
In the end, the issue is likely to return to the United States Supreme Court, which last considered the question in two 2003 cases involving the University of Michigan.
Michigan’s ban on affirmative action — covering both government hiring and admission to public colleges and universities — was made part of the State Constitution after a 2006 voter initiative that passed by 58 percent to 42 percent. It was known as Proposal 2 and prohibited public institutions from giving “preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin.”
The voter initiative followed the Supreme Court decisions, which found that while the University of Michigan could not set quotas for certain racial groups, or give them extra points, in undergraduate admissions, it could consider race as one factor in the holistic law school admissions process.
Jennifer Gratz, a white student who was wait-listed at the University of Michigan in 1995 and was the lead plaintiff in one of the Supreme Court cases, led the campaign for the voter initiative to amend the State Constitution. She was backed by Ward Connerly, a wealthy black Republican who was a former regent of the University of California, and had successfully campaigned for a similar anti-affirmative-action proposition in California in 1996.
The following year, the United States Supreme Court declined to hear a challenge to the California ban. But in 2010, based on the ruling in the University of Michigan law school case, Mr. Washington filed another case challenging the California ban, the one now on appeal to the Ninth Circuit.
Bans like Michigan’s are currently on the books in California, Nebraska and Washington. But the Sixth Circuit decision is binding only in Kentucky, Michigan, Ohio and Tennessee.
Judge R. Guy Cole and Judge Martha Daughtrey of the Sixth Circuit issued the majority opinion on Friday in the case. Judge Julia Smith Gibbons wrote a dissent.
Legal experts said it was extremely difficult to predict how the Sixth Circuit, ruling en banc — or, for that matter, the United States Supreme Court — would vote on the Michigan ban.
“That circuit is very divided on social issues like the death penalty and affirmative action” said Carl Tobias, a professor at the University of Richmond law school. “And the Supreme Court split 5-4 in the Michigan law school case. Of course, the composition of the court has changed, but we’re still fighting these questions out.”
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See Crafty's post 7/2 in this thread. Isn't U of Michigan Affirmative Action the case where Sandra Day O'Connor discovered the bizarre 25 year rule in the constitution: we need preferences now but not forever?
"The proposition that “All Men Are Created Equal” was ultimately forged into our Constitution in the form of the equal protection clause of the Fourteenth Amendment. In its 2-1 decision, the 6th Circuit Court of Appeals held—incredibly—that the Constitution’s equal protection guarantee forbids the people of Michigan from voting the elimination of racial preferences in college and university admissions."
Kirk Kolbo (writing above and below) represented the plaintiffs in the historic Gratz and Grutter cases in the United States Supreme Court:
http://www.powerlineblog.com/archives/2011/07/the-6th-circuits-affirmative-action-decision-a-critique.php
It is unfortunate that on the eve of our Fourth of July weekend, a federal appeals court handed down a decision delivering injury and insult to the most important of those self-evident truths for which we honor and celebrate the signing of the Declaration of Independence. The proposition that “All Men Are Created Equal” was ultimately forged into our Constitution in the form of the equal protection clause of the Fourteenth Amendment. In its 2-1 decision, the 6th Circuit Court of Appeals held—incredibly—that the Constitution’s equal protection guarantee forbids the people of Michigan from voting the elimination of racial preferences in college and university admissions.
The court’s decision came in a challenge to an amendment to the Michigan constitution enacted in 2006 after passage (by a 58% to 42% margin) of a state-wide voter initiative banning race and gender preferences in college and university admissions and other government activities. The initiative was a reaction to the decisions of the United States Supreme Court in Gratz v. Bollinger and Grutter v. Bollinger, companion cases challenging racial preferences in admissions at the University of Michigan’s flagship undergraduate college (Gratz) and Law School (Grutter). While the Supreme Court struck down the undergraduate admissions policies at issue in Gratz, it ruled in Grutter that race could be used in a limited way in the admissions process: one “plus” factor among others to achieve a racially diverse student body, and it upheld the admission policies of the Law School on that basis. Jennifer Gratz, one of the lead plaintiffs, headed up the Michigan initiative effort. After its passage, an assorted group of plaintiffs immediately challenged the new law as it applied to Michigan’s colleges and universities, and last week’s decision by the 6th Circuit is the latest word, but not likely the final one, on that challenge.
The Supreme Court has never held that the equal protection clause requires the use of racial preferences in admissions or other areas (e.g., hiring, firing, contracting). The decisions instead have all focused on whether in particular circumstances it is permissible for the government to employ those preferences by means “narrowly tailored” to accomplish what the Court concludes to be a “compelling government interest.”
So how came the 6th Circuit to its decision? The court looked principally to two decades-old Supreme Court opinions recognizing an equal protection challenge to government actions that single out race issues for a distortion of the government decision-making process to the disadvantage of racial minorities. In the first of these cases, Hunter v. Erickson, after the Akron, Ohio city council enacted an ordinance to enforce anti-discrimination in housing, the people of Akron passed by referendum an amendment to the city charter requiring all regulations of real estate on the basis of race to be approved by a city-wide referendum, while all other real estate regulation required only city council approval. In a subsequent case, Washington v. Seattle School District No. 1, an elected Seattle school board passed and implemented certain school desegregation policies, including mandatory busing of students, designed to alleviate racial imbalances in the schools due to segregated housing patterns. Opponents of the school board’s measures were successful in getting a state-wide referendum passed prohibiting any of the State’s local school boards from mandating busing for desegregation, except when ordered to do so by a court.
In both cases, the Supreme Court invalidated the referenda on grounds that they reallocated the political structure impermissibly to the disadvantage of racial minorities in violation of the equal protection clause. The decisions do not furnish any plausible basis for striking down the State of Michigan’s decision to eliminate racial preferences in admissions. The focus of the Court in Hunter and Seattle was on the removal of political decision-making authority on race issues from a locally accountable entity (city council and school board) “to a new and remote level of government” (city- and state-wide electorate). The Court compared such a restructuring to voter dilution. In both cases, the change made it more difficult for minorities to obtain “beneficial legislation” because the political restructuring made it more burdensome, onerous, and complex to “enact legislation.” The rulings in Hunter and Seattle protected “the ability of minorities to participate in the process of self-government.” (Emphasis added).
The 6th Circuit held that by removing the authority of college and university admissions officials to grant preferences based on race through the successful state-wide initiative, there had been an impermissible political restructuring. It reached this conclusion by equating the admissions officials at Michigan colleges and universities with the elected city council and school board in Hunter and Seattle. This is, of course, preposterous. The dissenting opinion lays out the record showing how admissions decisions at the schools at issue are made by assorted faculty (often tenured) and administrators not accountable to any voting electorate. And any parent or student who has gone through the admissions process knows well that those anxiously-awaited admissions decisions are made pursuant to policies over which they have no control and the workings of which are from them and the rest of the public generally shrouded in mystery and secrecy. Because neither minorities nor others in the public possess any political authority over admissions committees and decision-makers it is absurd for the court to have found that there has been a “restructuring” of such authority.
The 6th Circuit also took no account of the fact that the challenged actions in Hunter and Seattle had the effect of overturning and making it more difficult to enact anti-discrimination legislation. The racial preferences eliminated by the voters of Michigan are themselves, however, as the Supreme Court has held repeatedly, presumptively invalid under the equal protection clause. They are “potentially so dangerous” that they must be subject to strict scrutiny. In eliminating racial preferences and mandating race-neutral admissions decision-making, the voters of Michigan have furthered what the Supreme Court has repeatedly referred to as the “core purpose of the Fourteenth Amendment”—“to do away with all government imposed discrimination based on race.”
In Grutter, the Court wrote approvingly of experiments in race-neutral admissions and specifically mentioned state laws prohibiting racial preferences in admissions in California, Florida, and Texas. It also held that a “permanent justification for racial preferences would offend [the] fundamental equal protection principle.” Accordingly race-based admissions policies must be of “limited duration.”
So the 6th Circuit’s decision is neither compelled by the “political restructuring” doctrine of Hunter and Seattle, nor consistent with what the Supreme Court has held about the lawfulness and desirability of race-neutral policies. To the contrary, the court’s decision throws obstacles in the way of a body politic wanting to achieve the constitutionally favored goal of race-neutral decision-making. Under its rationale, any local or other low-level governmental authority (elected or not) could enact racial preferences which would be immune from interference or elimination by a larger government body or electorate on grounds of a “political restructuring” violation.
Even the liberal and independent-minded 9th Circuit has rejected the contention that a State is prohibited from requiring race-neutral admissions policies. It upheld California Proposition 209 against an equal protection and “political restructuring” challenge. Fortunately, the prospects are good that the 6th Circuit’s decision will be reheard by the entire court (en banc). There is a strong dissent, and the panel’s decision conflicts with the decision of an earlier panel that considered the same issues in staying a preliminary injunction against enforcement of the Michigan law. Both are good indicators for eventual review and a decision by the full 6th Circuit. Finally, while the odds are against any given case being accepted for review by the Supreme Court, should it get there, last week’s decision would almost certainly be reversed by the current Court.
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James Taranto/WSJ Opinion: "Not only is Judge Cole's decision unlikely to withstand appeal, it could provide an opening for the Supreme Court to revisit its 2003 ruling that upheld Michigan's racial preferences."
How do you find 5 justices to uphold race discrimination without O'Connor? "Roberts wrote [in 2007] "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Scalia, Thomas and Alito joined that portion of Roberts' opinion..." and Kennedy (and Scalia and Thomas) already dissented in 2003 Gretter v Bollinger.
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Justice O'Connor's Lax Scrutiny
A new ruling in favor of racial preferences could spell their doom.
By JAMES TARANTO
"Michigan Attorney General Bill Schuette said . . . he will appeal a court ruling that overturned the Michigan Civil Rights Initiative, which bans the use of race and gender preferences in college admissions," the Detroit News reported Friday. Earlier the same day, a panel of the Sixth U.S. Circuit Court of Appeals voted 2-1 to strike down the initiative, also known as Proposal 2, as unconstitutional.
If you're hearing about this for the first time, you may have the same reaction we did, which is to wonder how in the world a court could find that Michigan's racial preferences in college admissions--which barely passed constitutional muster when the Supreme Court upheld them eight years ago--are constitutionally required. Perhaps the Equal Protection Clause allows for some exceptions, but it's downright Orwellian to claim that equal protection implies mandatory discrimination.
Well, it's complicated. Judge R. Guy Cole, who wrote the ruling in the unwieldily named case of Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary v. Regents of the University of Michigan (hereinafter BAMN), was clever enough to avoid reaching a conclusion that is ridiculous on its face. Instead, taking his cue from the plaintiff organization's name, he came at it from a different angle.
His ruling concedes that the Equal Protection Clause does not require Michigan to maintain policies that discriminate in favor of minorities. It concludes, however, that the means by which the state banned such discrimination--a ballot measure amending the Michigan Constitution--violated the clause. "Proposal 2 unconstitutionally alters Michigan's political structure by impermissibly burdening racial minorities," he wrote.
That conclusion is consistent with a pair of decades-old Supreme Court precedents. But it is too clever by half. Not only is Judge Cole's decision unlikely to withstand appeal, it could provide an opening for the Supreme Court to revisit its 2003 ruling that upheld Michigan's racial preferences.
The two precedents on which Cole bases his conclusion are Hunter v. Erickson (1969) and Washington v. Seattle School Dist. No. 1 (1982). In Hunter the Supreme Court struck down an Akron, Ohio, ballot initiative that had repealed a municipal fair-housing ordinance and required that any future laws against housing discrimination be approved by a majority of voters as well as the City Council.
In a decision by Justice Byron White, the court held 8-1 that although Akron was under no obligation to enact a fair-housing law, the creation of an additional hurdle that such legislation must pass constituted an invidious distinction "between those groups who sought the law's protection against racial, religious, or ancestral discriminations in the sale and rental of real estate and those who sought to regulate real property transactions in the pursuit of other ends." Since those in the former group belonged to minorities that are protected from discrimination, the ballot measure violated equal protection.
But how could the Akron initiative, whose effect was to permit discrimination, be the equivalent for equal protection purposes of the Michigan initiative, which prohibited discrimination? That's where Seattle comes in. Washington's largest city used what was known as "forced busing" to encourage racial mixing in its public schools. Washington voters approved Initiative 350, a statewide ban on busing for racial integration. The high court struck down the measure, holding that, like the Akron one 13 years earlier, it unconstitutionally burdened minority members, who were the presumed beneficiaries of busing.
Justice Harry Blackmun's opinion took the court into Orwellian territory. He wrote "that the initiative established an impermissible racial classification in violation of Hunter v. Erickson, . . . 'because it permits busing for non-racial reasons but forbids it for racial reasons.' " By such logic, if one can even call it that, the Equal Protection Clause violates itself, because it permits discrimination for a host of nonracial reasons but forbids it for racial reasons.
There is nonetheless an important distinction between forced busing circa 1982 and racial preferences in college admissions today. The constitutionality of the former was not then in dispute. In Swann v. Charlotte-Mecklenburg Board of Education (1971), the justices had unanimously blessed judicially mandated busing as a remedy for de jure (state-imposed) segregation.
Seattle's segregation was merely de facto, and its busing program had not been imposed by a court. The justices had not expressly upheld busing in such circumstances. But Blackmun noted in a footnote that the "appellants . . . do not challenge the propriety of race-conscious student assignments for the purpose of achieving integration, even absent a finding of prior de jure segregation." (Such assignments would be successfully challenged, in Parents Involved in Community Schools v. Seattle School District No. 1, in 2007.)
By contrast, the constitutionality of the University of Michigan's racial preferences had been called into question before Proposal 2 was enacted, in a pair of cases that reached the Supreme Court in 2003. In Gratz v. Bollinger, the court struck down the university's undergraduate preferences. In Grutter v. Bollinger, the court, in a 5-4 ruling written by Justice Sandra Day O'Connor, upheld the law school's supposedly somewhat looser preferences--but on very narrow grounds (citations and needless brackets omitted from all quotations of court opinions):
As part of its goal of "assembling a class that is both exceptionally academically qualified and broadly diverse," the Law School seeks to "enroll a 'critical mass' of minority students." The Law School's interest is not simply "to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin." That would amount to outright racial balancing, which is patently unconstitutional. Rather, the Law School's concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce.
Here is Judge Cole explaining why Proposal 2 resembles Washington's antibusing initiative:
Proposal 2, like Initiative 350, has a "racial focus," because the Michigan universities' affirmative-action programs "inure primarily to the benefit of the minority, and [are] designed for that purpose," for the reasons articulated by the Court in Seattle. Just as the desegregative busing programs at issue in Seattle were designed to improve racial minorities' representation at many public schools, race-conscious admissions policies increase racial minorities' representation at institutions of higher education. Indeed, underrepresented minorities lobbied for the adoption of such policies at Michigan's universities in the first place for this reason, and, further, the unrebutted evidence in the record indicates that Proposal 2 will likely negatively impact minority representation at Michigan's institutions of higher education. Ample evidence thus grounds our conclusion that race-conscious admissions policies "inure primarily to the benefit of the minority."
How can Judge Cole's finding that Michigan's racial preferences were designed to "inure primarily to the benefit of the minority" be reconciled with binding Supreme Court precedent that such preferences can be justified only by "the educational benefits" of a "diverse student body"?
Cole's awkwardly written attempt to finesse the problem only makes it more glaring. He claims his conclusion that Proposal 2 has a "racial focus" as required by Hunter and Seattle "is not impacted by the fact that increased representation of racial minorities in higher education also benefits students of other groups and our nation as a whole." Thus he reduces the purported educational benefits of diversity--the entire basis on which the high court rested the constitutionality of Michigan's racial preferences--to an afterthought.
Unless the full Sixth Circuit overturns Judge Cole's ruling, it is a certainty that the Supreme Court will take it up, for it raises questions of the sort that only the justices can resolve. Not only does it expose a tension between two lines of the high court's jurisprudence, but there is also a split between appellate courts. The Ninth Circuit has upheld Proposition 209, a similar ballot initiative from California.
The justices could resolve BAMN in three different ways. The narrowest, because it would leave all existing precedents undisturbed, would be to hold that the Hunter and Seattle framework does not apply to Proposal 2 because the court has already held in Grutter that the constitutionality of the policies in question depends on their having not been designed to "inure primarily to the benefit of the minority." Since the four liberal justices have a strong interest in preserving the "diversity" rationale for racial preferences--especially Elena Kagan, a former elite law school dean--such a ruling could very well go 9-0.
The court could strike down the 1982 Seattle ruling and hold that ballot initiatives or similar measures that affect race are constitutional as long as the substance of the policy in question does not offend equal protection. Seattle is an anachronism anyway: a 5-4 decision in favor of an obsolete social policy by a court whose members have all since retired, died or both. So it's hard to predict how today's justices would come down on that one.
The most aggressive approach--and therefore perhaps the unlikeliest, but also the one that would be most satisfying to those of us who care about the integrity of the law--would be to use BAMN as an opportunity to revisit Grutter. Judge Cole's assertion that Michigan's racial preferences were designed to "inure primarily to the benefit of the minority" may, after all, be true. We think it is. If we are right, the "diversity" rationale that the Grutter majority accepted was a fraud.
That would mean the court was derelict in its duty, as Justice Anthony Kennedy argued in his Grutter dissent:
The separate opinion by Justice [Lewis] Powell in Regents of Univ. of Cal. v. Bakke is based on the principle that a university admissions program may take account of race as one, nonpredominant factor in a system designed to consider each applicant as an individual, provided the program can meet the test of strict scrutiny by the judiciary. . . . If strict scrutiny is abandoned or manipulated to distort its real and accepted meaning, the Court lacks authority to approve the use of race even in this modest, limited way. The opinion by Justice Powell, in my view, states the correct rule for resolving this case. The Court, however, does not apply strict scrutiny. By trying to say otherwise, it undermines both the test and its own controlling precedents.
If the current court revisits Grutter, the result will certainly be a 5-4 ruling over bitter liberal dissent. It probably won't quite spell the end of racial preferences in university admissions, for Kennedy endorsed the "diversity" rationale in theory. His dissent was from O'Connor's travesty of a mockery of a sham of a mockery of a travesty of two mockeries of a sham of strict scrutiny.
Justices Antonin Scalia and Clarence Thomas, by contrast, did not accept the proposition that diversity justifies discrimination. And although Chief Justice John Roberts and Justice Samuel Alito have not weighed in directly on the question, Roberts wrote in his 2007 Parents Involved opinion that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Scalia, Thomas and Alito joined that portion of Roberts's opinion, but Kennedy did not.
It is unusual for the court to reconsider its own constitutional precedents when it can decide a case more narrowly. But that's just what the justices did last year in Citizens United v. Federal Election Commission, when a 5-4 majority led by Justice Kennedy overturned another 2003 O'Connor precedent. If BAMN reaches the high court, Kennedy will again have an opportunity to correct one of O'Connor's mistakes.
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Speculation by everyone but Ruth Bader Ginsburg (78) that she may need to step down shortly or risk
4, no 8-16 years of Republican rule. I wonder what type of Justice that a President Bachmann would pick to replace her... :-D
My view is that 78 is not that old if everything upstairs is working. To abandon her term midway (pulling a Palin?) for political timing purposes to manipulate justice decades out would be an insult to the framers, the voters and to the republic. Stay the course Prof. Ginsburg!
http://www.bloomberg.com/news/2011-07-07/liberal-fears-threaten-a-justice-s-job-commentary-by-stephen-l-carter.html
(http://t0.gstatic.com/images?q=tbn:ANd9GcQX3AKIjkXGZzjmFLjukYOHVHuiWNBSoFi8BJLfYz_n6XmkfzfNNQ)
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I thought I heard she was having some sort of health issues? (Cancer?)
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Everything "upstairs is working", but she was diagnosed with cancer. It seems to be in remission.
"To abandon her term midway (pulling a Palin?) for political timing purposes to manipulate justice decades out would be an insult to the framers, the voters and to the republic."
To abandon her term? She has a lifetime appointment; she can resign whenever she wants and never be accused of "abandoning her term." Or is she suppose to die of old age in her office?
What insult to the framers? Since time beginning appointees can leave whenever they want and in the past have done so.
And what about the voters? Huh? She wasn't elected by the voters; she was appointed.
And what insult to the republic? If anything, her love for the republic and her legacy may influence her decision to retire.
But it's her choice. I'll respect her choice (no insult to anyone, including the framers, the voters, or the republic) whatever she decides.
http://www.chron.com/disp/story.mpl/nation/7636935.html
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"And what insult to the republic? If anything, her love for the republic and her legacy may influence her decision to retire."
Sarcasm, right? No one with an American Criminal Liberties Union membership has anything but contempt for the republic.
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Tis not a common event, but I mostly agree with JDN's comments. She can retire whenever she pleases without it being a negative on her or an insult to anyone else. We have seen judges hold on so a current Prez is not the one who chooses a replacement, so why not retire to ensure the current Prez does get to choose?
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There is a rich literature about justices' decisions to retire. If you are interested in some particular articles, let me know.
She has been on the bench for a long time. There is no shame in choosing to retire, whatever the reason and whenever the time. I don't remember anyone saying that Jim Brown's legacy was tarnished because he retired "early".
Separate issue: To say that an ACLU membership means that there is no love for the Republic is complete and utter nonsense.
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"Separate issue: To say that an ACLU membership means that there is no love for the Republic is complete and utter nonsense."
**Yes, the founders of the ACLU had a deep seated love of.......Stalin. How silly of me to question their patriotism.
The ACLU’s untold Stalinist heritage
By John Rossomando - The Daily Caller 2:11 AM 01/04/2011
Noted author Paul Kengor has unearthed declassified letters and other documents in the Soviet Comintern archives linking early leaders of the ACLU with the Communist Party.
Kengor found a May 23, 1931 letter in the archives signed by ACLU founder Roger Baldwin, written on ACLU stationery, to then American Communist Party Chairman William Z. Foster asking him to help ACLU Chairman Harry Ward with his then-upcoming trip to Stalin’s Russia.
The letter suggests Ward intended to visit the Soviet Union to find “evidence from Soviet Russia” that would undermine the capitalist profit motive.
Baldwin wrote the letter at a time when Stalin was deporting 1.8 million Ukrainian peasants to Siberia under his policy of the forced collectivization of agriculture, which resulted in the deaths of up to 10 million Ukrainians in the two years that followed.
The Ukrainian government considers this to have been an act of genocide.
Foster was a key figure in the early years of the American communist movement who belonged to the ACLU’s National Committee in the 1920s, according to FBI documents. He later wrote a book titled “Toward Soviet America” in 1932 and also testified under oath before Congress that he opposed American democracy.
Another letter on ACLU letterhead Kengor found in the Soviet archives dated Sept. 2, 1932 asks the Communist Party of America for a schedule of Foster’s trips around the country and offers to help keep the police at bay. It also asks for the names and addresses of Communist Party representatives in the cities where Foster was speaking.
Kengor also found a flier from 1933 advertising ACLU board member Corliss Lamont as the headline speaker for “Soviet Union Day,” which its organizers hoped would “answer lies and slanders of enemies of the Soviet Union.”
The documents found their way into the Soviet archives because the Communist Party sent all of its correspondences to the Comintern in Moscow for safekeeping, according to Kengor.
Other documents released in the 1990s by KGB defector Vasili Mitrokhin show the American Communist Party was under the Moscow’s direct control until 1989.
“These guys were advocating a regime that arguably was the biggest mass murderer in all of human history,” Kengor said. “Where is the moral authority in that?”
Kengor told The Daily Caller he found numerous other documents in the Soviet Comintern archives that also show a close relationship between the Communist Party and the ACLU.
These documents corroborate rumors that have circulated about the ACLU’s founders and early leaders dating back to the 1920s.
The ACLU would not comment on Kengor’s research, but the ACLU’s official history describes its founders as a “small group of idealists” who began the organization amid the “Palmer Raids” of late 1919 and early 1920 against “so-called radicals”.
“The problem here is what is being left out of the narrative,” Kengor said. “Palmer, who was attorney general to Woodrow Wilson, the great progressive’s progressive, understood, as did the Wilson administration, that many of these radicals were American communists who were literally devoted to the overthrow of the U.S. government and its replacement with a ‘Soviet-American republic.’
“American communists actually stated such things in their proclamations, documents, and fliers.”
Kengor catalogs many of these in his book “Dupes.”
“If you look at a lot of things about the ACLU’s early history, you will see a lot of things that are pro-communist,” Kengor said. “What I’m trying to say about this group is that from the outset was on the farthest extremes of the left.
“It was atheistic. Certain members were pro-communist, and would argue that the ACLU itself in the 1920s was pro-communist, as defined by the writings and the beliefs of its founders, key officials and board members.”
Kengor, however, does not believe today’s ACLU is communist, but he argues it still pushes its founders’ militant atheism.
Kengor said a conservative group would not receive the same sort of a pass from the press and the left were it to be discovered its founders had Nazi or fascist ties during the same time period.
Baldwin’s writings and public comments along with those of Ward, Lamont and longtime board members such as Elizabeth Gurley Flynn and John Dewey, show they looked to Soviet Russia for inspiration, according to Kengor.
“It’s not like they were outside of a bar and blurted out something stupid about the Soviets after a few drinks,” Kengor said. “These guys actually went to the Soviet Union … and came back and wrote whole books gushing about the brave new world they found in the Soviet Union.
“But [most people] don’t even know any of this stuff today.”
Baldwin was a complex figure among them because he initially sympathized with the communists in the 1920s and 1930s, but later backed away after the extent of Stalin’s evil became apparent.
He never joined the Communist Party as a formal member, but evidence shows he sympathized with the Soviet cause, Kengor said.
“The Red Web”, a 1925 book written by Justice Department official Blair Coán, describes Baldwin as having been a “red” and a communist.
Baldwin’s radicalism caught the eye of the FBI, which quoted him in a 1924 report as having said: “The right to advocate a violent revolution, assassination, and proletarian Red guard, are all clearly within scope of free speech …”
The ACLU founder traveled to Stalin’s Russia in 1927 and wrote a book titled “Liberty Under The Soviets” the following year, which defended the Lenin’s and Stalin’s repression of dissent because they “are weapons in the transition to socialism.”
Baldwin later repudiated what he wrote in this book as “naïve” in the 1950s after he became an anti-communist.
The ACLU’s founder was active in numerous pro-Soviet fronts throughout the 1930s, but experienced a change of heart following the signing of the 1939 Nazi-Soviet Non-Aggression Pact, according to Robert Cottrell’s biography of Baldwin.
Baldwin pushed through a measure in 1940 banning open communists from being part of the ACLU’s National Committee that led to Ward’s resignation. Ward had served as chairman of the ACLU’s board of directors since its founding in 1920.
Ward, a Methodist minister, later penned a book in 1944 praising Stalin’s Russia for having abolished private property and for having diminished individualism in a book titled “The Soviet Spirit.”
Baldwin’s push to rid the ACLU of open communists also led to Gurley Flynn’s ouster in 1940 because of her open Communist Party membership. She would die in the Soviet Union and receive a Soviet state funeral.
Lamont, who coincidentally was 2006 Connecticut Senate candidate Ned Lamont’s uncle, clashed with Baldwin over his effort to purge the ACLU’s National Committee of known communists because he believed it was a betrayal of civil. He remained on the ACLU’s National Committee until 1951 when he resigned to protest being asked to take an anti-communist oath.
Although Lamont never formally joined the Communist Party, he was active in numerous pro-Stalin fronts throughout his ACLU tenure, such as the Friends of the Soviet Union, according to Kengor.
Lamont never acknowledged the truth behind Stalin’s atrocities, and his 1933 book, “Russia: Day By Day,” which details his 1932 trip to the Soviet Union, Lamont praises Stalin’s destruction of churches and glosses over the atrocities being committed against Ukraine’s peasants at the time of his trip.
His book also claims the communists had brought an era of “happiness” and that “the new world of the twentieth century is the Soviet Union.”
Lamont later defended Stalin’s show trials during the Great Purge of 1938-39 and his installation of communist governments in Eastern Europe.
Kengor considers Lamont one of the worst among the ACLU’s early leaders because he never repented of his support for Stalin even after the extent of his crimes became apparent.
“The narrative today is that they were all noble liberals and progressives, but it’s never considered that they were actually pro-Soviet or pro-communist,” Kengor said. “These guys were terrible because they gave support to a totalitarian regime that arguably was the greatest mass murderer in all of human history.”
Read more: http://dailycaller.com/2011/01/04/the-aclu%e2%80%99s-untold-stalinist-heritage/
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Famous and influential people have been known to read the forum (we allege) and what I wrote was partly tongue in cheek taunting her to stay on, in the face of others telling her to move on. Did anyone who criticized me read the Bloomberg link that caused the post? Bloomberg, and Bloomberg quoting the AP: "the growing chorus calling for Justice Ruth Bader Ginsburg to step down... what 'Democrats and liberals' consider a 'nightmare vision of the Supreme Court’s future'... "
This story is about what others are telling Ginsburg, not about Ginsburg. I am aware she is a cancer survivor, but the word 'cancer' is not in the story nor anything else about her being sick, tired, bored or wanting to spend more time with family. She did NOT retire and so cancer is not / was not the reason (so far) for her departure... (Is there an emoticon for frustration?) Even the subtitlers at Bloomberg called this aging court watch obsession "A Creepy Pastime"! The justices or the morgue will tell us when they are done; it is a lifetime appointment. Most guesses about who will DIE next are wrong BTW.
If liberals are telling her their fear that Obama is about to lose the White House and Democrats are about to lose the senate, that the American people cannot be trusted to choose either body correctly and that we are about to face "a nightmare situation" (aka consent of the governed), but that could be avoided (manipulated) if only she would give up her seat BEFORE she otherwise wants to in order to influence or control decisions beyond her own years of service... if they can say THAT, then I can step up on my soapbox and tell her the other side of the story. That is my right and she can handle a little taunt and pull in the opposite direction:
Ruth, if you have a couple of good years left, serve them. Serve America. How could some newbie have the wisdom you have gained from your experience, and they keep picking them younger and younger. This is still YOUR term. 78 is nothing, you look great. Being a cancer survivor is not a disqualifier and you are not responsible for decisions made after your lifetime of service. Oliver Wendell Holmes served until 90 and women live longer on average than men. Don't let the nattering nabobs of negativity push you out of the job you earned and are entitled to. Do it for yourself. Do it for America. Trust the American people and whoever they choose for President and Senate next (could be 4 more years of the same) to do the right thing whenever YOU say you are done. Do it for the other cancer survivors that deserve respect, dignity and all the longevity they can get in their own lives and careers. Stay the course Ruth! :-)
--------------------
This whole thing sounds like Monty Python Holy Grail plague humor in real life:
MORTICIAN: Bring out your dead!
[clang] (repeat)
CUSTOMER: Here's one -- nine pence.
DEAD PERSON: I'm not dead!
MORTICIAN: What?
CUSTOMER: Nothing -- here's your nine pence.
DEAD PERSON: I'm not dead!
MORTICIAN: Here -- he says he's not dead!
CUSTOMER: Yes, he is.
DEAD PERSON: I'm not!
MORTICIAN: He isn't.
CUSTOMER: Well, he will be soon, he's very ill.
DEAD PERSON: I'm getting better!
CUSTOMER: No, you're not -- you'll be stone dead in a moment.
MORTICIAN: Oh, I can't take him like that -- it's against regulations.
DEAD PERSON: I don't want to go in the cart!
CUSTOMER: Oh, don't be such a baby.
MORTICIAN: I can't take him...
DEAD PERSON: I feel fine!
CUSTOMER: Oh, do us a favor...
MORTICIAN: I can't.
CUSTOMER: Well, can you hang around a couple of minutes? He won't
be long.
MORTICIAN: Naaah, I got to go on to Robinson's -- they've lost nine
today.
CUSTOMER: Well, when is your next round?
MORTICIAN: Thursday.
DEAD PERSON: I think I'll go for a walk.
CUSTOMER: You're not fooling anyone y'know. Look, isn't there
something you can do?
DEAD PERSON: I feel happy... I feel happy.
[whop]
CUSTOMER: Ah, thanks very much.
MORTICIAN: Not at all. See you on Thursday.
CUSTOMER: Right.
[clop clop]
-
The US was allied with the Soviet Union during WWII. Does that mean that the entire "Greatest Generation" was also unAmerican?
-
The US was allied with the Soviet Union during WWII. Does that mean that the entire "Greatest Generation" was also unAmerican?
Yes, an alliance of necessity in a war for national survival made at the executive leadership level is exactly the same as a group of Stanlinists forming a group with the intent to use the American legal system to damage America. :roll:
-
http://townhall.com/columnists/alansears/2007/06/16/the_aclu_never_forgets_its_pro-communist_roots/page/full/
Alan Sears
The ACLU Never Forgets Its Pro-Communist Roots
6/16/2007
Just as a leopard cannot change its spots, nor a zebra its stripes, an organization whose founder admired the “ideals” of the hammer and sickle can never really abandon those destructive beginnings.
More than a quarter-century after his death, the “legacy” of American Civil Liberties Union founder Roger Baldwin – a self-professed fan of Soviet communism and of Joseph Stalin – is still going strong. With the collapse of the Soviet empire, current ACLU leaders have thrown more of their support to one of the last remaining bastions of the Soviet ideal: Cuba.
In 2005, for example, the ACLU endorsed an amendment lifting the ban on tourist travel to Cuba – a long-distance slap in the face to Cubans, who now watch foreign tourists feed corruption, pesos and dollars to the Communist machine, while they themselves are stripped of nearly all human rights. The insult was multiplied a year later, when the ACLU demanded an end to bans on academic travel, so scholars could lend their support to the regime.
But ACLU leaders are as eager to export Cuban communism as they are to import American tourist dollars. Last week, the ACLU was in federal court, arguing that a Miami-Dade County school board broke the law by removing from its school libraries a book entitled Vamos a Cuba (Let’s Visit Cuba), which offers a strangely luminous view of life in Castro’s island “paradise.” A federal judge has already ruled that the book be returned to the shelves until the case can play out in court.
The school board’s beef isn’t with what is on the pages, but with what isn’t. Parents filed complaints after finding the book to be devoid of any mention of the oppressive regime instituted by Fidel Castro nearly 50 years ago. Instead, its pages are filled with breezy commentaries on how Cubans enjoy chicken with rice (under the country’s subsidized ration plan, the average Cuban is allotted a whopping 8 ounces per month) and boating as a leisure activity (“boating” being a rather ironic term for the fragile, homemade rafts so many launch out onto the ocean, in desperate bids to escape the regime).
The book’s cover, available in both English and Spanish versions, is adorned with beaming children dressed in the uniform of the Pioneers, the Communist youth organization that Cuban children are required to join. They look like Cuban Bobbsey Twins.
Obviously, the Miami children targeted for this book have never been told that questioning the Cuban government is likely to lead to imprisonment … that milk is far too expensive for most on the island to purchase … that access to everyday activities like surfing the Internet is not only severely limited, but closely monitored by the government for any shred of dissent against Castro and his cronies.
Absent from the pages of Vamos a Cuba is any mention of the ruthless 20-year prison sentences levied on Cuban poets and journalists and priests who failed to fawn over their fearless leader. Instead, the book depicts Cubans as living as freely as they please.
Incredibly, the ACLU claims that removal of these fictions somehow violates students’ constitutional rights to “access of information.” That’s right: your kids have a constitutional right to absorb misinformation. If a pro-Communist wants to lie about the impact of the Party on the people, your tax dollars should encourage children to read those lies.
Of course, this same “right to access” doesn’t apply to information that the ACLU’s intolerant agenda deems misleading. They’re not nearly as interested in allowing both evolution and intelligent design to be discussed in science classes, or in letting a student who disagrees with homosexual behavior present his views openly and peacefully to a fellow student. It’s doubtful that a biography stressing John Paul II’s resistance to Communism, a children’s book stressing the importance of having both a mommy and a daddy, or, of course, a revisionist view of the impact of the ACLU would make the organization’s suggested reading list for Florida public schools – or the subject of an ACLU lawsuit to protect children’s “access.”
After all, when it’s not promoting Communism, the ACLU is promoting atheism. As the Number One religious censor in America, they’re probably more responsible than anyone for removing Bibles, books on Christian faith, history, and heritage, and textbooks debunking Darwinian theory from public library shelves all over the country.
And yet blocking the truth isn’t enough. The ACLU chooses clients who want to replace factual information with lies, like the blatant misrepresentations of Cuban life in Vamos a Cuba. In its determination to keep a book so ridiculously backward on the shelves, the ACLU is clearly bent on a mission of disinformation.
But then, it would have to be, to promote the current Cuban regime. Cuba’s own Constitution declares that: "Citizens have freedom of speech and of the press in keeping with the objectives of socialist society.” Translation: Toe the party line, fellow Cubans, or face the consequences.
Perhaps the book should be retitled, Vamos a Prisión.
-
For one year in the 1980s I was a member of the ACLU. The in-house material was extremely leftist and dishonest in its pretense of a commitment to freedom and quite pro-socialist. I did not renew.
-
http://www.lectlaw.com/files/cur59.htm
Let's see: Free speech, press, and religion; 4th and 6th Amendment; and protecting civil rights.... f'ing pinkos.
I remember when the ACLU supported Rush Limbaugh's medical privacy. Just because he ate reds doesn't make him a communist.
-
Yes BD, let's just gloss over the Stalinist origins of the American Criminal Liberties Union, and their use of the US legal system to undercut this country by citing a few constitutional amendments and Rush Limbaugh.
Pay no attention to the commies behind the curtain.....
-
http://www.theacru.org/VadumACLU.pdf
WHAT DOES
THE ‘A ’ REALLY
STAND FOR?
ACLU Exposed The ACLU has been pushing a radical liberal agenda for years, and
despite the rare occasion that they get something right, they of!en
take up anti-American causes.
by Matthew Vadum
Which major liberal advocacy group
zealously guards workers’ rights
but won’t lift a finger to help when
workers suffer government-sanctioned
discrimination as a result of affi rmative
action programs?
And which group protects the right
of Muslim women to wear religious
headscarves—even in jail—but erupts in
apoplectic rage when nativity scenes and
menorahs pop up on public property?
It’s the American Civil Liberties
Union, which has a rich and storied
tradition—of not making any sense.
Even before President George H.W.
Bush helped secure his 1988 election
victory by noting in a televised debate
that Democrat Mike Dukakis was a
“card-carrying member of the ACLU,”
conservatives have long been suspicious
of the Communist-founded ACLU—and
for good reason.
Founded by radicals during the
Progressive Era who simultaneously
professed admiration for American ideals
and for the totalitarian Soviet Union,
the morally preening group, which risks
the wrath of conservatives every year
by manning an exhibit hall booth at the
Conservative Political Action Conference
(CPAC) in the nation’s capital, is a
tangled mess of contradictions. This
fair-weather friend of liberty claims
to protect the U.S. Constitution and
individual rights, but often adopts statist,
Big Government positions on issues that
would alarm the nation’s founders. As a
self-described progressive “social justice”
organization, it believes in “welfare
rights,” which are figments of the
liberal imagination unmentioned in the
Constitution. It seldom defends private
property rights or economic freedoms
but creatively squeezes non-existent
rights and liberties out of supposed
emanations and penumbras in the
Constitution.
In legal terms, the ACLU is a
501(c)(4) legislative lobbying group. Its
litigation and outreach arm, the ACLU
Foundation, is a legally separate
501(c)(3) organization. The ACLU
claims to have more than 500,000
members and supporters, almost
200 staff attorneys and thousands of
volunteer attorneys, and staffed offi ces
in all 50 states, Puerto Rico and the
District of Columbia.
The ACLU constantly applauds
the growing power of the judiciary at
the expense of elected lawmakers. It
does not object to government control
of education and is hostile to school
voucher programs. It invents new
so-called rights on a regular basis and
argues that the Constitution is a living,
breathing document whose meaning
changes with the seasons. It regards
itself as an avant-garde crusader for
unlimited abortion rights, polygamy
and same-sex marriage and brags
that it compelled the state of Alaska
to give equal employment benefi ts to
homosexual employees.
Regarding just about anything having
to do with sex, the ACLU refuses to
pass moral judgment. Columnist Deroy
Murdock notes that the ACLU has
supported the extremely controversial
North American Man/Boy Love
Association (NAMBLA) which “openly
preach[es] pedophilia and arguably
encourage kidnapping, rape and
murder,” while being “energetically
hostile” to the Boy Scouts of America.
The ACLU supported NAMBLA,
which an Ohio court previously found
complicit in a separate case of child rape
for producing a how-to manual, when
it was sued in federal court. Parents of
Jeffrey Curley, a 10-year-old boy raped
and murdered by a former NAMBLA
member in 1997, filed a wrongful death
suit against the group but dropped it
last year after a key witness was ruled
unfi t to testify. “There was never any
evidence that NAMBLA was connected
to the death of Jeffrey Curley,’’ ACLU
lawyer Sarah R. Wunsch told the Boston
Globe. “It’s been our view that for the
last eight years, it’s been the First
Amendment that’s been the defendant
in this case. In America, there’s freedom
to publish unpopular ideas, and that’s
what this case was about.”
Yet, Murdock writes, the ACLU
looked down upon the Boy Scouts,
“an organization that tries to turn
boys into men, with sex alien to the
process.” The ACLU could not abide
the fact that San Diego allowed the
group to lease and manage parkland,
because it considers the Boy Scouts to
be a religious organization and hostile
toward homosexuals. Although the
Scout Oath requires the scout to promise
to do his “duty to God,” and Scout Law
requires him to be “reverent,” the Boy
Scouts had not barred other groups from
using the park and had even allowed the
San Diego Gay Pride Festival to be held
there. The ACLU won in court, and the
Boy Scouts were forced to leave the park.
Conservatives are often galled,
and rightly so, by the ACLU’s moral
pretensions and lofty rhetoric. In its
2007 annual report, the group uses the
same kind of soaring, inappropriately
internationalist language one might
expect to hear from President Obama
or George Soros: “The battle to keep
America safe and free is, at its heart,
a battle to bring America back to
the vision and ideals embraced by
our Founders and enshrined in our
Constitution: separation of powers,
democratic actions and the honor of
fundamental rights. These are the things
that make us free, that show the world
that we are honorable and decent, that
bring the support of our allies and the
respect of those who might be tempted to
oppose us” [emphasis added].
The ACLU, a reliable booster of
international law, doesn’t seem to
understand that the Constitution
was not created primarily to impress
foreigners, allies, potential adversaries
and residents of Manhattan’s
ideologically homogeneous Upper
West Side. It was created to provide a
framework for the nation to be governed,
with specified limits on the exercise of
government power.
SCHIZOPHRENIC AGENDA
The group’s inconsistencies are the stuff
of legend.
For example, the ACLU claims a
special affection for the Bill of Rights,
but strangely has long rejected the
“individual rights” interpretation of the
Second Amendment. The group would
make the amendment effectively a dead
letter because it believes it protects a
so-called collective right to keep and
bear arms only in connection with a
state militia. After the Supreme Court
slapped down this implausible view last
year in the Heller case, the ACLU stuck
to its guns, saying it disagreed with
the court. The group added, somewhat
disingenuously, that it takes no position
on the issue of gun control. “In our view,
neither the possession of guns nor the
regulation of guns raises a civil liberties
issue,” the ACLU stated on its website.
Although conservatives have strongly
criticized the ACLU for decades, and the
group historically supported the Fairness
Doctrine, it generally does defend the
free expression of ideas.
Some conservatives don’t like that it
defends pornography, but occasionally
the ACLU pleasantly surprises
conservatives. Colorado state Sen. Greg
Brophy, a Republican, had jokingly
suggested he wanted an “ACLUSUX”
vanity license plate. He was taken aback
when the ACLU offered to defend his
right to express that sentiment on a
license plate. When state offi cials seized
the medical records of talk radio host
Rush Limbaugh in a drug investigation,
the ACLU filed a friend-of-the-court
motion arguing the officials had
overreached. “For many people, it may
seem odd that the ACLU has come to the
defense of Rush Limbaugh,” said Howard
Simon, executive director of the Florida
ACLU. “But we have always said that the
ACLU’s real client is the Bill of Rights,
and we will continue to safeguard the
values of equality, fairness and privacy for
everyone, regardless of race, economic
status or political point of view.”
The group has also criticized
proposed tobacco control legislation
for curtailing advertisers’ right to
free speech and has attacked various
aspects of the freedom-limiting
McCain-Feingold campaign finance
law. However, it disdains public
prayer even though the attendees at
the Constitutional Convention prayed
together.
The ACLU adores terrorists. At
one point, Bernardine Dohrn, the
unrepentant Weather Underground
leader married to fellow terrorist Bill
Ayers, sat on its advisory board.
Read it all.
-
"Some conservatives don’t like that it
defends pornography, but occasionally
the ACLU pleasantly surprises
conservatives. Colorado state Sen. Greg
Brophy, a Republican, had jokingly
suggested he wanted an “ACLUSUX”
vanity license plate. He was taken aback
when the ACLU offered to defend his
right to express that sentiment on a
license plate."
Also, As I recall Stalin was anti religion of any sort. So, wouldn't defending the rights of Muslims be anti-Stalinist?
-
"Some conservatives don’t like that it
defends pornography, but occasionally
the ACLU pleasantly surprises
conservatives. Colorado state Sen. Greg
Brophy, a Republican, had jokingly
suggested he wanted an “ACLUSUX”
vanity license plate. He was taken aback
when the ACLU offered to defend his
right to express that sentiment on a
license plate."
Also, As I recall Stalin was anti religion of any sort. So, wouldn't defending the rights of Muslims be anti-Stalinist?
No. Like the alliance of convenience previous discussed, sometimes individuals, movements or nation-states align themselves with others that they might not under different conditions. There has been an immense amount of information posted in this forum on the jihadist-leftist alliance. The fact that the global left would be the biggest victim of a triumphant global jihad is lost on them as they see small government oriented capitalists as a much more serious threat. As far as the ACLU in particular, if it's anti-american, they're always willing to support it. They cloak themselves in superficial praise of American freedom, but their actual agenda is anything but that.
-
In Defense Of The Constitution
News & Analysis
July 9, 2011
http://www.anti-cair-net.org/CAIRreportLeeBacaMuslimBrotherhood.html
CAIR, Berkeley, And The Report About Nothing
The Council on American-Islamic Relations(CAIR) and Berkeley
University recently issued a joint report on “Same Hate, New Target:
Islamophobia and Its Impact in the United States 2009-2010 (
http://crg.berkeley.edu/content/islamophobia-report-0910 )”. There
are a few interesting questions arising from this joint effort between
one of Americas largest Islamic hate groups and a university that
prides itself on politically inclusive speech and“diversity”.
Some questions for Berkeley;
- Why did Berkeley join with a known Islamic supremacist
hate group with proven ties (
http://www.anti-cair-net.org/HLFJudgeSolisUnsealedRulingCAIRHamas.pdf
) to Islamic terrorism to issue a report?
- Why wouldn’t Berkeley respond when Anti-CAIR e-mailed
them simply asking for an explanation on their relationship to CAIR?
The best thing to come from this infamous collaboration
was…exactly nothing. The report was printed on glossy paper, many
names and high titles of authors were included, and spiffy graphics
were on the cover. Yet it appears nobody has bothered to read the
report. It seems that CAIR’s ability to attract fawning mentions
of this"report" in the main-stream press has hit a stumbling block.
There are no adoring reporters calling CAIR spokesman Ibrahim Hooper
about the report, there is no mention of it on the talk-show networks.
It appears there is no interest in CAIR and Berkeley’s phony report
on "Islamophobia". (We did find news releases paid for by CAIR (
http://www.google.com/search?q=Same+Hate%2C+New+Target%3A+Islamophobia+and+Its+Impact+in+the+United+States+2009-2010&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a#q=Same+Hate%2C+New+Target%3A+Islamophobia+and+Its+Impact+in+the+United+States+2009-2010&oe=utf-8&rls=org.mozilla:en-US:official&client=firefox-a&um=1&ie=UTF-8&tbo=u&tbm=nws&source=og&sa=N&hl=en&tab=wn&bav=on.2,or.r_gc.r_pw.&fp=dd5639e19c54e10d&biw=992&bih=583
) touting their farcical report.)
Time and money was wasted, trees were needlessly cut down,
much pontificating and smoke blowing went into the Report About
Nothing and it seems nobody cares.
This is as it should be.
-------------------------
L.A. County Sheriff Lee Baca's Muslim Community Affairs Unit
Spills The Beans On The Muslim Brotherhood?
L.A. County Sheriff Lee Baca has unfortunately shown to be a
tireless defender of CAIR (
http://www.investigativeproject.org/2675/compelling-testimony-political-theater
). Despite all evidence (
http://www.anti-cair-net.org/WhatLawEnforcementSaysAboutCAIR.html )
proving CAIR's creation by HAMAS supporters and operatives (
http://www.anti-cair-net.org/HLFJudgeSolisUnsealedRulingCAIRHamas.pdf
) to advance the goals of the Muslim Brotherhood and support HAMAS (
http://www.anti-cair-net.org/FBItiesCAIRHamas ), Baca has publicly and
enthusiastically defended CAIR as witnessed at the recent
congressional hearings (
http://www.investigativeproject.org/2675/compelling-testimony-political-theater
) held by Rep. Peter King.
So an interesting event occurred at the Islamic Center of
Southern California (
http://www.investigativeproject.org/documents/misc/355.pdf ) (ICSC).
The Center was hosting a community town hall meeting led by the Muslim
Public Affairs Council (
http://www.investigativeproject.org/1785/mpac-pursues-islamist-ideology-in-guise-of-civil
) (MPAC), a group founded (
http://www.investigativeproject.org/documents/misc/358.pdf ) and
staffed (
http://www.investors.com/NewsAndAnalysis/ArticlePrint.aspx?id=554287 )
by supporters of the Muslim Brotherhood and other like-minded
Islamofascists (
http://www.danielpipes.org/4603/mpac-cair-and-praising-osama-bin-laden
).
The L.A. County Sheriff’s Muslim Community Affairs Unit
(MCAU) was featured, represented by Deputy Sherif Morsi whose goal (
http://homeland.house.gov/sites/homeland.house.gov/files/Testimony%20Baca%20Attach%201.pdf
) as a MCAU official is to “build a stronger relationship with the
Muslim community for better understanding and cooperation with law
enforcement.”
Deputy Morsi was questioned by Alan Kornman (
http://theunitedwest.org/la-sheriff%E2%80%99s-muslim-community-affairs-unit-is-a-civil-rights-lawsuit-waiting-to-happen/
) of"The United West ( http://theunitedwest.org/ )" about the MCAU and
whether other religions had a special unit in the L.A. County
Sheriff's office to help build their community support. (The short
answer, No. None.)
When Mr. Kornman spoke to Deputy Morsi after the meeting,
Kornman had started to ask a question about the Muslim Brotherhood
when Deputy Morsi immediately cut off the entire question upon hearing
the words "Muslim Brotherhood" by saying: (video 4:44 (
http://www.youtube.com/watch?feature=player_embedded&v=1x7C8P_Hu6g ))
"I don't work terrorism, that's not my function,...I don't
deal with terrorism, I'm not going to make any comments on
terrorism..."
Deputy Sheriff Sherif Morsi did what probably no other Muslim
in that meeting would have done, let alone in public. When asked about
the Muslim Brotherhood he quickly and emphatically equated the group
with TERRORISM. There can be no mistake here. Morsi clearly related
the Muslim Brotherhood with Terrorism.
L.A. County Deputy Sheriff Sherif Morsi apparently knows the
real danger the Muslim Brotherhood poses to the United States of
America.
Maybe he can one day clue-in his boss?
Andrew Whitehead
Director
Anti-CAIR
ajwhitehead@anti-cair-net.org
www.anti-cair-net.org ( http://www.anti-cair-net.org/ )
Story Links:
http://crg.berkeley.edu/content/islamophobia-report-0910
http://www.google.com/search?q=Same+Hate%2C+New+Target%3A+Islamophobia+and+Its+Impact+in+the+United+States+2009-2010
http://www.investigativeproject.org/2675/compelling-testimony-political-theater
http://www.investigativeproject.org/documents/misc/355.pdf
http://www.anti-cair-net.org/WhatLawEnforcementSaysAboutCAIR.html
http://www.anti-cair-net.org/HLFJudgeSolisUnsealedRulingCAIRHamas.pdf
http://www.anti-cair-net.org/FBItiesCAIRHamas
http://www.investigativeproject.org/documents/misc/355.pdf
http://www.investigativeproject.org/documents/misc/358.pdf
http://www.investors.com/NewsAndAnalysis/ArticlePrint.aspx?id=554287
http://www.danielpipes.org/4603/mpac-cair-and-praising-osama-bin-laden
http://homeland.house.gov/sites/homeland.house.gov/files/Testimony%20Baca%20Attach%201.pdf
http://theunitedwest.org/la-sheriff%E2%80%99s-muslim-community-affairs-unit-is-a-civil-rights-lawsuit-waiting-to-happen/
http://theunitedwest.org/
http://www.youtube.com/watch?feature=player_embedded&v=1x7C8P_Hu6g
-
Yes BD, let's just gloss over the Stalinist origins of the American Criminal Liberties Union, and their use of the US legal system to undercut this country by citing a few constitutional amendments and Rush Limbaugh.
Pay no attention to the commies behind the curtain.....
GM: You claimed that "No one with an American Criminal Liberties Union membership has anything but contempt for the republic." While you take the name in a misleading manner, you spoke in absolutes. To make such an absolute statement demands that you poll everyone with an ACLU membership, or anyone who has ever held an ACLU membership, and make sure that nary a one has "anything but contempt for the republic."
I then provided you with a list of cases that the ACLU has taken to the USSC and won. On this list are cases that strengthened individual freedoms, including many cases related to free speech and the free exercise of religion. Many of the cases stem from issues regarding the 4th and 6th Amendments.
As you might know, the Constitution is the document that leads, and in some ways defines, the republic. Yet, when I use it to debunk the argument that made in absolutists tones, you say I hide behind it??? The nerve I have to hide behind a few constitutional amendments!
-
GM: You claimed that "No one with an American Criminal Liberties Union membership has anything but contempt for the republic." While you take the name in a misleading manner, you spoke in absolutes. To make such an absolute statement demands that you poll everyone with an ACLU membership, or anyone who has ever held an ACLU membership, and make sure that nary a one has "anything but contempt for the republic."
Ok, i'll qualify that to say that some might be suckered in by the superficial claims of caring about the constitution and are ignorant of the Stalinist origins of the group. They might not know of how the ACLU defends NAMBLA while waging lawfare against the Boy Scouts. However, ACLU membership tends to attract those on the left, which by definition requires a contempt for America.
-
"some might be suckered in by the superficial claims of caring about the constitution and are ignorant of the Stalinist origins of the group. "
That would include me when I was in. I would submit though that you remain a tad too harsh. I think a noticable percentage of regular members includes who are simply making a well intentioned statement that they believe the C, applies to everyone, even the anus clients that the ACLU so often represents.
-
Ah, but despite the image they attempt to cultivate, they do not defend the constitutional rights of everyone, just those that fit their leftist agenda.
-
Ah, but despite the image they attempt to cultivate, they do not defend the constitutional rights of everyone, just those that fit their leftist agenda.
Lefties like Limbaugh and Nazis.
-
Ah, but despite the image they attempt to cultivate, they do not defend the constitutional rights of everyone, just those that fit their leftist agenda.
Lefties like Limbaugh and Nazis.
The Nationalsozialistische Deutsche Arbeiterpartei aka National Socialist German Workers' Party aka the Nazi party was pretty darn socialist and was praised by the American Communists that the ACLU sprang from until the Soviet-Nazi alliance fell apart.
The ACLU defending Limbaugh was a pretty clever gambit, was it not? Or do you think it was motivated by something other than a desire to cultivate the facade that the ACLU is a non-partisan defender of civil rights?
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The point I was addressing was the nature of those who make up the support of the ACLU, not the leadership itself.
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GM: Do you refuse to say the Pledge of Allegiance since it was written by a socialist?
You simply can't ignore the socialist roots of this pledge, and its goal to undermine the republic. It is SOCIALISM!!!!!!!!
http://www.ushistory.org/documents/pledge.htm
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GM: Do you refuse to say the Pledge of Allegiance since it was written by a socialist?
You simply can't ignore the socialist roots of this pledge, and its goal to undermine the republic. It is SOCIALISM!!!!!!!!
http://www.ushistory.org/documents/pledge.htm
Interesting bit of history. I did not know that. I always make sure to say it with this line:
"I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all."
Which makes the ACLU and their fellow travelers howl in agony, like vampires splashed with holy water. :wink:
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No way. That is just a convenient marriage of the socialist and Congress. Just because it has "under God" in there now does not mean you can ignore the socialist history of the Pledge. We must stop this socialist movement from entering our schools. They poison our children's minds at such a young age. Once the pledge is socialist, it is always socialist.
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http://www.aclu.org/content/aclu-urges-supreme-court-uphold-ruling-removing-phrase-under-god-pledge-allegiance-recited-p
ACLU Urges Supreme Court to Uphold Ruling Removing the Phrase ""Under God"" From Pledge of Allegiance Recited in Public Schools
March 24, 2004
FOR IMMEDIATE RELEASE
WASHINGTON - The American Civil Liberties Union today urged the Supreme Court to uphold a federal appeals court ruling that public schools are constitutionally barred from linking patriotism and piety by reciting the phrase "under God" as part of the Pledge of Allegiance.
"The government should not be asking impressionable schoolchildren to affirm their allegiance to God at the same time that they are affirming their allegiance to the country," said ACLU Legal Director Steven R. Shapiro.
"Removing 'under God' from the Pledge is not anti-religious," he added. "Just the opposite is true. The only way the religious reference in the Pledge can be upheld is for the Court to conclude that the words 'under God' have no religious meaning, which is far more insulting to people of faith."
As the ACLU noted in a friend-of-the-court brief, Congress added the phrase "under God" at the height of the anti-communist McCarthy Era. In signing the bill, then-President Eisenhower said that the phrase "under God" was added so that schoolchildren would "daily proclaim the dedication of our nation and our people to the Almighty."
**With God's blessing, the socialist taint is washed away, enraging the Stalinist Lawfare Unit.
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**And God offers redemption, to even the ACLU, if they would only seek his grace.
http://post-gazette.com/nation/20020628undergod0628p3.asp
How the Pledge got God
Minister, now 91, gave Ike the idea one Sunday morning
Friday, June 28, 2002
By Tom Gibb, Post-Gazette Staff Writer
ALEXANDRIA, Pa. -- He was a Scotsman come to America, just 3 1/2 years removed from his homeland. So, unlike his schoolboy son, George Docherty didn't have The Pledge of Allegiance stamped deep in memory.
The Rev. George Macpherson Docherty, 91, proposed inserting the phrase "under God" in the Pledge of Allegiance to President Eisenhower in February 1954. (Lake Fong, Post-Gazette)
As Docherty recalls it almost 49 years hence, the exchange between father and son, went something like this:
"What did you do in school today?"
"Well," second-grader Garth Docherty obliged, "we started with The Pledge of Allegiance."
So, the junior Docherty repeated it for his father -- the 1953 version, the next-to-the-current revision that read, in part, "one nation, indivisible, with liberty and justice for all."
"It struck me that it didn't mention God," George Docherty recounted yesterday from his home in Alexandria, Huntingdon County. "I was brought up in Scotland, and in Scotland, we sang, 'God save our gracious king.' It was everybody's belief that God was part of society."
George Docherty's puzzlement might have died there.
But this was the Rev. George Macpherson Docherty. And the Rev. George Macpherson Docherty was three years into his pastorate of Washington, D.C.'s New York Avenue Presbyterian Church -- two blocks from the White House, the church attended by President Lincoln and frequented by his successors.
On the first Sunday in February 1954, a few months after the exchange with his son, Docherty raised the issue from the pulpit -- with President Dwight D. Eisenhower in the front pew of the 1,400-seat sanctuary.
In his sermon, Docherty reasoned that reciting the Pledge didn't make nonbelievers profess a faith in God.
"He is pledging allegiance to a state, which through its founders, laws and culture, does as a matter of fact believe in the existence of God," he said. "Without this phrase 'under God,' The Pledge of Allegiance to the Flag might have been recited with similar sincerity by Muscovite children at the beginning of their school day."
Afterward, according to Docherty, Eisenhower told him, "I think you've got something."
The long story cut short: newspapers picked up the message and the Congressional Record reprinted the sermon in full.
And 4 1/2 months later, in a nation fretting at the Cold War and what they saw as godless communism, the Pledge officially was leavened to 31 words, with the addition of the phrase "under God" after "one nation."
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Two words don't change the history of the Pledge or the meaning of the other words. Tere is a guy who stands tall and wants to end the use of the socialist indoctrination of the Pledge (see below). If you can't ignore history, you can't ignore history, GM. But, if you are willing to look at the outcomes, say the protection of liberties involving speech, press, and religion (even the exercise thereof) like the ACLU has a, well, history of working toward, then I guess you can accept the change that two little words in the Pledge can make....
http://thatsrightnate.com/2009/07/30/the-socialist-threat-of-the-pledge-of-allegiance/
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"But, if you are willing to look at the outcomes, say the protection of liberties involving speech, press, and religion (even the exercise thereof) like the ACLU has a, well, history of working toward"
http://archive.frontpagemag.com/readArticle.aspx?ARTID=7151
The ACLU also asserts that the First Amendment, which was NEVER meant by its authors to do so, “protects” child pornography. This is material so foul, that after my years as a federal prosecutor and Director of the Attorney General’s Commission on Pornography, I call it “crime scene photography” because of the actual abuse required for its production. The ACLU asserts there should be no federal or state governmental restriction on its distribution, reproduction, sale, and use by pedophiles and others. A very small minority of the American public shares this view.
These are just two of the many extreme positions that the ACLU holds that we discuss in the book.
FP: The ACLU is for polygamy and child pornography? This is truly incredible – and shameful. Why do you think so few people know about this? How come the media isn’t all over this outrage?
Sears: The ACLU has made no secret of their incredible “First Amendment” defense of the distribution of even the roughest child pornography for those who know where to look for it. Their former national counsel’s testimony supporting this “right” in Washington D.C. before the Pornography Commission was delivered after a slide show of such photos depicting in frightening detail the sexual abuse and then murder of a small boy. The ACLU actually filed a brief before the United States Supreme Court defending the “rights” of child pornographers in the New York v. Ferber case. But they are clever enough that you do not see the ACLU creating television or print ads to proclaim their support for these positions.
And of course no matter how much one is offended by this and other forms of the vilest pornography imaginable, the ACLU say the government cannot take any action that could protect any citizen from unwanted exposure. Ironically, this is the same ACLU which claims that offended persons must be forcefully protected by them in court from the dreaded public display of the Ten Commandments or Christmas.
Similarly, from their founder’s earliest sentiments, to their policy guide and board statements, to President Strossen’s comments at Yale in 2005 the ACLU record of support for polygamy and much more than that to redefine “marriage” is clear but generally unknown.
The major media has generally given them a free pass on all of this, and why the media choose to ignore these facts and give the ACLU a “free pass” is beyond us.
FP: So what do you think is the ACLU’s true agenda?
Sears: To get the answer to this question, let’s look at a little history. Today the highest award the ACLU bestows annually is its Roger Baldwin Medal of Liberty named for their founder who they still hold in highest regard. Though Baldwin said he was not a communist, he visited the Soviet Union in 1924 and wrote glowingly about Stalin’s government and the great social experiment then being undertaken in that country (see page 15 of our book). Then let’s look at the words of Roger Baldwin back in 1935 when he wrote the following in his thirtieth anniversary Harvard University classbook:
“I am for Socialism, disarmament, and ultimately the abolishing of the state itself as an instrument of violence and compulsion. I seek social ownership of property, the abolition of the propertied class, and sole control by those who produce wealth. Communism is the goal.”
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Is child porn protected by the First Amendment, GM? If not, it is NOT an outcome. I provided you with a list of cases that the ACLU has supported at the USSC and won. Those ARE outcomes. Did you look at the list? Did you see the protected speech? The protected press? Probably not. I realize that no matter what the ACLU does, you will not change your mind. Once your mind is made up, there is no changing it. No matter what. I am glad that you can justify your socialist leaning with the Pledge of Allegiance, though. Well played!
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So, we should just ignore the ACLU's Stalinist origins and their advocacy of the rape of children/NAMBLA?
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No more so than we should dismiss the socialist agenda of the author of the Pledge.
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No more so than we should dismiss the socialist agenda of the author of the Pledge.
Really? Those things are morally equivalent to you?
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A couple of observations without jumping all the way in here. There is a contention between what I think of liberty and what others with a more socialistic view think of justice. I've always taken note that in the pledge liberty comes before justice.
The story that the ACLU helped Rush Limbaugh IIRC is that they were dragged in kicking and screaming. Here we had a high profile political 'enemy' of theirs being publicly humiliated over a criminal charge that LE had no chance of proving without forceably opening his most personal and private records, violating his civil liberties. In the early crucial days of the scandal, the story at least on one side was - where is the ACLU on this? Isn't this perhaps one of the highest profile violations ever of the types of civil liberties violations they stand so publicly for? After quite a delay (Oct to Jan?), yes they came in and put an end to that criticism. Not on the news of the violation but (at least in perception) in response to a spreading question - where is the ACLU on this.
http://archive.newsmax.com/archives/articles/2004/1/12/143050.shtml
"It may seem odd that the ACLU has come to the defense of Rush Limbaugh," the state chapter's executive director, Howard Simon, said ..."
- Why would that seem odd?
My question on it all is something like this, are not basic economic freedoms a part of civil liberties? Does the ACLU ever fight against 62% taxation in MN for example or the right of a shopkeeper in Abilene to not have Washington set his minimum wage, or the right across the country to choose fee for service healthcare?
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GM: It was you who said that the Stalinist history of the ACLU should not be ignored, but you are quite open to overlooking the socialist history of the Pledge. Why is this? While I recognize the differences between Marxism, communism, Stalism, and socialism, those on the right simply conflate them. So, yes, for the sake of this argument, I am quite willing to let them be morally equivilant.
Are you seriously trying to argue that NAMBLA is threatening to the republic? Let's go back to your original contention that ACLU members hate the republic. I have serious doubt that NAMBLA will lead to the demise of the US as we know it. I find that particular organization to be disgusting, with reprehensible goals.
According to the ACLU, here is the reason that it supported NAMBLA:
Why did the ACLU represent NAMBLA?
The ACLU of Massachusetts' represented members of NAMBLA because, while the ACLU does not advocate sexual relationships between adults and children, we do advocate robust freedom of speech. This lawsuit struck at the heart of the First Amendment. It is easy to defend freedom of speech when the message is something people find reasonable. The defense of freedom of speech is most critical when the message is one most people reject. For more information about the case, please contact the ACLU of Massachusetts.
For the record, I think it is important for the ACLU, or other organizations, to protect free political speech. It is easy to support popular causes. It is not so easy to support the controversial ones.
Voltaire springs to mind here.
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"GM: It was you who said that the Stalinist history of the ACLU should not be ignored, but you are quite open to overlooking the socialist history of the Pledge. Why is this? While I recognize the differences between Marxism, communism, Stalism, and socialism, those on the right simply conflate them. So, yes, for the sake of this argument, I am quite willing to let them be morally equivilant".
Do you grasp the difference between a simple patriotic oath and a Stalinist organization designed to undercut this nation from within?
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And the ACLU has done good work on this issue.
But something that forms an important part of my sense of the group is my memory of the literature I received from them containing foaming hatred of President Reagan on what we might call now "radical progressive criteria" or "affirmative man endowed rights". These values were deep in the essence of the organization.
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Why did the ACLU represent NAMBLA?
The ACLU of Massachusetts' represented members of NAMBLA because, while the ACLU does not advocate sexual relationships between adults and children, we do advocate robust freedom of speech. This lawsuit struck at the heart of the First Amendment. It is easy to defend freedom of speech when the message is something people find reasonable. The defense of freedom of speech is most critical when the message is one most people reject. For more information about the case, please contact the ACLU of Massachusetts.
For the record, I think it is important for the ACLU, or other organizations, to protect free political speech. It is easy to support popular causes. It is not so easy to support the controversial ones.
Criminal conspiracy is not protected speech. Ret. FBI S/A Bob Hamer did undercover work investigating NAMBLA http://bobhamer.net/samplechapters.html
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What GM does not see is that we have been wrongfully legislating our values on these people with laws against bestiality, sex with young children, limiting marriage to a husband and a wife, and threatening to treat an identifiably distinct unborn life like its a life. You say criminal conspiracy but they say oppression of their free spirit and desires that are morally equal to yours.
The problem I see with sex with sheep, sex with elementary aged school children and killing the unborn is establishing with certainty the consent of the other party. How can anyone support child labor prohibitions but oppose restrictions on a child's choice of sex partners (or does ACLU oppose child labor laws as well?). If children are capable of consent and deserving of liberty, couldn't we send them to war at 8 or 9 too.
Abhorrent speech is abhorrent speech. The Supreme Court chooses its cases. The ACLU could stand to choose its cases a little more carefully. Twisting the meaning of founding principles does nothing IMO to defend the Bill of Rights.
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If I understand the case correctly (and I may not), the issue was the age of consent. The age of consent is a legal definition, set by a legislature. There is nothing magical about the age of consent, as seen by a variety of ages for sexual and marital consent from state to state. That would make any attempt to either alter the age of consent or abolish it all together political speech.
I don't like NAMBLA, I don't understand NAMBLA, I don't condone NAMBLA. I'll never fund NAMBLA, join NAMBLA, or befriend anyone I know is a member of NAMBLA. That does not mean that NAMBLA lacks political speech rights.
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http://old.nationalreview.com/murdock/murdock200402270920.asp
February 27, 2004, 9:20 a.m.
No Boy Scouts
The ACLU defends NAMBLA.
An old friend of mine once said this about the American Civil Liberties Union: "They're a bunch of whale-saving, criminal-loving pinkos — and thank God for them."
This remark nicely summarizes the ambivalence with which many people regard the ACLU. Few organizations dance closer to the very edge of the loony-Left precipice than it does. There seems to be no thug too hardened nor any cause too exotic for the ACLU to champion. At the same time, if America ever were unlucky enough to face a president who decided to remain in the Oval Office past her expiration date, the ACLU would battle her and her junta with every sharp courtroom argument, pointed legal filing, and well-aimed briefcase it could muster.
That said, the ACLU lately has stained the dark side of its reputation through its actions in two cases involving the treatment of vulnerable, young Americans. The ACLU is defending those who abuse children while attacking those who give them moral guidance. This contrast reveals the priorities of today's ACLU.
The Manhattan-based public-interest law firm is defending the North American Man-Boy Love Association in a $200 million civil lawsuit filed by Mr. and Mrs. Robert Curley. The Curleys claim that Charles Jaynes was driven by the literature and website of NAMBLA, an outfit that advocates sex between grown men and little boys, reportedly as young as age 8.
Jaynes did not simply read NAMBLA's materials and ponder its message. He and Salvatore Sicari actively sought a boy with whom to copulate. They picked 10-year-old Jeffrey Curley of Cambridge, Massachusetts. They lured him into their car as he played outside his home in October 1997. When Curley resisted their sexual advances, they choked him to death with a gasoline-soaked rag. Then they took the boy's body across state lines to Jayne's apartment in Manchester, New Hampshire. They molested the cadaver and stuffed it into a cement-filled Rubbermaid container. Finally, they crossed state lines again into Maine, whereupon they tossed Jeffrey Curley's remains into the Great Works River, from which it was recovered within days. Jaynes and Sicari were convicted of these crimes in 1998, for which they are serving life sentences.
So why blame NAMBLA? Is it any more responsible for this atrocity than is Vintage Books, the publisher of Vladimir Nabokov's Lolita? Imagine that Jaynes and Sicari had read that 1955 novel about a middle-aged intellectual's affair with a 12-year-old girl. What if these two men found an equally young female who they abused and killed, just as they murdered Jeffrey Curley in real life? Putting aside the fact that Lolita is a work of fiction, would Vintage Books face civil justice?
Probably not, nor would NAMBLA if it limited its output to fictional depictions of "man-boy love." It is difficult to pin imaginary crimes on actual criminals who turn make-believe into mayhem.
Within the realm of nonfiction, as revolting as its ideas are, NAMBLA certainly has a First Amendment right to argue that America's laws should be changed to permit sexual relations between adult men and third-grade school boys. Most Americans would disagree vehemently, as well they should. That's called debate. It's the American way.
As ACLU of Massachusetts Legal Director John Reinstein sees it: "Regardless of whether people agree with or abhor NAMBLA's views, holding the organization responsible for crimes committed by others who read their materials would gravely endanger important First Amendment freedoms."
However, as Fox News' Bill O'Reilly noted, there is more at play here than pamphleteering. "According to lawyers familiar with [NAMBLA's] website," O'Reilly explained, "it actually posted techniques designed to lure boys into having sex with men and also supplied information on what an adult should do if caught."
NAMBLA is "not just publishing material that says it's OK to have sex with children and advocating changing the law," says Larry Frisoli, a Cambridge attorney who is arguing the Curleys case in federal court. NAMBLA, he says, "is actively training their members how to rape children and get away with it. They distribute child pornography and trade live children among NAMBLA members with the purpose of having sex with them."
Frisoli cites a NAMBLA publication he calls "The Rape and Escape Manual." Its actual title is "The Survival Manual: The Man's Guide to Staying Alive in Man-Boy Sexual Relationships."
"Its chapters explain how to build relationships with children," Frisoli tells me. "How to gain the confidence of children's parents. Where to go to have sex with children so as not to get caught...There is advice, if one gets caught, on when to leave America and how to rip off credit card companies to get cash to finance your flight. It's pretty detailed."
"In his diary, Jaynes said he had reservations about having sex with children until he discovered NAMBLA," Frisoli continues. "It's in his diary in 1996, around the time he joined NAMBLA, one year before the death of Jeffrey Curley."
The practical, step-by-step advice Jaynes followed goes far beyond appeals to sway public opinion in favor of pedophilia. Such language aids and abets felonious conduct. If such conspiracy results in homicide, it is reasonable for NAMBLA to face civil liability if not criminal prosecution.
Ohio's Court of Appeals found NAMBLA complicit in an earlier child-rape case. NAMBLA's literature, discovered in a defendant's possession, reflected "preparation and purpose," according to the Buckeye State's top bench.
The ACLU has offered material support to those who openly preach pedophilia and arguably encourage kidnapping, rape, and murder. Yet this legal group is energetically hostile to an organization that tries to turn boys into men, with sex alien to the process.
Since 1915, the Boy Scouts have managed land within San Diego's Balboa Park. It has built a swimming pool, a 600-seat amphitheater, and a camping facility that accommodates 300. Camp Balboa serves some 12,000 Boy Scouts annually through daylong events and weekend sleepovers. The Scouts' tie to this land is a 50-year lease offered by the San Diego City Council and signed in 1957. In exchange for their stewardship — including private investment for maintenance and development — the Scouts hand the city an annual lease payment of $1.00.
This arrangement is too much for the ACLU to swallow. It sued the City of San Diego to expel the Boy Scouts from Balboa Park. The ACLU contends that the Scouts are a religious organization and thus should be dislodged from the facility. Never mind that the Scouts did not bar other groups from using the park. In fact, according to Hans Zeiger, an 18-year-old Eagle Scout who has written about this controversy, Balboa Park hosted last summer's San Diego Gay Pride Festival.
Clinton-appointed U.S. District Judge Napoleon Jones deemed the Boy Scouts a religious organization last July and declared that their involvement with Balboa Park violated the separation of church and state. The ACLU used this ruling to secure a settlement wherein the City of San Diego cancelled the Scouts' lease on the park, even though it did not expire until 2007 and, in fact, was extended in 2001 for 25 years. The ACLU also scored $950,000 in attorneys fees and court costs, thus fleecing taxpayers and deepening its pockets.
San Diego's Boy Scouts are appealing Judge Jones' ruling. A federal judge someday may decide whether or not the Scouts' good deeds will go unpunished.
The ACLU's supporters should contemplate where this organization has placed itself vis-à-vis NAMBLA and the Boy Scouts. The ACLU seemingly believes that everyone deserves a lawyer, no matter how odious his case. Perhaps, although it would be nice to see NAMBLA siphon its own bank account rather than the ACLU's to justify its evil ways. The ACLU decides for itself where to devote its finite resources. Hence, its leaders freely chose to stand with cheerleaders for pederasty while torpedoing those who mentor rather than rape little boys.
Today's ACLU makes one wish it would find some whales to save.
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"I don't like NAMBLA, I don't understand NAMBLA, I don't condone NAMBLA. I'll never fund NAMBLA, join NAMBLA, or befriend anyone I know is a member of NAMBLA. That does not mean that NAMBLA lacks political speech rights."
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Thank you Bigdog. I like the first part of that very much and I will grudging consider the truth of the last sentence.
I know of one situation. The man now in jail was a very prominent local person, head of the local bar association. The unidentified boy, friend of the man's son, is someone we knew. Top of the class student, never returned to school after testifying at the trial. Has gone far away to counseling and school so in effect has lost his family in addition to his friends. Man-boy 'love' is a crime with a victim.
Maybe a bank robbers union can lobby against armed robbery restrictions, and rapists and murderers can argue for looser laws and lighter sentences, but no one needs to take their side or help their cause. I personally find it to be more a perversion and exploitation of the Bill of Rights than a potential erosion - to claim we are unable differentiate those examples from real political speech.
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Although it is in Boston, this conference might interest several of you.
http://conconcon.org/
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GM: Thanks for the post. Did the ACLU support the language for policy change, the rape manual, or both?
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GM: Thanks for the post. Did the ACLU support the language for policy change, the rape manual, or both?
I don't know. Given it is doubtful that the ACLU takes every case offered it, why would they want to take one involving this? Although I recall that at least one ACLU official has been arrested for similar conduct.
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http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/2008-pdfs/april08leb.pdf
Criminal speech: inducement and the First Amendment
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"The great object of my fear is the federal judiciary. That body, like gravity, ever acting, with noiseless foot, and unalarming advance, gaining ground step by step, and holding what it gains, is ingulfing insidiously the special governments into the jaws of that which feeds them." --Thomas Jefferson, letter to Judge Spencer Roane, 1821
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This is a good quote, but keep in mind he had a long time dispute with John Marshall. Kin is funny that way.
"The great object of my fear is the federal judiciary. That body, like gravity, ever acting, with noiseless foot, and unalarming advance, gaining ground step by step, and holding what it gains, is ingulfing insidiously the special governments into the jaws of that which feeds them." --Thomas Jefferson, letter to Judge Spencer Roane, 1821
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Well, maybe so, but over the sweep of time, his point is not without merit.
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An article most of you will like:
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202504720006&Its_not_Thomasgate&slreturn=1&hbxlogin=1
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Thanks Bigdog. I hold Thomas up there as a principled American hero. The story of his upbringing is quite remarkable. http://www.cbsnews.com/stories/2007/09/27/60minutes/main3305443.shtml?tag=contentMain;contentBody
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BD: You're right :-)
Doug: I liked that quite a bit.
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=================================
THE PATRIOT POST
Alexander's Essay -- July 28, 2011
=================================
On the Web: http://patriotpost.us/alexander/2011/07/28/what-power-to-tax-and-spend/
Printer Friendly:
http://patriotpost.us/alexander/2011/07/28/what-power-to-tax-and-spend/print
PDF Version: http://pdf.patriotpost.us.s3.amazonaws.com/2011-07-28-alexander.pdf
-------------
What Power to Tax and Spend?
-------------
The Question Americans Should Be Asking
"The Constitution, which at any time exists, 'till changed by an explicit and
authentic act of the whole People, is sacredly obligatory upon all." --George
Washington
Barack Hussein Obama's refusal to send a Balanced Budget Amendment (BBA) to the
states as condition of House Speaker John Boehner's support for raising the national
debt ceiling has pushed federal funding negotiations to the precipice of the
Treasury Department's 2 August default deadline. Boehner has retreated on the
House's "cut, cap and balance
(http://patriotpost.us/alexander/2011/07/21/a-sign-of-sanity-amid-the-budget-banter/
)" plan and its BBA provision is no longer a stipulation in negotiations. He has
also reduced the "cuts" in the House plan, and may acquiesce to the larger debt
ceiling increase the Democrats
(http://patriotpost.us/alexander/2008/10/24/the-once-noble-democratic-party/ ) want
in order to avoid another debt ceiling battle prior to the 2012 elections.
Notably, most House conservatives, including the Tea Party freshmen, are standing
with Boehner, choosing a pragmatic approach until 2012, when they hope to strengthen
their numbers in the House and Senate, and retake the presidency.
The current budget debate was the first serious consideration of a BBA since it was
advocated by President Ronald Reagan
(http://patriotpost.us/alexander/2011/02/03/the-reagan-centennial/ ) in the 1980s
and later passed by the House as part of the Republican Contract with America in
1995. (At that time, it received 300 votes, including 72 Democrats.)
Now, as then, Leftist Democrats
(http://patriotpost.us/alexander/2011/03/10/democratic-socialism/ ) in the Senate
have created a formidable gauntlet to its passage because it would severely
undermine their power to redistribute wealth, power that is the only assurance of
their perpetual re-election
(http://patriotpost.us/alexander/2011/04/21/its-not-what-the-american-people-want/
). A BBA would sunset their dynasty.
So, where to from here, and what question should conservatives be asking? First, let
me offer a brief review of the current budget/debt crisis.
The current legal limit (ceiling) on outstanding U.S. debt is $14.29 trillion. The
federal government currently spends about $10 billion every day, and about $4
billion of that is borrowed with guarantees that future generations of Americans
will repay the principal and interest.
The House budget plan, as of today, allows a $900 billion increase in the debt
ceiling, but includes cuts of approximately that amount over 10 years, which is to
say it is not a "net-net" plan to balance the budget now, and does not reverse debt
accumulation.
Obama's 2012 budget is $3.7 trillion. Conservative estimates are that his "budget
plan" will add more than $12 trillion in debt over the next decade. The only way the
U.S. can remain solvent under those circumstances would require colossal tax
increases and fiscal policies that inflate the economy -- both of which will break
the back of free enterprise
(http://patriotpost.us/alexander/2010/07/08/barackracy-part-1/ ) and ultimately lead
to more taxes and inflation until the whole charade collapses.
This debt bomb (http://patriotpost.us/alexander/2011/02/10/the-debt-bomb-showdown/ )
poses the most significant threat to Essential Liberty
(http://patriotpost.us/alexander/2009/09/03/essential-liberty-part-1/ ) in our
nation's history. Our editorial team outlined this mounting national security threat
(http://patriotpost.us/alexander/2004/02/20/the-other-national-security-threat/ )
back in 2004.
Across the nation, 49 of 50 states have some form of balanced budget requirement.
The federal government, however, recognizes no such limitations and for three
decades has been spending far more than it takes in.
Not only must the debt accumulation be stopped, it must be reversed.
To accomplish this reversal, the most pressing question in the current debate is not
"which budget plan is better?" Rather, it is "By what authority does the central
government collect taxes, and on what items is it authorized to spend those combined
taxes and accumulated national debt?"
Tell me what you think
(http://patriotpost.us/alexander/2011/07/28/what-power-to-tax-and-spend/#post-comment
)
To answer that question, let's review the limitations on taxing and spending our
Constitution
(http://patriotpost.us/document/the-constitution-of-the-united-states-of-america/ )
imposed upon Congress before the courts twisted Rule of Law into the so-called
"living constitution
(http://patriotpost.us/alexander/2005/09/16/a-living-constitution-for-a-dying-republic/
)," which is subject to the rule of men. Under the latter, Congress has unlawfully
assumed the authority not only to collect and spend taxes on any objects it desires
(in order to perpetuate re-election), but to regulate everything else
(http://www.heritage.org/Research/Reports/2011/07/Red-Tape-Rising-A-2011-Mid-Year-Report
). (For the record, the cost of that regulation is estimated at $1.75 trillion
annually -- more than twice the total income taxes collected in 2010.)
This unlawful spending and regulation is in abject violation of our elected
officials' oaths to "support and defend
(http://patriotpost.us/alexander/2008/11/14/our-sacred-honor-to-support-and-defend/
)" our Constitution, and a breach of trust in their contract with the American
people, which has created a perilous national security crisis
(http://patriotpost.us/alexander/2011/04/07/the-most-perilous-national-security-crisis-since-1860/
). But on the question of their constitutional authority, former House Speaker Nancy
Pelosi infamously claimed, "Nobody questions that
(http://patriotpost.us/alexander/2009/10/29/nobody-questions-that/ )."
To get a sense of how enormous the outlaw-spending crisis has grown, I quote Obama
Treasury Secretary Tim Geithner's efforts to shock Republicans into submission this
week: "Just remember, this is the United States of America. We write 80 million
checks a month. There are millions and millions of Americans that depend on those
checks coming on time. ... We cannot put those payments at risk and we do not have
the ability to limit the damage on them if Congress fails to act in time."
By what authority is the central government taxing and borrowing to distribute 80
million checks a month?
The "General Welfare Clause" in Article 1 Section 8 of the Constitution provides,
"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and
Excises, to pay the Debts and provide for the common Defense and general Welfare of
the United States; but all Duties, Imposts and Excises shall be uniform throughout
the United States..."
During the constitutional ratification debates, our Founder's made clear that
taxation in support of expenditure for the "general welfare
(http://www.heritage.org/Research/Reports/2011/01/Enough-Is-Enough-Why-General-Welfare-Limits-Spending
)" of the nation was subject to severe limits.
Alexander Hamilton, our nation's first Treasury secretary, argued for a somewhat
more expansive interpretation of "general welfare," while James Madison, our
Constitution's author, reiterated that the enumerated powers contained therein
strictly limited the context of "general welfare."
Madison's view prevailed. As president, Madison vetoed a federal highway bill in
1817 because such expenditures were not authorized by our Constitution and,
moreover, were clearly the responsibility of the states, as specified in the Tenth
Amendment
(http://patriotpost.us/alexander/2000/01/01/on-the-tenth-amendment-federalism/ ).
According to Madison, "It has been urged and echoed, that the power 'to lay and
collect taxes, duties, imposts and excises, to pay the debts and provide for the
common defence and general welfare of the United States,' amounts to an unlimited
commission to exercise every power which may be alleged to be necessary for the
common defence or general welfare."
However, wrote Madison, "If Congress can do whatever in their discretion can be done
by money, and will promote the General Welfare, the Government is no longer a
limited one, possessing enumerated powers, but an indefinite one."
In Federalist No. 45, Madison declared, "The powers delegated by the proposed
Constitution to the federal government are few and defined. Those which are to
remain in the State governments are numerous and indefinite. The former will be
exercised principally on external objects, as war, peace, negotiation and foreign
commerce. ... The powers reserved to the several States will extend to all the
objects which in the ordinary course of affairs, concern the lives and liberties,
and properties of the people, and the internal order, improvement and prosperity of
the State."
As for extra-constitutional taxation, Madison was unequivocal: "I cannot undertake
to lay my finger on that article of the Constitution which granted a right to
Congress of expending, on objects of benevolence, the money of their constituents."
The authentic interpretation of expenses authorized by our Constitution was
sustained until the War Between the States, when Abraham Lincoln
(http://patriotpost.us/alexander/2009/02/13/lincolns-legacy-at-200/ ) stretched them
beyond constitutional bounds.
But the wholesale adulteration of our Constitution began with Franklin Delano
Roosevelt's (http://patriotpost.us/alexander/2004/09/24/useful-idiots-on-the-left/ )
regime. Under duress of economic depression, he implemented such
extra-constitutional programs as the Social Security Act, Federal Housing
Administration, Home Owner's Loan Corporation, the Tennessee Valley Authority and a
plethora of other "New Deal" federal spending programs, not one of which was
authorized by our Constitution.
In 1936, the Supreme Court (U.S. v Butler) cemented this broad and unprecedented
interpretation of the General Welfare Clause in alliance with FDR -- and the rest is
history.
The High Court's interpretation far exceeded its constitutional authority. In
Federalist No. 81, Alexander Hamilton made it clear that this sort of judicial
activism was illegitimate: "[T]here is not a syllable in the [Constitution] which
directly empowers the national courts to construe the laws according to the spirit
of the Constitution."
That notwithstanding, what our Constitution authorizes versus what the courts via
judicial diktat have since interpreted it to authorize have rendered Rule of Law
null and void. The resulting debt crisis is a menacing threat to Liberty
(http://patriotpost.us/alexander/2011/05/12/sunset-or-sunrise-on-liberty/ ).
So, what's the solution?
Tell me what you think
(http://patriotpost.us/alexander/2011/07/28/what-power-to-tax-and-spend/#post-comment
)
Thomas Jefferson warned, "To preserve independence ... we must not let our rulers
load us with perpetual debt. We must make our election between economy and Liberty,
or profusion and servitude. ... The fore horse of this frightful team is public
debt. Taxation follows that, and in its turn wretchedness and oppression."
A BBA is a good way to limit outlaw spending. However, there is no chance of a BBA
passage with a Democrat administration and Democrat-controlled Senate. And if a BBA
did pass, it could result in tax increases indexed to budget increases if it does
not require a supermajority to raise taxes, a spending cap to keep the "balance"
from perpetual increases, a provision to protect it from tax increases forced by
judicial diktat, and a provision to ensure it is not construed as to affirm the
constitutional authority of current spending programs -- most of which have no such
authority.
Moreover, no amendment will suffice until the authority of our Constitution is
restored, and that will require a broad challenge from "the People," and the first
step in that challenge was born in the Tea Party movement
(http://patriotpost.us/alexander/2010/06/24/the-tea-party-movement/ ) this past
election cycle. That momentum must be sustained if there is any hope to preserve
Liberty.
On that authority, Jefferson noted, "Our peculiar security is in possession of a
written Constitution. Let us not make it a blank paper by construction. ... If it
is, then we have no Constitution. ... In questions of power, then, let no more be
heard of confidence in man, but bind him down from mischief by the chains of the
Constitution."
Alexander Hamilton wrote, "A sacred respect for the constitutional law is the vital
principle, the sustaining energy of a free government. ... [T]he present
Constitution is the standard to which we are to cling. Under its banners, bona fide
must we combat our political foes -- rejecting all changes but through the channel
itself provides for amendments."
George Washington, in his farewell address to the nation, wrote, "The basis of our
political systems is the right of the people to make and to alter their
constitutions of Government. But the Constitution, which at any time exists, 'till
changed by an explicit and authentic act of the whole People, is sacredly obligatory
upon all. ... If in the opinion of the people the distribution or modification of
the constitutional powers be in any particular wrong, let it be corrected by an
amendment in the way which the constitution designates. But let there be no change
by usurpation; for though this in one instance may be the instrument of good, it is
the customary weapon by which free governments are destroyed."
Obama and his arrogant socialist cadres
(http://patriotpost.us/alexander/2010/08/19/obama-and-the-socialist-bourgeoisie/ )
believe they are smarter than our Founders. They certainly believe they can outsmart
most of the American People. Unless more of us begin to ask relevant questions about
Rule of Law (http://patriotpost.us/alexander/2009/09/03/essential-liberty-part-1/ )
and constitutional authority, they may be right on the latter contention.
(A note of thanks to my colleague, Matthew Spalding, constitutional scholar at the
Heritage Foundation (http://www.heritage.org/ ), for research assistance on this
essay.)
Semper Vigilo, Fortis, Paratus et Fidelis!
Mark Alexander
Publisher, The Patriot Post (http://patriotpost.us/subscribe/ )
-
This is shifted, as per Guro's request, from the 2012 Presidential thread to this thread. For background information on the original discussion, please see: http://dogbrothers.com/phpBB2/index.php?topic=2112.500 (July 29-30).
From GM: "I'm not arguing, I really don't understand how a driver's license from a different state is given "full faith and credit" yet a concealed weapon license is not. The issuance of a license (driver or CCW) seems to to me to fall under the definition of a public act, thus a "shall" and not a "may" catagory.
I asked a state trooper that was teaching a class I was in on traffic code (Troopers really know traffic code, they sleep, eat and breathe it in my state) about out of state drivers who are in technical violation of state traffic code while in our state (in this case, the display of a front lic. plate). My state statute say all vehicles on public roadways MUST (not may) display a front license plate when operating a vehicle on a public roadway. The statute does not make allowance for out of state vehicles. We have a bordering state where only the rear plate is required. The trooper and every other person I've asked has never explained why that statute doesn't apply to the out of state vehicles. Is that a "full faith and credit" thing?"
First, GM, let me apologize for assuming that you were being argumentative and not seeking information. I did indeed, manage to make an a$$ of myself.
Second, the answer, as I understand it, to the question is that Congress has taken action in this area. I will post 2 Wikipedia articles below that provide some background information, but please note that the cooperation began at least by the 1950's (Beemer Resolution) and has supported sine by a variety of congressional actions (ex: funding the Joint Executive Board).
http://en.wikipedia.org/wiki/Driver_License_Compact
http://en.wikipedia.org/wiki/Driver_License_Agreement
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"First, GM, let me apologize for assuming that you were being argumentative and not seeking information."
No worries. It's safe to assume I'm being argumentative 99.9% of the time.
The interstate compact makes sense. I knew there was an agreement that resulted in DL's getting suspended for non-payment of out of state traffic violations. I didn't know exactly how it worked.
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Followup question: Is there an interstate marriage registry? If you live in MO. and get married in Vegas, how does MO. know (aside from you filing jointly on state income tax or a name change on a DL)?
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Posting this as a (right wing) opposing opinion to the group at Harvard Law School putting on a conference advancing the idea of calling for a new constitutional convention, posted recently by BD.
I support the idea of a conference to discuss this seldom used provision, but I oppose calling a convention because the very few new amendments I would favor tend to be very specific in nature, mostly not structural. (I also oppose abbreviating or truncating words that start with c-o-n.)
August 11, 2011 by Steven Hayward
Con-Con-Con Job?
So over the transom comes a notice about the Conference on the Constitutional Convention (or “Con-Con-Con” for short) up at Harvard Law School next month, which is bringing together figures from left and right to mull over an Article V constitutional convention. As the participant in a couple of successful “post-partisan” right-left efforts at compromise over some knotty-pine policy issues such as energy and climate change, as well as the “Modernizing Liberalism” effort I wrote about here back in June, far be it from me to pour cold water on such an effort. This isn’t going to sport the Kumbaya mushiness of “No Labels,” for one thing. It’s going to feature prominent lefties such as Larry Tribe and Laurence Lessig, and right-thinking folk such as Instapundit’s Glenn Reynolds (Glenn will give one of the keynotes, in fact), and Cato’s very sound John Samples, along with some Tea Party activists.
It is one thing to reach policy compromises even over deeply divisive policy issues such as the debt ceiling. Constitutional compromise is another matter, and it is easy to predict that the Con-Con-Con effort will make little progress for an elusively simple reason: the basic condition that made the compromises of the 1787 convention possible do not exist today. The Framers of 1787, and, significantly, their critics who became the Anti-Federalists, shared a general agreement about first principles (with one important exception which I’ll come to in due course), which made institutional compromise possible. The Framers were all believers in the creed of individual natural rights as expressed in the prologue to the Declaration of Independence, and moreover believed that limiting government required anti-majoritarian institutions such as the Senate, separation of powers, the Electoral College, and federalism, among other things. The modern left believes in none of these things, and every agenda of constitutional reform from the left calls for abolishing or weakening all of them. (See, for just one example, Larry Sabato’s really bad book on the subject, and Sabato is far from being a hard leftist.) The left would like to abolish the Senate and the Electoral College, just for starters. Deep-dish thinkers like Cass Sunstein have argued for making the judiciary more powerful, precisely because it is more immune to popular political accountability.
For the Framers in 1787, most of their arguments were over how to limit government power and secure individual liberty most effectively, which meant they were arguing over small differences. You might almost say that the Philadelphia convention was a group of rightists arguing with themselves. Today’s left, starting at least as far back as Woodrow Wilson, who dismissed the natural rights philosophy of the Declaration of Independence and attacked the principle of the separation of powers, wants to remove as many limitations on government power as possible. As such the Con-Con-Con exercise has little hope of reaching a principled compromise over constitutional reform, and even if a suite of reforms might get the necessary ratification of three-fourths of the states, it is likely the reforms would make our political divisions worse.
The one case of where the Framers had to compromise because they had a serious difference of first principles is instructive—slavery. Even though there was probably majority sentiment for abolishing slavery in 1787, tolerating slavery in the South was unfortunately necessary if there was to be a union and a constitution at all. And, of course, it required a civil war to resolve this problem ultimately—not an encouraging precedent for constitutional “compromise” today.
The way the modern left has willfully misconstrued the convention’s compromises over slavery is revealing and significant, as it shows the left is unable or unwilling to distinguish the first principles of the Constitution from its compromises. The left likes to criticize the Founders for their toleration of slavery, for example, by claiming the three-fifths clause means that black Americans were only “three-fifths of a person.” In fact the intent and action of this clause was to diminish the political power of slave states, which wanted slaves counted as whole persons for the purpose of apportioning House membership. I always have fun pointing this out to students, and asking if they’d feel better about the Founders if they had allowed more political power to slave states in 1787 by counting them as whole persons. It usually elicits dumbfounded looks, silence, and subject-changing to Jefferson and Sally Hemings or something.
Moreover, the entire treatment of slavery in the convention and in the text of the Constitution is significant. Note that the term “slave” is never used; instead, the drafters employed euphemisms, such as “persons held to service” or “other persons.” Even the fugitive slave clause does not use the term. Here’s an interesting point that only emerges from Madison’s notes on their deliberations. The original proposed language for the fugitive slave clause was “No person legally held to service in one state. . .” Madison himself objected to the term “legally;” he told the convention that he “thought it wrong to admit in the Constitution the idea that there could be property in men,” and that the word “legally” seemed to favor “the idea that slavery was legal in a moral view.” So the term was struck.
It is for these and other reasons that Frederick Douglass was able to make out that the Constitution was an anti-slavery document at the level of principle, yet somehow modern liberals can’t make this out at all because they have rejected the principles and logic of the Founding (following, I might add, the same ground of reasoning as Calhoun and other pro-slavery southerners of the mid-19th century, a fact that seems not to embarrass modern liberals, but this is a subject to dilate more fully another day).
Finally, one last observation. The Con-Con-Con organizers downplay the risk of a “runaway” constitutional convention on the grounds that nothing radical would ever get the approval of three-fourths of the states. This makes some sense, until you recall that the Philadelphia convention of 1787 was a “runaway” convention. How so? It was called for the purpose of revising the Articles of Confederation, and required the unanimous consent of all 13 states for revisions to be adopted. Yet what the convention produced was a wholly new Constitution that would go into effect if only nine states ratified it. So much for following the law as it was spelled out explicitly in the Articles. I often pose this problem to students, asking whether the convention acted illegally or unconstitutionally, or what possible justification they could claim for their acts.
Madison discussed this very problem in Federalist #43:
Two questions of a very delicate nature present themselves on this occasion: 1. On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it? 2. What relation is to subsist between the nine or more States ratifying the Constitution, and the remaining few who do not become parties to it?
The first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed.
In other words, Madison is here making a very delicate reference to the right of revolution as it is expressed in the Declaration of Independence—in fact this is the only place in the Federalist Papers where there is a distinct echo of the Declaration. I note that whenever Tea Partiers or their sympathizers like Michele Bachmann invoke the Declaration’s right of revolution today, they are called “dangerous extremists.” I’ll happily stand with “extremists” like Jefferson and Madison any time.
About the second question Madison’s long answer is less convincing, and rests ultimately on the hope, subsequently borne out, that it will be a moot point if every state ratified the Constitution, as in fact happened. Madison finally repairs behind the formula “The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits.” In other words, let’s avert our gaze and hope for the best. That worked then; I don’t think we can do it now, because, as bears repeating, the modern left does not agree with the principles of 1787. As such, I don’t want to try even agreeing with them about the lunch menu.
http://www.powerlineblog.com/archives/2011/08/con-con-con-job.php
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www.newyorker.com/reporting/2011/08/29/110829fa_fact_toobin
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"They are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please which may be good for the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please." --Thomas Jefferson, Opinion on National Bank, 1791
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I do a lot of photography; the following article is a good summary of your rights.
http://www.aclu.org/free-speech/know-your-rights-photographers
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'Making Our Democracy Work' or what I might call 'Ending the limits on government', Supreme Court Justice Stephen Breyer wrote a book about his view of the role of the Court and other branches: http://www.amazon.com/Making-Our-Democracy-Work-Vintage/dp/0307390837/ref=sr_1_1?ie=UTF8&qid=1316045637&sr=8-1 Has anyone here read this book?
Radio show host Hugh Hewitt had what I thought was a very civil and informing interview yesterday with Justice Breyer. I only heard part of it and look forward to going through it more thoroughly to better understand Breyer's view.
Hewitt is an excellent interviewer, a conservative talk show host, a graduate of Harvard, of Univ. Of Michigan Law School, worked in the Reagan administration and is a professor of constitutional law. Breyer is perhaps the most important voice on what I see as the expanding-government-powers side of the Court. Hewitt does not try to explore their differences, just tries to draw out the Justice's view.
Breyer's main point while I was listening (in my words) is that the elected branches are far closer to the people and deserve great leeway. The 9 Justices (really 5 in close decisions) are unelected. The founders couldn't have contemplated all we face today and therefore justices should only limit the actions of the other branches in only extreme situations, narrowly and selectively.
I largely disagree. I mostly don't care what any 50.1% or 60% majority would want for federal powers if they are not specifically authorized to do it in the constitution [except for when those expanded powers favor my own agenda :wink:]. For a lot of great ideas like minimum wage, family leave, health care, and a thousand and fifty distinct federal social spending programs, we should amend the constitution if we want instead of disregarding it IMO. If something new really is a great idea, we can pass a state law in all states or at least the states that what it. O-RomneyCare is an example of doing large programs state by state. A constitutional amendment similar to the federal income tax amendment authorizing a federal healthcare mandate would make the current crisis moot. Otherwise, words have meanings and the U.S. Constitution is the highest law. How does one argue that those powers were not left to the people and to the states? (Justices don't discuss pending cases.)
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I started to cut and paste, but it's a two hour interview, better go with just a link.
http://www.hughhewitt.com/transcripts.aspx?id=d0c4a956-c0ce-47ba-b4cc-6e6544871276
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http://www.ocregister.com/opinion/thomas-321865-original-court.html
Ralph A. Rossum: No longer doubting Thomas
In his 446 opinions, Clarence Thomas always looked to preserve the original meaning of the Constitution.
By RALPH A. ROSSUM / Salvatori professor of American Constitutionalism, Claremont McKenna College
On Oct. 23, 1991, Clarence Thomas was sworn in as the 106th Justice of the Supreme Court. During the heated debate over his confirmation, Gary McDowell, a conservative legal scholar and former speechwriter for Edwin Meese, wrote a piece entitled "Doubting Thomas: Is Clarence a Real Conservative?" Now, 20 years later, there is no doubt: the answer is an unequivocal, yes.
In the 446 opinions he has written since his confirmation, Thomas has assiduously pursued an original understanding approach to constitutional interpretation and a jurisprudence of constitutional restoration. He has been unswayed by the claims of precedent – by the gradual build-up of interpretations that, over time, completely distort the original understanding of the constitutional provision in question and lead to muddled decisions and contradictory conclusions.
As with too many layers of paint on a delicately crafted piece of furniture, precedent based on precedent – focusing on what the Court said the Constitution means in past cases as opposed to focusing on what the Constitution actually means – hides the constitutional nuance and detail he wants to restore. Thomas is unquestionably the justice who is most willing to reject this build-up, this excrescence, and to call on his colleagues to join him in scraping away past precedent and getting back to bare wood – to the original understanding of the Constitution.
The two Supreme Court justices who unabashedly identify themselves as originalists are Clarence Thomas and Antonin Scalia. Yet, they are different in their approaches. Scalia consistently employs an original public meaning approach to interpretation.
He wants to know what the words of the text being interpreted meant to the society that adopted it. While he often turns to founding documents, he does so because they "display the original meaning of the text."
Thomas, pursuing an original understanding approach, incorporates Scalia's narrower original public meaning approach, but then widens the originalist focus and asks as well why the text was adopted. Concerning the Constitution, Thomas turns readily to founding era sources not only to determine the original meaning of the text being interpreted, but also to ascertain the ends the framers sought to achieve, the evils they sought to avert, and the means they employed to achieve those ends and avert those evils when they adopted and ratified that text.
Thomas invariably rejects past decisions that depart from that original understanding. He invites his colleagues to join him by engaging in the hard jurisprudential work of scraping away the layers of misguided precedent and restoring the contours of the Constitution, as it was originally understood by those who framed and ratified it.
Here are two examples from the scores that could be provided. In his concurrence in the Ten Commandment case, Van Orden v. Perry, Thomas condemned the "incoherence" of the Court's past decisions that rendered "the Establishment Clause impenetrable and incapable of consistent application" and called for a "return to the views of the Framers" and for the adoption of actual physical coercion as "the touchstone for our Establishment Clause inquiry."
And, in his dissent in the takings case, Kelo v. City of New London, he observed that "something has gone seriously awry with this Court's interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not." He regretted that the Court majority relied not on the constitutional text, but "almost exclusively on this Court's prior cases to derive today's far-reaching, and dangerous, result."
And, he concluded, "[w]hen faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning."
After a long and bruising confirmation hearing and a close Senate vote, Thomas arrived at the Court as damaged goods. And, given the liberal bias of the legal professoriate, law review articles about him during his first decade of service were unrelentingly hostile and derogatory. One in the Harvard Law Review went so far as to declare that Thomas had no underlying legal approach other than to be in "direct opposition" to the views of Justice Thurgood Marshall whom he replaced. But, that is finally changing, as thoughtful articles taking seriously his opinions and commending his original understanding jurisprudence are now much more prevalent than those castigating him. They praise him as the "Next Great Dissenter," "the Lone Principled Federalist," and the emerging "Commercial Speech Protector."
Even his civil rights opinions are now winning the respect of leftist professors such as Mark Tushnet and the self-described "liberal black womanist," Angela Onwuachi-Willig, who confessed that, by defending Thomas, she had committed an act she "once thought was impossible."
As his 20-year effort to restore the original understanding of Constitution makes clear, there was no reason then and there is no reason now to doubt Thomas.
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Anjoyable piece and a nice concise description of the legal theory too.
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On Tyranny and Liberty
Would the Founders approve of the nation we’ve made?
THE GRANGER COLLECTION, NYC
A U.S. Supreme Court justice recounted over cocktails a while ago his travails with his hometown zoning board. He wanted to build an addition onto his house, containing what the plans described as a home office, but he met truculent and lengthy resistance. This is a residential area, a zoning official blustered—no businesses allowed. The judge mildly explained that he would not be running a business from the new room; he would be using it as a study. Well, challenged the suspicious official, what business are you in? I work for the government, the justice replied. Okay, the official finally conceded—grudgingly, as if conferring an immense and special discretionary favor; we’ll let it go by this time. But, he snapped in conclusion, don’t ever expletive-deleted with us again.
Isn’t that sort of petty tyranny? I asked.
Yes, the justice replied; there’s a lot of it going around.
Tyranny isn’t a word you hear often, certainly not in conversations about the First World. But as American voters mull over the election campaign now under way, they’re more than usually inclined to ponder first principles and ask what kind of country the Founding Fathers envisioned. As voters’ frequent invocations of the Boston Tea Party recall, the Founding began with a negation, a statement of what the colonists didn’t want. They didn’t want tyranny: by which they meant, not a blood-dripping, rack-and-gridiron Inquisition, but merely taxation without representation—and they went to war against it. “The Parliament of Great Britain,” George Washington wrote a friend as he moved toward taking up arms several months after the Tea Party, “hath no more Right to put their hands into my Pocket without my consent, than I have to put my hands into your’s, for money.”
With independence won, the Founders struggled to create a “free government,” fully understanding the novelty and difficulty of that oxymoronic task. James Madison laid out the problem in Federalist 51. “Because men are not angels,” he explained, they need government to prevent them, by force when necessary, from invading the lives, property, and liberty of their fellow citizens. But the same non-angelic human nature that makes us need government to protect liberty and property, he observed, can lead the men who wield government’s coercive machinery to use it tyrannically—even in a democracy, where a popularly elected majority can gang up to deprive other citizens of fundamental rights that their Creator gave them. In writing the Constitution, Madison and his fellow Framers sought to build a government strong enough to do its essential tasks well, without degenerating into what Continental Congress president Richard Henry Lee termed an “elective despotism.” It’s to ward off tyranny that the Constitution strictly limits and defines the central government’s powers, and splits up its power into several branches and among many officers, all jealously watching one another to prevent abuse.
When we ask how our current political state of affairs measures up to the Founders’ standard, we usually find ourselves discussing whether a given law or program is constitutional, and soon enough get tangled in precedents and lawyerly rigmarole. But let’s frame the question a little differently: How far does present-day America meet the Founders’ ideal of free government, protecting individual liberty while avoiding what they considered tyranny? A few specific examples will serve as a gauge.
The Supreme Court’s 2005 Kelo v. City of New London decision is notorious enough, but it bears recalling in this connection, for the whole episode is objectionable in so many monitory ways. In the year 2000, the frayed Connecticut city had conceived a grandiose project to redevelop 90 waterfront acres, in conjunction with pharmaceutical giant Pfizer’s plan to build an adjoining $300 million research center. A conference hotel—that inevitable (and almost inevitably uneconomic) nostrum of urban economic-development authorities—would rise, surrounded by upscale housing, shopping, and restaurants, all adorned with a marina and a promenade along the Thames River. Promising to create more than 3,000 new jobs and add $1.2 million in revenues to the city’s declining tax rolls, the redevelopment authority set about buying up the private houses, mostly old and modest, on the site.
Several homeowners refused to sell, however. They loved their houses and their water views. In response, the determined city seized their property under its power of eminent domain. One resident, Susette Kelo, wasn’t giving up her little pink house without a fight, though, and she, along with a few neighbors (including one who’d lived in her house since 1918), sued the city in the state courts, claiming that its action violated the Fifth Amendment’s guarantee that no person shall “be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The trial court agreed with Kelo’s reasonable assertion of the government’s fundamental duty to protect rather than invade private property, but the state appeals court disagreed, and ultimately the U.S. Supreme Court upheld the city’s seizure, 5–4.
The Supreme Court’s opinions, on both sides, lay out a dreary history of how a fundamental liberty shriveled. The justices cite a 1954 precedent that imperiously expanded the rationale for eminent domain from the Fifth Amendment’s public use to public purpose to justify urban-renewal projects that tore down vast swathes of supposedly blighted property in order to turn the land over to private developers of better housing. Even if you grant the constitutionality of the new rationale, argued the petitioner in this case—who owned a prospering, unblighted department store within the redevelopment area—creating a “better balanced, more attractive community” was not a valid public purpose. Wrong, said the Supremes, in Justice William O. Douglas’s trademark fatuously whimsical language: the legislature, invoking values that are “spiritual as well as physical, aesthetic as well as monetary,” has the power “to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.” Nor need officials, evidently empowered to define public purposes beyond the Constitution’s limited and enumerated scope, deal with property owners on an individual basis in imposing their aesthetic vision on already existing property, so the department-store owner’s liberty and property rights merit no protection from the redevelopment juggernaut.
The Kelo Court also cited a precedent, appropriately from 1984, that is hard to distinguish from a Latin American Communist-imposed land-reform scheme. Because the government owned 49 percent of Hawaii’s land and 72 private landlords owned another 47 percent of it, the state legislature passed a law forcing the private property owners to sell their land to their lessees, for just compensation. The public purpose of this social-engineering megaproject: “eliminating the ‘social and economic evils of a land oligopoly.’ ” Trying to explain his notion of “the tyranny of the majority,” the great democratic danger that he’d designed the Constitution to prevent, Madison began by observing that “those who hold, and those who are without property, have ever formed distinct interests in society.” As the propertyless will always outnumber the propertied, the essence of democratic tyranny is for the poorer many to expropriate the richer few by such “improper or wicked” schemes as voting “an equal division of property,” the furthest-out extreme of tyranny that the Father of the Constitution could imagine. What would he have said about the Hawaii legislature’s property-redistribution edict and the U.S. Supreme Court that ratified it on such a rationale?
Kelo, as the dissenting justices pointed out, makes almost limitless the government’s eminent-domain power. While the Fifth Amendment envisioned transferring one private owner’s property to another—for reasonable compensation—for a turnpike or a canal to which the entire citizenry had access (or, later, a railroad or electricity-transmission line), the 1954 and 1984 precedents that the Court cites at least claimed that the transfer accomplished the direct public purpose of ending a harmful use of property, if only by association in the case of the unblighted department store surrounded by blight. But no one claims that Susette Kelo’s house—or her neighbors’—is blighted, the dissenters observed. The public purpose of “tak[ing] private property currently put to ordinary private use, and giv[ing] it over for new, ordinary private use” is the indirect, secondary one of raising New London’s tax base, meaning that government could order any property razed for a higher-value one, sweeping away single-family houses (especially humble ones) for apartment buildings, churches for stores, or small businesses for national chains. And, the dissenting justices might have added, it makes government officials interested, rather than neutral, parties, since more tax revenue means better pay, health care, and pensions for them.
In 1812, the nation’s retired first chief justice, John Jay, commented on a proposal to take by eminent domain some fields near his Westchester farm and flood them to make a millpond to turn a factory waterwheel. “When a piece of ground is wanted for a use important to the State, I know that the State has a right to take it from the owner, on paying the full value of it; but certainly the Legislature has no right to compel a freeholder to part with his land to any of his fellow-citizens, nor to deprive him of the use of it, in order to accommodate one or more of his neighbours in the prosecution of their particular trade or business,” he wrote. “Such an act, by violating the rights of property, would be a most dangerous precedent.” As for flooding the fields: “It may be said that the pond, by facilitating manufactures, will be productive of good to the public; but will it not produce more loss than gain, if any of the essential rights of freemen are to be sunk in it?” By 1885, however, many states had passed “mill acts,” permitting just such a use of eminent domain to power gristmills—required, like turnpikes and railroads, to serve all comers.
As it happened, getting rid of Susette Kelo’s house—ultimately, New London moved it from its waterfront site rather than demolish it—produced no gain to anyone. In the wake of a merger, Pfizer moved its research facility elsewhere; the redevelopment agency couldn’t raise the necessary financing for the rest of the project, which Pfizer’s withdrawal rendered problematic; and the land sits vacant, generating not a nickel of tax revenue. The only good the decision produced was a slew of laws in many other states severely limiting the use of eminent domain for economic development. In New York, one of eight states without such limits, the official wresting of unblighted property from one ordinary private owner to another politically powerful one for private use continues unabated.
In framing the Constitution, once the Revolution had stopped the tyranny of taxation without representation, Madison realized that even in a self-governing republic, taxes remained the chief source of potential abuse. “The apportionment of taxes on the various descriptions of property, is an act which seems to require the most exact impartiality,” he wrote, “yet there is perhaps no legislative act in which greater opportunity and temptation are given to a predominant party, to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets.” A steeply “progressive” tax system, in which the rich pay not just a higher amount but pay at a higher rate than the less affluent, would have troubled him as much as a system whose loopholes allow some rich citizens to pay proportionally less, and he would have heard with dismay—though not with total astonishment, since it was just this kind of danger he knew the country faced—that 47 percent of tax filers now pay no income tax.
But what he could never have imagined is that judges—rather than the legislature—would impose a new system of taxation without representation, a modern tyranny of which the most outrageous of several examples is the New Jersey Supreme Court’s Abbott v. Burke case, still going on after more than a quarter-century. Based on the state constitution’s boilerplate call for the legislature to “provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years,” the court, in a string of 21 decisions starting in 1985, set out to use the schools to rescue the children of New Jersey’s urban underclass, cost be damned.
The court claimed to know just how Herculean a task it was taking on. Inner-city kids in Newark, Trenton, Camden, and so on had “needs that palpably undercut their capacity to learn,” the judges noted. “Those needs go beyond educational needs[;] they include food, clothing and shelter, and extend to lack of close family and community ties and support and lack of helpful role models.” The children live “in an environment of violence, poverty, and despair, . . . isolated from the mainstream of society. Education forms only a small part of their home life,” and dropping out of school “is almost the norm. . . . The goal is to motivate them, to wipe out their disadvantages as much as a school district can, and to give them an educational opportunity that will enable them to use their innate ability.”
What will accomplish this vast work of cultural and social repair? The judges had read their Jonathan Kozol, they noted, and what they took away from the fanciful, far-left education ideologue’s Savage Inequalities, which compares some of the worst urban high schools—including one in Camden, New Jersey—with some of their very best suburban counterparts, is that the chief difference between successful schools and failed ones is money.
So, flinging aside the concept of separation of powers, the court ordered the legislature to hike its support for specified inner-city districts—and not by the relatively modest amount that the legislature calculated would help these schools meet performance standards it thought reasonable, but rather by the huge amount of money needed to make their per-pupil expenditure equal that of the state’s richest suburban districts. In fact, the court reasoned, the 31 so-called Abbott districts should receive more than the rich districts, because inner-city kids have “specific requirements for supplemental educational and educationally-related programs and services that are unique to those students, not required in wealthier districts, and that represent an educational cost.” Before long, the court had included in these extra programs all-day kindergarten, half-day preschools for three- and four-year-olds (though the state constitution calls for free education to start at age five), and special transition programs to work or to college, plus a ton of money to improve “crumbling and obsolescent schools,” since “we cannot expect disadvantaged children to achieve when they are relegated to buildings that are unsafe”—and that, as Jonathan Kozol would say, contemptuously proclaim that a racist society doesn’t value the kids it dumps there.
Perhaps not averse to shoveling lots more money to unionized teachers and construction workers while claiming to have no other choice, the legislature didn’t resist the court’s encroachment on its constitutional prerogative to set taxes and spending priorities, and it obediently began to fleece the Garden State’s taxpayers with abandon, pushing New Jersey’s state and local tax burden to 12.2 percent of the average taxpayer’s income, the highest in the nation in the Tax Foundation’s latest ranking. As spending on the Abbott districts skyrocketed from 8.9 percent of the state budget in 1985 to 15.5 percent of a much bigger budget last year, suburban taxpayers found themselves paying for two school systems: their own, through property taxes (higher since the suburbs now get much less state aid); and the Abbott schools, through their state income taxes—to the tune of almost $37 billion in the decade from 1998 to 2008, according to a Federalist Society study. Suburbanites with kids in private or parochial school shoulder a third system as well. To fund construction of gleaming new inner-city schools, the legislature authorized $8.6 billion in bonds that pirouetted around constitutionally mandated voter approval—and that covered only half the ultimate cost, given the inefficiency and corruption that riddles the contracting process. And last spring, the court demanded yet another half-billion dollars for the Abbott archipelago, at a time when the sagging national economy makes curbing out-of-control government spending, and separating essential from frivolous efforts, more than usually urgent.
What are New Jersey taxpayers accomplishing with the $22,000 to $27,000 they spend per pupil each year in the big inner-city districts? On test scores and graduation rates in Newark, the needle has scarcely flickered. As the E3 education-reform group’s report Money for Nothing notes, high schools in the state’s biggest city can’t produce substantial numbers of juniors and seniors who can pass tests of eighth-grade knowledge and skills, and the report quotes testimony to the same effect before the state legislature about Camden’s schools.
A remark the Jersey justices made in one of their Abbott decisions suggests why. “Approximately twenty security guards are required to ensure the safety of high school students in Trenton,” the judges say, compared with three or fewer in a suburban school. What kind of school culture does this statement imply? The judges know that “many poor children start school with an approximately two-year disadvantage compared to many suburban youngsters”—because, even with court-mandated preschool, they have vocabularies a fraction the size of middle-class children’s, and they lack a middle-class-level mastery of cognitive concepts like cause and effect, or social skills like sharing, taking turns, sitting still, and paying attention, or a middle-class knowledge base of everything from dinosaurs and donkeys to Rapunzel and Rumpelstiltskin.
And money for a 20-man troop of guards is supposed to help shrink that disadvantage rather than expand it, as the schools do now? To work that rescue, the schools need a vast reformation in their institutional culture so that, as in much less costly parochial schools that succeed with the same youngsters whom the public schools fail, kids behave not because they have a phalanx of guards coldly eyeing them but because they identify internally with the purposes of the school and genuinely want to meet its standards. They need teachers rewarded for merit, not longevity, and a curriculum that stresses skills, knowledge, and striving, not grievance and unearned self-esteem. They need a school culture that expands their sense of opportunity and possibility strongly enough to counteract the culture of militant ignorance and failure that surrounds them in the narrow world they know.
Laudable ends generally don’t justify improper means; but when illegitimate means come nowhere near achieving their indisputably noble goal—when, to paraphrase Chief Justice Jay, government drowns our liberties in a pond that can’t even turn a mill wheel—what justification can there be?
One of the greatest dramas of President Washington’s first term was the showdown between House of Representatives leader James Madison and Treasury secretary Alexander Hamilton over how to interpret the Constitution of which Madison was the moving spirit, and which he and Hamilton had defended and explicated together in The Federalist. Hamilton wanted the government to charter a national bank; Madison argued that doing so would be unconstitutional because chartering a bank was not one of the limited and enumerated powers given to the federal government. It was no good, he said, for Hamilton to claim that the Constitution’s clause empowering Congress to make any law “necessary and proper” for carrying out its enumerated powers would permit it to charter the bank, since a bank wasn’t “necessary” but merely “convenient.” Once you start saying that the Constitution’s “necessary and proper” clause, or commerce clause, or clause to provide for the general welfare gives Congress implied powers, you are setting off on a course that will in the end “pervert the limited government of the Union, into a government of unlimited discretion, contrary to the will and subversive of the authority of the people.”
Nonsense, replied Hamilton: the “criterion of what is constitutional . . . is the end to which the measure relates as a mean. If the end be clearly comprehended within any of the specified powers, & if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the constitution—it may safely be deemed to come within the compass of the national authority.” Congress and President Washington agreed; the bank, once established, sparked an era of golden prosperity; and even Madison learned when he became president that a central bank was indeed necessary, and that interpreting the Constitution requires “a reasonable medium” between trying to “squeeze it to death” and “stretch it to death.” Men of goodwill can disagree on where the line is that would “convert a limited into an unlimited Govt,” but all agree that one can’t overstep that line.
So it was with a certain astonishment that one heard then–Speaker of the House Nancy Pelosi’s reply, when asked two years ago whether President Obama’s health-care plan, which she and her colleagues had just passed into law, was constitutional. “Are you serious?” she said with incredulous contempt. “Are you serious?” With apparently no idea of where her authority came from, she seemed to assume that Congress had power to do whatever it wanted, though her office later announced that the power to force citizens to buy health insurance was implicit in the Constitution’s commerce clause. Congress has, of course, grotesquely stretched the doctrine of implied powers many times since Madison conceded such a thing existed, but here, almost unthinkingly, it stretched it to the breaking point and left the Constitution in fragments on the legislative floor. A year later, federal judges in Florida and Virginia declared the requirement to buy health insurance unconstitutional, as did a Pennsylvania judge this September: the commerce clause, they held, can’t be stretched to make people buy something. If it could, wrote Florida federal judge Roger Vinson, “Congress could require that everyone above a certain income threshold buy a General Motors automobile—now partially government-owned—because those who do not . . . are adversely impacting commerce and a taxpayer-subsidized business.” Now that one federal appellate court has backed Judge Vinson and two others have upheld the requirement to buy health insurance, it will be for the Supreme Court, which received two appeals in the case in late September, to declare whether this time Madison’s nightmare of “unlimited” government finally becomes real.
Nor is this Obamacare’s sole constitutional outrage. To rein in Medicare spending, Obamacare has authorized an appointed panel of 15 “experts,” the Independent Payment Advisory Board, whose power, said Obama’s ex-OMB director, Peter Orszag, will represent “the largest yielding of sovereignty from the Congress since the creation of the Federal Reserve.” To control costs, the board will set reimbursement rates for doctors—which in effect will ration care for Medicare beneficiaries, though the Orwellian law simultaneously forbids explicit rationing—and Congress can overturn the board’s edicts only if it legislates another way to cut Medicare by the same amount. Under some circumstances, which the murkily ambiguous law sets forth in a confusingly vague and broad way, even that congressional tinkering could require 60 votes in the Senate. Nor can Congress kill the board (which, unlike other such agencies as the FCC or SEC, needn’t be even nominally bipartisan) unless it introduces a resolution in January 2017 and enacts it by mid-August by a three-fifths supermajority of all members in both houses—and even then, the resolution can’t take effect until 2020. The Obamacare law isn’t embarrassed to call the executive-branch board’s edicts “legislation,” and it exempts them from judicial or administrative review. So much for the separation of powers.
There’s indeed a lot of petty tyranny going around. The question is, at what point do many little tyrannies add up to Tyranny? Likely voters suggested a troubling answer in an August Rasmussen poll: 69 percent of them said they didn’t think today’s U.S. government enjoys the consent of the governed. And in September, 49 percent of respondents, an unprecedented high, told Gallup pollsters that “the federal government poses an immediate threat to the rights and freedoms of ordinary citizens.”
Myron Magnet, City Journal’s editor-at-large and its editor from 1994 through 2006, is a recipient of the National Humanities Medal and the author of The Dream and the Nightmare: The Sixties’ Legacy to the Underclass.
http://www.city-journal.org/2011/21_4_tyranny-and-liberty.html
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Bigdog posted in 'Politics' 11/1: "And, yet, it is political speech and therefore due higher protection than it has been given: http://www.cnn.com/2011/10/31/us/tennessee-occupy-protests/index.html?hpt=hp_t1"
Years ago an old friend as a young attorney used to represent strip joints in town and also the strippers. He made the argument that the exposed dancing was their speech and thus protected. I don't remember how far he got with that.
Obviously the actual protests constitute political speech. Holding signs, conducting rallies, inviting speakers and listeners is protected political speech at its best. But what about sleepovers and just hanging out? Does protected mean they don't have to pay the permit fee that the tea partiers had to pay in one case, or that they can live there for nothing if there is no permit law? Are laws like a public curfew or park hours unconstitutional? Is there a right for the others in the neighborhood or from other political groups to have a turn at some unobstructed access to these public areas too?
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DougMacG: The issue in TN was that the law was not content neutral. The law was passed with Occupy in mind, not as a general preventative manner.
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I'm sure the rapes and riots are political speech in front of leftist judges as well. :roll:
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Yeah, I am totally sure that this is true.
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Why not? The rule of law is being waived by the sympathetic politicians in various cities, the MSM is doing it's best to not report on the culture of criminality found within OWS and the American Criminal Liberties Union is performing it's Stalinist mission of using the American legal system to harm America.
You don't see this?
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Oh, the judge is a Clinton appointee. Shocker!
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Oh, the judge is a Clinton appointee. Shocker!
http://orig.jacksonsun.com/fe/coe/aleta_trauger.htm
Trauger met Vice President Al Gore when they attended Vanderbilt Law School in the mid-1970s, and she was a Clinton-Gore Delegate in 1992.
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Oh, the judge is a Clinton appointee. Shocker!
http://orig.jacksonsun.com/fe/coe/aleta_trauger.htm
Trauger met Vice President Al Gore when they attended Vanderbilt Law School in the mid-1970s, and she was a Clinton-Gore Delegate in 1992.
http://thehill.com/blogs/e2-wire/677-e2-wire/187297-gore-throws-support-behind-occupy-wall-street-protests
Al Gore backs Occupy Wall Street protests
By Andrew Restuccia - 10/13/11 09:25 AM ET
Former Vice President Al Gore threw his support behind the Occupy Wall Street protests Wednesday night, arguing that the country’s elected officials have failed the public on everything “from the economy to the climate crisis.”
**What a co-inky-dink!
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I don't see the rule of law being waived by sympathetic politicians. Sorry. There have been several crackdowns. I have read of the rape in the Philly Occupy on CNN. And the ACLU continues to protect free speech, GM. Like they did with well known Stalinists in Skokie. Speech you don't like it the fing point of the 1st Amendment.
Why not? The rule of law is being waived by the sympathetic politicians in various cities, the MSM is doing it's best to not report on the culture of criminality found within OWS and the American Criminal Liberties Union is performing it's Stalinist mission of using the American legal system to harm America.
You don't see this?
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"I don't see the rule of law being waived by sympathetic politicians."
**How many examples would you like?
http://pjmedia.com/tatler/2011/11/04/video-are-police-giving-ows-protesters-a-free-pass/
Video: Are Police Giving OWS Protesters a Free Pass?
[youtube]http://www.youtube.com/watch?v=diXDoueSMw8&feature=player_embedded[/youtube]
Wednesday night, November 2nd, I went to the Occupy Los Angeles Protests in front of City Hall with my flip cam to take footage. At 5:30 PM approximately one thousand of the protesters gathered in the middle of the street and started marching. Mind you, this was at 5:30 PM, rush hour, in Downtown Los Angeles, where the traffic is already atrocious on a regular night. I couldn’t believe my eyes. I wondered how on earth these protesters got a permit to march in the middle of the street during rush hour, blocking traffic and making the drive home for thousands of people even worse. However, as you will see in the video I took, these protesters did not have a permit. They just marched in the street, completely breaking the law. And the most amazing part, the cops did not seem to care. In fact, they were escorting the marchers through the streets of downtown, as thousands of people sat in their cars waiting for these selfish brats to pass by. In fact, to my knowledge, not one single person was arrested. Unbelievable. This got me thinking: Would the city and the police be so accommodating if a tea party rally spontaneously started marching into the streets and obstructing traffic during rush hour? That, of course, is a rhetorical question.
- Sammy Levine (Associate Producer PJTV)
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GM,
The cops and bureaucrats aren't afraid of the tea partiers the tea party is part of the establishment. They are afraid of these guys because these folks have less to loose so they have more power to act in ways out side the law because they have less to loose.
Terry
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GM,
The cops and bureaucrats aren't afraid of the tea partiers the tea party is part of the establishment. They are afraid of these guys because these folks have less to loose so they have more power to act in ways out side the law because they have less to loose.
Terry
The LAPD could handle the crowd, no problem. They are obviously under orders not to.
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An Open Letter to the Citizens of Oakland from the Oakland Police Officer’s Association
1 November 2011 – Oakland, Ca.
We represent the 645 police officers who work hard every day to protect the citizens of Oakland. We, too, are the 99% fighting for better working conditions, fair treatment and the ability to provide a living for our children and families. We are severely understaffed with many City beats remaining unprotected by police during the day and evening hours.
As your police officers, we are confused.
On Tuesday, October 25th, we were ordered by Mayor Quan to clear out the encampments at Frank Ogawa Plaza and to keep protesters out of the Plaza. We performed the job that the Mayor’s Administration asked us to do, being fully aware that past protests in Oakland have resulted in rioting, violence and destruction of property.
Then, on Wednesday, October 26th, the Mayor allowed protesters back in – to camp out at the very place they were evacuated from the day before.
To add to the confusion, the Administration issued a memo on Friday, October 28th to all City workers in support of the “Stop Work” strike scheduled for Wednesday, giving all employees, except for police officers, permission to take the day off.
That’s hundreds of City workers encouraged to take off work to participate in the protest against “the establishment.”
But aren’t the Mayor and her Administration part of the establishment they are paying City employees to protest? Is it the City’s intention to have City employees on both sides of a skirmish line?
It is all very confusing to us.
Meanwhile, a message has been sent to all police officers: Everyone, including those who have the day off, must show up for work on Wednesday. This is also being paid for by Oakland taxpayers. Last week’s events alone cost Oakland taxpayers over $1 million.
The Mayor and her Administration are beefing up police presence for Wednesday’s work strike they are encouraging and even “staffing,” spending hundreds of thousands of taxpayer dollars for additional police presence – at a time when the Mayor is also asking Oakland residents to vote on an $80 parcel tax to bail out the City’s failing finances.
All of these mixed messages are confusing.
We love Oakland and just want to do our jobs to protect Oakland residents. We respectfully ask the citizens of Oakland to join us in demanding that our City officials, including Mayor Quan, make sound decisions and take responsibility for these decisions. Oakland is struggling – we need real leaders NOW who will step up and lead – not send mixed messages. Thank you for listening.
SOURCE: Oakland Police Officer’s Association
http://www.opoa.org/uncategorized/an-open-letter-to-the-citizens-of-oakland-from-the-oakland-police-officers%E2%80%99-association/
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http://www.military.com/news/article/vets-heed-occupy-rallying-cry.html (Support Our Troops!!!!)
NEW YORK -- U.S. military veterans are heeding the rallying cry of Occupy Wall Street, saying corporate contractors in Iraq made big money while the troops defending them came home - and can't make a living now.
"For too long, our voices have been silenced, suppressed and ignored in favor of the voices of Wall Street and the banks and the corporations," said Joseph Carter, a 27-year-old Iraq war veteran who marched Wednesday to Zuccotti Park, the epicenter of the movement that has spread worldwide.
The former Army sergeant from Seattle spoke to fellow Occupy protesters and passers-by on Broadway after joining about 100 veterans marching in uniform from the Vietnam Veterans Plaza through Manhattan's financial district.
Their unemployment rate outstrips the national average and is expected to worsen. They worry about preservation of First Amendment rights. And they're angry.
A week before Veterans Day, generations of former U.S. military men and women threw their considerable weight behind the Occupy movement born in mid-September when about 100 protesters also marched in the Wall Street area.
"For 10 years, we have been fighting wars that have enriched the wealthiest 1 percent, decimated our economy and left our nation with a generation of traumatized and wounded veterans that will require care for years to come," said Carter, who leads the national Iraq Veterans Against the War group.
Requiring care now in California is a former Marine whose skull was fractured last week when he was injured by a projectile at an Occupy Oakland rally. Police there are now the subject of a formal investigation by the city's Citizens' Police Review Board.
In New York on Wednesday, police circled the veterans as they stood in formation in front of the New York Stock Exchange, chanting, "We are veterans! We are the 99 percent!" and "Corporate profits on the rise, soldiers have to bleed and die!"
By the stock exchange, Josh Shepherd, a former Navy petty officer 2nd class who was next to Olsen when he was injured, read the oath members of the armed forces
take to defend the U.S. Constitution.
"We are here to support the Occupy Wall Street movement," he then declared.
Police officers on scooters separated the veterans from the entrance to the stock exchange. On the other side of the marchers was a lineup of NYPD horses carrying officers with nightsticks.
"We are marching to express support for our brother, Scott Olsen, who was injured in Oakland," former Army specialist Jerry Bordeleau told The Associated Press earlier.
At the intersection of Wall Street and Broadway, they paused for a moment of silence for the Marine who served two Iraq tours and remains hospitalized.
Olsen was honored Wednesday by veterans and other activists at Occupy protests around the nation, from Boston and Philadelphia to Los Angeles and Chicago.
James McBride, 20, an Army Reserve veteran, said his military oath was the reason he traveled from Vermont to join the Occupy Boston encampment the day after 141 people were arrested on Oct. 11 trying to expand to an adjacent plot of land.
"I swore to defend their freedoms, and they were being taken away. It's very unconstitutional," said McBride, who said he was less than honorably discharged for medical reasons.
McBride said the Occupy Wall Street protest is exactly the kind of civil disobedience protected under U.S. law.
"They wanted to kick us out. This is a peaceful assembly," he said Thursday. "In the Constitution, the people have the right to peacefully assemble. It's plain and simple. That's why I'm here, to defend the Constitution of the United States."
Back in New York, Bordeleau blamed some financial institutions for U.S. involvement in Iraq and Afghanistan.
"Wall Street corporations have played a big role in the wars in Iraq and Afghanistan," said Bordeleau, 24, who served several years in Iraq over two tours ending in 2009 and now attends college in New York.
He said private contractors have reaped big profits in those countries "in pursuit of corporate interests that have had a devastating effect on our economy and our country, benefiting only a small number of people."
"The 99 percent have to take a stand," Bordeleau said, to rectify the biggest income gap between rich and poor since the Great Depression, fueled by what protesters say is Wall Street's overblown clout in Washington politics.
From the stock exchange, the veterans walked down Broadway to the bronze bull that symbolizes the stock market.
"Halliburton and Bechtel think these wars are swell," they chanted, invoking the names of American companies that received federal contracts for work rebuilding Iraq.
They say those who risked their lives fighting for their country have the right to protest economic policies and business practices that give them a slimmer chance of finding jobs than most Americans.
From 2008 to 2011, veterans' unemployment rose 5.1 percentage points, according to the Bureau of Labor Statistics.
And a Department of Labor report shows that unemployment tops 20 percent among 18-to-24-year-old veterans, compared with a national rate of about 9 percent.
Veteran unemployment is projected to worsen after 10,000 servicemen and servicewomen return from Afghanistan and 46,000 come home from Iraq by year's end - many wounded or suffering from mental trauma.
Bordeleau, who served in the military police, said his diagnosis of post-traumatic stress disorder has made it impossible to pursue a career in civilian law enforcement, and that he's had a hard time finding jobs that pay more than $10 an hour. He has worked as a groundskeeper at a New York public park while living on disability benefits.
"I can't really survive on that,"
he said.
Wednesday's protest comes two weeks after another veteran faced off with police in New York.
Shamar Thomas, a decorated
former Marine sergeant from Roosevelt, N.Y., went nose-to-nose with officers policing activists in Times Square.
"This is not a war zone! These are not armed people!" he told police in a passionate, videotaped plea that has gone viral on YouTube.
Mayor Michael Bloomberg said he believes the protest, now in its seventh week, is "really hurting small businesses and families."
He said the city has worked hard to preserve the protesters' First Amendment rights, but is very concerned about the rights of others in the area. Bloomberg said the city will take action if and when it's appropriate.
To ease access to small businesses on Wall Street, hundreds of police barricades were removed Wednesday, said Marc LaVorgna, a mayoral spokesman.
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I understand the free speech aspect. I don't understand why those rights trump others. When you are done speaking, shouldn't you go home, let others speak? In terms of free speech, it seems like they are the 1% trying to occupy disproportionately the conversation while the other 99% aren't being heard. JMHO.
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"And the ACLU continues to protect free speech, GM."
Really? I only see FIRE winning cases for free speech on campus. I guess the ACLU is too busy trying to crush the Boy Scouts and defending NAMBLA.
Like they did with well known Stalinists in Skokie.
Stalinist allies, you mean. Remember, the commies that founded the Criminal Liberties Union were big fans of Hilter and his National SOCIALIST German Worker's Party until Adolph and Stalin got into a tiff.
Speech you don't like it the fing point of the 1st Amendment.
As long as it's speech that damages America, the ACLU is there. Funny how there seems to be a lack of them litigating against leftist speech codes.
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http://www.thegatewaypundit.com/2011/11/confirmed-vet-scott-olsens-injuries-were-not-caused-by-sheriffs-deputies/
Confirmed: Scott Olsen’s Injuries Were NOT Caused By Sheriff’s Deputies
Posted by Jim Hoft on Wednesday, November 2, 2011, 10:14 PM
Call off the dogs – The protesters lied.
The cops are innocent.
Memorial for Marine-hater Scott Olsen at Occupy Oakland. (Reuters)
Confirmed: Leftist hero, Jew-basher and founder of “I Hate the Marines.com” website Scott Olsen was not injured at the Oakland riots by local deputies. Olsen was hit by a projectile thrown by the protesters.
The Occupy Oakland protesters already admitted that they started throwing rocks and bottles at police before the police took action.
Today the the San Francisco Sheriff’s Department announced that it was not their deputies who injured Scott Olsen. Spokeswoman Eileen Hirst said 35 of the 37 Sheriff’s Department personnel on site for the raid were not carrying projectiles, and the two who were equipped with them did not fire.
Sorry libs.
The San Francisco Examiner reported:
Former Marine Scott Olsen suffered a skull fracture in the shutdown of the camp after it turned violent the night of Oct. 25 in downtown Oakland. More than 15 local public safety agencies were called in to assist the Oakland Police Department, including the San Francisco Sheriff’s Department.
Occupy activists and supporters claim to have identified at least three San Francisco deputies in video shot before and during the raid…
…Protesters identified the three deputies based on preraid video that showed them from a closer and less chaotic standpoint — near enough to make their nametags visible.
The head of the union that represents sheriff’s deputies said activists circulated one deputy’s home address online. The union has requested it be removed.
The Sheriff’s Department said an internal investigation unit is reviewing the incident, but it’s unlikely the identified deputies caused Olsen’s injury. Spokeswoman Eileen Hirst said 35 of the 37 Sheriff’s Department personnel on site for the raid were not carrying projectiles, and the two who were equipped with them did not fire.
Hirst also said the department has a policy against deputies using weapons for which they are not trained, or borrowing weapons from other law enforcement during a raid situation.
The Mercury News has more.
The only nonlethal weapons San Francisco sheriff deputies brought to Oakland were two Anti-Riot Weapon Enfield rifles that fire 37 mm nonlethal rounds, similar to a roll of quarters. However, no deputies shot those weapons Tuesday night, Hirst said. Asked if someone from another department could have fired a deputy’s weapon, Hirst said, “No, we can’t use equipment we’re not trained in.”
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"As long as it's speech that damages America, the ACLU is there. Funny how there seems to be a lack of them litigating against leftist speech codes."
On this, we agree. The ACLU's lack of support in one area should not cloud you to the fact that it is currently working to keep speech free at the Occupy sites. Speech is not bad for America, or un-American. Speech is the basis of America. In the same ways that I support the free speech of the Tea Party, Nazis and Westboro (and I am not trying equate them, so climb down off that horse), I support the free speech of the OWS and other places. It is the market place of ideas. And I love it.
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I understand the free speech aspect. I don't understand why those rights trump others. When you are done speaking, shouldn't you go home, let others speak? In terms of free speech, it seems like they are the 1% trying to occupy disproportionately the conversation while the other 99% aren't being heard. JMHO.
Woof Doug, I am not exactly sure what you mean here. You think that other voices aren't being heard? That others aren't speaking out? Occupying a park doesn't appear to me to be all that limiting to others' speech rights.
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"As long as it's speech that damages America, the ACLU is there. Funny how there seems to be a lack of them litigating against leftist speech codes."
On this, we agree. The ACLU's lack of support in one area should not cloud you to the fact that it is currently working to keep speech free at the Occupy sites. Speech is not bad for America, or un-American. Speech is the basis of America. In the same ways that I support the free speech of the Tea Party, Nazis and Westboro (and I am not trying equate them, so climb down off that horse), I support the free speech of the OWS and other places. It is the market place of ideas. And I love it.
There is a difference between speech and illegal protests. I can post a lot of caselaw on the topic if you wish. Frankly, I think OWS is good in that it reminds the public of the true face of the left. Just as Obama and europe are providing lessons on how much of a failure euro-socialism is, OWS is providing graphic lessons on what the deluded beliefs of the left look like when applied to the real world.
Riots are not protected speech, blocking roadways is not protected speech. The double standards demonstrated towards the TEA party vs. that towards OWS could not be more obvious. When you have such disparity, it is corrosive to the rule of law.
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No, GM, I'm good on the case law, thanks.
And when the speech has turned into blocking roadways, for example, there have been arrests.
But, let us not forget that this train of discussion started with my post on the law in Nashville that was clearly not content neutral. It was ruled as such by a judge, twho you in turn disparaged... nevermind the case law and historical precedent of that particular issue.
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"And when the speech has turned into blocking roadways, for example, there have been arrests."
If you'll scroll back up to the youtube video I posted, you'll see rush hour traffic being blocked by OWS protesters and the LAPD doing nothing about it. Why do you suppose that is?
"But, let us not forget that this train of discussion started with my post on the law in Nashville that was clearly not content neutral."
Did the law prohibit a certain kind of speech? I doubt it.
"It was ruled as such by a judge, twho you in turn disparaged... nevermind the case law and historical precedent of that particular issue."
I pointed out the political alignment of this dem operative clad in a black robe who did as is commonly done by her ilk, legislated from the bench to further her political agenda.
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"If you'll scroll back up to the youtube video I posted, you'll see rush hour traffic being blocked by OWS protesters and the LAPD doing nothing about it. Why do you suppose that is?"
Because it is one example, while there have been many examples of the opposite occuring nationwide. Because you overlook arrested made in NYC, St. Louis, Nashville (the strating point of the discussion), Austin, and elsewhere.
"Did the law prohibit a certain kind of speech? I doubt it."
This shows your lack of understanding on the totality of related precedent, GM. If you know your case law, you know that laws can't be passed that target not only one type of speech, but one type of speaker.
"I pointed out the political alignment of this dem operative clad in a black robe who did as is commonly done by her ilk, legislated from the bench to further her political agenda."
A judge that follows precedent is now legislating from the bench? Not quite.
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"Because it is one example, while there have been many examples of the opposite occuring nationwide. Because you overlook arrested made in NYC, St. Louis, Nashville (the strating point of the discussion), Austin, and elsewhere."
**Arrests for the arrest for the rapes, assaults and other felony crimes? I'll refer you back to the letter from the Oakland PD union, where after they were ordered to clear the illegal encampment, the mayor then ordered them to allow the illegal campers to return, oh and then gave city employees the day off to join the illegal protest. Zucotti Park in NYC is private property, but the NYPD won't protect it because mayor Bloomie won't let them. So, the rule of law means nothing, so long as the powers that be agree with your agenda.
"This shows your lack of understanding on the totality of related precedent, GM. If you know your case law, you know that laws can't be passed that target not only one type of speech, but one type of speaker."
**Really? Since when is trespassing "speech"? This is part of the Stalinist Criminal Union's game. Make everything "speech" then shield the criminal conduct under the 1st amendment. Is the public sh*tting speech? Public masturbation?
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I think all of us are in agreement that free speech applies to everyone.
I am unfamiliar with the particular judge's ruling and have no opinion on whether personal bias entered into her decisions. That said, FWIW my vote is that in many locations that there has been a substantial content-based disparity of treatment of the Tea Party and OWS by local authorities (and the Pravadast too, but that is a separate point).
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Quote from: DougMacG on November 06, 2011, 03:50:50 PM
I understand the free speech aspect. I don't understand why those rights trump others. When you are done speaking, shouldn't you go home, let others speak? In terms of free speech, it seems like they are the 1% trying to occupy disproportionately the conversation while the other 99% aren't being heard. JMHO.
Woof Doug, I am not exactly sure what you mean here. You think that other voices aren't being heard? That others aren't speaking out? Occupying a park doesn't appear to me to be all that limiting to others' speech rights.
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Yes, occupying a park or square is aimed at keeping out other people and other voices as I see it (and as they see it), but beyond speech there is also a right of others to enjoy the park, to take a turn standing on the step and sitting on the bench, to walk through unhassled. The right of the restaurant owner in Oakland to not have his business driven away.
What is the meaning to the protesters of the verb 'occupy'? It is a military term, is it not? You occupy a country, you occupy a territory, you occupy the space in front of a private business like Wall Street, for the purpose of putting a restraint on what otherwise would be happening there. The intention is to dominate, to drown out the other voices and disrupt other activities. Dominate with numbers if you have to hire them like soldiers, dominate with time, dominate with space taken up. Literally filibuster by staying without ending even when you are not speaking so others cannot have the space for the next rally and express a different viewpoint.
What you don't see with an amazing background in constitutional and case law, my daughter saw in Madison without special training. You can't walk State Street to the Capitol while visiting a major public university and enjoy the lights on a beautiful autumn evening without being forced to encounter the scene described in plenty of other posts, not speech at all but people living in the public square with all their ugliness. My daughter understood the point of occupy, dominate and intimidate out other views: As we walked through once in each direction, knowing my political proclivities, she said, "don't say anything, don't say anything. don't say anything". She felt the intimidation they were intending to exude. 'Uncomfortable' I think was the word that landed Cain's accusers about 40k; we got nothing.
I love the zealotry over a constitutional principle like freedom of speech and I'm intrigued by the attempts to expand 'speech' to include almost anything, like resting up for speech and enjoying a little sexual release, consensual or otherwise. But the Bill of Rights is larger and longer than that. What I don't understand is the willingness of same people in so many cases to tromp all over other constitutional principles, for example, equal protection. While the definition of speech gets expanded, the definition of equal protection gets narrowed. I already gave several examples like the estate tax, we tax estates only over 5 million, in case law we determine that it applies to everyone evenly right while we are saying to the public and on the floor of the legislative bodies that we are targeting one specific group - the people with these large estates. Same with progressive taxation. Higher rates don't just happen to fall on certain people, they are targeted, just as much as a law against dominating the public square for any cause does, IMO.
We have laws up and down this country about how people should live for health and for safety, especially in the cities of the protests. These laws limit freedom but pass constitutional muster I presume. In residential housing law, if I have one burner on a gas stove that won't self light, one window blind torn or one latch on an interior door that won't latch just right, I am in violation of city law - meanwhile these people live in the city square without a bathroom, without a dressing room, with known public urination, defecation, masturbation, and publicly spreading lice (http://www.youtube.com/watch?v=C5ypeLuKnLg&feature=related)... and they are extended a higher level of protection. Good grief.
Politically and practically, my feeling is to let them be and keep the cameras and coverage on. This is the 1% (far fewer) and they illustrate and bring to life various aspects of leftism better than any conservative can put to words. The more we pay attention or object to their presence, the longer they will stay and be bothersome. But in terms of rights, I fail to see how others can fail to see that occupy means hold ground that was formerly public, against the rights of others.
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Yes, really. You say you know the case law, GM. Then you should know that laws passed to prevent particular people from speaking in a particluar place in a particular manner aren't constitutional.
R.A.V. comes to mind immediately. And the law in TN, which is the beginning of this thread, was passed AFTER Occupy started and was aimed AT Occupy. Not the Tea Party. Not me. Not Young Republicans or Democrats.
"Because it is one example, while there have been many examples of the opposite occuring nationwide. Because you overlook arrested made in NYC, St. Louis, Nashville (the strating point of the discussion), Austin, and elsewhere."
**Arrests for the arrest for the rapes, assaults and other felony crimes? I'll refer you back to the letter from the Oakland PD union, where after they were ordered to clear the illegal encampment, the mayor then ordered them to allow the illegal campers to return, oh and then gave city employees the day off to join the illegal protest. Zucotti Park in NYC is private property, but the NYPD won't protect it because mayor Bloomie won't let them. So, the rule of law means nothing, so long as the powers that be agree with your agenda.
"This shows your lack of understanding on the totality of related precedent, GM. If you know your case law, you know that laws can't be passed that target not only one type of speech, but one type of speaker."
**Really? Since when is trespassing "speech"? This is part of the Stalinist Criminal Union's game. Make everything "speech" then shield the criminal conduct under the 1st amendment. Is the public sh*tting speech? Public masturbation?
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"I love the zealotry over a constitutional principle like freedom of speech and I'm intrigued by the attempts to expand 'speech' to include almost anything, like resting up for speech and enjoying a little sexual release, consensual or otherwise. But the Bill of Rights is larger and longer than that. What I don't understand is the willingness of same people in so many cases to tromp all over other constitutional principles, for example, equal protection. While the definition of speech gets expanded, the definition of equal protection gets narrowed. I already gave several examples like the estate tax, we tax estates only over 5 million, in case law we determine that it applies to everyone evenly right while we are saying to the public and on the floor of the legislative bodies that we are targeting one specific group - the people with these large estates. Same with progressive taxation. Higher rates don't just happen to fall on certain people, they are targeted, just as much as a law against dominating the public square for any cause does, IMO."
Good stuff, Doug. Good stuff. Thank you for clarifying. I can only tell you that there is almost always a tension between portions of the Constitution. Here are some:
1. Congress has the power to raise an army. A religious pacifist has the right to exercise religion. Can Congress raise an army using him?
2. Congress "shall make no law" limiting press. A person has the right to a fair trial. Can the press report on issues that may taint the judge or jury?
3. There is a right to free speech. There is a right of privacy. Where does your speech impede my right to privacy?
4. There is a right to an abortion (there is, even if you disagree with the right and the source). There is a right to speech. What are the legal limits that can be put on abortion protesters at an abortion clinic?
There are dozens of others, of course. So, where does speech end and the right to stroll unabated through a park (as an example) begin and end? I don't know. But I can tell you that means of enforcement matter... and laws cannot be focused at one particular event/source/type of speech. And that goes for the Tea Party, too, by the way. I am NOT asking officials to have different standards for these disparate groups.
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Likewise, Bigdog, thank you, that is helpful. That is all I am saying too is recognize the contention of these rights:
"where does speech end and the right to stroll unabated through a park (as an example) begin and end? I don't know."
There is no perfect answer, just recognize the contention and try to work with it. We all (maybe 99% of us) would like to have some balance of both which means some reasonable limits and that would necessarily mean some enforcement which definitely cannot be based on content.
I so far find the content of this particular movement vacuous, but the best way to clear them out is probably to let them have their say for as long as they want. Enforce only the other things that all of us would expect a ticket for, public urination etc.
They are abusing IMO a right that we extend to all. Have your rally, have your say and go home; we shouldn't need a time limit law for people to know they only have a right to share the park or the square, not occupy it.
Regarding abortion, I agree that case law protects the right to kill your young up to an arbitrary point based on privacy while our right to privacy in so many other ways is non-existent. Both sides are missing the clause in the constitution IMO that settles the matter in their favor. Your analogy with abortion protesters at the abortion clinic is excellent. That political protest should be against the people who decided a barbaric practice to be protected rather than against those who are following current law. In fact, more people are offended by value based pay than by the slaughtering of our young, so these are the protests of the moment.
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I so far find the content of this particular movement either absent or meaningless but the best way to clear them out is probably to let them have their say for as long as they want...
Your analogy with abortion protesters at the abortion clinic is excellent.
As do I. I've been talking about it to students for weeks. I've had about four or so students go to various Occupy sites, and relate their stories of the vapidity of the protestors. One student described them as "sad." But, I think that when we allow for protests to occur, no matter what the reason (lack of reason/logic/ability to describe the ills they feel) we do a service to the country. We are a nation that has had peaceful transitions of government for a couple centries (more or less). Compare that to countries that consistently crackdown on speech/assembly/religion. Coups, assissinations, revolutions, and other types of political instability.
The abortion analogy wasn't random. Read this: http://www.law.cornell.edu/supct/html/98-1856.ZS.html, and note the Scalia dissent. The best thing he has ever written, in my opinion. But, note the struggle with the majority, too. Unlike many of you, I don't scorn Stevens, and in this case he notes the struggle. (I should also note that CJ Rehnquist assigned the opinion to Stevens here, and voted with him on it.)
But, you can look at other cases. Texas v. Johnson (aka "The Flag Burning case"), Kennedy writes what I think is his best work available here: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0491_0397_ZC.html. To underline the difficulty of these questions, note the odd way that the majorities fall out in these two cases. In Hill, you have Rehnquist voting with the majority, while other conservatives are in dissent. In Johnson, Rehnquist and Stevens both dissent. In other words, the rights to protest, the exetent of protest, the place of protest, etc. etc. really, really are difficult questions.
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"Yes, really. You say you know the case law, GM. Then you should know that laws passed to prevent particular people from speaking in a particluar place in a particular manner aren't constitutional."
Try again. You obviously don't know that the SCOTUS has established that speech is subject to reasonable time, place, or manner restrictions. I do. I'm sure the DNC operative clad in a black robe does as well.
You might want to brush up on the article below:
http://www.llrmi.com/articles/legal_update/2011_us_wbc.shtml
The Court also noted that the protest was held on public property adjacent to a public street. The Court reiterated the often cited conclusion that public streets and property are of heightened importance in terms of free speech and assembly and subject to greater Constitutional protection.
The case does not stand for the proposition that government has no control over speech in a public place, as time, place and manner of speech restrictions issued by government may still be Constitutional. The Court noted, that while Maryland did not have a funeral protest statute in place at the time of this event, there is such a statute in place today, as there is in 43 states as well as a federal statute. The Court did not consider the Constitutionality of these statutes but there seems to be an implicit suggestion in the decision that such statutes, relating to time place and manner would be Constitutional if reasonably based on a government interest.
The Court cited a number of cases where laws governing time, place and manner of speech were examined and upheld.
That said, "[e]ven protected speech is not equally permissible in all places and at all times." Id., at 479, 108 S. Ct. 2495, 101 L. Ed. 2d 420 (quoting Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 799, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985)). Westboro's choice of where and when to conduct its picketing is not beyond the Government's regulatory reach -- it is "subject to reasonable time, place, or manner restrictions" that are consistent with the standards announced in this Court's precedents. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984). Maryland now has a law imposing restrictions on funeral picketing, Md. Crim. Law Code Ann. § 10-205 (Lexis Supp. 2010), as do 43 other States and the Federal Government. See Brief for American Legion as Amicus Curiae 18-19, n. 2 (listing statutes). To the extent these laws are content neutral, they raise very different questions from the tort verdict at issue in this case. Maryland's law, however, was not in effect at the time of the events at issue here, so we have no occasion to consider how it might apply to facts such as those before us, or whether it or other similar regulations are constitutional.
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So, you note that speech in a public place has heightened importance. The article then notes that "[t]he Court did not consider the Constitutionality of these statutes" but you want this to support your overall point. Fine. Let's keep looking... oh, the article then makes the amorphous claim that "there seems to be an implicit suggestion" (man, that is concrete and damn fine example that that might maybe possibly happen) "in the decision that such statutes, relating to time place and manner would be Constitutional if reasonably based on a government interest."
So, you want me to buy that the Court, in dicta, implied that it might answer a question that it specifically didn't answer. I suspect that we will get our answer from the Court on the funeral protest laws.
Did you look at RAV? Did you look at the opinions from Scalia in Hill and Kennedy in Johnson?
Quick note: You do correctly point out time, place and manner restrictions. My point, which was unclear, is that the laws can't be passed to target the groups who use TPM. Think flag burning as a particular law or the hate speech targeted in RAV.
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BD: I appreciate the citations you bring to the conversation-- which does mean a bit more effort must be put into this thread. So help me out please. What is the post number in this thread where the TE law was first mentioned?
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BD: I appreciate the citations you bring to the conversation-- which does mean a bit more effort must be put into this thread. So help me out please. What is the post number in this thread where the TE law was first mentioned?
Woof Guro: Politics 667. Doug shifted the conversation to this thread based on the content of his question in 507 of this thread.
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http://legal-dictionary.thefreedictionary.com/Time%2c+Place%2c+and+Manner+Restrictions
Time, Place, and Manner Restrictions
Limits that government can impose on the occasion, location, and type of individual expression in some circumstances.
The First Amendment to the U.S. Constitution guarantees Freedom of Speech. This guarantee generally safeguards the right of individuals to express themselves without governmental restraint. Nevertheless, the Free Speech Clause of the First Amendment is not absolute. It has never been interpreted to guarantee all forms of speech without any restraint whatsoever. Instead, the U.S. Supreme Court has repeatedly ruled that state and federal governments may place reasonable restrictions on the time, place, and manner of individual expression. Time, place, and manner (TPM) restrictions accommodate public convenience and promote order by regulating traffic flow, preserving property interests, conserving the environment, and protecting the administration of justice.
The Supreme Court has developed a four-part analysis to evaluate the constitutionality of TPM restrictions. To pass muster under the First Amendment, TPM restrictions must be contentneutral, be narrowly drawn, serve a significant government interest, and leave open alternative channels of communication. Application of this analysis varies in accordance with the circumstances of each case.
The rationale supporting a particular TPM restriction may receive less rigorous scrutiny when the government seeks to regulate speech of lower value such as Obscenity and fighting words. Obscene speech includes most hard-core Pornography, while fighting words include offensive speech that would incite a reasonable person to violence. Conversely, the government must offer "compelling" reasons for regulating highly valued forms of expression, such as political speech. Some speech, such as commercial advertisements, is valued less than political speech but more than obscenity or fighting words. The government may impose reasonable TPM restrictions on this intermediate category of speech only if it can advance a "significant" or "important" reason for doing so.
Time restrictions regulate when individuals may express themselves. At certain times of the day, the government may curtail or prohibit speech to address legitimate societal concerns, such as traffic congestion and crowd control. For example, political protesters may seek to demonstrate in densely populated cities to draw maximum attention to their cause. The First Amendment permits protesters to take such action, but not whenever they choose. The Supreme Court has held on more than one occasion that no one may "insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech" (Cox v. Louisiana, 379 U.S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471 [1965]). In most instances a commuter's interest in getting to and from work outweighs an individual's right to tie up traffic through political expression.
Place restrictions regulate where individuals may express themselves. The Supreme Court has recognized three forums of public expression: traditional public forums, limited public forums, and nonpublic forums. Traditional public forums are those places historically reserved for the dissemination of information and the communication of ideas. Consisting of parks, sidewalks, and streets, traditional public forums are an especially important medium for the least powerful members of society who lack access to other channels of expression, such as radio and television. Under the First Amendment, the government may not close traditional public forums but may place reasonable restrictions on their use.
The reasonableness of any such restriction will be evaluated in light of specific guidelines that have been established by the Supreme Court. First, a restriction must be content-neutral, which means the government may not prohibit entire classes of expression, such as speech concerning poverty, drug abuse, or race relations. Second, a restriction must be viewpoint-neutral, which means that it must apply uniformly to all speech; that is, it may not silence only those speakers whom the government opposes or sanction only those whom the government supports. Third, a restriction must burden speech no more than is necessary to serve an important government interest. Restrictions that are carefully aimed at controlling the harmful consequences of speech, such as litter, unrest, and disorder, will normally satisfy these guidelines.
Limited public forums are those places held out by the government for civic discussion. Capitol grounds, courthouses, state fairs, and public universities have all qualified as limited public forums for First Amendment purposes. Although the government may designate such places as sites for public speech under certain circumstances, the Supreme Court has recognized that individual expression is not the sole objective served by limited public forums. For example, courthouses are primarily designed to administer justice, though important social discourse often takes place on the courthouse steps. Consequently, the First Amendment gives the government greater latitude in regulating limited public forums than traditional public forums.
The government is allowed to regulate non-public forums with even greater latitude. Non-public forums include privately owned property and publicly owned property devoted almost exclusively to purposes other than individual expression. Airports, jailhouses, military bases, and private residential property have all been deemed to be nonpublic forums under the First Amendment. Public sidewalks and streets that abut private property normally retain their status as traditional public forums, however (Frisby v. Schultz, 487 U.S. 474, 108 S. Ct. 2495, 101 L. Ed. 2d 420 [1988]).
In nonpublic forums the government may impose speech restrictions that are reasonably related to the forum's function, including restrictions that discriminate against particular viewpoints. For example, in Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983), the Supreme Court ruled that a rival teachers' union could be denied access to public school mailboxes, even though the elected union representative had been given access by the educational association. This restriction was reasonable, the Court said, in light of the elected representative's responsibilities to negotiate labor agreements on behalf of the union.
Manner restrictions regulate the mode of individual expression. Not every form of expression requires use of the written or spoken word. Some of the most visceral impressions are made by Symbolic Speech. Symbolic speech can include something as complicated as an algebraic equation or as simple as the nod of a head. Under the First Amendment, symbolic expression often takes the form of political protest. Flag burning is an example of symbolic speech that the Supreme Court found to be protected by the Free Speech Clause (texas v. johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 [1989]).
When the government attempts to regulate symbolic expression, courts balance the competing interests asserted by the litigants. Regulations that are targeted at suppressing a symbolic message will be closely scrutinized by the judiciary, while regulations that serve compelling government interests unrelated to the expression of ideas will be subject to less exacting judicial scrutiny. For example, in Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984), the Supreme Court upheld a federal regulation that prohibited sleeping in certain national parks, despite the objections of protesters who had camped out in a national park to symbolize the plight of the homeless. The Court said that the regulation was not aimed at suppressing symbolic expression, because it applied to all persons, and not just the protesters involved in the case. The Court also noted that the regulation was reasonably designed to preserve national parks by minimizing the wear and tear that can be caused by campers. Finally, the Court emphasized that the protesters were free to carry out their vigil at other venues across the country.
All TPM restrictions must provide speakers with alternative channels for communicating ideas or disseminating information. Unlike millionaire moguls and corporate giants, the average person on the street does not commonly communicate through the mass media. Most people do not hold press conferences, and if they did, few members of the media would attend. Instead, the great bulk of communication takes place through the circulation of leaflets, hand-bills, and pamphlets, which most people can distribute and read in a cheap and efficient manner. As a result, courts are generally sensitive to protecting these modes of communication, and TPM restrictions limiting their distribution usually founder.
The Internet, however, has fast become an easy alternative for mass distributing information. As such, it is often difficult to apply TPM restrictions. For example, politicians use bulk E-Mail as a quick way to reach thousands, even millions, of their constituents. Called "political spam," this method of campaigning has both advocates and detractors. Opponents claim that unsolicited political e-mails are an invasion of privacy. As precedence, they point to the Eighth Circuit ruling in Van Bergen v. Minnesota, 59 F.3d 1541 (1995), which upheld a Minnesota state law prohibiting candidates from using a device that automatically dialed residential telephone numbers and played a prerecorded political campaign message. According to the court, "the telephone system is a private channel of communication," and the Minnesota law rightfully placed restrictions on time, manner, and place of speech.
Proponents claim that e-mail is not as equally invasive as a telephone call since e-mail gives the receiver an opportunity to ignore content by simply deleting the message. They also point to the benefits of political e-mail. First, given the large price tag of running a campaign, political e-mails provide a very real way to cut costs. In addition, they contend that e-mail provides a more direct way for politicians to connect with voters, since e-mail offers a back-and-forth method of communication. Most important, advocates stress that both political debate and communication over the Internet are protected by the First Amendment (Reno v. ACLU, 521 U.S. 844, 117 S. Ct. 2329, 138 L. Ed. 2d 874 [1997].
Further readings
Blakney, Tasha. 1998. "Constitutional Law—First Amendment Right of Free Speech—Prior Restraint of Speech and Time, Place, and Manner Restrictions." Tennessee Law Review 65 (summer).
Sweet, Mark. 2003. "Political E-mail: Protected Speech or Unwelcome Spam." Duke Law & Technology Review (January 14).
Yannitte, Kate. 2002. "First Amendment—Content-Neutral Time, Place, Manner Restrictions on Free Speech—A Municipality's Park Ordinance That Requires a Permit to Assemble More than Fifty People Is Facially Constitutional." Seton Hall Constitutional Law Journal 12 (spring-summer).
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http://www.aclunc.org/issues/freedom_of_press_and_speech/rights_of_demonstrators/three_principles_to_remember.shtml
WHEN, WHERE AND HOW
Consider when, where and how you use your free-speech rights. If you organize a rally that causes violence or unnecessary disruption, your event may be disbanded. Every municipality has regulations and it's your responsibility to understand them. You must observe reasonable regulations on time, place, and manner when you exercise your rights to demonstrate and protest.
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The Tennessee law, that was the origins of the question at hand, was passed after the Occupy folks began their settlement. It targets them.
Oh, let us not for get this:
Latin for "from a thing done afterward." Ex post facto is most typically used to refer to a criminal law that applies retroactively, thereby criminalizing conduct that was legal when originally performed. Two clauses in the US Constitution prohibit ex post facto laws: Art 1, § 9 and Art. 1 § 10. see, e.g. Collins v. Youngblood, 497 US 37 (1990) and California Dep't of Corrections v. Morales, 514 US 499 (1995).
For your convenience, Art. I, section 9 reads, in part: "No bill of attainder or ex post facto Law shall be passed."
Art. I, section 10 reads, in part: "No state shall ... pass any ...ex post facto law."
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"The Tennessee law, that was the origins of the question at hand, was passed after the Occupy folks began their settlement. It targets them."
So? Most states didn't have a law banning the disruption of funerals until Westboro started their B.S. Now most states do, after legislators recognized a problem. The laws don't state "Westboro Baptists may not disrupt funerals", the laws forbid ANYONE from disrupting a funeral, no matter what their agenda might be. Sad that such a law might be needed in the first place.
Ex post facto doesn't apply to this issue. Say you were 18 when the drinking age in your state changed to 21. You couldn't be charged for your possession of alcohol/consumption BEFORE the law went into effect, but if an officer contacts you with a beer in your hand the day AFTER.....
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So? Most states didn't have a law banning the disruption of funerals until Westboro started their B.S. Now most states do, after legislators recognized a problem. The laws don't state "Westboro Baptists may not disrupt funerals", the laws forbid ANYONE from disrupting a funeral, no matter what their agenda might be. Sad that such a law might be needed in the first place.
Yep, that is the legal question I mentioned above. The Supreme Court will likely have to hear the case to decide on this point. At this point, the fact that the states have passed the laws don't make the laws constitutional.
I didn't think conservatives liked to base their arguments on this type of argument. See Scalia's dissent in Atkins v. Virginia.
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Again, it goes back to time/place/manner. Could Westboro stand on top of a coffin to protest lawfully? Could they lawfully link arms and block the coffin from being placed into the grave?
No.
Could they peacefully protest nearby without physically disrupting the funeral. Yes.
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"I didn't think conservatives liked to base their arguments on this type of argument."
Do you think that disrupting funerals would have been socially acceptable at anytime in America's history? Would the founding father's have been cool with Tories disrupting George Washington's funeral? I'm guessing that's a no.
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Again, it goes back to time/place/manner. Could Westboro stand on top of a coffin to protest lawfully? Could they lawfully link arms and block the coffin from being placed into the grave?
No.
Could they peacefully protest nearby without physically disrupting the funeral. Yes.
Once again, GM, this is an open question. You don't KNOW the answer to this. You suspect, based on your readings and understandings.
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"I didn't think conservatives liked to base their arguments on this type of argument."
Do you think that disrupting funerals would have been socially acceptable at anytime in America's history? Would the founding father's have been cool with Tories disrupting George Washington's funeral? I'm guessing that's a no.
I wasn't talking about the Framers, I was talking about the point that YOU made.
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Again, it goes back to time/place/manner. Could Westboro stand on top of a coffin to protest lawfully? Could they lawfully link arms and block the coffin from being placed into the grave?
No.
Could they peacefully protest nearby without physically disrupting the funeral. Yes.
Once again, GM, this is an open question. You don't KNOW the answer to this. You suspect, based on your readings and understandings.
Ok, I think it's a more than reasonable assumption based on prior caselaw.
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OK, and once again we disagree. But I enjoyed the discussion.
Again, it goes back to time/place/manner. Could Westboro stand on top of a coffin to protest lawfully? Could they lawfully link arms and block the coffin from being placed into the grave?
No.
Could they peacefully protest nearby without physically disrupting the funeral. Yes.
Once again, GM, this is an open question. You don't KNOW the answer to this. You suspect, based on your readings and understandings.
Ok, I think it's a more than reasonable assumption based on prior caselaw.
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BD
"The Tennessee law, that was the origins of the question at hand, was passed after the Occupy folks began their settlement. It targets them."
GM
"So? Most states didn't have a law banning the disruption of funerals until Westboro started their B.S. Now most states do, after legislators recognized a problem. The laws don't state "Westboro Baptists may not disrupt funerals", the laws forbid ANYONE from disrupting a funeral, no matter what their agenda might be. Sad that such a law might be needed in the first place.
"Ex post facto doesn't apply to this issue. Say you were 18 when the drinking age in your state changed to 21. You couldn't be charged for your possession of alcohol/consumption BEFORE the law went into effect, but if an officer contacts you with a beer in your hand the day AFTER....."
MARC: GM's point here seems to me simple, logical, and persuasive. Given the lack of prescience of the lawmaking process :lol: I am willing to hazard a guess that MOST laws are passed AFTER some sort of problem has manifested itself and once passed from that point in time FORWARD the proscribed behavior is prohibited.
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Reflections on the Oral Argument in United States v. Jones, the GPS Fourth Amendment Case
from The Volokh Conspiracy by Orin Kerr
(Orin Kerr)
I was at the Supreme Court this morning for the oral argument in United States v. Jones, the GPS case. In this post, I want to blog my reactions to the argument: I’m going to update the post as I go, so general readers can get the important stuff first at the top and then general readers can get the rest down the page.
1) My basic reaction was that the outcome was too close to call. The Justices gave both sides a very hard time, and few Justices tipped their hand. The Justices pushed Michael Dreeben (arguing for the United States) on the consequences of his argument: If the Government was right, they noted, then the government can install a GPS device on all the Justices’ cars and watch them, too, along with everybody else. They pushed Steve Leckar (arguing for Jones) on the difficulty of identifing a clear Fourth Amendment principle to distinguish visual surveillance from GPS surveillance. The votes were hard to count, but if you had to summarize a reaction of the Court as a whole, I would say that the Justices were looking to find a principle to regulate GPS surveillance but unconvinced (at least as of the argument) that there was a legal way to get there without opening up a Pandora’s Box of unsettling lots of long settled practices.
2) The Justice who most clearly showed his cards was Justice Scalia. Justice Scalia made clear that he would overrule Katz v. United States; make common law of trespass the test for what is a search; and say that the installation of the device was a search because it was a technical trespass. Even if Katz can’t be overturned, Scalia indicated, at the very least the common law of trespass should be a floor of Fourth Amendment protection: Katz should be allowed to go beyond the original Fourth Amendment but not erode it. Cf. Kyllo v. United States. At the same time, Justice Scalia made equally clear that he thought the use of the device after installation was not a Fourth Amendment problem. What is invasive and scary isn’t a search, Scalia emphasized, and the kind of line-drawing as to when use of a GPS device should be allowed is quintessentially a legislative question. So Scalia is on board for saying that installation of the device is a search, but no more. (As an aside, it’s not at all clear that the original public meaning of the Fourth Amendment operated on a common law of trespass principle. Warren Court opinions liked to describe pre-Warren Court decisions as adopting such a principle, and that has led many to believe that the Fourth Amendment underwent a transition in the 1960s from protecting property to protecting privacy. But if you go back and read the cases, that narrative — pushed most strongly by justice Brennan in Warden v. Hayden — is plainly inaccurate. The early cases usually rejected common law trespass as a principle, much as post–Katz cases do. More on that in a future post.)
3) Other justices gave a more mixed reaction to Justice Scalia’s idea of regulating the installation of the device as a search under the technical trespass doctrine. Justices Alito and Kagan seemed particularly skeptical. Both pointed out that this solution wouldn’t necessarily work in the long run: If technology advanced and the government created a new surveillance tool that could obtain the same information without a technical trespass, then the government would have the same power as before. Alito and Kagan also both pressed Leckar on whether it would be a search or seizure to attach an inert device to a suspect’s car (that is, a device with no monitoring system). Leckar conceded that this would be a different case, which drew a comment from Justice Kagan that Leckar was really focused on the use of the GPS device, not the installation.
4) Justice Breyer’s reaction was about as far from Scalia’s as you could get. Justice Breyer didn’t buy the technical trespass doctrine, and he wanted to bypass the question of what is a “search” or “seizure” and just ask what is “reasonable.” Breyer seemed to think that the earlier decisions like Karo and Knotts had been about that, as well, which was mistaken: Those cases were primarily about what is a “search,” not when a search is reasonable. (It’s true that the test for what is a search is whether the government conduct violated a “reasonable expectation of privacy,” but that’s a term of art used interchangeably with the phrase “legitimate expectation of privacy” — the word “reasonable” in that term of art is very different from the general balancing test of reasonableness that applies once a search or seizure has been identified.) Anyway, Breyer was therefore looking for some sort of way to say when GPS monitoring was reasonable and desirable, rather than what was a constitutional search or seizure. I don’t think he really found an answer that satisfied him on either side.
5) Justice Sotomayor and Ginsburg were both very worried about the Big Brother implication of using GPS devices: I counted 5 or so references to Orwell’s 1984. At the same time, both were struggling to identify exactly what the constitutional rule was that would regulate GPS monitoring. Merely watching a suspect in a city street was obviously not a search or seizure. Does that change if you switch to video cameras? Lots of cameras? Beepers? GPS devices? Where do you draw the line? Counsel for Jones suggested that the Court could say that this case was a search or seizure but leave open the other cases, but the Justices wanted clearer answers than that. And there was some frustration at the inability to draw constitutional lines from the defendant’s side: At one point Justice Sotomayor responded to one of the defense’s proposed lines by proclaiming, “What an unworkable rule tethered to no principle!”
6) The “mosaic theory” adopted by the D.C. Circuit didn’t seem to go anywhere with the Justices. I think the only Justice who mentioned it during Dreeben’s argument was Chief Justice Roberts. Roberts’ question was straight out of the defense-side briefs, arguing that GPS surveillance over a long period allowed the government to assemble a mosaic, and was much cheaper and easier for the government than the beeper surveillance in Knotts. At the same time, I couldn’t tell if Roberts was asking those questions just to see Dreeben’s response or because he genuinely was sympathetic to the defense side. The mosaic theory came up a bit during Leckar’s argument, but the Justices were mostly very skeptical: As Justice Scalia proclaimed, echoing Judge Sentelle below in his dissent from denial of rehearing en banc, “100 times zero is still zero.” Leckar took the hint and didn’t press the mosaic theory much during his argument.
7) One of the major questionsin the case is how the Justices view the prospect of future statutory regulation. It was clear that a lot of the Justices were deeply worried about the 1984 scenario, and were looking to find a sensible way to regulate GPS surveillance with a constitutional rule if it’s necessary to avoid 1984. Arguing for the government, one of Dreeben’s responses was that these were just the kind of problems that Congress could deal with: If everyone is spooked by the possibility of GPS surveillance, then that is all the more reason for the elected branches to act. It was hard to know exactly what the Justices thought of this: They know they can’t control if Congress acts. If they decide that the Fourth Amendment doesn’t apply because they expect statutory regulation to deal with this, what happens if they are wrong? I tend to think that it’s very likely that Congress would act pretty swiftly to regulate GPS surveillance for the reasons explained in this article, but it’s an question of guessing what the future might look like and I suspect different Justices will look at it differently.
http://volokh.com/2011/11/08/reflections-on-the-oral-argument-in-united-states-v-jones-the-gps-fourth-amendment-case/
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BBG:
Thank you very much for finding that thoughtful piece of analysis. The only articles I saw about the oral arguments were very unsatisfying and so regretfully I did not post them.
This case is of tremendous importance (indeed, may I ask you to post it on the 4th Amendment/Privacy thread as well?) and I hope you will continue to be on the lookout for us.
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http://volokh.com/2011/11/13/court-rejects-occupy-sacramentos-challenge-to-ordinance-barring-park-use-between-11-pm-and-5-am/
Court Rejects Occupy Sacramento’s Challenge to Ordinance Barring Park Use Between 11 pm and 5 am
Eugene Volokh • November 13, 2011 1:58 am
The case is Occupy Sacramento v. City of Sacramento (E.D. Cal. Nov. 4, 2011) (just posted a few days ago on Westlaw); technically, the decision holds that Occupy Sacramento hasn’t shown a likelihood of success on the merits — the standard used when plaintiffs seek a temporary restraining order — but the court’s reasoning suggests that the judge considered the merits and concluded that Occupy Sacramento’s claims were unsound. The decision seems generally quite right to me, given Clark v. Community for Creative Non-Violence (1984), which upheld a similarly content-neutral ordinance banning sleeping in the park.
The city ordinance does leave government officials some discretion in extending the hours if “(1) such extension of hours is consistent with sound use of park resources, (2) the extension will enhance recreational activities in the city, and (3) the extension will not be detrimental to the public safety or welfare.” (The plaintiffs had not asked for an extension as of the time they went to court.) But, as the court pointed out,
Thomas v. Chicago Park Dist. (2002), held (among other things) that a content-neutral demonstration permit ordinance was constitutional even if it left government officials with similarly limited discretion. If there was evidence that the officials exercised their discretion in a content-discriminatory way, that would be unconstitutional, but absent such evidence the limited discretion to waive the ordinance requirements doesn’t render the ordinance unconstitutional.
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Are public pensions protected by the Constitution?
http://www.latimes.com/news/local/la-me-cap-pensions-20111114,0,1935002.column
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Are public pensions protected by the Constitution?
http://www.latimes.com/news/local/la-me-cap-pensions-20111114,0,1935002.column
I very much doubt it. I'm not banking on it.
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Interesting questions presented.
I wonder how the impairment of contract issues interface with bankruptcy reorganization law?
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All the US constitution says about bankruptcy is: [As a power of congress] 'To establish...uniform Laws on the subject of Bankruptcies throughout the United States'. Article 1, Section 8, Clause 4
Most of the bankruptcy law was written back when states were sovereign, a very long time ago. That needs to be updated with a provision for bankruptcy for state government as we have for municipalities. Someone might contact Sens. Feinstein and Boxer about getting this done. The laws governing these state bankruptcies across the nation need to be uniform.
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http://hotair.com/archives/2011/11/22/aclu-occupy-mn-has-right-to-unrestricted-use-of-public-property-and-free-electricity-too/
ACLU: Occupy MN has right to unrestricted use of public property — and free electricity, too
posted at 10:05 am on November 22, 2011 by Ed Morrissey
Here in Minneapolis, our local Occupy movement hasn’t made national news, thanks to a smaller turnout and relatively little outrageous behavior. However, the ACLU has now jumped into the fray, suing Hennepin County (Minneapolis) for enforcing rules and laws on the use of public property where the Occupiers have camped. Specifically, the ACLU wants Hennepin County to grant unrestricted use indefinitely to the Occupiers on the basis of free speech … which apparently includes free electricity, too (via Rob Port):
The American Civil Liberties Union of Minnesota sued Hennepin County on Monday on behalf of OccupyMPLS, the protest group camping out on the Government Center Plaza in downtown Minneapolis in defiance of county rules.
The ACLU suit contends that those rules, which forbid tents and electricity, and “certain unwritten procedures enforced by the county” violate the demonstrators’ free speech rights. …
The suit asks that new rules restricting the use of chalk, electricity and tents be declared unconstitutional. The plaintiffs are also seeking an injunction against the rules, and they want the county to provide electricity for the protesters. It also asks that officials stop giving trespass notices to protesters who build temporary shelters or use chalk to express their views.
The county has said the plaza is not designed for long-term occupation and that the restrictions adopted earlier this month are needed because of health and safety concerns and increased security costs.
There may be a legitimate political gripe about the promulgation of rules in response to the Occupy protests. However, the county had not imagined that anyone would claim the right to squat indefinitely on public land as a form of political protest, and the grounds are in use every day for all members of the public. The fact that these individuals hold signs and chant rhyming slogans give them no special grant to use public property in a way that creates a semi-permanent obstruction for everyone else’s use, and that most especially includes chalking up the sidewalks and running power cables all over the place, a potential safety hazard for pedestrians and a potential fire hazard under some circumstances.
The ACLU’s demand that the county supply the electricity is just … perfect. What better statement for this movement to make than to demand that county taxpayers buy the electricity that will keep this obstacle in business for a while longer? They want free education, free electricity, and now free housing of a sort, although they weren’t successful in getting it:
Two people arrested in Minneapolis during a weekend protest against Wall Street remained in custody Sunday, while a video posted on the Occupy Minnesota website showed an officer appearing to use his squad car to push one of the men out of the way during the demonstration.
The men were arrested Saturday at a foreclosed home that was being occupied by protesters. One was arrested on charges of burglary and trespassing, while the other was arrested for obstruction of justice after refusing to move for police. A video posted on the group’s website shows the man standing in front of a squad car, as an officer slowly begins driving the car forward — causing the man to be pushed back. …
About two dozen protesters returned to the foreclosed home on Sunday as fire officials boarded up the house. Police were on hand, but Sullivan said the protesters were peaceful and there were no arrests.
We had heard that the Occupiers would start squatting in foreclosed homes as a way to beat the cold out in the open at “People’s Plaza,” but there is one big difference that they apparently didn’t take into consideration. The county can impose rules on the use of public property and cite people who violate them, but breaking into private property is burglary — and that results in more than just a citation and a fine. It will be much more difficult to explain away a burglary conviction than one for disorderly conduct.
Free homes, free electricity, unrestricted use of public property, and waiving all the rules … this isn’t a political movement. It’s the equivalent of a temper tantrum from a two-year-old. This is the Freeloader Movement.
Meanwhile, over in Boston, we find out that free speech is a quality reserved for those animals more equal than others:
From a respectable distance on the sidewalk on Atlantic Avenue, I observe a Boston EMS technician patiently trying to coax the woman out of her tent to take her to the hospital. Two cops look on. The woman obviously has some mental health issues.
Out of the blue, a 20-something female occupier with a disgusted look on her face comes running up to me, gets in my face and yells, “Get out of here. You have no right to watch.” I say nothing and instead walk away from her. But I continue to observe the EMS tech and cops from another vantage point doing their jobs. …
A few minutes later, she returns. “I told you to get out of here,” she screams at me. “I won’t say it again. What’s wrong with you? It’s none of your business.”
This time I respond. “I’m a citizen of the United States, I am on public property, and I am doing nothing wrong,” I tell her. She fumes, but goes away.
Then some older occupier, pretending to sweep the sidewalk, sweeps a whole bunch of debris up on to my pants. It was hard, but I ignore him.
Other people are now watching EMS do their job as well, with one young guy taking pictures. Another occupier comes over and, in a threatening voice, orders him to stop. “Bite me,” the shutterbug calmly tells the occupier. “Last time I looked, this is America pal.” I say to myself, “Way to go kid!”
For a “movement” that takes place on public property, the Occupiers seem to have a real problem about transparency. I wonder what else they’re hiding, in Boston and around the country.
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I wonder why this isn't explored further.
"There may be a legitimate political gripe about the promulgation of rules in response to the Occupy protests."
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Probably because until not too long ago, public camping/defication wasn't a problem in American cities.
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You crack me up GM.
I would add that urban campers (a.k.a. the homeless) have presented similar issues when they settle in to a particular area. The complexity of the human realities can be considerable. What to tell a person who has no place to call his own? OTOH a concentration of such people tends to establish a sense of territorial rights that utterly conflicts with the concept of public rights in the public space which they inhabit AND presents serious sanitation issues. For example I remember reading in the LA Times (NOT a hardass right wing publication by any means!) that hosing down the homeless areas of the excrement etc. led to the detectable presence of human viruses in the ocean in the LA River, indeed well out into the ocean. Imagine the health issues of the bacteria and viruses in the areas of their encampments.
OTOH OWS presents a much simpler questions in that the "urban camping" is entirely voluntary and these people DO have places of their own.
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I just want OWS to meet the same standards the TEA party was held to.
Same for everyone else of any political agenda that wishes to protest.
One standard.
Try hosting a child's birthday party in a New York City park for more than 20 people and see what fees and paperwork is involved.
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Probably because until not too long ago, public camping/defication wasn't a problem in American cities.
Yep, people camping in public spaces in urban areas is unheard of!!!!!!
From 2008: http://www.msnbc.msn.com/id/26776283/ns/us_news-life/t/hard-times-tent-cities-rise-across-country/
"Homeless people and their advocates have organized three tent cities at City Hall in recent months to call attention to the homeless...."
From 2010: http://www.dailymarkets.com/economy/2010/11/19/tent-cities-pop-up-everywhere-in-the-u-s-as-homelessness-skyrockets/
From the Civil Rights Era: http://orig.jacksonsun.com/civilrights/sec4_tent_city.shtml
And: http://www.childrensdefense.org/about-us/our-history/poor-peoples-campaign.html
"Thousands of people from all over the country camped on the National Mall in Washington, D.C. They called their camp "Resurrection City." At its peak, the camp held approximately 7,000 people."
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Ok, so was it legal to camp in those cities? Was the 1st amendment penned with the intent of protecting public sh*tting? Would the founders look fondly on the "Occupy Unconsenting Orifices" movement?
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Your claim was that urban camping was new. It isn't. It isn't as though the idea just crept up on city officials. They had plenty of time to pass laws that were not passed simply because OWS and its offshoots began.
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Your claim was that urban camping was new. It isn't. It isn't as though the idea just crept up on city officials. They had plenty of time to pass laws that were not passed simply because OWS and its offshoots began.
Most every state has laws and most every city has statutes that forbid or regulate "urban camping" that predate "Commie Rapefest-2011".
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Your claim was that urban camping was new. It isn't. It isn't as though the idea just crept up on city officials. They had plenty of time to pass laws that were not passed simply because OWS and its offshoots began.
Most every state has laws and most every city has statutes that forbid or regulate "urban camping" that predate "Commie Rapefest-2011".
And yet you posted an article with this little line: "There may be a legitimate political gripe about the promulgation of rules in response to the Occupy protests." So, what were the rules promulgated in response to Occupy?
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Depends on the jurisdiction. Do you doubt most every jurisdiction already had some applicable law on the books?
Do you think public sh*tting was the intent of the 1st amd. when quill was first put to parchment?
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BD:
Back during the summer I worked for the anti-trust division of the Federal Trade Commission (what a long strange trip my life has been! :lol: ) I remember there was a case I had to research where Section 7 of the Clayton Act was used to undo a merger that had been accomplished some 50 or 60 years earlier (Dupont? GM? I forget). The key phrase was that "laches does not run against the government" or something like that.
I bring this up in light of your pointing out that the urban camping was not unknown previously and that therefore the government(s) in question could have passed legislation prior to OWS activities. Be this as it may, this does not convert recent legislation into laws of attainder. Yes?
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Guro,
I am not sure why (lack of sleep, too much Thanksgiving food, inabilty to process the wording), but I don't understand your query. Could you clarify, please, at your convenience?
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You certainly are more current in your life with the use of legal terminology than am I, but IIRC a bill of attainder is a law aimed against a particular individual. This is, if I understand correctly, the essence of you argument against these laws-- that they were written with OWS in mind (While certainly OWS is not AN individual, the general principle would seem to be the same) and that the govt could have and should have written the laws before OWS, but now that OWS is in play that the government is estopped from passing a law.
This assertion I am challenging with the principle from equity cited by the Supreme Court in the case I have in mind but whose name I forget: Laches does not run against the government because in this the government respresents the people and the people do not lose their rights due to inaction by the government.
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I see. My apologies for my confusion. A couple of things:
1. ''Bills of attainder . . . are such special acts of the legislature, as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. If an act inflicts a milder degree of punishment than death, it is called a bill of pains and penalties. . . . In such cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions.'' 1701 The phrase ''bill of attainder,'' as used in this clause and in clause 1 of Sec. 10, applies to bills of pains and penalties as well as to the traditional bills of attainder. 1702 (http://caselaw.lp.findlaw.com/data/constitution/article01/47.html)
2. In my most recent posts, I was illustrating that GM's contention that public camping was an unknown until recently was false. Based on the extensive history of public camping, yes, there could have been legislation passed that was not aimed at a particular group.
3. People lose their liberties by actions of the government. That is my contention here, and that, by the way, is often the contention of you, GM, and several other contributors to this forum. However, each of us (or at least me versus many others) seems to have a different view of which liberties are worth protecting and when.
4. If public camping, and "public sh*itting" is so bad, out of hand, then why do so many people camping out for concert tickets or Black Friday deals not raise your (plural) hackles? In some cases, it may be that the Black Friday camping sites are private property. However, the laws of the city, state and nation must still be followed on private property (smoking ordinances; handicapped access; hiring practices; etc.). Moreover, it someone whipped out their d!ck for all to see while waiting in line, that would surely be indecent exposure, defined as "Indecent exposure laws in most states make it a crime to purposefully display one's genitals in public, causing others to be alarmed or offended" (http://criminal.findlaw.com/crimes/a-z/indecent_exposure.html). Also, there are many instances in which these camping sites occur on public, city owned sidewalks or city parking lots, etc. I think, or at least I hope, that we can all agree that liberties should not depend on the economic activities that they accompany.
5. Moreover, some seem to want to note that rapes and other acts of violence that occured with OWS and the off shoots. Agreed. But, acts of violence also occured with Black Friday shoppers, some of whom may also have been camping out (based on the early times in the day that some of these incidents took place). Do we ban shopping? Many bar patrons fight or engage in sexual violence. Do we ban drinking? People who want to do these things will find a place to do them. How do we, as a group on the forum, feel when people note the misuse of firearms and then leap to say all firearms should be banned? (Please note that this is not an attempt to dismiss the miscreants in OWS, simply to say that the recommendations are not universally upheld.)
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BD:
You are a very bright guy, but I confess I am not fully following your logic. In the give and take of life in a (still somewhat) free society, lots of stuff gets let slide. Perhaps a relevant concept would be the law of trespass. For example, someone comes on my property without permission. If I don't complain, there is no problem. If I do complain, then I have the right to eject them and/or have the authorities do so. Would this not be the case with people camping out the night before Black Friday?
I suspect public defecation has been a no-no for quite some time.
And yes there have been incidents, or perhaps even episodes, of "public camping" over the years, though nothing like OWS with its weeks/months of taking over public parks and such comes to mind (maybe IIRC Pershing clearing out a Hooverville in the 1930s?). Should existing local ordinance have a gap in it, if I understand your argument correctly you are asserting that the local authorities are estopped from passing an ordinance to deal with an existing problem if the problem has a political component.
I challenge this. It is not that OWS holds a particular political POV, it is that, regardless of its POV it is taking over public property, creating a mess and a health hazard, obstructing others from the use of the public common, and not moving on when asked to do so.
In conclusion, I see no inconsistency in my position whatsoever.
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PS: "People lose their liberties by actions of the government."-- only under Due Process. More to the point I am making here, under the equitable doctrine of laches (working from memory here!) the point is that government is constituted to PROTECT and PRESERVE people's rights and the people do not lose these rights when the government has failed to act previously. Reasoning by analogy, while an easement (laches) may be created against property rights by continued uncontested trespass, this concept does not apply to the rights of the people (e.g. to enjoy the use of a public park) due to the government's previous failure to do so.
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Interesting meditation on originalism and the 14th Amendment:
The original meaning of the 14th Amendment regarding interracial marriage
from The Volokh Conspiracy by David Kopel
(David Kopel)
Over at Balkinization, Andrew Koppelman (Northwestern) has an interesting and thoughtful post on the state of originalism. Synthesizing analysis by Jamal Greene and Jack Balkin, Koppelman writes, “Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument will be powerful to the extent that can persuade its audience that it can keep faith with that identification.”
Thus, “Originalist argument is an artifact designed to recall the Constitution’s origin and connect what we are doing now with that origin. Once this functional definition of originalism is understood, it follows that the range of possible original arguments is quite broad. It is not, however, infinite.” So, argues Koppelman, the fact that originalists differ among themselves in many important details about what “originalism” really is, is not a fatal flaw. Simiilarly, there are many different things called “aspirin” (e.g., Excedrin, generic products, St. Joseph’s children’s aspirin, etc.), but they all contain acetylsalicylic acid, and they all have a generally similar function. Which particular one you use at a given time will depend on the particular purposes for which it is needed.
I do want to quibble, though, with one particular legal history claim that Koppelman makes: “Thus originalists struggle with the problem whether the general purpose of the Fourteenth Amendment, to mandate the legal equality of blacks, should trump the framers’ specific intention to permit school segregation and miscegenation laws.” Michael McConnell and Randy Barnett have written on the school segregation issue, but I’d like to add something on miscegenation. I don’t think that the historical record unambiguously supports the claim of a specific intent in the 14th Amendment to allow the continuation of laws against interracial marriage.
We do know for certain that one very specific intention of the 14th Amendment framers was to provide a solid constitutional foundation for the Civil Rights Act of 1866. According to the Act: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, . . . as is enjoyed by white citizens. . .”
Early exposition by courts is one source of original public meaning. (Although this source is not always guaranteed to be reliable. See, e.g., the Slaughter-House majority’s dicta). In 1872, the Alabama Supreme Court ruled that the state’s 1866 constitutional ban on miscegenation violated the “cardinal principle” of the Civil Rights Act and of the Equal Protection clause. Burns v. State, 48 Ala. 195 (1872). That same year, the Texas Supreme Court unanimously ruled that the 14th Amendment’s Privileges or Immunities clause and Equal Protection clause had “abrogated” the old state law against miscegenation Bonds v. Foster, 36 Tex. 68 (1872). As detailed in Peggy Pascoe’s book, What Comes Naturally: Miscegenation Law and the Making of Race in America (2010), in the years after the Civil War, eleven states repealed their bans on interracial marriage.
It was the Indiana Supreme Court that figured out the way to evade the clear statutory language about the equal right of contract. According to the court, marriage is “more than a mere civil contract”; it is an institution fundamental to society. The Indiana court insisted at length that the 14th Amendment had not limited the traditional police power of the states. If Congress could ban states from imposing racial discrimination in the right to enter a marriage contract, then Congress would (supposedly) have the power to legislate on all aspects of marriage. State v. Gibson, 36 Ind. 389 (1871).
I don’t find the Indiana court’s 1871 reasoning persuasive, and, apparently, neither did the Alabama and Texas Supreme Courts in 1872. But courts cannot stand forever against the sustained will of the electorate. After four losses, the proponents of anti-miscegenation won on their fifth try in the Alabama Supreme Court. When the courts in the various states finally acquiesced to anti-miscegenation laws, Gibson was the essential citation, because it came from a state where slavery had never legally existed. The Texas intermediate Court of Appeals provided the legal reformulation that marriage was “status” and not “contract,” and was therefore not covered by the Civil Rights Act: “Marriage is not a contract protected by the Constitution of the United States, or within the meaning of the Civil Rights Bill. Marriage is more than a contract within the meaning of the act. It is a civil status, left solely by the Federal Constitution and the laws to the discretion of the states, under their general power to regulate their domestic affairs.” Frasher v. State, 3 Tex.App. 263, (Tex. Ct. App. 1877). (The regressive Frasher decision is one more data point in support of the observation in Henry Sumner Maine’s great 1861 book Ancient Law: “we may say that the movement of the progressive societies has hitherto been a movement from Status to Contract.” Maine’s book elaborates in great detail why marriage law fits this paradigm.)
By the time that Plessy v. Ferguson was decided in 1896, the Supreme Court majority, which was willfully oblivious to contemporary social reality (e.g., if blacks consider a segregation mandate to be a “a badge of inferiority,” that is “solely because the colored race chooses to put that construction upon it”) , was also lazily ignorant of legal history: “Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contact, and yet have been universally recognized as within the police power of the state.” The sole citation for this allegedly “universal” recognition was State v. Gibson. The Court was right that as of 1895, miscegenation laws were constitutionally safe, but the Court seemed quite unaware that during the first years when the 14th Amendment and the Civil Rights Act were the law of the land, the issue was in dispute.
Although the late Professor Pascoe’s book is suffused with critical race/gender theory, readers who find such theories useless will still find Pascoe’s book to be enormously useful. It is an excellent legal history of anti-miscegenation laws and cases, and not just during Reconstruction. You will learn about the national panic to spread such laws during the early 20th century because the black boxer Jack Johnson (who defeated a string of opponents who were billed as “the Great White Hope”) notoriously consorted with white women; how courts struggled with interpreting miscegenation laws in the West (which were mainly aimed at Asians, and which raised questions such as whether a ban on white marriage to “the Mongolian or Malay races” applied to Filipinos); the NAACP’s political opposition to new miscegenation laws coupled with its great reluctance to mount legal challenges to existing ones; and the extremely risky litigation (not endorsed by NAACP) which led to the landmark 1948 California Supreme Court Perez v. Lippold decision (won mainly on arguments of void for vagueness, the fundamental unenumerated right to marry, and First Amendment free exercise of religion, rather than a categorical attack on all racial discrimination).
Justice Carter’s concurrence in Perez is a good illustration of the main thesis of Koppelman’s post, and of the point made by the second Justice Harlan (and also by Jack Balkin) that our “tradition is a living thing,” in which our national understanding of the original meaning can be deepened by new experiences. Rebutting respondent’s collection of social scientists who contended that race-mixing was destructive to the health of the white race, Justice Carter quoted some essentially similar claims from Hitler’s Mein Kampf’. Justice Carter continued: “To bring into issue the correctness of the writings of a madman, a rabble-rouser, a mass-murderer, would be to clothe his utterances with an undeserved aura of respectability and authoritativeness. Let us not forget that this was the man who plunged the world into a war in which, for the third time, Americans fought, bled, and died for the truth of the proposition that all men are created equal.” And so, “In my opinion, the statutes here involved violate the very premise on which this country and its Constitution were built, the very ideas embodied in the Declaration of Independence, the very issue over which the Revolutionary War, the Civil War, and the Second World War were fought, and the spirit in which the Constitution must be interpreted in order that the interpretations will appear as ‘Reason in any part of the World besides.’”
http://volokh.com/2011/12/05/the-original-meaning-of-the-14th-amendment-regarding-interracial-marriage/
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First of all, Guro, thank you. I appreciate your view of my intelligence.
Public sidewalks are not private property. And, even if there is trespass without complaint, that doesn't mean that criminal action can take place. (If I do not complain about meth producers, this does not make their actions legal.) If the actions that take place from Black Friday shoppers or those who wait in line for concert tickets, such as obstructing public sidewalks, I've never heard any complaints. But now that there is political movement doing the same thing, albeit for a duration, people are up in arms.
As for laches, there seems to be a gray area. According to http://dictionary.law.com/Default.aspx?selected=1097 laches is "the legal doctrine that a legal right or claim will not be enforced or allowed if a long delay in asserting the right or claim has prejudiced the adverse party (hurt the opponent) as a sort of "legal ambush." Examples: a) knowing the correct property line, Oliver Owner fails to bring a lawsuit to establish title to a portion of real estate until Nat Neighbor has built a house which encroaches on the property in which Owner has title; b) Tommy Traveler learns that his father has died, but waits four years to come forward until the entire estate has been distributed on the belief that Tommy was dead; c) Susan Smart has a legitimate claim against her old firm for sexual harassment, but waits three years to come forward and file a lawsuit, after the employee who caused the problem has died, and the witnesses have all left the company and scattered around the country. The defense of laches is often raised in the list of "affirmative defenses" in answers filed by defendants, but is seldom applied by the courts. Laches is not to be confused with the "statute of limitations," which sets specific periods to file a lawsuit for types of claims (negligence, breach of contract, fraud, etc.)."
Using the first of these examples, the cities of NYC and LA, at least, for damn sure waited until "Nat Neighbor has built a house." Months after parks were occupied these cities decided that there was a nuisance.
I don't understand this: "PS: 'People lose their liberties by actions of the government.'-- only under Due Process." You have made the argument, with consistency, that people lose their liberties often without the due process ensured by the government. Isn't this much of your concern with the Obama administration and Supreme Court (Kelo, for example)?
BD:
You are a very bright guy, but I confess I am not fully following your logic. In the give and take of life in a (still somewhat) free society, lots of stuff gets let slide. Perhaps a relevant concept would be the law of trespass. For example, someone comes on my property without permission. If I don't complain, there is no problem. If I do complain, then I have the right to eject them and/or have the authorities do so. Would this not be the case with people camping out the night before Black Friday?
I suspect public defecation has been a no-no for quite some time.
And yes there have been incidents, or perhaps even episodes, of "public camping" over the years, though nothing like OWS with its weeks/months of taking over public parks and such comes to mind (maybe IIRC Pershing clearing out a Hooverville in the 1930s?). Should existing local ordinance have a gap in it, if I understand your argument correctly you are asserting that the local authorities are estopped from passing an ordinance to deal with an existing problem if the problem has a political component.
I challenge this. It is not that OWS holds a particular political POV, it is that, regardless of its POV it is taking over public property, creating a mess and a health hazard, obstructing others from the use of the public common, and not moving on when asked to do so.
In conclusion, I see no inconsistency in my position whatsoever.
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http://www.c-span.org/Events/Congress-Considers-the-Televising-of-Supreme-Court-Arguments/10737426031-1/
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Good description of laches. You say "Using the first of these examples, the cities of NYC and LA, at least, for damn sure waited until "Nat Neighbor has built a house." Months after parks were occupied these cities decided that there was a nuisance."
Yes, the argument could be made as you do BUT FOR the legal fact that "laches does not run against the government" because were it do so, it would be the rights of "the people", which government was formed to secure, not of the government itself (can we even speak of the govt having "rights"?) which would be lost.
I wish I had the citation for you but it has been 30 years since I read the case, but in the case I have in mind (GM and Dupont were involved IIRC), a merger of some 60 years standing was undone. The primary arguments proffered were Section 1 and 2 of the Sherman Act (no surprise there) but the argument that won with the Supremes was a secondary argument tossed in as an afterthought-- Section 7 of the Clayton Act. To the laches argument that the merger had been uncontested for some 60 years, the court responded "Laches does not run against the government."
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http://volokh.com/2011/12/07/police-are-entitled-to-evict-occupy-boston/
Police Are Entitled to Evict Occupy Boston
Eugene Volokh • December 7, 2011 8:01 pm
So holds today’s Occupy Boston v. City of Boston (Mass. Super. Ct. Dec. 7, 2011) (see this Boston Herald news story): The city’s content-neutral ban on overnight sleeping in parks is consistent with the First Amendment. This seems to me to be the clearly correct result, given the Supreme Court’s decision in Clark v. CCNV (1984), which likewise upheld a ban on sleeping in parks as applied to a tent city demonstration.
This is the same result reached as to sleeping bans or overnight presence bans in the Occupy Wall Street case and the the Occupy Fresno case, which I blogged about, and in Occupy Minneapolis v. County of Hennepin (D. Minn. Nov. 23, 2011) (motion for reconsideration denied today) and Occupy Fort Myers v. City of Fort Myers (M.D. Fla. Nov. 15, 2011), which I hadn’t gotten around to blogging about. (The plaintiffs in some of these cases prevailed on other aspects of their challenges, but all their claims of a right to an exemption from the bans on sleeping or overnight presence in the park were rejected.)
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This is an interesting article on laches and the impact of the appellate court decisions on its applicability.
http://scholar.valpo.edu/cgi/viewcontent.cgi?article=1051&context=vulr&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dhow%2520does%2520laches%2520limit%2520state%2520goverment%2520%26source%3Dweb%26cd%3D7%26ved%3D0CFAQFjAG%26url%3Dhttp%253A%252F%252Fscholar.valpo.edu%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1051%2526context%253Dvulr%26ei%3DyzzgTpiUNO6IsALwnrTuBg%26usg%3DAFQjCNGtADF1Hv3zL5uuijUJsbn24uE78g#search=%22how%20does%20laches%20limit%20state%20goverment%22
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BD: I just skimmed that so please forgive me if I have missed some points, but herewith my observations
a) First and foremost, the question presented is inapplicable to the point I am making. Are we agreed on this?
b) I don't have the separation of powers problem that some of the circuits do. Isn't this a matter of remedy of law and/or equity? To borrow the analogy of one of my professors (the wonderful Willis Reese, who was the Reporter for the Restatement of Conflict of Laws IIRC and/or maybe another one too) I may have the right under the law to play the saxophone, but under the equitable doctrine of nuisance I do not have the right to play it under your bedroom window at 0300. What is the difference of this from saying that that statutorily provided term for the statute of limitations does not foreclose the equitable doctrine of laches from being applied to the behavior for which it is intended?
PS: Upon reflection, I am going to guess that the Supreme Court case of which I have been thinking was US v. GM (or GM v US) and would have been between 1917 and 1980; though I would guess it to have been decided in the 1960 or 70s.
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Here is a report on Mitch McConnell's view of the "dissolution" of the Electoral College.
http://nbcpolitics.msnbc.msn.com/_news/2011/12/07/9280257-mcconnell-warns-of-popular-vote-catastrophic-outcome
Addressing what he called “the most important issue in America that nobody is talking about,” Senate Republican Leader Mitch McConnell warned Wednesday that the National Popular Vote movement is “getting dangerously close to achieving their goal of eliminating the Electoral College without actually amending the Constitution -- without anybody even noticing, unfortunately, what they’re up to.”
The National Popular Vote is a compact among state legislatures under which they pledge that they’ll award their electoral votes to the presidential candidate who wins the most popular votes nationwide, even if that candidate was not the majority choice of their state’s voters.
So far, California, seven other states, and the District of Columbia (all of which have large Democratic majorities) have passed legislation taking the National Popular Vote pledge. Those states and D.C. account for 132 electoral votes. The compact says it is to take effect when states with a total of at least 270 electoral votes have agreed to it.
Article II, Section 1 of the Constitution gives each state legislature the power to decide how its state’s presidential electors are selected. All but two states (Nebraska and Maine) use a winner-take-all system in which the person who gets the most popular votes in that state wins all of its electoral votes.
In a speech at the conservative Washington think tank the Heritage Foundation, McConnell said a national popular vote tally might require recounts in all 50 states, if the margin of victory were small.
“Imagine the following scenario: you’ve got a national election within 100,000 votes. That happened in 1968,” McConnell said.
The national popular vote would give “every precinct in America the incentive to have a recount so that recounts are going on in 50 states … When the national popular vote total is the way the president is chosen, then every vote in America in every precinct in America would become the subject for endless litigation. There wouldn’t be a chance the presidency would be resolved by Jan. 20 in time for swearing in.”
This would, McConnell said, be “a catastrophic outcome” and “a constitutional crisis” that “brings this country to its knees. We’ve never had a situation where the president wasn’t sworn in by the date specified in the Constitution.”
He added, “The proponents of this absurd and dangerous concept are trying to get this done while nobody notices, just sort of sneak this through,” and “we need to kill it in the cradle before it grows up.”
McConnell was joined at the event by the secretaries of state – the chief election officials in the states – of Iowa, Colorado, Kansas, Tennessee, Alabama and Mississippi, all of whom are Republicans and all of whom oppose the National Popular Vote.
Kansas Secretary of State Kris Kobach acknowledged that under the current electoral vote system voting by ineligible people might occur in hotly contested states.
Kobach contended that with NPV, “the incentive for voter fraud increases dramatically overall because you can just go to the state that is the weakest link in the chain and has the lowest protections against voter fraud and run up a huge number of fraudulently cast votes in that state much more effectively than going to a battleground state.”
Until now, enthusiasm for the NPV idea has come mostly from Democratic states and from progressives who are still chagrined that Al Gore lost the White House in 2000 even though he had more popular votes than George W. Bush. Gore’s defeat was the fourth time in the nation’s history that the person with the largest number of popular votes didn’t win the electoral vote tally, (with 270 needed to win).
Four years ago, it seemed clear that America would not see a reprise of the 2000 election. In the fall of 2008, Barack Obama had a significant lead in several battleground states such as Colorado.
But this time around a close election, and even a 2000 scenario, appears more plausible. That has revived interest in the national popular vote, which now has the backing of wealthy businessman Tom Golisano, a former independent candidate for governor of New York.
Some Republicans are also backing the idea.
Republican Ray Haynes, former whip of the California state assembly, said, “35 states and 225 million Americans have absolutely no say over how the president is elected” because candidates spend all their time in the battleground states: Wisconsin, Virginia, Colorado and a handful of others.
Haynes said National Popular Vote would benefit California – a state no Republican presidential candidate has carried since 1988 – by giving candidates a reason to go there in the fall campaign and appeal to the state’s voters.
Right now, he said, “California is the national ATM for every presidential candidate. In the last election we put $152 million into the presidential campaigns, but do you know how many visits California got from presidential candidates to court California voters? Zero.”
He said in the fall campaign the candidates “don’t care about California issues. They care about what happens in Florida, they care about what happens in Ohio, they care about what happens in Pennsylvania, but they don’t even talk to California.”
This would change under a National Popular Vote system because even though there are more Democratic voters in California than Republicans, there still leaves a huge number of GOP voters in the Golden State: at least five million – the number McCain won there in 2008 – and potentially far more than that if a GOP candidate showed up in the state and competed for them.
All of those votes would be added to the GOP candidate’s national vote total – which could win him the White House.
There’s another reason Republicans should support the National Popular Vote system, Haynes said. He sees a scenario in which Obama very narrowly carries the bare minimum of states needed to get 270 electoral votes: let’s say Virginia and Ohio by 10,000 votes each. “There’s a very serious chance that Obama loses the popular vote and wins the election. It would be the 2000 election in reverse.”
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a. Yes, but...
b. Agreed. What I am trying to figure out, at a snail's pace, is the role/applications/limits of the sub-national governments and laches. I have read some cases, including one from a Carolina (I think), that says that laches is not applicable to the states. And, albeit a different question, the fact the the circuits can/do/have applied laches differently in different circumstances MAY mean that that your argument is applicable some places but not others. Basically, I've been doing a a fair amount of reading on the subject recently, and need some time to figure it out.
BD: I just skimmed that so please forgive me if I have missed some points, but herewith my observations
a) First and foremost, the question presented is inapplicable to the point I am making. Are we agreed on this?
b) I don't have the separation of powers problem that some of the circuits do. Isn't this a matter of remedy of law and/or equity? To borrow the analogy of one of my professors (the wonderful Willis Reese, who was the Reporter for the Restatement of Conflict of Laws IIRC and/or maybe another one too) I may have the right under the law to play the saxophone, but under the equitable doctrine of nuisance I do not have the right to play it under your bedroom window at 0300. What is the difference of this from saying that that statutorily provided term for the statute of limitations does not foreclose the equitable doctrine of laches from being applied to the behavior for which it is intended?
PS: Upon reflection, I am going to guess that the Supreme Court case of which I have been thinking was US v. GM (or GM v US) and would have been between 1917 and 1980; though I would guess it to have been decided in the 1960 or 70s.
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This story is interesting to me in that they are trying to implement popular vote without a constitutional amendment. Still I don't see how you end the electoral college without many states voluntarily giving up power they currently hold to states like Calif, NY etc. Noteworthy is that only one side supports the movement. Ending the electoral college is analogous to me to ending the equal representation of states in the Senate. Like McConnell, I don't agree that a popular vote system would be preferable if you could implement it. Just like we forgot in the Middle East, we weren't trying to implement a majority rule system.
A case is made that only battleground states have a say in national elections and that solid blue and solid red states never get any attention. Missing in that argument is that the solid blue and solid red states already have a candidate that represents their consensus view. It is the divided states that are struggling to decide which candidate represents them best. The attention to battleground states is unfair IMO only when favors are offered like ethanol subsidies, if they constitute unequal treatment under the law. But those of course are already banned elsewhere in the constitution.
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Guro,
I have come to the conclusion that, while I do not like the idea of tying laches into civil liberties questions, and while I am not sure that legally your argument makes sense (or does make sense), at this juncture it does not matter. You have won, at least in the sense that there has been a massive police crackdown nationally. So, as the OWS movement appears to be in its death throws, I think the answer has been illustrated, even if the question was wrong. If the Occupy movement is resusitated as the weather turns, or they decide to try, try again whenever, I will revisit the discussion.
a. Yes, but...
b. Agreed. What I am trying to figure out, at a snail's pace, is the role/applications/limits of the sub-national governments and laches. I have read some cases, including one from a Carolina (I think), that says that laches is not applicable to the states. And, albeit a different question, the fact the the circuits can/do/have applied laches differently in different circumstances MAY mean that that your argument is applicable some places but not others. Basically, I've been doing a a fair amount of reading on the subject recently, and need some time to figure it out.
BD: I just skimmed that so please forgive me if I have missed some points, but herewith my observations
a) First and foremost, the question presented is inapplicable to the point I am making. Are we agreed on this?
b) I don't have the separation of powers problem that some of the circuits do. Isn't this a matter of remedy of law and/or equity? To borrow the analogy of one of my professors (the wonderful Willis Reese, who was the Reporter for the Restatement of Conflict of Laws IIRC and/or maybe another one too) I may have the right under the law to play the saxophone, but under the equitable doctrine of nuisance I do not have the right to play it under your bedroom window at 0300. What is the difference of this from saying that that statutorily provided term for the statute of limitations does not foreclose the equitable doctrine of laches from being applied to the behavior for which it is intended?
PS: Upon reflection, I am going to guess that the Supreme Court case of which I have been thinking was US v. GM (or GM v US) and would have been between 1917 and 1980; though I would guess it to have been decided in the 1960 or 70s.
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BD:
And I have yet to fully grasp what is the problem with passing legislation saying that people can't take over public parks just because they have already done so. I seen no favoritism of one view over another. Just because a particular political movement has taken over public parks, doesn't mean that a such legislation is driven by content discrimination. Nor is content neutrality impugned simply because the Tea Party and Glenn Beck's crowds act differently and respectfully of others while OWS does not.
TAC!
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This game may interest some:
http://www.constitutionquest.com/Home.html
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Already posted by Prentice on Immigration Issues, but also interesting in how it might apply to other cases or situations. My understanding is that neither Kagan nor Thomas will recuse on the health care case. (?)
Justice Elena Kagan will not take part in [Arizona v. U.S., 11-182], presumably because of her work on the issue when she served in the Justice Department in the Obama administration.
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Didn't Kagan also work on Obamacare? :?
Why does a question arise over Thomas and Obamacare?
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Didn't Kagan also work on Obamacare? - I believe she denies that. Last I heard Republicans were looking at a 2 month gap in her records.
Why does a question arise over Thomas and Obamacare? - No reason to my knowledge but the left has called for his recusal. The best they could come up with that I know of is that his wife has worked hard for its repeal.
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http://www.judicialwatch.org/weeklyupdate/2011/46-jw-causes-supreme-court-furor
Game Changer? JW Releases New Kagan Emails as Obamacare Heads to Supreme Court
From the moment Barack Obama signed his socialist healthcare overhaul into law, it was destined to wind up in the United States Supreme Court. And as we learned on Monday, that day will soon come. According to The Associated Press:
The Supreme Court said Monday it will hear arguments next March over President Barack Obama’s health care overhaul — a case that could shake the political landscape as voters are deciding if Obama deserves another term.
This decision to hear arguments in the spring sets up an election-year showdown over the White House’s main domestic policy achievement. And it allows plenty of time for a decision in late June, just over four months before Election Day.
Demonstrating the importance of this legal battle, the High Court announced it will hear a remarkable five and a half hours of oral argument, an extremely rare allotment of time in the Court’s modern era. (The last time that happened, the AP notes, was during arguments involving McCain-Feingold, key parts of which were ultimately ruled unconstitutional in 2003.) Supreme Court scrutiny will focus on, among other issues, the central component of Obamacare, the so-called “individual mandate,” which forces American citizens to purchase healthcare or face a stiff financial penalty. The Supreme Court will also consider whether all of Obamacare could be thrown out if any part of it is ruled unconstitutional. You can review the Court’s orders yourself here.
So now that the High Court has officially agreed to consider Obamacare, one question central to the fate of the law may no longer be theoretical: Will Supreme Court Justice Elena Kagan recuse herself?
Just days before the Supreme Court’s announcement, JW released three new documents that shed light on Justice Kagan and Obamacare while she served as solicitor general. (We got the documents pursuant to a Freedom of Information Act (FOIA) lawsuit filed on February 24, 2011. Our lawsuit had been consolidated with a similar FOIA lawsuit first filed against the Department of Justice (DOJ) by the Media Research Center. The DOJ sent them over to us with no explanation as to why they turned up 18 months after we first asked for them!)
Justice Kagan evidently did not recuse herself in April 2011 from the High Court decision not to “fast-track” for Supreme Court review Virginia’s lawsuit challenging Obamacare. She has said she was not “substantially” involved in the DOJ discussions regarding Obamacare’s constitutional or litigation issues.
The new documents do show her commenting excitedly on the legislation’s passage. I think you’ll find them extraordinary. Check out a few of the highlights:
•An October 13, 2009, exchange between Kagan and former Deputy Solicitor General Neal Katyal. Katyal informs Kagan, “We just got Snowe on health care,” referring to Senator Olympia Snowe (R-ME). (The bulk of the email exchange reflects a discussion about Kagan, and also provides instructions regarding a hiring decision within the agency, although the nature of the position is unclear. When Katyal asks if Kagan wants to handle the hire via email or in person meeting, Kagan responds, “In person. I’ll call a meeting when I return.”)
•A March 21, 2010, email from Kagan to then-Senior Counselor for Access to Justice Laurence Tribe: “I hear they have the votes Larry!! Simply amazing...” Tribe responds, “So healthcare is basically done! Remarkable.”
•A March 16, 2010, email from Kagan to David Barron, then-acting head of the Justice Department’s Office of Legal Counsel, asked if he had seen an article by Michael McConnell published in the Wall Street Journal that discussed a strategy by Democrats to “‘deem’ ObamaCare into Law without voting.” “Did you seee [sic] Michael McConnell’s piece in the wsj?” Kagan writes in an email with the subject line “Health care q.” “YES, HE IS GETTING THIS GOING,” replied Barron.
Last week, I predicted that these new emails were bound to raise additional questions about whether Justice Kagan ought to participate in High Court deliberations on Obamacare. Certainly, if these documents were known at the time of her confirmation, there may have been quite a different Senate debate. More specifically, we had asked for these documents around June 19, 2010 – even before her Senate confirmation hearings. Scandalously, the DOJ withheld these documents from not only the American people, but the very U.S. Senate considering her nomination. This goes beyond the issue of whether Justice Kagan should recuse herself, it goes to whether the DOJ intentionally withheld material information from Congress and violated FOIA law to ease then-Solicitor General Kagan’s path to confirmation.
And this is what Senator Jeff Sessions (R-AL) seemed to be wondering when he pressed Attorney General Eric Holder for answers regarding why these documents were not turned over to the Senate Judiciary Committee during Kagan’s confirmation hearing:
“I am deeply disturbed by these developments and believe that the Justice Department should have provided these documents to the Senate Judiciary Committee during Justice Kagan's confirmation hearing,” Sessions wrote to Holder in a series of questions for the record. “The Department’s failure to provide this information to Congress and to comply with FOIA requests, as well as your apparent inattention to these matters, is unacceptable.”
(Sen. Sessions was ranking member on the Senate Judiciary Committee during the Kagan confirmation process.)
Incidentally, the Obama DOJ dumped these documents just before the Veterans’ Day holiday weekend, hoping they would go unnoticed. This slow-walking of documents out of the Obama DOJ is yet one more scandal and makes one wonder what other information they are sitting on.
Previous emails obtained by Judicial Watch document new information about Kagan’s and her Solicitor General’s office involvement in key discussions pertaining to the legal defense of Obamacare.
For example, according to an email from former Deputy Solicitor General Neal Katyal to Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, Kagan wanted her office to defend Obamacare from the very beginning:
Subject: Re: Health Care Defense:
Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues…we will bring in Elena as needed. [The “set of issues” refers to another email calling for assembling a group to figure out “how to defend against the…health care proposals that are pending.”]
This is just one of many illuminating emails. You can read more here.
As a result of all our work (and the work of our friends at the Media Research Center), many have begun to call on Justice Kagan to recuse herself. The Judicial Crisis Network issued a white paper making the case for recusal and presidential candidates Herman Cain and Newt Gingrich have called on Justice Kagan to recuse herself.
At the least, further investigation is warranted. Following Judicial Watch’s lead, the House Judiciary Committee began an investigation but it has met resistance from the corrupt Holder DOJ. Meanwhile, your Judicial Watch will continue its investigation and aims to follow its success by breaking down the stone wall at DOJ on the Kagan controversy.
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I'm wondering if we should start a separate thread concerning the C'l issues and other aspects (e.g. Kagan's recusal vel non) of SCOTUS's consideration of this case , , ,
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I dunno, it's all just part of the Chicago-style corruption like ACORN voter fraud, "Gunwalker", Solyndra and every other attack on the rule of law by this administration.
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I recieved the following email from one of the authors who wrote the paper cited below. The project looks interesting, to say the least.
I wanted to share an exciting legal language project that I think might be of interest to some you http://legallanguageexplorer.com/
In partnership with Michigan State University Law School & Emory Law School, I am proud to announce the Beta Pre-Release of a Free New website designed to assist law scholars and students: http://legallanguageexplorer.com/
Check it out and please feel free to share with others including blogs, your students, colleagues, etc. We would love to get some web-traffic so we can identify bugs, etc. and make the site better for everyone.
HERE IS THE BASIC IDEA OF THE SITE:
For Free, we offer you the chance to search the history of the United States Supreme Court (1791-2005) for ANY PHRASE and get a frequency plot and the full text case results for that phrase. Additional corpora such as US Ct. of Appeals Coming Very Soon!
We are just getting started here with this project and anticipate many features that will be rolling out to you in the near future. We have announced it to world - so please feel free to share it with others.
In addition, as we are still in Beta Pre-Release -- please feel free to send us your feedback / comments on the site. Subject to resource and feasibility limitations, we are looking to make improvements to the site as we go.
SCOPE OF COVERAGE:
In the current version, we are offering FULL TEXT results for EVERY decision of the United States Supreme Court (1791-2005). We plan to soon expand to other corpora including the U.S. Court of Appeals, etc.
BASIC FEATURES:
Instant Return of a Time Series Plot for One or More Comma Separated Phrases.
When you access the site, the default search is currently interstate commerce, railroad, deed (with plots for each of the term displayed simultaneously).
Feel free to test out ANY phrase of Up to Four Words in length.
Here are just a few of our favorites:
Clear and Present Danger
Habeas Corpus
Custodial Interrogation
Due Process
Economics
Unconstitutional
Property
Privacy
FULL TEXT CASE ACCESS:
Each of the Phrases you search will be highlighted in Blue. If you click on these highlighted phrases you will be taken to the full list of United States Supreme Court decisions that employ the selected phrase.
Click to export the list to Excel or Click on an individual case and you will be able to access this case for free thanks to Carl Malamud at Public Resource.org (a Google Sponsored Public Interest Non Profit).
ADVANCED FEATURES:
Check out the advanced features including normalization (controlling for docket size) and alternative graphing tools.
PAPER:
Daniel Martin Katz, Michael J. Bommarito II, Julie Seaman, Adam Candeub & Eugene Agichtein, Legal N-Grams? A Simple Approach to Track the ‘Evolution’ of Legal Language in Proceedings of Jurix: The 24th International Conference on Legal Knowledge and Information Systems (Vienna 2011) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1971953
HELP / TUTORIAL:
Go Here and You Will Be Directed to a Brief Slide Based Tutorial Designed to Highlight Various Functions Available on the Site. http://www.slideshare.net/Danielkatz/legal-language-explorer-com-tutorial
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WWWOOOFFF!!! 8-) 8-) 8-)
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http://reason.com/archives/2011/12/15/the-epa-vs-the-constitution
Reason Magazine
The EPA vs. the Constitution
The Supreme Court prepares the hear a major Fifth Amendment case.
Damon W. Root | December 15, 2011
The Fifth Amendment to the U.S. Constitution declares that no person shall be “deprived of life, liberty, or property, without due process of law.” This means that if the government infringes on your rights, you are entitled to mount a timely and meaningful defense of those rights in court. It’s one of the cornerstones of our entire legal system, with roots dating back at least as far as the Magna Carta, which declared, “No free man...shall be stripped of his rights or possessions...except by the lawful judgment of his equals or by the law of the land.”
Unfortunately, the Environmental Protection Agency (EPA) prefers a less venerable form of justice, as the Supreme Court will hear next month during oral arguments in the case of Sackett v. Environmental Protection Agency. At issue is the EPA’s enforcement of the Clean Water Act through so-called administrative compliance orders, which are government commands that allow the agency to control the use of private property without the annoyance of having to subject its actions to judicial review.
The case started four years ago when a married couple named Mike and Chantell Sackett received an EPA compliance order instructing them to stop construction on what was supposed to be their dream home near Priest Lake, Idaho. The government claimed their .63-acre lot was a federally-protected wetland, but that was news to the Sacketts, who had procured all the necessary local permits. Their lot, which is bordered by two roads and several other residential lots, was in fact zoned for residential use.
The Sacketts contend that the compliance order was issued erroneously and they would like the opportunity to make their case in court. Yet according to the terms of the Clean Water Act, they may not challenge the order until the EPA first seeks judicial enforcement of it, a process that could take years. In the meantime, the Sacketts risk $32,500 in fines per day if they fail to comply. And complying doesn’t just mean they have to stop building; they must also return the lot to its original condition at their own expense.
Moreover, if they did eventually prevail under the current law, the Sacketts would then need to start construction all over again. By that point they would have paid all of the necessary compliance costs plus double many of their original building expenses. And who knows how much time would have been lost. Where’s the due process in that? The Sacketts understandably want the right to challenge the government’s actions now, not after it’s become too late or too expensive for them to put their property to its intended use.
For its part, the EPA argues that old-fashioned judicial review would simply get in the way. As the agency states in the brief it submitted to the Supreme Court, “A rule that broadly authorized immediate judicial review of such agency communications would ultimately disserve the interests of both the government and regulated parties, by discouraging interactive processes that can obviate the need for judicial action.”
Of course, the whole point of due process is that people sometimes do have “the need for judicial action” against overreaching government officials. Why should those people have to give up that right to the EPA? More to the point, why should the Supreme Court allow it to happen?
As the Institute for Justice observes in the friend of the court brief it filed on behalf of the Sacketts, “If other governmental agencies were to adopt an enforcement mechanism like that used by the Environmental Protection Agency in this case, the constitutional guarantee of due process under the law would be severely harmed and the ability to own and use private property would be subject to the unrestrained and unreviewed orders of government officials.” There’s a term for that sort of unchecked government power, and it’s not interactive processes.
This case boils down to the protection of a fundamental constitutional right. It’s not about hamstringing bureaucrats or overturning environmental laws. The Supreme Court simply needs to ensure that the Sacketts—and all other property owners—get their day in court by ruling that administrative compliance orders are subject to judicial review. Due process demands nothing less.
Damon W. Root is a senior editor at Reason magazine.
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This case boils down to the protection of a fundamental constitutional right. It’s not about hamstringing bureaucrats or overturning environmental laws. The Supreme Court simply needs to ensure that the Sacketts—and all other property owners—get their day in court by ruling that administrative compliance orders are subject to judicial review. Due process demands nothing less.
Damon W. Root is a senior editor at Reason magazine.
Agreed
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http://online.wsj.com/video/opinion-professor-newt-legally-challenged/BAFFFE08-0297-4296-84B7-6213DA89F16B.html?mod=opinion_video_newsreel
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http://www.latimes.com/news/opinion/commentary/la-oe-chemerinsky-fedjudges-20111220,0,4776130.story
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"It is ironic that conservatives continue with such attacks even as there is a conservative majority on the Supreme Court and its rulings overall are far more to the liking of conservatives than liberals."
Whatever 'overall' means. What additional powers would liberals want that could go further than taking our homes and slaughtering our young - 53 million since Roe, safe, legal and rare. Kelo and Roe are both still the law of the land. I assume he needs Justice Kennedy to imagine a conservative majority, but Kennedy was the swing vote in Kelo. Someone please tell me what is either conservative or constitutional (or forgivable) about finding a power in the constitution for activist local governments to buddy up with private interests to take private property for preferred private use.
"these candidates do a disservice to the American people when they are clearly wrong about the Constitution"
Perfect straw argument because it was the constitution gave CONGRESS the power to set up jurisdictions like the 9th circuit, the main point of the current controversy. Geography, population and case load have arguably outgrown the 9th Circuit.
"Perhaps these attacks on the federal judiciary are just part of the exceptionally poisonous rhetoric of these divisive times."
No space available in the piece to address Newt's very specific examples in history? Totally missing and that rebuttal from a real academic would actually have been helpful. His silence I assume means Prof. Newt had his history right?
Will the Dean please explain: if rule by independent judiciary was the only intent in the constitution rather than a complex system of checks and balances, why did they write all the other Articles?
Interesting that his own reaction to the attacks on the constitution depend on which Article or amendment is in question:
http://www.washingtonpost.com/wp-dyn/content/article/2007/03/13/AR2007031301508.html:
[abridging the right to bear arms] "is a reasonable way of achieving the government's legitimate goal of decreasing gun violence" [without any amendment to the constitution required] - Erwin Chemerinsky, March 14, 2007 ??
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I get that there is serious legal discussion to be had here, and I very much like that Newt had the courage to go into a deep and difficult issue. What I'm not so sure what I like is the possible lack of judgment in doing so. Is this really the sort of issue for a presidential to raise now essentially out of the clear blue as far as the American people are concerned? Does he not appreciate how dangerous this subject is and how easy it is for him to be painted in a terrible light?
Nor do I care AT ALL for him claiming support in part based upon FDR's effort at packing the court with 4 additional justices. (Nor do I care AT ALL for his repeated praise across the years of FDR in general) I still seethe with anger at it and the consequences it had--intimidating the Court as it did from reading the Constitution correctly and putting us on the trajectory that led to the clusterf*ck we are in today.
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By CURT LEVEY
'Gingrich would arrest judges," scream the headlines. You'd think he'd proposed some crazy, unconstitutional crackdown on federal judges. Instead, Newt Gingrich's position paper, "Bringing the Courts Back Under the Constitution," has a set of controversial but thoughtful proposals for reining in judicial activism.
These include calling judges before Congress to explain their decisions, impeaching judges or eliminating courts that consistently get the Constitution wrong, and limiting the applicability of Supreme Court decisions that distort the Constitution. They've been dismissed as violations of the Constitution's separation of powers. The criticisms are overblown. All are constitutional if carefully implemented and constrained to the appropriate circumstances.
For example, Congress routinely asks executive branch officials outside the White House to testify about their decisions. It occasionally subpoenas them to compel attendance, and arrest would be a last resort. It's unclear why applying the same rules to the judicial branch threatens the separation of powers, especially if done in the context of considering judicial reform proposals like Mr. Gingrich's. Subpoenaing Justices of the Supreme Court, the only court created by the Constitution, is a possible exception.
Mr. Gingrich discusses the possibility of abolishing individual judgeships or lower federal courts, while acknowledging that this would be "warranted only in the most extreme of circumstances." The Constitution gives Congress the authority to "ordain and establish" lower courts. That includes the power to eliminate courts and judgeships, as Congress has occasionally done. Nonetheless, Mr. Gingrich concedes that "Other constitutional options, including impeachment, are better suited in most circumstances to check and balance the judiciary." Stubborn disregard for the Constitution falls short of the "good behavior" required of judges and may justify impeachment.
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Republican presidential hopeful Newt Gingrich
.Another controversial proposal: limiting the applicability of Supreme Court decisions. Mr. Gingrich proposes what Abraham Lincoln outlined in his First Inaugural Address, that "in certain circumstances, the holdings of Supreme Court decisions should be limited to the litigants in a case, and not be held to apply as a general controlling standard." Accordingly, Lincoln refused to treat the high court's Dred Scott decision—now recognized as outrageous judicial activism—as binding on the executive branch. If Lincoln's position seems extreme today, it only reinforces Mr. Gingrich's point that the balance of power has shifted too much toward the judiciary.
Like any plan designed to adjust the constitutional balance of power, Mr. Gingrich's ideas for judicial reform raise a variety of intriguing constitutional questions. Though his freewheeling style adds to the focus on such questions, we should not lose sight of the plan's valuable contribution to the debate on the courts.
Among those contributions is a clear identification of the problem: "The power of the American judiciary has increased exponentially at the expense of elected representatives" such that "the Supreme Court has become a permanent constitutional convention." Mr. Gingrich understands that "judicial supremacy only survives due to the passivity of the executive and legislative branches." He acknowledges the importance of an independent judiciary but points out that "judicial independence does not mean . . . judges can never be held accountable for their judgments . . . however extreme and unfounded."
Instead, Mr. Gingrich argues that the other two branches have the power and the obligation to push back. "The President and each member of Congress takes an oath to defend the Constitution," he notes; "if they believe that the judicial branch is acting contrary to the Constitution, then they have an obligation . . . to check and balance the judicial branch."
There's always the risk of overreach. But unlike the judiciary, democratic constraints provide a check. Even the popular FDR couldn't get a heavily Democratic Congress to approve his court-packing scheme.
Mr. Gingrich doesn't pretend to have all the answers. Instead he offers several possible ways to push back while acknowledging that the best remedy for judicial activism is a president and Senate that will nominate and confirm constitutionalist judges. Beyond that, he describes his specific proposals as "constitutional steps that the legislative and executive branches . . . can take to check and balance the judiciary" (emphasis added), noting that "these powers should be used sparingly." His goals are modest; he hopes to begin "a national conversation" about "formulating executive orders and legislative proposals that will establish a constitutional framework for reining in lawless judges."
While it's easy to criticize anyone who sticks his neck out with specific reform proposals, the alternative is to allow the federal courts to remain unaccountable. Mr. Gingrich's ideas deserve serious consideration, warts and all.
Mr. Levey, an attorney, is executive director of the Committee for Justice
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Exhaustive look at the meaning of the second amendment in the context of the militias formed prior to the revolution and the Federalist/Antifederalist debates during the Constitution's ratification. Probably second only to Halbrook's "That Every Man be Armed" in scope:
http://www.secondamendmentinfo.com/Journal/index.html
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That is awesome. I liked the Second Amendment Primer put out by the NRA about 10 years ago.
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By RICHARD A. EPSTEIN
People who don't live in New York City probably haven't confronted the market-distorting injustices of rent control and similar rent-stabilization laws. But they may recall their outrage in 2008 upon reading that New York Rep. Charles Rangel worked the system by paying a total of $3,894 a month for four rent-stabilized luxury apartments in Harlem, about half the market price.
Remarkably, a serious constitutional challenge to rent-control and stabilization laws may finally be in the works. The challenge arises from James and Jeanne Harmon, who own a town house on West 76th Street in New York City. The upper floors are occupied by tenants who are entrenched under New York's rent-stabilization law, paying rents at only a fraction of the value of their units. Mr. Harmon, a most persistent man whom I have from time to time advised, is attempting to strike down this law.
The Second Circuit Court of Appeals blew off his suit in March, but Mr. Harmon has filed petition for certiorari in the Supreme Court, and, miracles of miracles, the high court has asked New York City and the tenants to respond. His story has been sympathetically featured in the New York Times, the Daily News and the New York Post. Perhaps there is still some life in the challenge to rent controls. There darn well ought to be.
In broad and emphatic language, the Fifth Amendment to the Constitution provides that "no person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Rent control collides with the last prohibition, the "takings clause."
All versions of rent-control laws share a single dominant characteristic: They allow a tenant to remain in possession of property after the expiration of a lease at below-market rents. New York even gives the tenant a statutory right to pass on the right to occupy the premises at a controlled rent to family members who have lived with them for two or more years. The tenants in Mr. Harmon's complaint pay rent equal to about 60% of market value.
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.The Second Circuit recognized that the Harmons would be entitled to just compensation when their property is subject to a "permanent physical occupation." But following the Supreme Court decision in Yee v. City of Escondido (1993), the court insisted that "government regulation of the rental relationship does not constitute a physical taking." That comes as a real surprise to the Harmons when they hear footsteps each night above their bedroom.
Supreme Court decisions dating back to Block v. Hirsh (1921) hold that once a landlord has let a tenant onto the premises for a year, the legislature can extend that lease indefinitely. In so doing, the court undermined the most basic proposition of property law—namely, that property interests are defined by both space and time. Traditional common law rightly treated the tenant who overstayed his lease as a trespasser whom the landlord could evict at will. Rent control upends this relationship.
Supreme Court Justice Antonin Scalia exposed the deeply antidemocratic nature of rent control in Pennell v. City of San Jose (1988). If the government thinks some high social end is served by allowing tenants to sit on someone else's property in perpetuity, then it should use public funds, after democratic deliberation, to buy or lease the premises for market value which it can then lease out to particular tenants. The correct way to handle this issue, he wrote, is by "the distribution to such persons of funds raised from the public at large through taxes," and not to use "the occasion of rent regulation to establish a welfare program privately funded by" landlords.
Mr. Harmon's grievance should resonate on social as well as personal grounds. Rent control and rent stabilization are inimical to the long-term health of New York City. Ordinary tenants paying market rents contribute their fair share to the public treasury. By contrast, rent-controlled tenants on lifetime leases who have a specially privileged legal status are a constant drain on the community, discouraging investment in residential rental real estate by posing a persistent if inchoate threat of subjecting future properties to rent control.
Mr. Harmon is asking the Supreme Court to uphold the Constitution and make right a long-standing wrong. It should take up his invitation and do so.
Mr. Epstein is a professor of law at New York University and a senior fellow at Stanford University's Hoover Institution.
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Remember those terrible days of the Imperial Presidency, when George W. Bush made several "recess appointments" to overcome Senate opposition? Well, Czar George II never did attempt what President Obama did yesterday in making recess appointments when Congress isn't even on recess.
Eager to pick a fight with Congress as part of his re-election campaign, Mr. Obama did the Constitutional equivalent of sticking a thumb in its eye and hitting below the belt. He installed Richard Cordray as the first chief of the Consumer Financial Protection Bureau and named three new members to the National Labor Relations Board. He did so even though the Senate was in pro forma session after the new Congress convened this week.
A President has the power to make a recess appointment, and we've supported Mr. Obama's right to do so. The Constitutional catch is that Congress must be in recess.
The last clause of Section 5 of Article 1 of the Constitution says that "Neither House" of Congress can adjourn for more than three days "without the Consent of the other" house. In this case, the House of Representatives had not formally consented to Senate adjournment. It's true the House did this to block the President from making recess appointments, but it is following the Constitution in doing so. Let's hear Mr. Obama's legal justification.
Democrats had used a similar process to try to thwart Mr. Bush's recess appointments late in his term when they controlled both the House and the Senate. Prodded by West Virginia's Robert C. Byrd, who has since died, Majority Leader Harry Reid kept the Senate in pro forma session. Some advisers urged Mr. Bush to ignore the Senate and make recess appointments anyway, but he declined. Now Mr. Reid is supporting Mr. Obama's decision to make an end run around a Senate practice that he pioneered.
Some lawyers we respect argue that a pro forma session isn't a real Congressional session, and that's certainly worth debating. But that isn't the view that Mr. Reid or then-Senator Obama took in 2007-08, and it would certainly be an extension of Presidential power for the chief executive to be able to tell Congress that he can decide when Congress is really sitting and when it isn't. In any event, that still wouldn't explain the violation of the language in Section 5 above.
These appointments are brazen enough that they have the smell of a deliberate, and politically motivated, provocation. Recall the stories over the New Year's weekend, clearly planted by the White House, that Mr. Obama planned to make a campaign against Congress the core of his re-election drive. One way to do that is to run roughshod over the Senate's advice and consent power and dare the Members to stop him.
Mr. Cordray's appointment also plays into Mr. Obama's plan to run against bankers and other plutocrats. The President justified his appointment yesterday by saying that Senate Republicans had blocked Mr. Cordray's nomination "because they don't agree with the law setting up the consumer watchdog."
Yet he knows that Senate Republicans haven't called for the dissolution of the consumer financial bureau, or personally attacked Mr. Cordray, as Democrats like to claim. Republicans have said they'd be happy to confirm him if Mr. Obama agrees to reforms of the bureau that would make it more accountable to elected officials and subject to Congressional appropriations. As it stands, the bureau is part of the Federal Reserve but Mr. Cordray sets his own budget and doesn't report to the Fed Chairman. His rule-makings also don't need to worry about such inconvenient details as bank safety and soundness.
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President Obama with Richard Cordray in Shaker Heights, Ohio, on Wednesday.
.The bureau has been up and running since July and is already pushing the boundaries of its examination powers. With Mr. Cordray on board, he says the bureau can now begin to issue rules, including oversight of nonbank institutions and the ability to define what constitutes an "abusive" act or practice, an invention of the Dodd-Frank financial reform that will surely lead to mischief.
As Ohio Attorney General, Mr. Cordray was tight with the tort bar and launched a barrage of national lawsuits worthy of Eliot Spitzer. His new job might be a nice populist springboard for running for Ohio Governor, should he choose to do so. Look for Mr. Cordray to announce new and controversial rules or enforcement actions, oh, say, around Labor Day.
As for Mr. Obama's three NLRB appointees, he only notified Congress of his intent to nominate them on December 15. The Senate hasn't had time to hold a single confirmation hearing. The nominees, two Democrats and one Republican, will give the labor board a quorum that it wouldn't have had with the December 31 expiration of the term of previous recess-appointee Craig Becker.
Under this Administration, the supposedly nonpartisan NLRB has become a partisan arm of Big Labor, and that will probably continue this election year. Appointee Sharon Block is the Labor Department's Congressional liaison and former aide to Ted Kennedy. Richard Griffin is general counsel for the International Union of Operating Engineers.
Remember a year ago when Mr. Obama was talking about "regulatory relief" and moving toward the political center? He even sent us an op-ed.
Congress can't do much immediately to stop these appointments, but it ought to think creatively about how to fight back using its other powers—especially the power of the purse. However, private parties will have standing to sue if they are affected by one of Mr. Cordray's rule-makings, and that's when the courts may get a say on Mr. Obama's contempt for Congress.
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White House confident recess appointments were constitutional
By Amie Parnes - 01/05/12 12:44 PM ET
President Obama is confident he had the authority to recess-appoint Richard Cordray to the Consumer Financial Protection Bureau (CFPB), White House press secretary Jay Carney said Thursday.
Republican leaders blasted Cordray’s appointment as an “unprecedented” and potentially illegal power grab by the president, but Carney said the White House is “very confident” that the law is on their side.
At the same time, Carney added, "I don't want to anticipate legal challenges we haven't seen yet."
Business groups say legal challenges to the recess appointment could come swiftly, and an official with the U.S. Chamber of Commerce told The Hill a court fight over the appointment is a near certainty.
Obama broke with years of legal precedent by making the recess appointment while the Senate was holding brief pro forma sessions. Senate Democrats used the same tactic to block recess appointments from President George W. Bush.
The president also recess-appointed three members of the National Labor Relations Board (NLRB), a move that gives the agency a working quorum for 2012.
Carney fired back on an attack made Thursday by Republican front-runner Mitt Romney, who accused Obama of packing the NLRB with "union stooges."
"There were three nominees — one of them was a Republican," the spokesman said. "I find it a little rich that on this and on the appointment of Richard Cordray ... that the former governor of Massachusetts decided to take a position in both cases against the security and protection of middle-class Americans."
Carney insisted Obama was not trying to be "deliberately provocative" with the recess appointments.
"He has worked cooperatively with Congress" since he took office, Carney said.
Obama felt an “absolute urgency” to install Cordray at the bureau, Carney said, adding that no one expects Washington to be a campfire where everyone sings “Kumbaya.”
Senate Republicans had warned Obama not to recess-appoint Cordray to the CFPB and had vowed to block his nomination until structural changes were made to the agency to make it more accountable.
Carney said Cordray’s nomination and the drive to change the bureau are separate issues.
If Republicans want to change the law on the CFPB, "they can do it legislatively," he said.
This story was updated at 1:05 p.m.
Source:
http://thehill.com/homenews/administration/202567-white-house-very-confident-that-recess-moves-were-legal
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http://www.huffingtonpost.com/2012/01/05/chief-justice-john-roberts-supreme-court-ethics_n_1184780.html?ref=fb&src=sp&comm_ref=false
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In addition to the C'l issues presented, I would make note of the politics. Baraq is playing this as the Reps being for financial interests, and against the little guy. Not only is this attack and obfuscation facilitated by the failure to get in front of the anti-bank bail out impulse that the OWS folks played to so well, but the Reps have utterly failed to make their case to the people about why they are so determined against the Consumer Protection Agency-- it being beyond Congressional oversight or budegetary control.
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By DAVID B. RIVKIN JR. And LEE A. CASEY
President Obama's appointments of Richard Cordray as head of the new Consumer Financial Protection Bureau, and of three new members of the National Labor Relations Board, are all unconstitutional.
Each of these jobs requires Senate confirmation. The president's ability to fill them without that confirmation, using his constitutional power to "fill up vacancies that may happen during the recess of the Senate," depends upon there actually being a recess. Both the House of Representatives and the Senate are open for business. The new appointees can pocket their government paychecks, but all their official acts will be void as a matter of law and will likely be struck down by the courts in legal challenges that are certain to come.
The Constitution's Framers assumed that Congress would convene only part of each year, and that there would be long stretches during which the Senate would be unavailable to play its critical "advice and consent" role in the appointment of federal officials. Their solution was to allow the president to make temporary, "recess" appointments permitting the individuals chosen to serve for up to two years, until the end of Congress's next session. This, it was thought, would give the Senate time to act upon actual nominees for the offices once it reconvened without leaving these—perhaps critical—posts vacant for many months.
Presidents have used this authority with alacrity, especially in recent times, as a means of putting a favored nominee on the job even in the face of significant Senate opposition. Historically, the president's lawyers have advised that this is a constitutionally permissible exercise of his recess-appointment power, so long as the Senate is actually in recess.
The Constitution does not define a "recess," but in view of the original purpose of the recess-appointment power, a senatorial absence of more than a few days has been considered a necessary prerequisite. This is particularly the case because the Constitution also provides (in Article 1, section 5, clause 4) that neither house of Congress can "adjourn for more than three days" without the other's consent—thus ensuring that the flow of legislative work cannot be unilaterally interrupted. The Senate can hardly be in recess in the absence of such an agreement—and there is none now.
Martin Kozlowski
.In more recent years, and especially during President George W. Bush's administration, the Senate has attempted to limit recess appointments even further by remaining "in session" on a pro forma basis. Whether such sessions are inherently sufficient to defeat a presidential recess appointment is debatable. However, in circumstances where the Senate is not merely in session as a theoretical matter, but is actually conducting business—albeit on the basis of agreements that measures can and will be adopted by "unanimous consent" without an actual vote—there can be no question that it is not in recess.
That is the situation today. The traditional test, as articulated in a 1989 published opinion by the Justice Department's own constitutional experts in the Office of Legal Counsel, is "whether the adjournment of the Senate is of such duration that the Senate could 'not receive communications from the President or participate as a body in making appointments.'" Today's Senate, which is controlled by the president's own party, is fully capable of performing both functions in accordance with its rules. Indeed, the Senate is so much in session that on Dec. 23—three days after beginning its pro forma session—it passed President Obama's current highest legislative priority: a two-month payroll tax holiday, which the president promptly signed.
Mr. Obama is claiming an open-ended authority to determine that the Senate is in recess, despite that body's own judgment and the factual realities. That is an astonishing and, so far as we can tell, unprecedented power grab.
It is not up to the president to decide whether the Senate is organized properly or working hard enough. However much the supposedly power-hungry President George W. Bush may have resented the Senate's practice of staying "in session" to defeat his recess-appointment power, he nevertheless respected the Senate's judgment on the point.
The president has done his new appointees and the public no favors. Both the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau are regulatory agencies with profound real-world impact. Those individuals and businesses subject to regulations and rulings adopted during the tenure of Mr. Obama's recess appointees can challenge the legality of those measures in the courts, and they will very likely succeed.
Only two years ago in New Process Steel v. NLRB, the Supreme Court undercut hundreds of NLRB decisions by ruling that the board had not lawfully organized itself after the terms of two recess appointee members expired, leaving it without a quorum. Similar issues will arise when both the new financial bureau and the NLRB begin to act with members whose appointments are constitutionally insupportable.
The fact that the president has apparently triggered the constitutional crisis without really expecting to produce any lasting policy impact, and for no better reason than to bolster his claim of running against a "do-nothing" Congress (the key part of his re-election campaign), makes his behavior all the more reprehensible.
Messrs. Rivkin and Casey are Washington, D.C., lawyers who served in the Justice Department during the Reagan and George H.W. Bush administrations. Mr. Rivkin is also a senior adviser to the Foundation for Defense of Democracies.
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Something that has been left unsaid in the discussion about the recess appointments is the likely role of the Office of Legal Counsel. The OLC has a long history of interpreting, and for the purpose of presidential defining, the recess appointment. There was at least one moment (I think in the Reagan adminstration, but I may be mistaken) where the OLC interpreted recess was interpreted by OLC as less than a day. It is likely, therefore, that OLC has played a role in this decision and in giving President Obama its understanding of the definition of a "recess"... and there might be more conservative OLC opinions which played a role in this action.
All of that said, there is certainly politics to be played.
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By MICHAEL MCCONNELL
One reason so many Americans entrusted Barack Obama with the presidency was his pledge to correct the prior administration's tendency to push unilateral executive power beyond constitutional and customary limits.
Yet last week's recess appointments of Richard Cordray as the first chief of the Consumer Financial Protection Bureau and three new members to the President's National Labor Relations Board—taken together with other aggressive and probably unconstitutional executive actions—suggest that this president lacks a proper respect for constitutional checks and balances.
The Obama administration has offered no considered legal defense for the recess appointments. It even appears that it got no opinion from the Office of Legal Counsel in advance of the action—a sure sign the administration understood it was on shaky legal ground.
It is hard to imagine a plausible constitutional basis for the appointments. The president has power to make recess appointments only when the Senate is in recess. Several years ago—under the leadership of Harry Reid and with the vote of then-Sen. Obama—the Senate adopted a practice of holding pro forma sessions every three days during its holidays with the expressed purpose of preventing President George W. Bush from making recess appointments during intrasession adjournments. This administration must think the rules made to hamstring President Bush do not apply to President Obama. But an essential bedrock of any functioning democratic republic is that the same rules apply regardless of who holds office.
It does not matter, constitutionally, that congressional Republicans have abused their authority by refusing to confirm qualified nominees—just as congressional Democrats did in the previous administration. Governance in a divided system is by nature frustrating. But the president cannot use unconstitutional means to combat political shenanigans. If the filibuster is a problem, the Senate majority has power to eliminate or weaken it, by an amendment to Senate Rule 22. They just need to be aware that the same rules will apply to them if and when they return to minority status and wish to use the filibuster to obstruct Republican appointments and policies.
Enlarge Image
CloseAFP/Getty Images
President Obama alongside Richard Cordray, head of the Consumer Financial Protection Bureau, in Shaker Heights, Ohio, Jan. 4.
.Moreover, in this case, two of the recess appointees to the National Labor Relations Board had just been nominated and sent to the Senate on Dec. 15—two days before the holiday. So it is simply not true that they were victims of Republican obstructionism, even if that mattered.
Some of the administration's supporters have tried to argue that the pro forma sessions are a sham and thus that the Senate has been in recess since Dec. 17. Aside from the fact that these sessions are not, in fact, a sham—the Senate enacted the payroll tax holiday extension, President Obama's leading legislative priority, on Dec. 23 during one of those pro forma sessions—the plain language of the Constitution precludes any such conclusion.
Article I, Section 5, Clause 4 requires the concurrence of the other house to any adjournment of more than three days. The Senate did not request, and the House did not agree to, any such adjournment. This means that the Senate was not in adjournment according to the Constitution (let alone in "recess," which requires a longer break).
Others have argued that the president can make recess appointments during any adjournment, however brief, including the three days between pro forma sessions. That cannot be right, because it would allow the president free rein to avoid senatorial advice and consent, which is a major structural feature of the Constitution. He could, for example, make an appointment overnight, or during a lunch break. In a brief in the Supreme Court in 2004, Harvard law professor Laurence Tribe dismissed as "absurd" any suggestion that a period of "a fortnight, or a weekend, or overnight" is a "recess" for purposes of the Recess Appointments Clause.
This is not the first time this administration has asserted unilateral executive power beyond past presidential practice and the seeming letter of the Constitution. Its slender justification for going to war in Libya without a congressional declaration persuaded almost no one, and its evasion of the reporting requirements of the War Powers Resolution—over the legal objections of Justice Department lawyers—was even more brazen. According to the administration, not only was our involvement in Libya not a "war" for constitutional purposes; it did not even amount to "hostilities" that trigger a reporting requirement and a 60-day deadline for congressional authorization.
Indeed, the Obama administration has admitted to a strategy of governing by executive order when it cannot prevail through proper legislative channels. Rather than work with Congress to get reasonable changes to President Bush's No Child Left Behind education law, it has used an aggressive interpretation of its waiver authority to substitute the president's favored policies for the law passed by Congress. When the president's preferred cap-and-trade legislation to limit carbon emissions failed in Congress, the Environmental Protection Agency announced it would proceed by regulation instead. And when Congress refused to enact "card check" legislation doing away with secret ballots in union elections, the president's National Labor Relations Board announced plans to impose the change by administrative fiat—one of the reasons Senate Republicans have tried to block appointments.
The English philosopher John Locke, who so influenced our Founding Fathers, wrote that a "good prince" is more dangerous than a bad one because the people are less vigilant to protect against the aggrandizement of power when they perceive the ruler as beneficent.
I fear many Democrats are falling into this trap. They like President Obama and his policies, and they are willing to look the other way when it comes to constitutional niceties. The problem is that checks and balances are important, precedents created by one administration will be exploited by the next, and not all princes are good.
Mr. McConnell, a former federal judge, is a professor of law and director of the Constitutional Law Center at Stanford Law School, and a senior fellow at the Hoover Institution.
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If this "The Obama administration has offered no considered legal defense for the recess appointments. It even appears that it got no opinion from the Office of Legal Counsel in advance of the action—a sure sign the administration understood it was on shaky legal ground." is true, than Obama totally fu$#ed up. See my post from above.
Incidentally, if his credentials didn't indicate this, McConnell is real, real smart and an influetial scholars and jurist.
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"Mr. McConnell, a former federal judge, is a professor of law and director of the Constitutional Law Center at Stanford Law School, and a senior fellow at the Hoover Institution."
"Incidentally, if his credentials didn't indicate this, McConnell is real, real smart and an influetial scholars and jurist."
Yup.
"It even appears that it got no opinion from the Office of Legal Counsel in advance of the action—a sure sign the administration understood it was on shaky legal ground." is true, than Obama totally fu$#ed up."
Yup.
Although an alternate analysis also suggests itself here-- that he doesn't give a fornication, just like he didn't when he ignored the bankdruptcy laws and fuct the secured creditors of GM.
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An interesting look at what the future of gun rights might look like in the wake of Heller et al.
What Will the Right to Keep and Bear Arms Mean in the Coming Years?
Part One in a Two-Part Series on the Ways in Which Lower Courts and the Supreme Court Will Need to Flesh Out Second Amendment Doctrine
One of the big constitutional issues that will be discussed and litigated over the next decade, and one that may figure prominently in the election this fall, is precisely what leeway Congress, states, and localities have to regulate firearms ownership and use consistent with the Supreme Court’s recent declaration that the Second Amendment includes an individual constitutional right, at least under some circumstances, to keep and bear arms.
In a series of columns beginning with this one, we explore and analyze some of the major Second Amendment issues confronting the lower courts—and soon the Supreme Court. In this installment, Part One of the series, we provide the background necessary to appreciate some of the cutting-edge questions that we will then take up in more detail in Part Two, here on Justia’s Verdict, in a few weeks.
The Heller Bombshell
In 2008, in District of Columbia v. Heller, the United States Supreme Court determined, for the first time in over two centuries, that the Second Amendment protects an individual and fundamental right to keep and bear arms. In doing so, the Court struck down local gun control regulations in DC that prohibited the possession of a handgun in one’s home, and required any firearm in one’s home to be “unloaded and disassembled or bound by a trigger lock.” Two years later, in McDonald v. City of Chicago, the Court concluded (as everyone expected it would, after the landmark Heller ruling) that the Second Amendment limited not only the federal government (as in DC), but also the states and localities, by way of the Fourteenth Amendment’s incorporation doctrine.
Identifying the existence of a right is one thing. Developing doctrine to guide the resolution of cases involving alleged abridgements of the right is quite another. In its two recent cases, the Court—by its own admission—has done little to assist the lower federal courts and state courts in deciding Second Amendment disputes.
Not surprisingly, there has been a flood of such disputes. Indeed, given the extraordinary ambiguity of the Heller opinion, it is difficult to understand why anyone convicted of a gun offense would not raise a Second Amendment defense to the charges against him. Courts have confronted challenges to laws that: prohibit the possession of firearms with obliterated serial numbers; ban persons convicted of misdemeanor domestic violence from possessing firearms; deny firearms to felons; prohibit the carrying of loaded handguns within a national park; prohibit the carrying of a loaded firearm outside one’s home or place of business; require the registration of firearms and require firearms training as a condition of registration; and prohibit gun shows in which firearms are sold on county property. And these are just a few of the claims raised to date.
To put things mildly, constructing a legal framework for evaluating these and other claims has been a challenge to lower courts. Certainly, the reasoning and analysis of judicial opinions in this area have been varied and conflicting. Indeed, we think it is fair to say that at the current time, no one really knows how Second Amendment cases should, or will, be adjudicated. Doctrine in this area is a work in progress. Numerous issues remain unclear and unresolved.
The Guidance Heller Does, and Does Not, Provide
The Court in Heller was clear about a few things. It left no doubt that the Second Amendment right to bear arms was grounded in the self-defense of one’s person and one’s home. And it made clear that the language in the first clause of the Second Amendment about “a well regulated Militia being necessary being necessary to the security of a free State” has no bearing on the meaning of this constitutional provision. Thus, according to the Court, the utility of a weapon for militia or military purposes has no relevance to whether possession of the weapon is protected by the Second Amendment. Handguns are covered because of their utility for self-defense purposes. Machine guns are not covered, notwithstanding their greater utility for state security purposes.
The Court was also adamant about the standard of review that would not apply to gun control regulations. Rational basis review—in which a law needs to be only minimally rational to be upheld—was inappropriate, because it is too deferential to protect a “fundamental” right.
Further, in responding to Justice Breyer’s dissenting opinion, the Court emphatically rejected the argument that restrictions on the right to keep and bear arms should be evaluated under a “freestanding ‘interest-balancing’ approach.” The “core protection” of other fundamental rights—such as the right to free speech—was not subject to such a case-by-case analysis. Indeed, the recognition of an interest as a fundamental right reflected the exact opposite understanding. In adopting the Second Amendment, the People had already engaged in a basic balancing of interests and concluded that the right to firearms deserved special protection from government interference. New attempts to rebalance the right’s value against competing state interests were foreclosed by this earlier constitutional determination.
While the Court was somewhat clear in describing the wrong way to evaluate Second Amendment claims, it was much less helpful in discussing how Second Amendment cases should be correctly adjudicated. The Court explained that it did not need to discuss the various standards of review that might be applicable because the D.C. regulations before it were so obviously unconstitutional and inconsistent with Second Amendment guarantees that they would be struck down under “any of the standards of scrutiny” previously applied in fundamental rights cases.
Perhaps the Court would have been better off stopping there and giving lower courts the first crack at the daunting task of developing Second Amendment doctrine from scratch. But it did not. Instead, it went on to make a number of observations about how the doctrine should unfold, and in doing so, it created considerable confusion—making an already difficult job for lower courts almost impossible.
The Court started sensibly enough by acknowledging that “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” But then it proceeded to identify some, but not all, of those limits by way of a flimsy—indeed conclusory—summary of historically accepted restrictions on firearms: “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places, such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of firearms.”
Further, the Court indicated that this list of limits was neither complete nor absolute: “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.” Indeed, in an isolated comment, later in its opinion, the Court casually added another limitation to its list, saying that its holding should not be understood to suggest that “laws regulating the storage of firearms to prevent accidents” were unconstitutional.
While some of the limits the Court imposed related to the identity of the person being regulated, or the place being regulated, or the particular activity being engaged in, other limits that the Court recognized on the right to keep and bear arms pertained to the kind of weapons encompassed by the Second Amendment. This analysis too was predicated on an abbreviated historical discussion. The Court confirmed that the weapons covered by the right were those “in common use at the time” of the Second Amendment. Thus, according to the Court, the Second Amendment “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”
In addition to identifying limitations on the right to bear arms, the Court also recognized particular circumstances and gun-user-motives where the right was at its zenith. The need to defend one’s person, family and property in one’s home was “most acute,” the Justices asserted, without providing further analysis. The importance of the right to defend one’s home was repeated several times, perhaps most notably when the Court insisted that “whatever else it leaves to future evaluation, [the Second Amendment] surely elevates above all other interests the right of law-abiding responsible citizens to use arms in defense of hearth and home.”
One Reason Heller Provides a Shaky Foundation for Doctrine: The Lack of a Discussion of the Nature of the Permissible Limitations
It would be difficult to overstate the confusion sown by Heller. To reiterate, the Court provides no guidance whatsoever as to the standard of review to be applied in Second Amendment cases. And, if that were not bad enough, the Court went on to provide a list of historically accepted restrictions on the right to keep and bear arms that the Justices explicitly admitted was incomplete.
The Court’s reliance on history and tradition in this regard would not be so problematic if it had provided adequate background on the relevant history to enable lower courts to extrapolate from the list the Court provided. But here again, in response to dissenting justices’ demands for more information, the Court refused to provide additional background for its historical conclusions. Without a more detailed historical account, however, how can a lower court know, until the Supreme Court makes more transparent its approach to history in this context, when a specific gun control measure is sufficiently longstanding to limit the scope of the right?
Heller raises other conceptual and doctrinal dilemmas too. Most importantly, in discussing the limits to the Second Amendment, it fails to explain the essential nature of the limits it is describing.
Typically, rights might be limited in two ways. First, rights are limited in the range of activity—the scope—they encompass. Not everything that communicates a message, for example, such as an act of terrorism or the display of obscene movies, constitutes speech that is protected under the free speech clause of the First Amendment. Second, rights are also limited in that that they may be outweighed by countervailing governmental interests. The use of loudspeaker for a political message is clearly protected speech, but it may be prohibited in a residential neighborhood late in the evening to further the state’s interest in providing people quiet and repose in their homes at night.
The Heller Court never explicitly identifies the kind of limitations it has in mind. One might reasonably read its emphasis on history, and its condemnation of interest balancing, as suggesting that the limitations it describes (and other unidentified traditional limitations) go to the scope of the Second Amendment right. That might support the development of doctrine that narrowly defines the scope of the right, but protects very fiercely—perhaps by the use of a strict kind of judicial scrutiny—what does fall within its coverage.
If that is what the Heller majority opinion intends, however, why does it describe these longstanding regulatory measures as “presumptively lawful” rather than clearly constitutional? Presumptions are subject to rebuttal. The parameters of a right are not.
Alternatively, the scope of the Second Amendment might apply far more broadly. The limitations recognized in Heller might reflect abridgements of the right that we tolerate because they are justified by overwhelmingly important state interests. Thus, felons may have a right to keep and bear arms for self-defense purposes, but their right to do so is outweighed by the state’s interest in preventing individuals who are prone to acting unlawfully from having access to firearms.
The problem with this reading is that many of the limitations Heller identifies are not, in fact, narrowly tailored to serve important state interests. A felon who was convicted of a non-violent crime 15 years ago may have had an unblemished record for the last 14 years and may have a home and family today. If the state continues to deny him, and all others in the class of felons, the right to keep and bear a firearm for home defense purposes, then the state’s decision could only be upheld under fairly deferential review.
One could also posit a doctrinal framework in which questions such as these are evaluated under some form of intermediate-level scrutiny requiring courts to evaluate and balance a felon’s likelihood of using a firearm unlawfully (and society’s interest in restricting his access to firearms) against the individual’s interest in possessing a firearm for defense of his or her home and family. That kind of a nuanced analysis, however, would seem to fly in the face of Heller’s emphatic rejection of ad hoc case by case interest balancing.
In some places, the Court’s opinion in Heller seems almost to imply that calling a right “fundamental” will resolve all difficult disputes about how to protect it. But surely the Court is aware that the term “fundamental right” is no doctrinal talisman. There is no uniform approach to adjudicating cases that implicate laws that are alleged to infringe a fundamental right. Free exercise rights, free speech rights, the right to have an abortion, procedural due process rights, and the right to be free from unreasonable searches and seizures are all fundamental, yet they are protected under very different doctrinal frameworks.
Another Limitation in Heller: The Imprecision About What Laws Burden Gun Ownership or Use Enough to Even Trigger the Second Amendment
There is yet another important omission that magnifies the problems courts confront today: Heller says almost nothing about how courts should determine what constitutes an infringement of the right to keep and bear arms in the first place. Not all government activity that affects a right requires the state to justify its conduct. For example, a law requiring all healthcare providers to be registered with the state would not sufficiently interfere with the right to have an abortion, even though it affects access to abortion services to some extent, to warrant a due process inquiry at all. But what kinds of burdens count under the Second Amendment?
We can derive some guidance from Heller on this question, but in the end, it is not very helpful. We know that banning the possession of handguns in one’s home violates the right to keep and bear arms because most people prefer handguns to long guns for home defense purposes and this preference can be rationalized on pragmatic grounds. Accordingly, the difference in cost and utility between handguns and long guns presumably constitutes a sufficient burden on a person’s ability to defend his or her home to warrant constitutional review. It is entirely unclear, however, what doctrinal standard might capture the magnitude of this burden, and thus enable courts to resolve infringement issues in other cases.
Moreover, there is no way to know whether a burden that infringes the right to keep a firearm for self-defense purposes in one’s home would be sufficient to infringe the Second Amendment in some other context. The Heller Court’s emphasis on home self-defense purposes is largely unexplained. True, the home is a personal sanctuary. But for self-defense purposes, it is hardly the only location where a person might need a firearm to protect herself or her family. A family might be attacked while driving in a car, visiting a mall, or picnicking in a local park. Heller does not elaborate on what, exactly, leads the Court to deem the need to possess a firearm in one’s home particularly acute.
Several answers are possible, but each has different implications for Second Amendment doctrine. Individuals are not especially subject to assault in their homes. Indeed, they are more likely to be attacked in other locations. But they may be uniquely vulnerable in their homes, because they are out of the public eye, so that third parties or the police would have less ability to intervene on their behalf. Alternatively, the state may have less of a justification for interfering with the right to have a firearm in one’s home because the discharge of the weapon in that location poses less of a risk of injury to third parties than would, say, a shootout in the mall or on the freeway. One answer goes to the strength of the right; the other, to the strength of the state’s interest in restricting the right. As is true of so many open issues related to the Second Amendment, Heller creates questions but provides no useful answer to them.
In our next installment, Part Two in this series, we will take up the ways in which some recent and important lower court decisions are grappling with all this Second Amendment uncertainty.
Vikram David Amar, a Justia columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.
Follow @pro_amar on Twitter
Alan Brownstein is a Professor of Law and the Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality at the University of California, Davis, School of
http://verdict.justia.com/2012/01/06/what-will-the-right-to-keep-and-bear-arms-mean-in-the-coming-years
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If this "The Obama administration has offered no considered legal defense for the recess appointments. It even appears that it got no opinion from the Office of Legal Counsel in advance of the action—a sure sign the administration understood it was on shaky legal ground." is true, than Obama totally fu$#ed up. See my post from above.
Incidentally, if his credentials didn't indicate this, McConnell is real, real smart and an influetial scholars and jurist.
OLC chimes in: http://thehill.com/homenews/administration/203853-department-of-justice-defends-obamas-controversial-recess-appointments
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Where's John Yoo when President Obama needs him? The famous Bush Administration legal official was much maligned for issuing opinions supporting Presidential power, and he surely would have come up with something better than the junk law issued by the Justice Department's Office of Legal Counsel yesterday.
The 23-page memorandum (dated January 6) by Assistant Attorney General Virginia Seitz is meant to justify Mr. Obama's recess appointments last week of Richard Cordray at the Consumer Financial Protection Bureau and three new members of the National Labor Relations Board—even though the Senate was not in recess but was holding pro forma sessions. The House also did not consent to the Senate's adjournment, as required by the Constitution's Article I, section 5, clause 4.
Ms. Seitz concedes that "The question is a novel one, and the substantial arguments on each side create some litigation risk for such appointments," and little wonder. Most of the opinion is an off-point digression on the constitutionality of recess appointments between Senate sessions, which no one disputes. But on that "novel" question, Ms. Seitz's legal reasoning is remarkably weak.
She avers that the pro forma sessions aren't technically sessions. As "a practical matter," she writes, in those sessions the Senate isn't capable of receiving and acting on nominations to the executive branch and therefore cannot exercise its advice and consent duties. Ms. Seitz points in particular to a Senate "standing order"—the rules of order it adopts to govern its procedures—that no business would be transacted during the pro forma sessions. If the Senate itself says it can't conduct business, she says, then the President can conclude it isn't really in session.
The problem is that the Senate does most of its work by unanimous consent—meaning without objection from present Members and without a vote or quorum. Even a single Senator alone on the floor (or "as a practical matter" one from each party) can use this process to modify the standing order in a heartbeat and conduct business.
The Senate did exactly that to pass Mr. Obama's payroll tax holiday in December, changing a standing order by unanimous consent to conduct business during an ostensibly pro forma session. Mr. Obama signed that bill. Either that was a real session and therefore his recess appointments are unconstitutional or the bill was invalidly enacted and therefore unconstitutional. Both can't be true.
The practical effect of Ms. Seitz's legal logic is that the President could make a recess appointment when the Senate adjourns for the day, or for lunch. He could also decide that the Senate isn't functioning to his liking—for instance, by dragging its feet on his nominations—and recess appoint nominees even when the Senate is conducting other business.
Last week, White House spokesman Jay Carney claimed Mr. Obama relied on the advice of White House counsel and didn't mention that the Office of Legal Counsel had been consulted beforehand. Now we know why: The Administration's position is a made-to-order legal invention.
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Moving from the hypocrisy of Gov. Perry on states rights over to the top of the constitutional law profession: Prof. Lawrence Tribe of Harvard Law School on the constitutionality (and unconstitutionality) of recess appointments - depending on who makes them. (?)
Games and Gimmicks in the Senate
By LAURENCE H. TRIBE Published: January 5, 2012
ON Wednesday President Obama, using his power to make recess appointments, named Richard Cordray as the first director of the Consumer Financial Protection Bureau. A few hours later, he used the same power to appoint three new members to the National Labor Relations Board, acting to overcome unprecedented Senate encroachment on his duty to appoint executive officials. The president’s right to do so is clearly stated in the Constitution: the recess appointments clause empowers him to “fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” http://www.nytimes.com/2012/01/06/opinion/games-and-gimmicks-in-the-senate.html?_r=1
Who could argue with that? Here is Prof. Tribe arguing a federal lawsuit against a Bush recess appointment: http://balkin.blogspot.com/Stephens.Reply.FINAL.corrected.pdf
In support of Obama, Tribe asserts that the president's power to deem the Senate to be "in recess" and then make recess appointments "is clearly stated in the Constitution" and is further supported by "past practice." But against Bush, Tribe argued that "[t]he text, structure, purpose, function, and pre-1921 history of the Recess Appointments Clause all confirm . . . that the President may not make recess appointments during intra-session Senate breaks."
In support of Obama, Tribe argues that intra-session recess appointments are especially justified when the Senate is deliberately "frustrat[ing] presidential appointments." But against Bush, he argued the opposite: recess appointments are all the more illegitimate when the nominee in question already had been the subject of Senate debate yet "failed to obtain enough votes to go forward under Senate rules."
In support of Obama, Tribe argues that the Senate made itself "unavailable" by largely leaving Washington. But against Bush, he scoffed at the notion that the Senate was ever truly unavailable, thanks to modern technology: even during "holiday breaks that typically last one or two weeks," Senate business "can easily resume, if necessary, owing to modern communications and transportation."
In support of Obama, Tribe invokes Alexander Hamilton's Federalist 67 for the proposition that recess appointments, even intra-session appointments such as Cordray's, are justified when "necessary for the public service to fill without delay." Against Bush, by contrast, he invoked Federalist 67 for the proposition that "recess appointments would be 'necessary,' and thus permissible, only outside the 'session of the Senate"—i.e., never during type of intra-session break that President Obama exploited last week.
In defense of Obama's recess appointments, Tribe said that the president was setting a precedent that would apply "only in instances of transparent and intolerable burdens on his authority." But when Bush made recess appointments, Tribe warned of a slippery slope toward tyranny: We cannot "take comfort in the hope that no President is likely to abuse the recess appointment power" whenever the Senate opposes a nomination, because of the "hydraulic pressure inherent within" the presidency and other branches of government "to exceed the outer limits of its power."
The legal case in favor of President Obama "ought to be a slam dunk"; the same case, in favor of President Bush, was "novel" and "ominous." And so on. (http://www.weeklystandard.com)
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Woof,
If our government can force a gun store to report to them, the name and address of someone who has gone through the background check, and legally purchase a weapon, when they buy more than one gun at a time, doesn't that set the prescient that anytime we exercise any of our rights that the government could force us to report that activity to them? If you say more than one prayer a day? Go to church more than once a week? Say something negative about the government more than twice a day?
Just trying to figure out the ramifications of a Federal Judge saying the government can do exactly that, because if it applies to the Second Amendment it applies to all.
P.C.
:? :? :?
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Woof,
If our government can force a gun store to report to them, the name and address of someone who has gone through the background check, and legally purchase a weapon, when they buy more than one gun at a time, doesn't that set the prescient that anytime we exercise any of our rights that the government could force us to report that activity to them? If you say more than one prayer a day? Go to church more than once a week? Say something negative about the government more than twice a day?
Just trying to figure out the ramifications of a Federal Judge saying the government can do exactly that, because if it applies to the Second Amendment it applies to all.
P.C.
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No inside scoop but I had a brief conversation this morning with one of the judges who heard the first amendment, funeral protest case this past week. Sounded like it is a little unusual for them to have all 11 judges hear a case and unusual for them to have to go through a protest to get to their courthouse.
http://www.fox2now.com/news/ktvi-military-funeral-protests-case-presented-to-federal-appeals-court-20120109,0,1828407.story
January 9, 2012
ST. LOUIS (KTVI-FOX2now.com)—
The First Amendment and street protests both were on the docket of the Federal Appeals Court in St. Louis. The case involves the controversial Westboro Baptist Church and laws preventing its members from protesting at military funerals.
Street theatre and the First Amendment were the topics Monday afternoon as the court considered whether cities can outlaw protests at service member's funerals.
On one side, there is the Westboro Baptist Church of Wichita, Kansas and on the other, the St. Louis County suburb of Manchester.
Manchester outlawed protests at funerals in 2007. The ordinance was aimed at Westboro Baptist, which travels the country protesting at military funerals. Westboro members believe military deaths are god's punishment for the US tolerating homosexuals. The Manchester ordinance outlaws such protests within 300 feet of any funeral home the day of a funeral.
The ACLU sued Manchester and seven other Missouri cities with similar ordinances, arguing that the protests are political speech and are therefore totally protected by the First Amendment. A lower federal court agreed.
But now the case is before the Federal Appeals Court. And in a demonstration of just how important this First Amendment case is, all 11 appeals court judges heard the case inside the Eagleton Courthouse while protestors marched outside.
No word on when the appeals court may rule in this case.
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Justice Thomas's opinion in Heller. It is quite long and I am only halfway through it, but I am finding a superb piece of work. The analysis of the 14th regarding the issue of incorporation of the Bill of Rights may well be the best I have ever read.
http://www.law.cornell.edu/supct/html/08-1521.ZC1.html
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... in a 9-0 (merits) decision. There is a spilt as to the why. And interesting voting partners.
http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf
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http://www.rollcall.com/issues/57_83/-211696-1.html?ET=rollcall:e11964:80133681a:&st=email&pos=eam
Court’s Recusal Issue Still Unsettled
* By Jessica Brady
* Roll Call Staff
* Jan. 24, 2012, Midnight
Scott J. Ferrell/CQ Roll Call File Photo
Conservatives have called for Supreme Court Justice Elena Kagan to recuse herself from the case considering the constitutionality of the health care reform law.
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The Supreme Court might have blocked a conservative activist from participating in oral arguments against the health care law, but stakeholders maintain it's not a setback in their larger push for Justice Elena Kagan to recuse herself during deliberations this spring.
The high court rejected Freedom Watch founder Larry Klayman's request to participate in oral arguments, although his amicus brief maintaining that Kagan should not participate in the case still stands.
Klayman, a conservative dynamo who also founded Judicial Watch, said Monday's decision "is not a setback." Ed Whelan, another conservative legal scholar, called the announcement "insignificant" to the broader dispute over whether Kagan should recuse herself.
Conservatives have pushed for Kagan to step aside when the Supreme Court considers the constitutionality of the health care reform law this spring. The newest justice on the court served as President Barack Obama's solicitor general while the law was being crafted in Congress in 2009 and 2010, and conservative legal observers maintain Kagan's role in the executive branch during that time prevents her from considering the law fairly in court.
Supreme Court justices decide on their own whether to recuse themselves in cases when their impartiality might be in question, and advocates of all political stripes gripe that the lack of protocol in deciding when to step back is a problem. Scrutiny over the issue has only grown in the months since it was announced the Supreme Court would take up the health care law, a highly political issue that will come before the court just as the 2012 campaign season is in full swing.
Klayman said Monday's decision suggests the high court is avoiding the thorny issue of conflicts of interest and whether justices should step aside in pending cases in which they might have a vested interest.
"Apparently, the Supreme Court thinks it will be embarrassed if it, in effect, allows the American people to speak and wants to quietly sweep the issue of its own ethics and respect for the law under the table," Klayman said in a release.
But Klayman vowed to press on, noting in an interview that he spoke with House Judiciary Committee staff about holding a hearing on the matter and calling for Chief Justice John Roberts and Kagan to testify. Roberts has maintained that justices should not recuse themselves from hearing cases unless absolutely necessary, and in a year-end report in December, he said, "I have complete confidence in the capability of my colleagues to determine when recusal is warranted."
The conservative Klayman is not the only one who has taken issue with that stance. Congressional Democrats have maintained for months that Justice Clarence Thomas should step aside from participating in deliberations of the health care reform law because of his wife's tenure at the Heritage Foundation.
The conservative organization was an ardent opponent of the measure while it was working its way through Congress, and Democrats say Thomas will therefore not be an impartial arbiter of the case when the law's constitutionality is considered.
A group of 20 House Democrats led by Rep. Louise Slaughter (N.Y.) called on the Judicial Conference of the United States, the governing body for federal courts, to look into what they said were Thomas' ethical violations last year. The lawmakers charged that Thomas did not report his wife's income from the Heritage Foundation. The Judicial Conference has not responded.
A spokeswoman for House Judiciary Chairman Lamar Smith (R-Texas) said, "We have been very active with trying to get information from DOJ regarding what role Justice Kagan may have played in discussions regarding Obamacare while she was solicitor general."
Smith's Senate counterpart, Judiciary Chairman Patrick Leahy (D-Vt.), has also looked into the matter and held a high-profile hearing last year on the issue of recusal featuring Justices Stephen Breyer and Antonin Scalia.
Despite the efforts from legal observers and Members, the Supreme Court is not expected to bow to the political pressure. While Kagan abstained from Monday's decision on Freedom Watch's request, it's not considered to be a hint that she will likewise sit back when the health care law comes before the court.
"Whether it's the Congress or the courts of the executive branch, the American people don't feel like they have a voice," Klayman complained.
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http://www.rollcall.com/news/senate_gop_forming_response_to_white_house_recess_picks-211742-1.html?ET=rollcall:e11972:80133681a:&st=email&pos=epm
Recess appointmet reactions by the Republicans in the Senate.
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http://www.latimes.com/news/opinion/commentary/la-oe-barry-religion-20120205,0,3487349.story
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http://www.latimes.com/news/opinion/commentary/la-oe-barry-religion-20120205,0,3487349.story
They said if I voted for McCain, we'd have religious mandates imposed by government......
http://hotair.com/archives/2012/02/02/obama-biblical-principles-prompted-me-to-push-for-dodd-frank-and-obamacare/
Obama: Biblical principles prompted me to push for Dodd-Frank and Obamacare
posted at 1:20 pm on February 2, 2012 by Tina Korbe
This morning, at the National Prayer Breakfast, Barack Obama cited Scripture as justification for his policy agenda — from reforming health care to ensuring that financial institutions play by fair rules to taxing the rich. BuzzFeed’s Zeke Miller reports:
The president said he often falls to his knees in prayer, and emphasized the role of his religious values in determining where to lead the country.
“I’d be remiss if I stopped there; if my values were limited to personal moments of prayer or private conversations with pastors or friends. So instead, I must try — imperfectly, but I must try — to make sure those values motivate me as one leader of this great nation.”
Obama maintained that his call for the wealthiest to give up their tax breaks, he’s doing so out of economic necessity, but also in line with biblical teachings.
“And I think to myself, if I’m willing to give something up as somebody who’s been extraordinarily blessed, and give up some of the tax breaks that I enjoy, I actually think that’s going to make economic sense. But for me as a Christian, it also coincides with Jesus’s teaching that ‘for unto whom much is given, much shall be required,’” Obama said, noting Jewish and Islamic teachings say much the same thing.
It surprises me to encounter the president using this tactic. In the first place, the specific example he cites above is misapplied. When the president establishes a policy direction — and Congress follows it — his decisions don’t just affect him. When he promotes increased taxation of “the rich,” he’s not merely giving up his own tax breaks as he implies — he’s also suggesting the government should be able to force others to pay more in taxes, as well. That’s just obvious — and to say otherwise actually makes the president look more confused than anything. Here, we seem to have an out-of-water Obama who wants very desperately to pander but doesn’t quite know how.
It’s always a bit tricky to apply Scripture to political problems. After all, Jesus made it very clear to his apostles, who expected the Messiah to win a worldly victory against their oppressors, that His kingdom is not of this world. When he directly addresses the issue of taxation, He says simply to give to Caesar what is Caesar’s and to give to God what is God’s. Yes, Jesus is acutely concerned with issues of authority and also with issues of wealth and poverty — but it all proceeds from the basic assumptions that authority comes from His Father and that the spiritual, in general, has primacy over the material. That is, Jesus’ injunctions to His followers to give everything they have to the poor proceed from the idea that whatever stands in the way of loving Him has got to go. It’s about His glory, not about the creation of some utopian society. Those who make Jesus’ teachings about the latter and not the former miss the major point His life, death and resurrection make.
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http://www.nytimes.com/2012/02/07/us/we-the-people-loses-appeal-with-people-around-the-world.html?_r=1&hp=&pagewanted=print
February 6, 2012
‘We the People’ Loses Appeal With People Around the World
By ADAM LIPTAK
WASHINGTON — The Constitution has seen better days.
Sure, it is the nation’s founding document and sacred text. And it is the oldest written national constitution still in force anywhere in the world. But its influence is waning.
In 1987, on the Constitution’s bicentennial, Time magazine calculated that “of the 170 countries that exist today, more than 160 have written charters modeled directly or indirectly on the U.S. version.”
A quarter-century later, the picture looks very different. “The U.S. Constitution appears to be losing its appeal as a model for constitutional drafters elsewhere,” according to a new study by David S. Law of Washington University in St. Louis and Mila Versteeg of the University of Virginia.
The study, to be published in June in The New York University Law Review, bristles with data. Its authors coded and analyzed the provisions of 729 constitutions adopted by 188 countries from 1946 to 2006, and they considered 237 variables regarding various rights and ways to enforce them.
“Among the world’s democracies,” Professors Law and Versteeg concluded, “constitutional similarity to the United States has clearly gone into free fall. Over the 1960s and 1970s, democratic constitutions as a whole became more similar to the U.S. Constitution, only to reverse course in the 1980s and 1990s.”
“The turn of the twenty-first century, however, saw the beginning of a steep plunge that continues through the most recent years for which we have data, to the point that the constitutions of the world’s democracies are, on average, less similar to the U.S. Constitution now than they were at the end of World War II.”
There are lots of possible reasons. The United States Constitution is terse and old, and it guarantees relatively few rights. The commitment of some members of the Supreme Court to interpreting the Constitution according to its original meaning in the 18th century may send the signal that it is of little current use to, say, a new African nation. And the Constitution’s waning influence may be part of a general decline in American power and prestige.
In an interview, Professor Law identified a central reason for the trend: the availability of newer, sexier and more powerful operating systems in the constitutional marketplace. “Nobody wants to copy Windows 3.1,” he said.
In a television interview during a visit to Egypt last week, Justice Ruth Bader Ginsburg of the Supreme Court seemed to agree. “I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.
The rights guaranteed by the American Constitution are parsimonious by international standards, and they are frozen in amber. As Sanford Levinson wrote in 2006 in “Our Undemocratic Constitution,” “the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today.” (Yugoslavia used to hold that title, but Yugoslavia did not work out.)
Other nations routinely trade in their constitutions wholesale, replacing them on average every 19 years. By odd coincidence, Thomas Jefferson, in a 1789 letter to James Madison, once said that every constitution “naturally expires at the end of 19 years” because “the earth belongs always to the living generation.” These days, the overlap between the rights guaranteed by the Constitution and those most popular around the world is spotty.
Americans recognize rights not widely protected, including ones to a speedy and public trial, and are outliers in prohibiting government establishment of religion. But the Constitution is out of step with the rest of the world in failing to protect, at least in so many words, a right to travel, the presumption of innocence and entitlement to food, education and health care.
It has its idiosyncrasies. Only 2 percent of the world’s constitutions protect, as the Second Amendment does, a right to bear arms. (Its brothers in arms are Guatemala and Mexico.)
The Constitution’s waning global stature is consistent with the diminished influence of the Supreme Court, which “is losing the central role it once had among courts in modern democracies,” Aharon Barak, then the president of the Supreme Court of Israel, wrote in The Harvard Law Review in 2002.
Many foreign judges say they have become less likely to cite decisions of the United States Supreme Court, in part because of what they consider its parochialism.
“America is in danger, I think, of becoming something of a legal backwater,” Justice Michael Kirby of the High Court of Australia said in a 2001 interview. He said that he looked instead to India, South Africa and New Zealand.
Mr. Barak, for his part, identified a new constitutional superpower: “Canadian law,” he wrote, “serves as a source of inspiration for many countries around the world.” The new study also suggests that the Canadian Charter of Rights and Freedoms, adopted in 1982, may now be more influential than its American counterpart.
The Canadian Charter is both more expansive and less absolute. It guarantees equal rights for women and disabled people, allows affirmative action and requires that those arrested be informed of their rights. On the other hand, it balances those rights against “such reasonable limits” as “can be demonstrably justified in a free and democratic society.”
There are, of course, limits to empirical research based on coding and counting, and there is more to a constitution than its words, as Justice Antonin Scalia told the Senate Judiciary Committee in October. “Every banana republic in the world has a bill of rights,” he said.
“The bill of rights of the former evil empire, the Union of Soviet Socialist Republics, was much better than ours,” he said, adding: “We guarantee freedom of speech and of the press. Big deal. They guaranteed freedom of speech, of the press, of street demonstrations and protests, and anyone who is caught trying to suppress criticism of the government will be called to account. Whoa, that is wonderful stuff!”
“Of course,” Justice Scalia continued, “it’s just words on paper, what our framers would have called a ‘parchment guarantee.’ ”
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I didn't like Ruth Bader Ginsburg when she was my Constitutional Law Prof at Columbia. I suspect my doggy nose was smelling the lack of respect she has for our Constitution. Now I know just how right my instincts were. :x :x :x :x :x :x :x :x :x
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I wasn't able to get it definitively while on the road, but I gather that the President, the Defender in Chief of our Constitution, spoke of transforming it :cry: :cry: :cry:
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http://www.glennbeck.com/2012/02/06/ginsburg-dont-look-to-u-s-for-a-constitution/
and here is the interview, from Egyptian TV, after beginning in Arabic, it is conducted in English:
http://www.youtube.com/watch?v=vzog2QWiVaA&feature=player_embedded
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... for real.
[youtube]http://www.youtube.com/watch?v=FizspmIJbAw[/youtube]
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... for real.
[youtube]http://www.youtube.com/watch?v=FizspmIJbAw[/youtube]
Hey, it's never too early for a wise latina to push leftist legal memes on the kiddies. Hey, these bears have food and property, Goldilocks was just OWS'ing their 1% house. It's like free speech or something....
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Yeah, I noticed the trespass argument didn't guy Baby Bear very far :-P and that he was to "help" Goldilocks "fix" the damage.
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Yeah, I noticed the trespass argument didn't guy Baby Bear very far :-P and that he was to "help" Goldilocks "fix" the damage.
Well, it's kind of like how we must feed, clothe and provide medical care to illegal aliens and those others who reject work and the rule of law, partially in spanish to boot!
At least she is finally able to ajudicate cases worthy of her intellect.
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I knew you guys would love it!!!!
And here I was thinking that the USSC wouldn't have original jurisdiction over the case, so the fact that she was ruling on the facts was teaching kids poorly about the cases the Court hears. But then, I am a dork.
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I knew you guys would love it!!!!
And here I was thinking that the USSC wouldn't have original jurisdiction over the case, so the fact that she was ruling on the facts was teaching kids poorly about the cases the Court hears. But then, I am a dork.
That was before Obama's fundamental transformation of America. Get with the times. Ethnicity trumps both ability and the rule of law now.
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Actually I did catch the original jurisdication faux pas, but figured WTF-- after all she's a wise Latina :roll:
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Actually I did catch the original jurisdication faux pas, but figured WTF-- after all she's a wise Latina :roll:
I don't think there is a thread anywhere on this forum I enjoy as much as this one.
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Actually I did catch the original jurisdication faux pas, but figured WTF-- after all she's a wise Latina :roll:
I don't think there is a thread anywhere on this forum I enjoy as much as this one.
The worst SCOTUS appointee in generations + Sesame Street = The makings of an almost perfect storm of snark
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BD:
And much of the thread's value comes from your contributions to it.
GM:
Snark away :lol:
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with a machete.
http://www.foxnews.com/politics/2012/02/13/justice-breyer-robbed-at-west-indies-vacation-home/
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This could jeopardize the Solicitor General's hallowed position as the "10th justice."
http://www.scotusblog.com/2012/02/significant-feud-over-an-sg-brief/
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Justice Ginsburg Reminds Us What is at Stake in November
Chris W. Cox
This November’s election isn’t about the direction of our country over the next four years – it’s about the very survival of our Constitution, our values, and our freedoms as we know them. If freedom-loving Americans needed any more evidence for this, U.S. Supreme Court Associate Justice Ruth Bader Ginsburg recently provided it.
In a visit to Cairo, Egypt, Justice Ginsburg told Al Hayat television, “I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012.”
Instead, she urged Egyptians to look elsewhere to more modern constitutions in South Africa, Canada, and even the European Convention on Human Rights.
Of course, not one of these governing documents comes close to adequately guaranteeing the fundamental human rights and liberties enshrined in our U.S. Constitution. It’s also worth pointing out that Ginsburg’s eagerness to diminish the sanctity of America’s supreme law is hardly shocking, as this isn’t the first time she’s gone out of her way to disparage the document she swore an oath to uphold.
But her comments should serve as a chilling reminder of everything that is at stake in this year’s presidential election.
If President Barack Obama wins reelection, he could have the opportunity to fill up to three vacancies on the Supreme Court. And as we’ve seen in his first term, Obama is not interested in appointing sound, originalist nominees to the high court.
Rather, the President is committed to stacking the court with anti-Second Amendment, anti-freedom justices who are motivated to make rulings that dismantle the fundamental freedoms guaranteed in our Bill of Rights. In essence, Obama wants judges in the Ruth Bader Ginsburg mold, who are brazen enough to undermine the very laws and individual human rights they swear to defend.
For example, in the Supreme Court’s landmark Heller decision that narrowly struck down Washington, D.C.’s unconstitutional gun ban by a 5-4 vote, Ginsburg and three of her colleagues concluded that the Second Amendment does not guarantee an individual right to own a firearm, nor does it protect our right to defend ourselves, our property, or our loved ones.
Ginsburg may have lost that round, but assuredly, she knows how close the anti- freedom wing of the court is to erasing our Second Amendment freedom out of existence. As Ginsburg told a Harvard Club audience in 2009, she looks forward to the day when a “future, wiser court” overturns 5-4 decisions like Heller.
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Nearly three years into President Obama’s first term in office, Michelle Obama finally said something with which I can agree.
At a recent fundraiser for President Obama’s re-election campaign in Providence, Rhode Island, the first lady told her audience:
“We stand at a fundamental crossroads for our country. You’re here because you know that in just 13 months, we’re going to make a choice that will impact our lives for decades to come … let’s not forget what it meant when my husband appointed those two brilliant Supreme Court justices … let’s not forget the impact that their decisions will have on our lives for decades to come.”
This was music to the ears of the small, affluent crowd of admirers who cheered and applauded. But to gun owners, Michelle Obama’s remarks should sound like a warning bell, alerting us to the danger ahead should Barack Obama win re-election and get the opportunity to alter the current make-up of the Supreme Court.
When Americans flock to the polls in 13 months, we will not simply decide which direction our country should take over the next four years. Rather, we will decide whether or not our fundamental, individual right to keep and bear arms will survive over the next several decades.
Currently, the Second Amendment clings to a 5-4 pro-freedom majority on the Supreme Court. Just one vote is all that stands between the America our Founding Fathers established and a radically different America that Barack Obama and his supporters envision.
If you want to read something scary, take another look at the minority opinions in the Supreme Court’s landmark Heller and McDonald decisions that struck down Washington, D.C.’s and Chicago’s unconstitutional gun bans. In the Heller dissent, four justices concluded that the Second Amendment does not guarantee an individual right to own a firearm, nor does it protect our right to defend ourselves, our families, or our property. In McDonald, the same four justices argued that the 5-4 Heller decision should be reversed.
If these four justices had just one more vote on their side, their opinion — that the Second Amendment should not exist in today’s modern society — would be the law of the land today. And assuredly, the anti-gun activist wing of the court knows how close they are to gaining the upper hand. As Justice Ruth Bader Ginsburg told a Harvard Club audience in 2009, she looks forward to the day when a “future, wiser court” overturns 5-4 decisions like Heller.
Praying for the health of five justices is not a sound legal strategy for ensuring that our Second Amendment freedoms survive the relentless legal assault that gun-ban groups are waging in courtrooms across America. We need a president who will nominate sound, originalist nominees to the high court — nominees who will preserve the freedoms our Founding Fathers enshrined in our Constitution.
If President Obama gets the opportunity to tilt the balance of the Supreme Court in his favor, we’re unlikely to see another pro-gun victory at the Court in our lifetime. Even worse, the 5-4 majorities in Heller and McDonald will be in serious jeopardy of being reversed, effectively eliminating the Second Amendment.
NRA members, gun owners and all freedom-loving Americans should heed Michelle Obama’s warning. We must spend the next 13 months working to make sure her husband doesn’t get four more years to destroy American freedom for generations to come.
Chris W. Cox is the Executive Director of the National Rifle Association Institute for Legislative Action (NRA-ILA (http://www.nraila.org/)) and serves as the organization’s chief lobbyist.
Article printed from The Daily Caller: *http://dailycaller.com*
URL to article: *http://dailycaller.com/2011/10/11/michelle-obamas-warning-to-gun-owners/*
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One jurists view of the comparison:
https://law.hofstra.edu/pdf/Academics/Journals/LawReview/lrv_issues_v35n04_i03.pdf
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http://www.rollcall.com/news/sen_harry_reid_may_recommend_more_recess_appointments-212525-1.html?ET=rollcall:e12241:80133681a:&st=email&pos=epm
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http://www.denverpost.com/breakingnews/ci_17710322?source=rss
County lands in feud with Forest Service
Some see the road closures in southwest Colorado as federal encroachment.
Posted: 03/27/2011 01:00:00 AM MDT By Nancy Lofholm
The Denver Post denverpost.com
CORTEZ — Montezuma County Sheriff Dennis Spruell is waiting for his conscience to tell him: Should he start handing out tickets this week to U.S. Forest Service agents who are closing backcountry roads? Should he cut locks on gates that shut off access to public lands?
The fact that a county sheriff is considering such actions against the federal government is a good indication that more than a run-of-the-mill dustup over road and trail closures on public lands is erupting in the far southwest corner of the state.
Spruell and others are upset about road closures in the San Juan National Forest. But their ire over not being able to use certain trails is overshadowed by a broader issue. They cite various interpretations of the Constitution to argue that the federal government shouldn't have jurisdiction over forest lands in the first place and that the Forest Service is not a legitimate agency.
"When I ran for office the No. 1 question I was asked was 'what are you going to do about the encroachment of the federal government?' The people here have just had enough. They are really tired of the federal government telling them what to do," said Spruell, who sits in his office beneath a sign reading, "People Protected by Pit Bull Spruell." The sign was given to him by members of the conservative 9-12 Patriots group.
In recent weeks, protesters have marched on the local Forest Service and BLM office located between Cortez and Dolores, calling Forest Service officials "government pukes." Armed detractors of the federal agencies have set up a large display of signs near the office denouncing forest regulations and drawing attention with a stuffed, rifle-toting bear dangling from a rope. More than 170 residents last week jammed into a talk by two Utahns who claim in three self-published books that the federal government has far exceeded its original mission spelled out in the Constitution.
The idea that federal land should be turned over to the states or the counties has gained traction with everyone from businessmen who have little direct stake in the issue to the three dozen or so folks who spend four hours every other Saturday sitting through a Constitution class led by Minuteman Mike Gaddy. Gaddy has a theory that the Forest Service or BLM might be restricting access to lands because the federal government has promised mineral rights to the Chinese in lieu of paying off the U.S. debt owed to that nation.
The outcry and resulting conspiracy theories is the result of three plans put forward by the Forest Service to implement travel management plans on three sections of the forest as required by a 2005 federal mandate. The intersection of those plans are what Steve Beverlin, Dolores Public Lands Office manager, calls "a perfect storm" for controversy. Beverlin knows. He was just transferred from his job late last week amid of all the controversy.
He explained that at the same time workers began closing and reclaiming roads on two of the areas, a plan was publicized that called for the closure of 155 miles of an estimated 700 miles of unauthorized motorized routes in the Boggy Glade area near Dolores.
Boggy Glade is a popular high-country area where the elderly, the disabled and hunters have long used the trails that now branch out across the map of the area like a bad case of varicose veins. Many of those slated for closure were made by ATVs veering off established trails. Some were created for logging or mining decades ago and never closed until now.
Many of those protesting the closures cite an 1866 law they refer to as RS 2477, which they argue gives local governments authority over roadways. The law was designed to promote settlement of the west by granting rights of way to people who wanted to build roads across public lands. It was repealed in 1976, but already-established rights of way were allowed to continue.
The term RS 2477 is commonly bandied about here in coffee shops and government offices. There are many differing ideas about exactly what it means, but the bottom line is that its adherents think the law can be used to take some roads and trails from federal jurisdiction and put them in the hands of counties.
"The misinformation about this is just daunting," said Veronica "Ronni" Egan, national director of the Great Old Broads for Wilderness and a resident of nearby Mancos. Her organization is going to begin running full-page ads in local papers soon to try to dispel some of what they believe is wrong information about what's happening in their forest.
Doug Maxwell doesn't want to hear any of that.
"The Forest Service has no right to enforce any laws. They can't enforce laws unless they are deputized by the county sheriff," said Maxwell, a retiree who has been sitting down the road from the public lands office outside Dolores since mid-January with anti-Forest Service signs like, "Road Closures = a Step Toward Tyranny."
Jerry Martin, sheriff of Dolores County for 21 years, said he fears that all this rhetoric coupled with rampant rumors could lead to something as horrific as the incident in 1998 when three angry anti-government misfits shot their way through the Four Corners, killing one deputy, wounding three others and leading 500 officers on a massive, extended manhunt.
"We've had heated problems over grazing in the past and disputes over logging. But I've never seen anything of this magnitude," Martin said.
Spruell has been criticized by some residents as contributing to the unrest by aligning himself with the anti-federal-government crowd and by making threats to arrest or ticket Forest Service workers.
The sheriff said he is simply following his conscience. He said that will help him decide what to do when he encounters workers closing roads he doesn't think should be closed or reclaiming roads by first ripping them up with heavy machinery. He has already told his deputies not to cite citizens who are violating federal regulations he doesn't believe are legitimate, such as camping too far off the road in a restricted area.
"I'm not a radical," he said. "But when I see something I think is wrong, it's my responsibility to do something."
Nancy Lofholm: 970-256-1957 or nlofholm@denverpost.com
Read more: County lands in feud with Forest Service - The Denver Post http://www.denverpost.com/breakingnews/ci_17710322?source=rss
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Tough-talkin’ sheriff sticks to his guns
Montezuma County’s Spruell vows to defend Constitution
By Reid Wright
Cortez Journal
Article Last Updated: Saturday, February 18, 2012 6:44pm
More than a year after taking office, Montezuma County Sheriff Dennis Spruell is sticking to his guns by vowing to keep a close watch not only on crime, but also on the possible overreach of other government agencies.
Instead of state and federal agencies and local law enforcement having an adversarial relationship, they should work together, Spruell said.
“I still get tears in my eyes when I say the Pledge of Allegiance,” he said. “When our forefathers wrote the Constitution, they warned us of the encroachment of the federal government. If somebody doesn’t stand up and say ‘hey wait a minute, this is not correct,’ then it won’t be long before we’re a socialist country.”
Spruell reaffirmed this philosophy by attending The Constitutional Sheriffs and Peace Officers Association’s first conference last month in Las Vegas, Nev. The convention was aimed at teaching local law enforcers about their constitutional responsibilities.
“People think we’re trying to overthrow the government, and that’s not the case at all,” he said. “We work very closely with the other agencies, and we just want to be educated in our authority as sheriff and what our duty to the Constitution is.”
Spruell made national headlines for taking a stance against the federal public lands agencies attempting to close forest roads on public land in Montezuma County.
“What struck me is that all across the country the issues that sheriffs have with some of the federal agencies are common,” he said. “It’s not just here in Montezuma County.”
Spruell said his goal going into office was to bring the U.S. Forest Service to the table with the county government.
“It wasn’t to control the forest service,” he said. “My goal was to get them to come to the table. And since then, I am very happy to say they are now coming to the table and they are talking to us.”
Some rallied behind Spruell on the road-closure issue, while others saw his viewpoints as radical.
The latest dispute involved the closure of a U.S. Forest Service road to the privately owned Red Arrow Mine northwest of Mancos, preventing the owner from accessing the property.
Recently appointed District Ranger Derek Padilla said the closure of the road to the Red Arrow Mine was only during the winter to prevent the public from getting stuck or causing maintenance issues.
The local public lands office has a long backlog of issues and only one person to work through them, Padilla said. Additionally, some issues may have slipped through the cracks during the recent change in administration.
reidw@cortezjournal.com
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A lot of banter over one's profession over on Political Economics, the least of our spending problems come from paying real people to do real work that really is the function of that level of government like local police and fire. Still it begs the constitutional question, under what authority is nationalizing the hiring police and teachers derived? Or the potential bailouts of the states and localities who commit to compensation and retirement packages they cannot afford?
Examples:
"President Barack Obama said Monday that he would like to extend the school year and raise teacher pay to help improve the U.S. education system." WSJ 9/27/2010
"President Clinton today announced the first round of police hiring grants under the new crime bill, an important step toward his goal of putting 00,000 police on America's streets. " http://www.justice.gov/opa/pr/Pre_96/October94/590.txt.html (Oct 1994)
Supreme Court Justices are NOT the only government officials sworn to "...preserve, protect and defend the Constitution of the United States." http://press-pubs.uchicago.edu/founders/tocs/a2_1_8.html
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http://www.latimes.com/news/nation/nationnow/la-na-nn-supreme-court-affirmative-action-20120221,0,7177633.story
The Supreme Court cast doubt Tuesday on the future of affirmative action at the nation’s colleges and universities, agreeing to hear an appeal from a white student in Texas who seeks an end to "racial preferences" in college admissions.
The decision could either limit the use of affirmative action or broadly forbid using race as an admissions factor.
However, because the court’s calendar is filled through the spring, the court will not hear arguments in the case until October, weeks before the presidential election.
The Obama administration could choose to weigh in on the issue, but it need not do so. The court’s intervention nonetheless is an ominous sign for defenders of affirmative action. Justice Elena Kagan also announced she will not take part in the decision.
The court has been closely split on affirmative action since 1978. By a 5-4 vote then, the justices said universities may consider a minority student’s race as a plus factor when choosing new students so as to bring about more diversity in the class. Eight years ago, the court reaffirmed that view in a 5-4 opinion written by Justice Sandra Day O’Connor. The dissenters included Justice Anthony Kennedy.
Not long afterward, O'Connor retired and was replaced by the more conservative Justice Samuel A. Alito Jr. In 2007, he joined an opinion by Chief Justice John G. Roberts Jr. that forbids school districts from assigning students to elementary or high schools for the purpose of creating a better racial balance. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," Roberts said.
The new case, Fisher vs. University of Texas, gives the Roberts court its first opportunity to rule on the constitutionality of affirmative action in higher education.
Five justices are on record opposing "racial balancing" policies. They include Justices Antonin Scalia and Clarence Thomas, in addition to Roberts, Alito and Kennedy.
But the Texas case also arises in an unusual circumstance which could limit the significance of the court’s ruling.
In 1997, the Texas Legislature adopted the so-called "Top Ten" plan for choosing new students. As such, the University of Texas was told to accept the top 10% of the graduates from all the state’s high schools. The goal was to maintain racial and ethnic diversity in the freshman class without using race as a factor.
The plan appeared to work. By 2004, 21% of the entering students at the Austin campus were black or Latino, a higher percentage than when the university had used race-based affirmative action.
After the high court endorsed continued affirmative action through O’Connor’s opinion, Texas university officials announced they would again give a preference to "underrepresented minorities" beyond those who were admitted under the "Top Ten" policy. In 2007, the university announced a "record high" number of entering black and Latino students, who made up about 26% of the freshman class.
In 2008, Abigail Fisher was turned down for admission to the University of Texas. Her grades were not good enough to put her in the top 10% of her class, but she said her tests and grades "exceeded those of many of the admitted minority candidates." She sued, alleging racial discrimination in violation of the Constitution’s guarantee of equal protection of the laws.
She lost before a federal judge and the U.S. 5th Circuit Court of Appeals, which said it was bound to follow O’Connor’s opinion from the University of Michigan law school case.
Her appeal argues that the 14th Amendment "requires an admissions process untainted by racial preferences absent a compelling, otherwise unsatisfied, government interest" in having some racial diversity. Since the University of Texas had already achieved diversity through the use of its "Top Ten" policy, it had no need to use race as an admissions factor, Fisher’s lawyers argued.
Texas state lawyers had strongly urged the court to turn away the appeal. They said Fisher was about to graduate from Louisiana State University and that her case would soon be moot.
But after considering it over two weeks, the court said Monday it had voted to hear her appeal.
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Supreme Court Justices are NOT the only government officials sworn to "...preserve, protect and defend the Constitution of the United States." http://press-pubs.uchicago.edu/founders/tocs/a2_1_8.html
Agreed. This is why the OLC, White House Counsel and various attornies working for Congress are some important.
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http://www.nytimes.com/2012/02/20/opinion/is-there-a-right-to-lie.html
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February 19, 2012
Is There a Right to Lie?
By WILLIAM BENNETT TURNER
Berkeley, Calif.
XAVIER ALVAREZ is a liar. Even the brief filed on his behalf in the United States Supreme Court says as much: “Xavier Alvarez lied.” It informs us that he has told tall tales about playing hockey for the Detroit Red Wings, being married to a Mexican starlet and rescuing the American ambassador during the Iranian hostage crisis. But as the brief reminds us, “none of those lies were crimes.”
Another of his falsehoods, however, did violate the law. In 2007, while introducing himself at a meeting of a California water board, he said that he was a retired Marine who had been awarded the Medal of Honor (both lies). He was quickly exposed as a phony and pilloried in the community and press as an “idiot” and the “ultimate slime.”
But his censure did not end there. The federal government prosecuted him under the Stolen Valor Act, which prohibits falsely claiming to have been awarded a military medal, with an enhanced penalty (up to a year in prison) for claiming to have received the Medal of Honor. Mr. Alvarez was convicted but appealed to the United States Court of Appeals for the Ninth Circuit, which held that the act violated the First Amendment.
The government has taken the case to the Supreme Court, which is scheduled to hear arguments this week. The question before the court is not whether there is a constitutional “right” to lie. Rather, it’s a question about the scope of the government’s power over individuals — whether the government can criminalize saying untrue things about oneself even if there is no harm to any identifiable person, no intent to cheat anyone or gain unfair advantage, no receipt of anything of value and no interference with the administration of justice or any other compelling government interest.
The court should rule in favor of Mr. Alvarez. Harmless fibbing should not be a federal offense.
The Justice Department argues that the Stolen Valor Act serves an “important” government interest: preserving the integrity and credibility of the military medals program. False claims, it maintains, dilute the reputation and meaning of the medals.
But the government has offered no evidence that lies by crackpots like Mr. Alvarez have in any way damaged the honor or prestige of medal recipients. A few instances of dubious characters lying about medals does not require the government to deploy the heavy artillery of criminal sanction. The United States has had military medals since the Revolutionary War, but the founding fathers didn’t seem to think such legal protection was necessary, and neither did Congress until 2006, when it passed the act.
Nor has the government shown that the law is necessary and narrowly tailored to protect any valid government interest. Those who lie about being awarded medals could easily be exposed if the government maintained an online database of medal awardees; the government could even shame known liars by publicizing their names.
The Stolen Valor Act is also dangerously broad: it puts satire and parody at risk of criminal prosecution. The comedian Stephen Colbert could not safely perform a skit in which his blowhard patriot persona claimed to have a medal. The act doesn’t require proof that anyone believed or was deceived by the false claim.
If the Supreme Court were to accept the government’s argument, other disconcerting legislation could easily follow. Congress could enact a law that criminalized false claims by political candidates about their qualifications for office, or false claims about their opponents. Surely the government has an “important” interest in preventing voter deception. But as much as we want to encourage factual accuracy in our politicians, do we really want the government to prosecute, for example, Senator Marco Rubio, the Florida Republican who falsely stated on his Senate Web site that his parents moved from Cuba after — rather than before — Fidel Castro took power? Who among us has not said things about ourselves that are untrue? Who has not exaggerated or embellished details to tell a better story?
The public humiliation that follows such exposure is punishment enough. The recognized constitutional remedy for false speech, as Justice Louis D. Brandeis famously said, is not suppression but “more speech.” The court should reject Congress’s attempt to police what we are allowed to say about ourselves.
William Bennett Turner teaches a course on freedom of speech at the University of California, Berkeley, and is the author of “Figures of Speech: First Amendment Heroes and Villains.”
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Good constitutional discussion over on gay issues thread. This part in particular by bigdog is noteworthy.
"I think "the people" do have a say. First, they elect (sort of, at least ) the president who nominates. Second, they elect the senators who confirm. Third, they have the ability, especially through interest groups or other bodies, to file amicus briefs with the Court. Fourth, federal judges are appointed for life... with good behavior. There is an impeachment mechanism in place, if "the people" were willing to push it. Fifth, as noted elsewhere, Congress can change (appellate) jurisdiction. The people could push for that."
When I read the quote of Justice Ginsburg preferring the South African constitution to ours, it made me think of impeachment. Not for her own freedom of speech but if any of her Court opinions were derived from some standard other than the U.S. constitution.
Our ongoing criticisms and second guessing of court decisions as I see it is our way of staying active and informed. The say that the people have on the court through the selection process has been my first answer to anyone who says there is no difference between the parties or the candidates. There is quite a difference it seems to me between the appointees of Bush versus Obama even though Justices often surprise or disappoint.
I remember that a major, public, conservative uproar brought down the Harriet Miers appointment of Pres. Bush. There was a smaller conservative protest to Pres. Reagan's selection of Arizona moderate Sandra Day O'Connor that perhaps should have been heeded.
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(BD-- feel free to help clean up my articulation here)
The subject of free exercise of religion has been on many people's minds due to Obamacare regs requiring that those opposed to birth control and abortion, including those whose religion teaches them to be wrong, to pay for the birth control of others.
In the ensuing discussions many bandy about the phrase about a wall that separates church and state. The phrase comes from something Thomas Jefferson wrote in a letter and is frequently misunderstood. When Jefferson was alive we need to remember that the Bill of Rights applied only to the federal government!-- and had not yet been incorporated in whole or part to the various states. This is why, for example, the Heller decision was so important; because it was an appeal of the law of Washington DC, a federal territory, it allowed the question of whether the second amendment was an individual right to be squarely presented. It took another decision, the name of which slips my mind, against the City of Chicago to hold that the second applied to the States. With that in mind, read the following by Jefferson and note the role he envisions for religion in the public sphere of the States.
""I consider the government of the United States as interdicted by the constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment or free exercise of religion, but from that also which reserves to the States the powers not delegated to the United States. Certainly, no power to prescribe any religious exercise or to assume authority in any religious discipline has been delegated to the general government. It must then rest with the States." --Thomas Jefferson, letter to Samuel Miller, 1808"
Given the role of religion in the State constitutions and practices at the time the First Amendment was passed restricting the FEDERAL government, it is not clear to me what the analysis was/is/became upon the incorporation of the First.
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The Perversion of Rights
By Mark Steyn
February 25, 2012 4:00 A.M.
CNN’s John King did his best the other night, producing a question from one of his viewers:
“Since birth control is the latest hot topic, which candidate believes in birth control, and if not, why?”
To their credit, no Republican candidate was inclined to accept the premise of the question. King might have done better to put the issue to Danica Patrick. For some reason, Michelle Fields of the Daily Caller sought the views of the NASCAR driver and Sports Illustrated swimwear model about “the Obama administration’s dictate that religious employers provide health-care plans that cover contraceptives.” Miss Patrick, a practicing Catholic, gave the perfect citizen’s response for the Age of Obama:
“I leave it up to the government to make good decisions for Americans.”
That’s the real “hot topic” here — whether a majority of citizens, in America as elsewhere in the West, is willing to “leave it up to the government” to make decisions on everything that matters. On the face of it, the choice between the Obama administration and the Catholic Church should not be a tough one. On the one hand, we have the plain language of the First Amendment as stated in the U.S. Constitution since 1791: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
On the other, we have a regulation invented by executive order under the vast powers given to Kathleen Sebelius under a 2,500-page catalogue of statist enforcement passed into law by a government party that didn’t even bother to read it.
Commissar Sebelius says that she is trying to “strike the appropriate balance.” But these two things — a core, bedrock, constitutional principle, and Section 47(e)viii of Micro-Regulation Four Bazillion and One issued by Leviathan’s Bureau of Compliance — are not equal, and you can only “balance” them by massively increasing state power and massively diminishing the citizen’s. Or, to put it more benignly, by “leaving it up to the government to make good decisions.”
Some of us have been here before. For most of the last five years, I’ve been battling Canada’s so-called “human rights” commissions, and similar thought police in Britain, Europe, and elsewhere. As I write this, I’m in Australia, to talk up the cause of free speech, which is, alas, endangered even in that great land. In that sense, the “latest hot topic” — the clash between Obama and American Catholics — is, in fact, a perfect distillation of the broader struggle in the West today. When it comes to human rights, I go back to 1215 and Magna Carta — or, to give it its full name, Magna Carta Libertatum. My italics: I don’t think they had them back in 1215. But they understood that “libertatum” is the word that matters. Back then, “human rights” were rights of humans, of individuals — and restraints upon the king: They’re the rights that matter: limitations upon kingly power. Eight centuries later, we have entirely inverted the principle: “Rights” are now gifts that a benign king graciously showers upon his subjects — the right to “free” health care, to affordable housing, the “right of access to a free placement service” (to quote the European Constitution’s “rights” for workers). The Democratic National Committee understands the new school of rights very well: In its recent video, Obama’s bureaucratic edict is upgraded into the “right to contraception coverage at no additional cost.” And, up against a “human right” as basic as that, how can such peripheral rights as freedom of conscience possibly compete?
The transformation of “human rights” from restraints upon state power into a pretext for state power is nicely encapsulated in the language of Article 14 of the Charter of Fundamental Rights of the European Union, which states that everyone has the right “to receive free compulsory education.” Got that? You have the human right to be forced to do something by the government.
Commissar Sebelius isn’t the only one interested in “striking the appropriate balance” between individual liberty and state compulsion. Everyone talks like that these days. For Canada’s Chief Censor, Jennifer Lynch, freedom of expression is just one menu item in the great all-you-can-eat salad bar of rights, so don’t be surprised if we’re occasionally out of stock. Instead, why not try one of our tasty nutritious rights du jour? Like the human right to a transsexual labiaplasty, or the human right of McDonald’s employees not to have to wash their hands after visiting the bathroom. Commissar Lynch puts it this way: “The modern conception of rights is that of a matrix with different rights and freedoms mutually reinforcing each other to build a strong and durable human rights system.”
That would be a matrix as in some sort of intricate biological sequencing very few people can understand? Or a Matrix as in the illusory world created to maintain a supine citizenry by all-controlling government officials? The point is, with so many pseudo-“rights” bouncing around, you need a bigger and bigger state: Individual rights are less important than a “rights system” — i.e., a government bureaucracy.
This perversion of rights is killing the Western world. First, unlike real rights — to freedom of speech and freedom of religion — these new freedoms come with quite a price tag. All the free stuff is free in the sense of those offers that begin “You pay nothing now!” But you will eventually. No nation is rich enough to give you all this “free” stuff year in, year out. Spain’s government debt works out to $18,000 per person, France’s to $33,000, Greece’s to $39,000. Thank God we’re not Greece, huh? Er, in fact, according to the Senate Budget Committee, U.S. government debt is currently $44,215 per person. Going by the official Obama budget numbers, it will rise over the next ten years to $75,000. As I say, that’s per person: 75 grand in debt for every man, woman, and child, not to mention every one of the ever-swelling ranks of retirees and disabled Social Security recipients — or about $200,000 per household.
So maybe you’re not interested in philosophical notions of liberty vs. statism — like Danica Patrick, tens of millions of people are happy to “leave it up to the government to make good decisions.” Maybe you’re relatively relaxed about the less theoretical encroachments of Big Government — the diversion of so much American energy into “professional services,” all the lawyering and bookkeeping and paperwork shuffling necessary to keep you and your economic activity in full compliance with the Bureau of Compliance. But at some point no matter how painless the seductions of statism, you run up against the hard math: As those debt per capita numbers make plain, all this “free” stuff is doing is mortgaging your liberty and lining up a future of serfdom.
I used to think that the U.S. Constitution would prove more resilient than the less absolutist liberties of other Western nations. But the president has calculated that, with Obamacare, the First Amendment and much else will crumble before his will. And, given trends in U.S. jurisprudence, who’s to say he won’t get his way? That’s the point about all this “free” stuff: Ultimately, it’s not about your rights, but about his.
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I came into this thinking it is a gotcha story about liberal, anti-American media but really it is expressing a view held by many, including perhaps all liberals (?), many people who want a new constitutional convention, and at least 2 and maybe 4 Supreme Court Justices.
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NYT Says 'Old' Constitution Outdated for Failing to Guarantee 'Entitlements' Like Health Care
By CLAY WATERS, Editor of Media Research Center TimesWatch site, Feb 11, 2012
Sorry, Founders: The "terse and old" U.S. Constitution has been ruled out of date by Supreme Court reporter Adam Liptak for failing to provide such "rights" as free health care.
Liptak made the front of Tuesday's New York Times "Sidebar" news analysis, "'We the People' Loses Followers," the paper's most e-mailed and viewed news story of the morning.
Liptak arrives at his judgment via a new study by two law professors. The analysis, at least after being filtered through Liptak's coverage, seems to hew to the liberal ideology of the Constitution as a "living document," (i.e. whatever a liberal wants it to mean), conflating genuine rights like freedom of religion with entitlements like free health care: "But the Constitution is out of step with the rest of the world in failing to protect, at least in so many words, a right to travel, the presumption of innocence and entitlement to food, education and health care."
Liptak wrote:
The Constitution has seen better days.
Sure, it is the nation's founding document and sacred text. And it is the oldest written national constitution still in force anywhere in the world. But its influence is waning.
....
There are lots of possible reasons. The United States Constitution is terse and old, and it guarantees relatively few rights. The commitment of some members of the Supreme Court to interpreting the Constitution according to its original meaning in the 18th century may send the signal that it is of little current use to, say, a new African nation. And the Constitution's waning influence may be part of a general decline in American power and prestige.
In an interview, Professor Law identified a central reason for the trend: the availability of newer, sexier and more powerful operating systems in the constitutional marketplace. "Nobody wants to copy Windows 3.1," he said.
In a television interview during a visit to Egypt last week, Justice Ruth Bader Ginsburg of the Supreme Court seemed to agree. "I would not look to the United States Constitution if I were drafting a constitution in the year 2012," she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.
The rights guaranteed by the American Constitution are parsimonious by international standards, and they are frozen in amber. As Sanford Levinson wrote in 2006 in "Our Undemocratic Constitution," "the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today." (Yugoslavia used to hold that title, but Yugoslavia did not work out.)
....
Americans recognize rights not widely protected, including ones to a speedy and public trial, and are outliers in prohibiting government establishment of religion. But the Constitution is out of step with the rest of the world in failing to protect, at least in so many words, a right to travel, the presumption of innocence and entitlement to food, education and health care.
Liptak failed to differentiate between rights retained by the people from the power of the government, like freedom of speech and religion, and entitlements, which are transfers of money and services established by government either via majority rule (i.e. voting) or judicial fiat. Examples include food stamps, welfare payments, and "free" health care.
Liptak turned up his nose at the right conservatives would say protects all the other ones, the Second Amendment:
It has its idiosyncrasies. Only 2 percent of the world's constitutions protect, as the Second Amendment does, a right to bear arms. (Its brothers in arms are Guatemala and Mexico.)
Several "rights" enshrined by the Times via the study (shown in a separate graphic) need unpacking. What exactly does the generic phrase "Women's rights" entail? Access to abortion? And does "Freedom of Movement" include the "right" to other people's tax money in the form of welfare benefits, as the Supreme Court ruled in the late 1960s? Details from the University of Missouri-Kansas City School of Law: "Shapiro v. Thompson (1968) considered the constitutionality of a state law that established a one-year residency requirement for welfare recipients. The Court struck down the law, finding it a violation of the "right to travel" (really, more the right to migrate)."
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When an federal appellate judge writes, it usually is worth paying attention. I must confess though that his argument about conservative efforts being a risk to the C. makes very little sense to me. I say this doing my sincere best to be fair, but I simply find his reasoning specious. No doubt BD will be able to flesh things out a bit.
OTOH I find his analysis of liberal threats to the C. as having merit. Again, I say this doing my sincere best to be fari.
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http://www.nytimes.com/2012/03/12/opinion/cry-the-beloved-constitution.html?_r=1&nl=todaysheadlines&emc=edit_th_20120312
Cry, the Beloved Constitution
By J. HARVIE WILKINSON III
Published: March 11, 2012
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CHARLOTTESVILLE, Va.
BOTH liberals and conservatives have the American Constitution in the cross hairs. They assault the Constitution in their different ways, each with damaging effects on our nation. Conservatives attack the courts on one hand and seek to have them advance their activist agenda on the other. Liberals, when it suits them, embrace rights that have not been enumerated in the Constitution and cry for restraint only when their pet bills come under fire. The result is a national jurisprudence whetted by political appetite, with our democratic values as the victims.
Conservatives increasingly bemoan Congress’s power to regulate interstate commerce, as illustrated by the debate over the Affordable Care Act’s requirement that individuals buy health insurance. They argue that Congress can only regulate activity, not inactivity, and so when it gets involved in a decision by a consumer to not purchase health care, it is going far beyond its reach.
If only it were that simple.
As a political argument, that resonates: “Don’t Tread On Me” trumpets the imperishable spirit of American liberty. But as a constitutional argument, it would imbue judges with unprecedented powers to topple an exhaustively debated and duly enacted federal law and to make the determination that the decision not to buy ice cream can be neatly severed from the decision to buy chocolate or vanilla.
In curbing federal excess, courts risk lessening our national economic strength. That strength resides partly in the national aspects of our founding document, among them the now maligned commerce clause and the newly mistrusted supremacy clause, which gives preference to federal over state law when there is a conflict. States’ rights are important in many spheres, but the benefits of a national economic policy must also be considered. A vibrant economic order requires some political predictability, and the prospect of judges’ striking down commercial regulation on ill-defined and subjective bases is a prescription for economic chaos that the framers, in a simpler time, had the good sense to head off.
It is tempting to shout states’ rights when deeply flawed federal legislation is enacted, but the momentary satisfactions of that exercise carry long-term constitutional costs. Badly conceived bills die a thousand political deaths — in the appropriations process, in the states, through electoral retribution, in the executive appointments of a succeeding administration and ultimately in amendment and repeal. However, if courts read the Constitution in such a way that it enables them to make Congress ineffectual, and instead to promote 50 state regulatory regimes in an era of rapidly mounting global challenges, the risks should escape no one. Making our charter more parochial while other nations flex their economic muscle seems like poor timing.
Liberals are mounting their own, equally damaging, assault on the Constitution. They have forsaken the textual and historical foundations of that document in favor of judicially decreed rights of autonomy. It is one thing to value those rights our cherished Bill of Rights sets forth. But to create rights from whole cloth is to turn one’s back on law.
Just like the opponents of the Affordable Care Act, the proponents of reproductive choice and same-sex marriage have strong arguments — but they are political, not constitutional. What are the consequences when liberals shortchange democratic liberty in favor of judicial expansion of unenumerated personal rights? Well, for one, creating constitutional rights without foundation frays the community fabric and, with it, the very notion that the majority can enact into law some expression of shared values that make ours a society whose whole is more than the sum of its parts. In pushing a constitutional vision of autonomous individuals divested of location in larger social settings, liberals risk weakening the communal values and institutions that best afford our most disadvantaged the chance for a good life.
At a time of dismay over democratic dysfunction, the temptation to ask courts to supplant self-governance runs high. And yet when I look past the present debacle, and think of where democracy has brought this country, I would not lose faith.
The risks of continuing our present constitutional course are grave. One faction risks damage to the nation at large, the other to the vital roles of smaller communities. All factions owe their fellow citizens the hope and the prospect of democratic change, not the message that their views have been constitutionally condemned and their opponents’ views carved in the stone of our founding charter. Restraint has much to commend it as a judicial value, not least of which is that it extends the hand of tolerance and respect to those whose views we may not share, but whose citizenship we do share and whose love of family, community and country burns no less brightly than our own.
J. Harvie Wilkinson III, a judge on the United States Court of Appeals for the Fourth Circuit, is the author of “Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance.”
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http://redtape.msnbc.msn.com/_news/2012/03/13/10657012-up-against-the-wall-should-district-be-allowed-to-demand-middle-schoolers-facebook-password#.T19jBCz3f8g.facebook
A 12-year-old Minnesota girl was reduced to tears while school officials and a police officer rummaged through her private Facebook postings after forcing her to surrender her password, an ACLU lawsuit alleges.
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http://redtape.msnbc.msn.com/_news/2012/03/13/10657012-up-against-the-wall-should-district-be-allowed-to-demand-middle-schoolers-facebook-password#.T19jBCz3f8g.facebook
A 12-year-old Minnesota girl was reduced to tears while school officials and a police officer rummaged through her private Facebook postings after forcing her to surrender her password, an ACLU lawsuit alleges.
I'm puzzled as to why law enforcement would be involved.
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As Guro has asked for a discussion of Judge Wilkinson's argument of conservatives undermining the Constitution, I will limit this reply to that area.
First, it is important to recognize that Judge Wilkinson is highly regarded conservative judge. He was a clerk for Justice Powell, was nominated for his position by President Reagan and was interviewed as a potential USSC nominee by President George W. Bush.
Judge Wilkinson says: “Conservatives attack the courts on one hand and seek to have them advance their activist agenda on the other.” The first portion of this view is not in contention, I would guess. Several of the participants on the forum bemoan the role that judiciary plays or played in reproductive cases, eminent domain and elsewhere. Here it is important to have a definition of what constitutes judicial “activism.” However, a definition is difficult to find. Having looked at about a dozen books on my shelf, here is a sampling of the “definitions” or descriptions, but it is key to note that none of them limit activism to liberal jurists. Reporter Richard Willing described judicial activism as “what the other guy does that you don’t like.” In an effort to find more, I found one offered by Lawrence Baum (a serious judicial scholar at the Ohio State University), who says that “when judges choose to increase their impact as policymakers, they can be said to engage in activism.” Lee Epstein (a serious judicial scholar now at USC law school) and coauthor Thomas Walker state that “activist [judges] believe that that the proper role of the [c]ourt is to assert independent positions in deciding cases, to review the actions of other branches vigorously, to be willing to strike down acts the [judge] believes are unconstitutional…”. Taken together, these definitions make sense, of course. This is where I suspect Judge Wilkinson is coming from, especially as he notes the “debate over the Affordable Care Act’s requirement that individuals buy health insurance” and the erosion of longstanding understanding (read precedent) of the Interstate Commerce Clause.
I find this paragraph to be of interest: “It is tempting to shout states’ rights when deeply flawed federal legislation is enacted, but the momentary satisfactions of that exercise carry long-term constitutional costs. Badly conceived bills die a thousand political deaths — in the appropriations process, in the states, through electoral retribution, in the executive appointments of a succeeding administration and ultimately in amendment and repeal. However, if courts read the Constitution in such a way that it enables them to make Congress ineffectual, and instead to promote 50 state regulatory regimes in an era of rapidly mounting global challenges, the risks should escape no one. Making our charter more parochial while other nations flex their economic muscle seems like poor timing.”
One the primary reasons why the presidency has expanded its power is because of the speed of the decision making, viz. Congress. Most people, liberal or conservative who accept the increasingly unitary presidency do so because they feel that the president can act more decisively, more quickly that the plodding legislature. For historic examples see: T. Jefferson and the Louisiana Purchase; A. Lincoln and the first few months of the Civil War; FDR and NIRA and others; etc. etc. These are not without limitation, such as W. Wilson and forgetting the Senate’s role in treaty making and H. Truman and the seizure of the steel industry, but the march seems to be ever forward. I think that Wilkinson is basically noting this, but in a different way. He is arguing that activist decisions (overturning precedent and congressional actions) devolve the economic prowess of the country, but returning the economies to the states in an increasingly global environment.
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BD:
You know I have high regard for you, especially in this area, but I confess I just don't find this particular post very persuasive.
a) "Judge Wilkinson says: “Conservatives attack the courts on one hand and seek to have them advance their activist agenda on the other.” The portion of this view is not in contention, I would guess."
Umm , , , I DO contest :-D
b) "“activist [judges] believe that that the proper role of the [c]ourt is to assert independent positions in deciding cases, to review the actions of other branches vigorously, to be willing to strike down acts the [judge] believes are unconstitutional…”. Taken together, these definitions make sense, of course. This is where I suspect Judge Wilkinson is coming from, especially as he notes the “debate over the Affordable Care Act’s requirement that individuals buy health insurance” and the erosion of longstanding understanding (read precedent) of the Interstate Commerce Clause."
Ummm , , , ever since Marbury isn't it precisely the job of a judge to defend the Constitution? How is doing so "activist"?!? Of course stare decisis deserves some respect, but the original intent of the ICC deserves even more.
“It is tempting to shout states’ rights when deeply flawed federal legislation is enacted, but the momentary satisfactions of that exercise carry long-term constitutional costs. Badly conceived bills die a thousand political deaths — in the appropriations process, in the states, through electoral retribution, in the executive appointments of a succeeding administration and ultimately in amendment and repeal. However, if courts read the Constitution in such a way that it enables them to make Congress ineffectual, and instead to promote 50 state regulatory regimes in an era of rapidly mounting global challenges, the risks should escape no one. Making our charter more parochial while other nations flex their economic muscle seems like poor timing.”
I find this paragraph to be the most specious of all. How on earth is limiting the Congress to the powers set to it in the Constitution constitute making the Congress “ineffectual”?!? This makes no sense to me at all. There are matters pertaining to the jurisdiction of the States, and there are matters that are properly federal. This is on purpose and it is a good thing to have the competition of fifty laboratories of democracy in action.
“He is arguing that activist decisions (overturning precedent and congressional actions) devolve the economic prowess of the country, but returning the economies to the states in an increasingly global environment.”
Again, it is NOT activist to insist upon the Constitution. PERIOD. Not sure of the meaning of the second half of the sentence (or even if it IS a sentence ) but I gather he thinks the courts should let the Congress slip its constitutional leashes because he thinks it makes for international competitiveness and that those that disagree are conservative activists?!? This makes little sense to me.
I will close by giving a concise definition of judicial activism: It is the substitution of your own opinion for the law.
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1. I meant to write "first portion," which is " Conservatives attack the courts." And I do doubt this is under contention.
2. I am not writing about my beliefs, Guro. I am trying to divine what Judge Wilkinson says, based on the article you posted and the little I know about him. I was guessing based on the article, primarily, because the little I do know about likely dwarfs what most others know. SO, based on the context of a 750 word article.
3. The original intent, as we have discussed before, is difficult to divine. I do not know how Wilkinson views original intent, though I suspect his book which I would like to read, sheds some light on this.
4. Why since Marbury? And talk about judicial activism!
5. "I gather he thinks the courts should let the Congress slip its constitutional leashes because he thinks it makes for international competitiveness and that those that disagree are conservative activists?!? This makes little sense to me." Then that is a weakness in his article, not my attempt to explain it.
6. "It is the substitution of your own opinion for the law." OK, that is a fine definition by me, but it doesn't mean that conservative judges don't do that.
BD:
You know I have high regard for you, especially in this area, but I confess I just don't find this particular post very persuasive.
a) "Judge Wilkinson says: “Conservatives attack the courts on one hand and seek to have them advance their activist agenda on the other.” The portion of this view is not in contention, I would guess."
Umm , , , I DO contest :-D
b) "“activist [judges] believe that that the proper role of the [c]ourt is to assert independent positions in deciding cases, to review the actions of other branches vigorously, to be willing to strike down acts the [judge] believes are unconstitutional…”. Taken together, these definitions make sense, of course. This is where I suspect Judge Wilkinson is coming from, especially as he notes the “debate over the Affordable Care Act’s requirement that individuals buy health insurance” and the erosion of longstanding understanding (read precedent) of the Interstate Commerce Clause."
Ummm , , , ever since Marbury isn't it precisely the job of a judge to defend the Constitution? How is doing so "activist"?!? Of course stare decisis deserves some respect, but the original intent of the ICC deserves even more.
“It is tempting to shout states’ rights when deeply flawed federal legislation is enacted, but the momentary satisfactions of that exercise carry long-term constitutional costs. Badly conceived bills die a thousand political deaths — in the appropriations process, in the states, through electoral retribution, in the executive appointments of a succeeding administration and ultimately in amendment and repeal. However, if courts read the Constitution in such a way that it enables them to make Congress ineffectual, and instead to promote 50 state regulatory regimes in an era of rapidly mounting global challenges, the risks should escape no one. Making our charter more parochial while other nations flex their economic muscle seems like poor timing.”
I find this paragraph to be the most specious of all. How on earth is limiting the Congress to the powers set to it in the Constitution constitute making the Congress “ineffectual”?!? This makes no sense to me at all. There are matters pertaining to the jurisdiction of the States, and there are matters that are properly federal. This is on purpose and it is a good thing to have the competition of fifty laboratories of democracy in action.
“He is arguing that activist decisions (overturning precedent and congressional actions) devolve the economic prowess of the country, but returning the economies to the states in an increasingly global environment.”
Again, it is NOT activist to insist upon the Constitution. PERIOD. Not sure of the meaning of the second half of the sentence (or even if it IS a sentence ) but I gather he thinks the courts should let the Congress slip its constitutional leashes because he thinks it makes for international competitiveness and that those that disagree are conservative activists?!? This makes little sense to me.
I will close by giving a concise definition of judicial activism: It is the substitution of your own opinion for the law.
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Quote from: bigdog on March 13, 2012, 10:22:47 AM
http://redtape.msnbc.msn.com/_news/2012/03/13/10657012-up-against-the-wall-should-district-be-allowed-to-demand-middle-schoolers-facebook-password#.T19jBCz3f8g.facebook
A 12-year-old Minnesota girl was reduced to tears while school officials and a police officer rummaged through her private Facebook postings after forcing her to surrender her password, an ACLU lawsuit alleges.
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Interesting case thought the key fact seems to be at issue. I'm not sure what to think of the privacy rights of a 12 year old posting on the internet. My first thought is that the issue would go through the parents. The district says that they did.
'The Tinker case basically found that students can say what they want as long as the speech doesn't cause a disruption at school.' Certainly there are posts on Facebook that become disruptions in school.
The issue of privacy for a 12 year old on facebook is confounded by the requirement of facebook that she be 13 to join.
Same group (ACLU) took the other side (?) http://weblogs.sun-sentinel.com/news/politics/dcblog/2011/07/bondi_asks_court_to_not_consid.html regarding the blocking of Pediatricians from asking the child if there are firearms in the house. http://weblogs.sun-sentinel.com/news/politics/dcblog/2011/07/bondi_asks_court_to_not_consid.html A free speech right of the doctor?? Isn't a direct question from your own doctor similarly intimidating, though admittedly not 'armed with a Taser'.
Privacy and free speech depend on the whom is asking what - ?
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Same group (ACLU) took the other side (?) http://weblogs.sun-sentinel.com/news/politics/dcblog/2011/07/bondi_asks_court_to_not_consid.html regarding the blocking of Pediatricians from asking the child if there are firearms in the house. http://weblogs.sun-sentinel.com/news/politics/dcblog/2011/07/bondi_asks_court_to_not_consid.html A free speech right of the doctor?? Isn't a direct question from your own doctor similarly intimidating, though admittedly not 'armed with a Taser'.
WhaaaAAAAaaaaaat? That would suggest the ACLU has some sort of agenda, aside from being the non-partisan defender of civil liberties I've been told it is. :-o
Next thing you'll tell me is it was founded by Stalinists..... :roll:
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From the Santorum thread:
Funny how many aging hippies are suddenly 10 amd. advocates when the feds raid their "medical" marijuana shops.
That is at least as funny as the conservatives who are states rights advocates until the issue is drugs.
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Also from the Santorum thread:
Saintorum wants to ban hardcore porn.
http://news.yahoo.com/blogs/ticket/rick-santorum-wants-ban-hardcore-pornography-222833811.html
Silly me, I would have thought this to be a matter for the pursuit of happiness, the 9th Amendment (privacy), and the 10th Amendment (States Rights), not the Feds.
Oy fg vey.
This is interesting. Do you not find the 1st amendment a suitable place for the necessary protections?
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A list of 351 books by Supreme Court justices:
http://www.scotusblog.com/2012/03/351-books-by-supreme-court-justices/
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From the Santorum thread:
Funny how many aging hippies are suddenly 10 amd. advocates when the feds raid their "medical" marijuana shops.
That is at least as funny as the conservatives who are states rights advocates until the issue is drugs.
I don't know any that think that the feds should have a role without an interstate/international nexus to the case.
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Attorney General Ashcroft would an example of that with his prosecution in OR of the "Right to Die" laws.
The Holder DOJ has prosecuted federal marijuana laws to assert federal dominance over CA (and the laws of other states too) law. What is the interstate nexus of someone growing and smoking his own pot?
Wyoming is doing its best to escape federal firearms controls by developing firearms in a manner that is completely intrastate. Surprise! The Feds disapprove.
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Attorney General Ashcroft would an example of that with his prosecution in OR of the "Right to Die" laws.
The Holder DOJ has prosecuted federal marijuana laws to assert federal dominance over CA (and the laws of other states too) law. What is the interstate nexus of someone growing and smoking his own pot?
If it is grown in California, consumed there and remains inside the state between those two points, none.
Wyoming is doing its best to escape federal firearms controls by developing firearms in a manner that is completely intrastate. Surprise! The Feds disapprove.
I'd be curious to see what the courts say.
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"I don't know any that think that the feds should have a role without an interstate/international nexus to the case."
Ashcroft certainly is a conservative, yes?
And plenty of conservatives support the Feds busting people for growing/smoking intra-state pot, yes?
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"I don't know any that think that the feds should have a role without an interstate/international nexus to the case."
Ashcroft certainly is a conservative, yes?
And plenty of conservatives support the Feds busting people for growing/smoking intra-state pot, yes?
Sure. That and other crimes that might fall within the federal sphere.
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"Santorum wants to ban hardcore porn."
That kind of position should be backed up with an stated opinion of where the authority for federal jurisdiction comes from in the constitution. I suppose it is interstate commerce as much as growing tomatoes on your own property is.
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Without wading too much into it, there have been federal obscenity laws on the books for a long time and court rulings that have upheld them, creating concepts like "community standards".
Worrying about this is like worrying about the color scheme of Newt's orbital mirror.
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So GM, what is the Constitutional basis for Federal law concerning someone growing and consuming his own marijuana?
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So GM, what is the Constitutional basis for Federal law concerning someone growing and consuming his own marijuana?
Unless it's crossing state lines or international borders, I tend to think it's an issue to be left to the states. There has been an overreach with federal laws into areas rightly outside their constitutional duties.
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Hallelujah! We have agreement! :lol: Good thing I am sitting down or the shock might have been too much for me :lol: :lol: :-D
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http://lawweb.usc.edu/news/article.cfm?newsID=3848
"One of the tenets of academia is the encouragement and cultivation of a variety of ideas and opinions for open discussion and debate.
So imagine being shunned by academic institutions for writing a book on a figure unpopular with one political group, however large. Now imagine that some of these institutions are law schools and the figure in question is a United States Supreme Court Justice.
This is the quandary in which Scott Douglas Gerber has found himself over his entire academic career.
“For good and bad, I’m forever linked with Clarence Thomas,” Gerber told a classroom full of USC Law students recently...."
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"One of the tenets of academia is the encouragement and cultivation of a variety of ideas and opinions for open discussion and debate.
Before the left's long march through academia, that was true.....
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I agree with Justice Thomas's notion the the Dec. of Ind. should be read as part of the C. IMHO it is, in effect, the legislative history of the C.
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Chris W. Bonneau
http://www.fed-soc.org/publications/detail/a-survey-of-empirical-evidence-concerning-judicial-elections
"In this paper, I evaluate the arguments made by opponents of judicial elections. Focusing primarily on state supreme court elections (since that is the level of court where most studies have been conducted), though also discussing intermediate appellate courts and trial courts where appropriate, I evaluate the arguments of judicial reform advocates in light of empirical evidence. This paper presents a synthesis of the existing literature in this area, integrating the disparate findings by scholars into a single publication."
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http://www.nytimes.com/2012/03/20/us/politics/at-center-of-health-care-fight-roscoe-filburns-1942-commerce-case.html?nl=todaysheadlines&emc=edit_th_20120320
WASHINGTON — If the Obama administration persuades the Supreme Court to uphold its health care overhaul law, it will be in large part thanks to a 70-year-old precedent involving an Ohio farmer named Roscoe C. Filburn.
Mr. Filburn sued to overturn a 1938 federal law that told him how much wheat he could grow on his family farm and made him pay a penalty for every extra bushel.
The 1942 decision against him, Wickard v. Filburn, is the basis for the Supreme Court’s modern understanding of the scope of federal power. It is the contested ground on which the health care case has been fought in the lower courts and in the parties’ briefs. And it is likely to be crucial to the votes of Justices Anthony M. Kennedy and Antonin Scalia, who are widely seen as open to persuasion by either side.
“Wickard has become so foundational for generations of lawyers that any plausible understanding of the commerce power must come to terms with it,” said Bradley W. Joondeph, a law professor at Santa Clara University.
Both supporters and opponents of the health care law say the decision helps their side, and for three days starting next Monday, it will be at the center of the arguments before the Supreme Court about the law’s constitutionality.
To hear the Obama administration tell it, the Filburn decision illustrates just how much leeway the federal government has under the Constitution’s commerce clause to regulate the choices individuals make in matters affecting the national economy. If the government can make farmers choose between growing crops on their own land and paying a penalty, the administration’s lawyers have said, it can surely tell people that they must obtain health insurance or pay a penalty.
Opponents of the law draw a different lesson from Mr. Filburn’s case. They say it set the outer limit of federal power, one the health care law exceeds. It is one thing to encourage farmers to buy wheat by punishing them for growing their own, the argument goes. It is another to require people to buy insurance or face a penalty, as the health care law does.
“There’s a difference between being given an incentive and compulsion,” said Michael A. Carvin, a lawyer for the National Federation of Independent Business and several individuals challenging the law.
Mr. Filburn argued, as do opponents of the health care overhaul, that he was challenging a law that was not authorized by the Constitution, which allows Congress to regulate commerce “among the several states.” A decision against him, Mr. Filburn said, would move the nation toward a centralized government and “nullifications of all constitutional limitations.”
The Supreme Court’s ruling against him was unanimous.
“Even if appellee’s activity be local,” Justice Robert H. Jackson wrote, referring to Mr. Filburn’s farming, “and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”
The Obama administration says the decisions of millions of people to go without health insurance have a similarly significant effect on the national economy by raising other people’s insurance rates and forcing hospitals to pay for the emergency care of those who cannot afford it.
At the time, the reaction to the Filburn decision emphasized how much power it had granted the federal government.
“If the farmer who grows feed for consumption on his own farm competes with commerce, would not the housewife who makes herself a dress do so equally?” an editorial in The New York Times asked. “The net of the ruling, in short, seems to be that Congress can regulate every form of economic activity if it so decides.”
The editorial, like much commentary on the case, seemed to suppose that Mr. Filburn was a subsistence farmer. But in fact he sold milk and eggs to some 75 customers a day, and the wheat he fed to his livestock entered the stream of commerce in that sense, according to a history of the case by Jim Chen, the dean of the law school at the University of Louisville.
In the health care case, the administration has insisted that the overhaul law is a modest assertion of federal power in comparison to the law Mr. Filburn challenged. “The constitutional foundation for Congress’s action is considerably stronger” for the health care law than for the law that the Supreme Court endorsed in 1942, the administration said in a recent brief. The health care law, the brief said, merely “regulates the way in which the uninsured finance what they will consume in the market for health care services (in which they participate).”
Opponents of the law take the opposite view, using an analogy. It is true that the federal government may “regulate bootleggers because of their aggregate harm to the interstate liquor market,” Mr. Carvin wrote in a recent brief. But the government “may not conscript teetotalers merely because conditions in the liquor market would be improved if more people imbibed.”
“Yet the uninsured regulated by the mandate,” the brief went on, “are the teetotalers, not the bootleggers, of the health insurance market.”
For more than 50 years after ruling against Mr. Filburn, the Supreme Court did not strike down any federal laws on commerce clause grounds. But in a pair of 5-to-4 decisions, in 1995 and 2000, the court invalidated two laws, saying the activities that Congress had sought to address — guns near schools and violence against women — were local and noncommercial and thus beyond its power in regulating interstate commerce.
The decisions were part of a renewed interest in federalism associated with Chief Justice William H. Rehnquist, who died in 2005, and Justice Sandra Day O’Connor, who retired in 2006.
Those two justices were still on the court in 2005 when it issued its last major commerce clause decision, Gonzales v. Raich. That decision was 6 to 3 in favor of upholding a federal law regulating home-grown medicinal marijuana.
Chief Justice Rehnquist and Justice O’Connor dissented, as well as Justice Clarence Thomas. But Justices Scalia and Kennedy, who had voted to strike down the laws at issue in the 1995 and 2000 cases, were in the majority.
“The similarities between this case and Wickard are striking,” Justice John Paul Stevens wrote for five members of the court, including Justice Kennedy. “Here, too, Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions.”
Justice Scalia wrote a separate concurrence, also citing Wickard v. Filburn.
“Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce,” he wrote, in a passage that the Obama administration quoted prominently in a recent brief in the health care case.
Supporters of the health care law say the Raich decision shows that even completely local and noncommercial conduct may be addressed by the federal government as part of comprehensive economic regulation. Opponents counter that marijuana, like wheat, is a tangible commodity that is bought and sold, while a lack of insurance is not an economic activity.
The administration is probably assured of the votes of the court’s four more liberal members, and it needs one more to win the case. How Justices Kennedy and Scalia think about wheat, marijuana, health insurance and Roscoe Filburn may make all the difference.
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http://www.youtube.com/playlist?list=PL39308EF707CA1C46&feature=plcp
These videos may interest some of you.
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http://www.nytimes.com/2012/03/22/us/supreme-court-says-defendants-have-right-to-good-lawyers.html?_r=1&nl=todaysheadlines&emc=edit_th_20120322
Justices’ Ruling Expands Rights of Accused in Plea Bargains
By ADAM LIPTAK
Published: March 21, 2012
WASHINGTON — Criminal defendants have a constitutional right to effective lawyers during plea negotiations, the Supreme Court ruled on Wednesday in a pair of 5-to-4 decisions that vastly expanded judges’ supervision of the criminal justice system.
The decisions mean that what used to be informal and unregulated deal making is now subject to new constraints when bad legal advice leads defendants to reject favorable plea offers.
“Criminal justice today is for the most part a system of pleas, not a system of trials,” Justice Anthony M. Kennedy wrote for the majority. “The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences.”
Justice Kennedy, who more often joins the court’s conservative wing in ideologically divided cases, was in this case in a coalition with the court’s four more liberal members. That alignment has sometimes arisen in recent years in cases that seemed to offend Justice Kennedy’s sense of fair play.
The consequences of the two decisions are hard to predict because, as Justice Antonin Scalia said in a pair of dissents he summarized from the bench, “the court leaves all of this to be worked out in further litigation, which you can be sure there will be plenty of.”
Claims of ineffective assistance at trial are commonplace even though trials take place under a judge’s watchful eye. Challenges to plea agreements based on misconduct by defense lawyers will presumably be common as well, given how many more convictions follow guilty pleas and the fluid nature of plea negotiations.
Justice Scalia wrote that expanding constitutional protections to that realm “opens a whole new boutique of constitutional jurisprudence,” calling it “plea-bargaining law.”
Scholars agreed about its significance.
“The Supreme Court’s decision in these two cases constitute the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel,” said Wesley M. Oliver, a law professor at Widener University, referring to the landmark 1963 decision.
In the context of trials, the Supreme Court has long established that defendants were entitled to new trials if they could show that incompetent work by their lawyers probably affected the outcome. The Supreme Court has also required lawyers to offer competent advice in urging defendants to give up their right to a trial by accepting a guilty plea. Those cases hinged on the right to a fair trial guaranteed by the Sixth Amendment.
The cases decided Wednesday answered a harder question: What is to be done in cases in which a lawyer’s incompetence caused the client to reject a favorable plea bargain?
Justice Kennedy, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, acknowledged that allowing the possibility of do-overs in cases involving foregone pleas followed by convictions presented all sorts of knotty problems. But he said the realities of American criminal justice required to the court to take action.
Some 97 percent of convictions in federal courts were the result of guilty pleas. In 2006, the last year for which data was available, the corresponding percentage in state courts was 94.
“In today’s criminal justice system,” Justice Kennedy wrote, “the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”
Quoting from law review articles, Justice Kennedy wrote that plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.” He added that “longer sentences exist on the books largely for bargaining purposes.”
One of the cases, Missouri v. Frye, No. 10-444, involved Galin E. Frye, who was charged with driving without a license in 2007. A prosecutor offered to let him plead guilty in exchange for a 90-day sentence.
But Mr. Frye’s lawyer at the time, Michael Coles, failed to tell his client of the offer. After it expired, Mr. Frye pleaded guilty without a plea bargain, and a judge sentenced him to three years.
A state appeals court reversed his conviction but said it did not have the power to order the state to reduce the charges against him. That left Mr. Frye roughly where he started, with the options of going to trial or pleading guilty without the benefit of a plea deal.
Justice Kennedy wrote that Mr. Frye should have been allowed to try to prove that he would have accepted the original offer. But that was only the beginning of what Mr. Frye would have to show to get relief. He would also have to demonstrate, Justice Kennedy wrote, that prosecutors would not have later withdrawn the offer had he accepted it, as they were allowed to do under state law. Finally, Justice Kennedy went on, Mr. Frye would have to show that the court would have accepted the agreement.
CONT.
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This is a link to a law review symposium on Justice Thomas.
http://www.law.udmercy.edu/index.php/print-edition
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BD: I wish there were more hours in the day!
http://online.wsj.com/article/SB10001424052702304724404577291762007718228.html?mod=opinion_newsreel
Few legal cases in the modern era are as consequential, or as defining, as the challenges to the Patient Protection and Affordable Care Act that the Supreme Court hears beginning Monday. The powers that the Obama Administration is claiming change the structure of the American government as it has existed for 225 years. Thus has the health-care law provoked an unprecedented and unnecessary constitutional showdown that endangers individual liberty.
It is a remarkable moment. The High Court has scheduled the longest oral arguments in nearly a half-century: five and a half hours, spread over three days. Yet Democrats, the liberal legal establishment and the press corps spent most of 2010 and 2011 deriding the government of limited and enumerated powers of Article I as a quaint artifact of the 18th century. Now even President Obama and his staff seem to grasp their constitutional gamble.
Consider a White House strategy memo that leaked this month, revealing that senior Administration officials are coordinating with liberal advocacy groups to pressure the Court. "Frame the Supreme Court oral arguments in terms of real people and real benefits that would be lost if the law were overturned," the memo notes, rather than "the individual responsibility piece of the law and the legal precedence [sic]." Those nonpolitical details are merely what "lawyers will be talking about."
Enlarge Image
CloseAssociated Press
President Obama signing the health care bill at the White House on March 23, 2010.
.The White House is even organizing demonstrations during the proceedings, including a "'prayerful witness' encircling the Supreme Court." The executive branch is supposed to speak to the Court through the Solicitor General, not agitprop and crowds in the streets.
The Supreme Court will not be ruling about matters of partisan conviction, or the President's re-election campaign, or even about health care at all. The lawsuit filed by 26 states and the National Federation of Independent Business is about the outer boundaries of federal power and the architecture of the U.S. political system.
***
The argument against the individual mandate—the requirement that everyone buy health insurance or pay a penalty—is carefully anchored in constitutional precedent and American history. The Commerce Clause that the government invokes to defend such regulation has always applied to commercial and economic transactions, not to individuals as members of society.
This distinction is crucial. The health-care and health-insurance markets are classic interstate commerce. The federal government can regulate broadly—though not without limit—and it has. It could even mandate that people use insurance to purchase the services of doctors and hospitals, because then it would be regulating market participation. But with ObamaCare the government is asserting for the first time that it can compel people to enter those markets, and only then to regulate how they consume health care and health insurance. In a word, the government is claiming it can create commerce so it has something to regulate.
This is another way of describing plenary police powers—regulations of private behavior to advance public order and welfare. The problem is that with two explicit exceptions (military conscription and jury duty) the Constitution withholds such power from a central government and vests that authority in the states. It is a black-letter axiom: Congress and the President can make rules for actions and objects; states can make rules for citizens.
The framers feared arbitrary and centralized power, so they designed the federalist system—which predates the Bill of Rights—to diffuse and limit power and to guarantee accountability. Upholding the ObamaCare mandate requires a vision on the Commerce Clause so broad that it would erase dual sovereignty and extend the new reach of federal general police powers into every sphere of what used to be individual autonomy.
These federalist protections have endured despite the shifting definition and scope of interstate commerce and activities that substantially affect it. The Commerce Clause was initially seen as a modest power, meant to eliminate the interstate tariffs that prevailed under the Articles of Confederation. James Madison noted in Federalist No. 45 that it was "an addition which few oppose, and from which no apprehensions are entertained." The Father of the Constitution also noted that the powers of the states are "numerous and infinite" while the federal government's are "few and defined."
That view changed in the New Deal era as the Supreme Court blessed the expansive powers of federal economic regulation understood today. A famous 1942 ruling, Wickard v. Filburn, held that Congress could regulate growing wheat for personal consumption because in the aggregate such farming would affect interstate wheat prices. The Court reaffirmed that precedent as recently as 2005, in Gonzales v. Raich, regarding homegrown marijuana.
The Court, however, has never held that the Commerce Clause is an ad hoc license for anything the government wants to do. In 1995, in Lopez, it gave the clause more definition by striking down a Congressional ban on carrying guns near schools, which didn't rise to the level of influencing interstate commerce. It did the same in 2000, in Morrison, about a federal violence against women statute.
A thread that runs through all these cases is that the Court has always required some limiting principle that is meaningful and can be enforced by the legal system. As the Affordable Care Act suits have ascended through the courts, the Justice Department has been repeatedly asked to articulate some benchmark that distinguishes this specific individual mandate from some other purchase mandate that would be unconstitutional. Justice has tried and failed, because a limiting principle does not exist.
The best the government can do is to claim that health care is unique. It is not. Other industries also have high costs that mean buyers and sellers risk potentially catastrophic expenses—think of housing, or credit-card debt. Health costs are unpredictable—but all markets are inherently unpredictable. The uninsured can make insurance pools more expensive and transfer their costs to those with coverage—though then again, similar cost-shifting is the foundation of bankruptcy law.
The reality is that every decision not to buy some good or service has some effect on the interstate market for that good or service. The government is asserting that because there are ultimate economic consequences it has the power to control the most basic decisions about how people spend their own money in their day-to-day lives. The next stops on this outbound train could be mortgages, college tuition, credit, investment, saving for retirement, Treasurys, and who knows what else.
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Confronted with these concerns, the Administration has echoed Nancy Pelosi when she was asked if the individual mandate was constitutional: "Are you serious?" The political class, the Administration says, would never abuse police powers to create the proverbial broccoli mandate or force people to buy a U.S.-made car.
But who could have predicted that the government would pass a health plan mandate that is opposed by two of three voters? The argument is self-refuting, and it shows why upholding the rule of law and defending the structural checks and balances of the separation of powers is more vital than ever.
Related Video
Editorial board member Joe Rago on the Supreme Court showdown over ObamaCare.
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.Another Administration fallback is the Constitution's Necessary and Proper Clause, which says Congress can pass laws to execute its other powers. Yet the Court has never hesitated to strike down laws that are not based on an enumerated power even if they're part of an otherwise proper scheme. This clause isn't some ticket to justify inherently unconstitutional actions.
In this context, the Administration says the individual mandate is necessary so that the Affordable Care Act's other regulations "work." Those regulations make insurance more expensive. So the younger and healthier must buy insurance that they may not need or want to cross-subsidize the older and sicker who are likely to need costly care. But that doesn't make the other regulations more "effective." The individual mandate is meant to offset their intended financial effects.
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Some good-faith critics have also warned that overturning the law would amount to conservative "judicial activism," saying that the dispute is only political. This is reductive reasoning. Laws obey the Constitution or they don't. The courts ought to defer to the will of lawmakers who pass bills and the Presidents who sign them, except when those bills violate the founding document.
As for respect of the democratic process, there are plenty of ordinary, perfectly constitutional ways the Obama Democrats could have reformed health care and achieved the same result. They could have raised taxes to fund national health care or to make direct cross-subsidy transfers to sick people. They chose not to avail themselves of those options because they'd be politically unpopular. The individual mandate was in that sense a deliberate evasion of the accountability the Constitution's separation of powers is meant to protect.
Meanwhile, some on the right are treating this case as a libertarian seminar and rooting for the end of the New Deal precedents. But the Court need not abridge stare decisis and the plaintiffs are not asking it to do so. The Great Depression farmer in Wickard, Roscoe Filburn, was prohibited from growing wheat, and that ban, however unwise, could be reinstated today. Even during the New Deal the government never claimed that nonconsumers of wheat were affecting interstate wheat prices, or contemplated forcing everyone to buy wheat in order to do so.
The crux of the matter is that by arrogating to itself plenary police powers, the government crossed a line that Justice Anthony Kennedy drew in his Lopez concurrence. The "federal balance," he wrote, "is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of government has tipped the scale too far."
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The constitutional questions the Affordable Care Act poses are great, novel and grave, as much today as they were when they were first posed in an op-ed on these pages by the Washington lawyers David Rivkin and Lee Casey on September 18, 2009. The appellate circuits are split, as are legal experts of all interpretative persuasions.
The Obama Administration and its allies are already planning to attack the Court's credibility and legitimacy if it overturns the Affordable Care Act. They will claim it is a purely political decision, but this should not sway the Justices any more than should the law's unpopularity with the public.
The stakes are much larger than one law or one President. It is not an exaggeration to say that the Supreme Court's answers may constitute a hinge in the history of American liberty and limited and enumerated government. The Justices must decide if those principles still mean something.
A version of this article appeared Mar. 23, 2012, on page A14 in some U.S. editions of The Wall Street Journal, with the headline: Liberty and ObamaCare.
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http://www.nytimes.com/2012/03/26/us/waiting-in-line-to-see-supreme-court-argue-health-law.html?_r=1
"Heading into the first of three days of Supreme Court arguments on Monday, the pavement occupied by the approximately 15 people in line Sunday morning was among the most coveted real estate in Washington. Tickets are scarce even for those connected to the case. And for everyone else, there’s the line.
It started with two people who were in line by 9:30 a.m. on Friday, waiting to score one of at least 60 seats made available to the general public for each day of arguments, said Kathy Arberg, a Supreme Court spokeswoman."
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http://www.rollcall.com/issues/57_115/supreme-court-ruffles-democrats-feathers-213392-1.html?ET=rollcall:e12587:80133681a:&st=email&pos=eam
"When the Supreme Court begins to deliberate President Barack Obama’s signature health care law Monday, it will serve as a bitter reminder to Democrats of the blows leveled at their causes by the conservative Roberts court."
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http://www.miller-mccune.com/legal-affairs/can-the-supreme-court-survive-a-health-care-decision-40598/?utm_source=Newsletter206&utm_medium=email&utm_content=0327&utm_campaign=newsletters
After it rules on the health-care debate and makes other momentous decisions this term, will the U.S. Supreme have sufficient stores of legitimacy to weather the inevitable backlash?
Legitimacy is for losers.
This spring, the U.S. Supreme Court will announce one of its most important decisions since its ruling in Bush v. Gore. The decision in the cases — all having to do with the constitutionality of President Obama’s Affordable Care Act — likely will have vast political consequences, perhaps well beyond health care itself. The court will also decide a number of other blockbuster cases in 2012, from the highly polarized Arizona immigration legislation (whether people can be stopped by the police and interrogated about their immigration status) to the question of whether 14-year-olds convicted of heinous crimes can be incarcerated for the rest of their lives without any possibility of parole.
If the smear of partisan decision-making tars the unelected U.S. Supreme Court after these decisions, the fundamental legitimacy of the institution may become precarious.
Why exactly is legitimacy so important?
cont'd
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Tuesday's two hours of Supreme Court oral arguments on ObamaCare's individual mandate were rough-going for the government and its assertions of unlimited federal power. Several Justices are clearly taking seriously the Constitution's structural checks and balances that are intended to protect individual liberty.
Solicitor General Donald Verrilli faced aggressive questioning from Justices Anthony Kennedy and Antonin Scalia and Chief Justice John Roberts, the trio pegged as possible swing votes in favor of the mandate to buy insurance or pay a penalty. But they failed to elicit from Mr. Verrilli some limiting principle under the Commerce Clause that distinguishes a health plan mandate from any other purchase mandate that would be unconstitutional. The exchanges recalled the famous moment in Citizens United when the government claimed it could ban books to regulate political speech.
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The U.S. Supreme Court building in Washington, DC.
."Can you create commerce in order to regulate it?" inquired Justice Kennedy, in the first question from the bench. To ask another way, does the Administration think it has plenary police powers to coerce individuals into economic transactions they would otherwise avoid?
Mr. Verrilli replied that health care is "unique," so Justice Samuel Alito brought up the "market for burial services" and asked if the government could mandate funeral insurance. After all, in the long run we are all dead and thus could transfer the costs of our deaths to the rest of society. (See nearby.)
Mr. Verrilli's error is that even if health care and health insurance were intrinsically different from all other markets—and they aren't—that fact is constitutionally irrelevant. Any federal exercise of police powers is untenable because the Constitution gives such powers to the states.
Justice Scalia bowed at this reality when he asked if having blue eyes would be a meaningful principle limiting the mandate. "That would indeed distinguish it from other situations," he said, but it would also be irrelevant because it would still be "going beyond what the system of enumerated powers allows the government to do."
Justice Scalia returned to this point when he said that apropos of the Necessary and Proper Clause, "in addition to being necessary, it has to be proper. And we've held in two cases that something that was reasonably adopted was not proper because it violated the sovereignty of the states, which was implicit in the constitutional structure."
Those core features of the American system were also stressed by Justice Kennedy. "The government is saying that the federal government has a duty to tell the individual citizen that it must act," he said, "and that is different from what we have in previous cases, and that changes the relationship of the federal government to the individual in the very fundamental way."
Related Video
Editorial board member Joe Rago takes apart the government's argument that the individual mandate is constitutional under the Commerce Clause. Plus, new polling shows that the law unpopular.
..Justice Kennedy later expressed some sympathy for the government's claim that young people who don't buy insurance are "very close" to affecting interstate commerce, but the key distinction is that proximity is not enough and can't be enforced by the courts. To regulate individuals at any point in their lives merely because they exist would still undermine the accountability and destroy the dual sovereignty that are the touchstones of his jurisprudence.
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As it happens, today the Court hears separate arguments on Medicaid, and the themes in that controversy dovetail with those of the individual mandate. Just as the Court may rule that commerce powers are broad but not unlimited, the same is true for the spending power.
Florida and 25 other states contend that ObamaCare's conversion of this voluntary program originally intended for the poor into all-purpose insurance for tens of millions of people is unconstitutional coercion. By commandeering the states and their taxpayers as de facto arms of the federal government, the Administration has abrogated the system of dual sovereignty as surely as it has by claiming police powers.
Medicaid was created in 1965 as a cooperative federal-state partnership. States could opt in, or not, and there were still holdouts as late as 1982. The program has expanded greatly over the years to the point that it is now the largest component of most state budgets. But Governors and legislatures have always had some measure of flexibility and independent control.
The Affordable Care Act obliterates this status quo and forces states to add everyone up to 138% of the poverty level to the rolls. The feds will pick up most of the new costs through 2020, though the states are still on the hook for between $20 billion and $43.2 billion in new costs, and much more into perpetuity.
The Administration says states can reject these huge new liabilities and leave new Medicaid altogether, even as it threatens them with the loss of all federal funds for doing so. But in practical terms that would be ruinous for the local hospitals, doctors, nursing homes and other providers that have adapted to Medicaid's size and depend on the program for revenue. The federal government is giving states a choice between an immediate economic calamity or a unilateral rewrite of the contracts they entered decades ago and eventual calamity as they absorb the new costs. The technical term is extortion.
The Court has always balanced federal and state power by distinguishing between pressure and coercion. ObamaCare crosses that line. The conditions of new Medicaid conscript the states into involuntary servitude to the federal government's policy goals, in this case national health care. They would no longer be independent and autonomous units within the federalist system but agents of Washington.
Judicial liberals have responded to the Medicaid challenge with the legal equivalent of rolling their eyes, much as they did with the individual mandate and the Commerce Clause. On the evidence of Tuesday's oral arguments, that may turn out to be a mistake as well.
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http://fivethirtyeight.blogs.nytimes.com/2012/03/29/supreme-court-may-be-most-conservative-in-modern-history/#more-29973
"If President Obama’s health care bill is stricken by the Supreme Court, liberals will take it as evidence of judicial overreach, or at least that the court has shifted far to the right. One statistical method for analyzing the Supreme Court, in fact, already finds that the current court is the most conservative since at least the 1930s.
The method, called the Martin-Quinn Scores for the two scholars that developed it, Andrew D. Martin of the Washington University School of Law and Kevin M. Quinn of the Berkeley School of Law, estimates the court’s ideology by evaluating the combinations in which different justices vote with one another and how this changes over time. Their technique is similar to the well-regarded DW-Nominate method that is used to estimate the ideology of members of Congress based on their voting records."
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In addition to being an apparent unbeliever in Marbury v. Madison, here is some more of Baraq's thoughts on Constitutional matters:
http://www.youtube.com/watch?v=2EcmpUHCHkk
That our President, sworn to enforce and protect our Constitution, believes this I find quite frightening.
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second post of the morning
Patriot Post
Chronicle • April 4, 2012
The Foundation
"The truth is, that, even with the most secure tenure of office, during good behavior, the danger is not, that the judges will be too firm in resisting public opinion, and in defence of private rights or public liberties; but, that they will be ready to yield themselves to the passions, and politics, and prejudices of the day." --Joseph Story
Obama the constitutional law professor needs to brush up on the subject
"Someone will have to remind President Obama the Supreme Court is a co-equal branch of government, part of a system of checks and balances designed to rein in precisely the kind of runaway government exhibited by his administration. Our community-organizer-in-chief has a different opinion. 'Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,' Obama said at a news conference with the leaders of Canada and Mexico. ... This is precisely what the Supreme Court is designed to do -- determine the constitutionality of laws passed by democratically elected legislatures and Congress. Surely the constitutional law professor has heard of Marbury v. Madison, the 1802 case that formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring it 'unconstitutional.' Such an action is not unprecedented. ... By one estimate, the Supreme Court has struck down 53 laws between 1981 and 2005 alone. The president speaks of a law passed by a 'democratically elected Congress' yet it was a bill no one had read and which House Speaker Nancy Pelosi said we had to pass to find out what was in it. The fact is, most of the rules and regulations are written by unelected bureaucrats authorized by a bill that refers not to 'we the people' but to 'the secretary shall determine.' ... To say the bill passed 'a strong majority' of a democratically elected Congress is an overstatement. The bill passed the House with a vote of 219-212, a majority of seven, with 34 Democrats defecting. ... This isn't the first time President Obama has lectured the Supreme Court. In his State of the Union address on Jan. 27, 2010, he shamefully scolded the justices on national television for 'having reversed a century of law' in a ruling in which the court was protecting the freedom of political speech enshrined more than two centuries ago in the First Amendment. It will be poetic justice if in answering the administration's assertions on the constitutionality of ObamaCare, the court will echo Justice Samuel Alito's reply that night: 'Not true.'" --Investor's Business Daily
Do you have any words of wisdom for Mr. Obama?
"Can I tell you what I'm a tiny bit sick of hearing? Maybe you are too. Some version of this: 'Conservatives are hypocritical to root for the Supreme Court to overturn the health-care law. For years, conservatives have griped about interference by the courts. And now they're hoping that a handful of unelected, black-robed individuals will do their work for them?' Oh, come on: What we've objected to, all these years, is judicial activism -- judge-made law. The usurpation of the legislative role by judges. We have not, to my knowledge, objected to the striking down of unconstitutional laws. We are not hostile to a separation of powers." --columnist Jay Nordlinger
"The margin of passage has never been a factor in the Supreme Court's review of any law. That's simply not a part of American jurisprudence. In fact, if Mr. Obama believes what he says, he ought to be very satisfied with the validity of the Defense of Marriage Act, which passed in 1996 by a whopping 275 margin in the House and by 71 votes in the Senate." --
The Washington Times
"One of the greatest sins of Obamacare is actually that the president decided to pursue legislation that would fundamentally change the country even though he didn't have a strong majority for it in Congress. And 'judicial activism' generally refers to rulings based on emotion and political views instead of the Constitution and precedent. The judges' questions about the health care law went right to whether it violated the Constitution. There was no 'activism' on the order of, say, finding previously undiscovered meanings in the Constitution to justify a decision. To say that ruling against an unpopular law barely passed by Congress violates 'judicial restraint' would seem a strange new interpretation of the term." --columnist Keith Koffler
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http://www.breitbart.com/Big-Government/2012/04/04/Former-Obama-Student-Obamas-Ignorance-of-Constitution-Embarrassing
Former Obama Student: Obama's Ignorance of Constitution Embarrassing
Prof. Thom Lambert of the University of Missouri Law School has responded with alarm to President Barack Obama's attack on the Supreme Court and the power of judicial review by recalling his own days as Obama's student at the University of Chicago.
Lambert, who writes for the "Truth on the Market" blog, not only studied under Obama, but also clerked for the federal judge who issued an order yesterday demanding that the Department of Justice clarify whether the government believed courts had the power to overturn constitutional laws.
Lambert wrote:
Thus, a Wall Street Journal editorial queried this about the President who “famously taught constitutional law at the University of Chicago”: “[D]id he somehow not teach the historic case of Marbury v. Madison?”
I actually know the answer to that question. It’s no (well, technically yes…he didn’t). President Obama taught “Con Law III” at Chicago. Judicial review, federalism, the separation of powers — the old “structural Constitution” stuff — is covered in “Con Law I” (or at least it was when I was a student). Con Law III covers the Fourteenth Amendment. (Oddly enough, Prof. Obama didn’t seem too concerned about “an unelected group of people” overturning a “duly constituted and passed law” when we were discussing all those famous Fourteenth Amendment cases – Roe v. Wade, Griswold v. Connecticut, Romer v. Evans, etc.) Of course, even a Con Law professor focusing on the Bill of Rights should know that the principle of judicial review has been alive and well since 1803, so I still feel like my educational credentials have been tarnished a bit by the President’s “unprecedented, extraordinary” remarks.
Lambert added: "Fortunately...[t]his morning, the judge for whom I clerked, Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit, called the President’s bluff....I must say, I’m pretty dang proud of Judge Smith right now. And I’m really looking forward to reading that three-page, single-spaced letter."
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Justice Stephen Breyer asked, for example: “Didn’t they make that man growing his own wheat go into the market and buy other wheat for his — for his cows?”
Well, actually, no, Justice Breyer, they didn’t.
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I posted this in a stack on the healthcare thread but did not want to let this go by without asking for comment here. Justice Breyer is about to decide perhaps the most important commerce clause case yet and he lacks the fundamentals to start the analysis? Is there some other explanation to what he said http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-398-Tuesday about Wickard v. Filburn http://www.law.cornell.edu/supct/html/historics/USSC_CR_0317_0111_ZO.html and wheat? Was he just pandering or playing around or does he really not know the law and the precedent? And where is the watchdog press, lol.
In the question of precedent for a mandate to purchase a private product, it is a big deal whether or not in 1942 they made him buy wheat!
Do we have a defender of Justice Breyer available who can explain this?
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Scott Johnson writing on Powerline: http://www.powerlineblog.com/archives/2012/03/justice-breyer-flunks-con-law.php
Reading the transcript and listening to the audio of day 2 of the Obamacare argument, I was struck by the sheer intellectual laziness and complacency of Justice Breyer. To liken him to a rodeo clown would be to credit him with too much energy. Referring to the key New Deal Commerce Clause case of Wickard v. Filburn, Breyer asked, for example: “Didn’t they make that man growing his own wheat go into the market and buy other wheat for his — for his cows?”
Well, actually, no, Justice Breyer, they didn’t. “They” — Congress in an amendment to the Agricultural Adjustment Act of 1938 — limited the amount of wheat farmer Filburn could grow on his farm under a quota set for him by the geniuses in Washington (or penalized him for exceeding the quota). “They” didn’t make him go into the market and buy wheat for his cows. That’s the point — the point Randy Barnett has argued for the past few years. http://online.wsj.com/article/SB10001424052748703467304575383702986874016.html
The distinction between the case vaguely recalled by Justice Breyer and the one decided by the Supreme Court in the Wickard case might be the difference between a pass or a fail on a fairly graded Con law exam in law school. It goes to the heart of the Obamacare case. Justice Breyer has apparently been pursuing other intersts over the past few months.
As Jeffrey Anderson and Conn Carroll have observed http://www.weeklystandard.com/blogs/breyers-missteps_634797.html http://campaign2012.washingtonexaminer.com/blogs/beltway-confidential/breyers-unhinged-commerce-clause-ramblings/453011, this wasn’t necessarily Justice Breyer’s only laugh-out-loud moment during day 2 of the oral argument. And if Justice Breyer were not a party-line liberal, you would have heard about it.
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www.hillsdale.edu/constitution/week_07_qa.aspx
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Continuing my assault on Wickard v. Filburn and hoping for added comments:
Wickard v. Filburn was a huge case because it showed roughly speaking that government has unlimited powers in all matters construed as commerce. (Gonzales v. Raich followed and perhaps is worse.)
The central question coming out of Wickard Filburn (and Obamacare if affirmed): Does the existence of the power of congress to "regulate" in the constitution negate all the rest of the constitution such as basic rights of individual economic liberties like the freedom to grow food on your own property to feed your own chickens (or to choose your own health plan, what it will include and how to finance it).
Striking down Obamacare in its entirety does not require the overturning of any precedent, but with Dred Scott as an example, but the Supreme Court is not bound by precedent.
In the Wickard case, Mr. Filburn was restricted in growing wheat for his own chickens. That is outrageous in a free society! My humble opinion. (But still, he wasn't forced to buy wheat, he could have sold his chickens, quit farming, starved them, eaten them OR FED THEM SOMETHING ELSE.)
In Gonzales-Raich the Feds took power over your own ability to grow your own approved medicines and the Court affirmed that power. That is outrageous! MHO.
The guy (back to Filburn) has 23 acres and wants to grow wheat. Basically what congress codified and the Supreme Court upheld is the same system of limited production and price controls that OPEC exerted in the 1970s and ever since. That is the legitimate role of our government? That does not step on personal liberties? That is not a complete rejection of our free enterprise system? There were crops other than wheat available to plant in 1938-1941. Were they completely oblivious to the dangers of gluten?
Lets's look at what the Court said in Wickard which is the how we got to where we are today. Read the Court's ruling in Wickard in the context of both what the Founding Fathers would have envisioned for limits on government and what you the American libertarian of today should want as limits on the power of your government. I wrote in some of my own reaction to it:
(http://www.law.cornell.edu/supct/html/historics/USSC_CR_0317_0111_ZO.html) Excerpts quoted, comment is mine:
“The decline in the export trade has left a large surplus in production which, in connection with an abnormally large supply of wheat and other grains in recent years, caused congestion in a number of markets; tied up railroad cars, and caused elevators in some instances to turn away grains, and railroads to institute embargoes to prevent further congestion.“
THAT is a justification of government prohibiting a man from growing plants to feed for his own animals??
“Importing countries have taken measures to stimulate production and self-sufficiency.“
THAT is a justification for government control in America trumping individual economic liberty??
“It is well established by decisions of this Court that the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices.”
Government controlling prices in private markets is the end of a private market and the end of individual liberty IMHO.
“One of the primary purposes of the Act in question was to increase the market price of wheat ...”
It isn't a 'market price of wheat' if it was artificially through fascist government policies admittedly increased! Which Article authorized THAT power??
“The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. “
What? That trumps his right to grow crops and feed your own animals on his own agricultural private property to make a living and feed his family?
“We do not agree [that the Fifth Amendment requires that he be free from penalty for planting wheat and disposing of his crop as he sees fit]. In its effort to control total supply, the Government gave the farmer a choice which was, of course, designed to encourage cooperation and discourage noncooperation.”
'Control total supply' is a function one might expect from their government in Nazi Germany, not a 'regulatory power' in a constitutionally limited government Republic like ours...
None of this is REGULATION in any way that I know the term to mean. All of this popular and well-intended central control and free market ending manipulation was a neat idea – right up until it stepped on and destroyed anyone's individual liberties.
In all its excesses, none of it compelled a person to go out and buy a product he or she did not otherwise choose to purchase which is the present question before the Court in the latest expansion of limits on freedom and privacy case -healthcare.
Yet they they keep pointing to these egregious precedents to justify making a much larger new one.
Still unmentioned by the advocates is the affirmation of the individual mandate in the Japanese-American internment case. At least that was a perceived national security case, not a 'regulation' of commerce, though it certainly served to regulate their commerce.
The answer (IMHO) to this school of thought of 'constitutionally' expanding government powers without amendment is: not one more inch of encroachment against our individual economic liberties.
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AMEN!!!
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Thank you Crafty. You and I may agree and maybe no one here will argue the other side, but we still need to have this argument about what is right and wrong in a free society with the other side of the aisle until they are either defeated or join us.
President Obama in his correction/clarification said:
"We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre New Deal."
That he is wrong on this and a buffoon can be argued under 'Glibness', or at this link http://www.powerlineblog.com/archives/2012/04/obama-walks-back-supreme-court-threat-still-gets-it-wrong.php, and also argued in a post made by GM about the influence of Derrick Bell.
Crucial and revealing though is the transparent, all-powerful-government thinking that if it is only your economic freedoms that are being taken away, then it is no big deal. ! ! ! ? ? ? To them, commerce is defined not only as the freedom to buy, sell, and produce, but the freedom to decide what you will grow on your own property and how you will treat your own body to save your own life and your mothers' - and all that freedom is theirs, the congress and the federal government, and not yours - and your former rights have no business being protected by a Supreme Court or anyone else.
Unbelievable to me that this thinking reached either the White House or any member of the Supreme Court in this country!
That accumulated overreach was what started the tea party movement. The energy may have diffused into issues and candidates, but the argument remains and the fight needs to be joined.
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Long academic paper published in the University of Chicago Law Review Winter 2001 questioning the contention of Justice Clarence Thomas that the original meaning of to regulate interstate commerce was very narrow in scope:
http://www.bu.edu/rbarnett/Original.htm#IIIB
While Justice Thomas has maintained that the original meaning of "commerce" was limited to the "trade and exchange" of goods and transportation for this purpose, some have argued that he is mistaken and that "commerce" originally included any "gainful activity." Having examined every appearance of the word "commerce" in the records of the Constitutional Convention, the ratification debates, and the Federalist Papers, Professor Barnett finds no surviving example of this term being used in this broader sense. In every appearance where the context suggests a specific usage, the narrow meaning is always employed. Moreover, originalist evidence of the meaning of "among the several States" and "To regulate" also supports a narrow reading of the Commerce Clause. "Among the several States" meant between persons of one state and another; and "To regulate" generally meant "to make regular"--that is, to specify how an activity may be transacted--when applied to domestic commerce... In sum, according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states, and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade."
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Haven't had a chance to watch this yet (40 minutes) but it comes recommended:
www.youtube.com/watch?feature=player_embedded&v=Q7yW1E4_p9E
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http://www.nytimes.com/2012/04/10/opinion/bring-the-justices-back-to-earth.html
"GIVEN the very real possibility that the Supreme Court will overturn the Affordable Care Act, liberals are concerned that the right-wing tilt of five justices and lifelong appointments ensure a decades-long assault on the power of Congress. This is especially likely given the relative youth of the bloc’s conservative members: an average of 66 years old, when the last 10 justices to retire did so at an average age of 78.
The situation brings to mind a proposal voiced most prominently by Gov. Rick Perry during his run for the Republican presidential nomination: judicial term limits.
The idea isn’t new. High-ranking judges in all major nations, and all 50 states, are subject to age or term limits. The power to invalidate legislation is, in a sense, the ultimate political power, and mortals who exercise it need constraint. So why not the highest court in the land? "
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http://www.nytimes.com/2012/04/10/opinion/bring-the-justices-back-to-earth.html
"GIVEN the very real possibility that the Supreme Court will overturn the Affordable Care Act, liberals are concerned that the right-wing tilt of five justices and lifelong appointments ensure a decades-long assault on the power of Congress. This is especially likely given the relative youth of the bloc’s conservative members: an average of 66 years old, when the last 10 justices to retire did so at an average age of 78.
The situation brings to mind a proposal voiced most prominently by Gov. Rick Perry during his run for the Republican presidential nomination: judicial term limits.
The idea isn’t new. High-ranking judges in all major nations, and all 50 states, are subject to age or term limits. The power to invalidate legislation is, in a sense, the ultimate political power, and mortals who exercise it need constraint. So why not the highest court in the land? "
Why not directly elected Justices? That'd shut up Obozo.....
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"Why not directly elected Justices?"
And another idea, how about the system we have now. I haven't seen any stay too long lately, just ones that I didn't like in the first place.
The proposal does address one point making recusal nearly impossible on the close cases - there currently is no one to take their place.
Currently we have appointment by an elected official and confirmation by elected officials. We have Justices stepping down voluntarily in old age; hard to hide mental deterioration from your peers in that business - except when the starting point is too low. I think we just need to be ready for impeachment by the elected branch if and when justified. For reasons such as deciding cases for the wrong reasons, international law or precedent for example.
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I think we just need to be ready for impeachment by the elected branch if and when justified. For reasons such as deciding cases for the wrong reasons, international law or precedent for example.
Surely you jest? You would impeach a Supreme Court Justice because you don't agree with their decision on a case? Would you impeach five or more of them if they were in the majority? Or only one or two if they they were in the minority. :? Don't be ridiculous.
"A Supreme Court Justice may be impeached by the House of Representatives and removed from office if convicted in a Senate trial, but only for the same types of offenses that would trigger impeachment proceedings for any other government official under Articles I and II of the Constitution.
Article III, Section 1 states that judges of Article III courts shall hold their offices "during good behavior." "The phrase "good behavior" has been interpreted by the courts to equate to the same level of seriousness 'high crimes and misdemeanors" encompasses. "
Disagreeing with your opinion is hardly a "high crime'.
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Are you suggesting the constitution isn't a "living document" to be used to whatever ends anyone wishes at anytime?
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Are you suggesting the constitution isn't a "living document" to be used to whatever ends anyone wishes at anytime?
Actually I was merely laughing at the absurdity of impeachment merely because Doug IHHO disagrees with the ruling. :?
As for the concept of "living document" it's rather interesting. We/You'll seem to love Jefferson on this site, so......
Thomas Jefferson wrote, "I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."
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JDN.
A. Don't post hypotheticals regarding my business - last time the inference was discrimination and this time some botched analogy to terror. That's enough. I'll post stories from my business and you from yours.
B. Again you say I said what i didn't "...impeachment merely because Doug IHHO disagrees with the ruling." That isn't what I wrote, what a jackass, so leave my name out of your posts because you can not get it right.
C. re: [Thomas Jefferson wrote, "I am not an advocate for frequent changes in laws and constitutions..."] - Nothing in that indicates support for changing the constitution OUTSIDE of the amendment process as this string of cases is striving to do. The constitution lived through changes of abolishing slavery, establishing an income tax, trying prohibition, ending prohibition, and they failed to end all differentiation on gender in the unratified ERA. The amendment process works. Use it and stop trying to change with simple majorities what constitutionally requires supermajorities. What good is a constitution if the words that have no meaning.
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A. Since you introduced the subject of your business (property rental ownership) over and over again, I'll post and introduce the subject as I see fit. As for my "botched analogy to terror" what in the heck are your talking about? I looked above on this string and saw nothing related to what you are talking about.
B. Did you read your post; I'm still laughing at the absurdity of your post. You would impeach Justice(s) because they "decided cases for the wrong reasons"? :? I presume it depends upon YHO they are the "wrong reasons"? :? :? :? And Doug, I'll quote you as often as I like.
C. I think you should reread Jefferson's words. "As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times." Nothing is indicated that change cannot take place OUTSIDE the constitution either. "Jefferson often sneered at the "sanctimonious reverence" some would hold for a mere historic document." Jefferson was forward looking; he believed the Constitution to be a living document.... Times change; we have become "more enlightened..." and "opinions change...". It's called progress Doug.
Like Jefferson, "Justice Oliver Wendell Holmes (of "falsely shouting fire in a theater" fame) argued that the Constitution "must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago." Holmes said the law was not a matter of absolutes but of the "felt necessities of the time," to be justified by how it contributes "toward reaching a social end."
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"A Supreme Court Justice may be impeached by the House of Representatives and removed from office if convicted in a Senate trial, but only for the same types of offenses that would trigger impeachment proceedings for any other government official under Articles I and II of the Constitution.
Article III, Section 1 states that judges of Article III courts shall hold their offices "during good behavior." "The phrase "good behavior" has been interpreted by the courts to equate to the same level of seriousness 'high crimes and misdemeanors" encompasses. "
And then:
Like Jefferson, "Justice Oliver Wendell Holmes (of "falsely shouting fire in a theater" fame) argued that the Constitution "must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago." Holmes said the law was not a matter of absolutes but of the "felt necessities of the time," to be justified by how it contributes "toward reaching a social end."
Impressive! Most people aren't able to argue against themselves in the same thread. I guess if we want to impeach a justice, it's constitutional if it"contributes toward reaching a social end".
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it's constitutional if it"contributes toward reaching a social end"
GM, my point was that if they violate their oath of office which I assume includes swearing to uphold the constitution, then the elected branch already has a recourse available.
For the sloppy reader false quote guy, make sure you read the word IF in that statement. And nowhere does anything I wrote suggest impeachment for disagreeing with me. The lying cheapens the board and the discussion.
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Were it up to me, anyone who cited foreign laws in rendering a decision would be out ASAP. Or badmouthed the US Constitution like the ACLU crone did....
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http://www.supremecourt.gov/about/oath/textoftheoathsofoffice2009.aspx
The oath below, as noted, is the second oath taken by a federal judge, including the USSC justices. More (interesting) discussion is found by clicking the link.
The Judicial Oath
The origin of the second oath is found in the Judiciary Act of 1789, which reads "the justices of the Supreme Court, and the district judges, before they proceed to execute the duties of their respective offices" to take a second oath or affirmation. From 1789 to 1990, the original text used for this oath (1 Stat. 76 § 8) was:
"I, _________, do solemnly swear or affirm that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________, according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States. So help me God."
In December 1990, the Judicial Improvements Act of 1990 replaced the phrase "according to the best of my abilities and understanding, agreeably to the Constitution" with "under the Constitution." The revised Judicial Oath, found at 28 U. S. C. § 453, reads:
"I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God."
it's constitutional if it"contributes toward reaching a social end"
GM, my point was that if they violate their oath of office which I assume includes swearing to uphold the constitution, then the elected branch already has a recourse available.
For the sloppy reader false quote guy, make sure you read the word IF in that statement. And nowhere does anything I wrote suggest impeachment for disagreeing with me. The lying cheapens the board and the discussion.
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Let me QUOTE you Doug so there is no misunderstanding. Your words. You stated that these are valid reasons to impeach a Supreme Court Justice.
Currently we have appointment by an elected official and confirmation by elected officials. We have Justices stepping down voluntarily in old age; hard to hide mental deterioration from your peers in that business - except when the starting point is too low. I think we just need to be ready for impeachment by the elected branch if and when justified. For reasons such as deciding cases for the wrong reasons, international law or precedent for example.
[/b]
"For reasons such as deciding cases for the wrong reasons" And who decides it's the "wrong reason"? You? :?
Or, "or precedent for example." Wow, are you suggesting that we impeach Justices because they decide cases because of "precedent"? :?
As for their oath Supreme Court Justices take, as Bigdog pointed out, "I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God." that is what they are doing. I don't have to agree with their interpretation, but then neither do you. It's the law if the majority says it's the law. I may not like it if the Court overturns Obamacare. Just like some don't like Roe vs. Wade. But it's the law. Accept it and move on. No one has been or will be impeached in either situation. That's how our Constitution works.
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That is: international law or [intenational] precedent, using these REASONS for decisions instead of or ahead of upholding the constitution would be a violation of their oath of office and reason if true and proven IMHO to initiate impeachment.
At least two justices have given public indications that is their thinking. I will read the health care opinions in particular for evidence of that. Don't worry so much about what I think, I have no vote in the House or in the Senate and I assume a supermajority of both would be required.
When you begin to come to grips with my opinion, rather than distort it why don't you begin to post YOURS. Logic preferred over emoticons. :-D :-) :-( :-o :? 8-) :lol: :-P :oops: :cry: :evil: :roll: :wink: :|
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Notice Doug you didn't say "international precedent" the first time you posted; I'm sure glad I'm able to quote. :-D
My opinion (you asked) is that I support the right of the judiciary to independent opinion; whether I agree with them or not. For example, I agree with Obamacare, but the Court may over turn it; I accept that. Just like others may disagree with Roe vs. Wade or... they too should accept it. Simply saying I don't like the decision is no reason to even consider impeachment. Disagreeing is not "high crimes".
As for your opinion, you sound like you would been one of those right wing zealots supporting McCarthyism in Georgia.
Only one Supreme Court Justice, Samuel Chase (one of the signatories to the Declaration of Independence), has ever been impeached. The House of Representatives accused Chase of letting his Federalist political leanings affect his rulings, and served him with eight articles of impeachment in late 1804. The Senate acquitted him of all charges in 1805, establishing the right of the judiciary to independent opinion. Chase continued on the Court until his death in June 1811.
In 1957, at the height of McCarthyism, the Georgia General Assembly passed a joint resolution calling for "The Impeachment of Certain U.S. Supreme Court Justices" believed to be enabling Communism with their decisions. The resolution targeted Chief Justice Earl Warren and Associate Justices Hugo Black, William O. Douglas, Tom Campbell Clark, Felix Frankfurter, and Stanley Forman Reed (as well as several unnamed deceased Justices) for "...[usurping] the congressional power to make law in violation of Article I, Sections I and 8, and violated Sections 3 and 5 of the 14th Amendment and nullified the 10th Amendment of the Constitution."
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I wrote international law or precedent. 'Notice Doug you didn't say "international precedent" ' Applying one adjective to conjoined nouns was intended for the lower triple digits. Please disregard if that doesn't apply to you.
"Simply saying I don't like the decision is no reason to even consider impeachment."
More arguing in redundancy over things I didn't say. A waste of time.
"you sound like you would been one of those right wing zealots supporting McCarthyism in Georgia."
Another thing I didn't say. And quite mean-spirited.
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:roll:
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Perhaps my judgment is affected by the vapors of German beer here in the bar-lobby here in Munich JDN, but I think you are misapprehending what Doug said. FWIW, my sense of the English language is that "international" applied to precedent as well.
As my Constitutional Law prof's recent interview made rather clear, she does not really believe in the US Constitution, nor in my opinion is she alone on the Court in this.
IMO the intention is to pretend that citing international law as an influence is no different to referring to another state's law in reasoning a de novo question presented in a state law case. IMO it is QUITE different. The intention is NOT to honestly reason about the US Constitution, about which people can reasonably disagree without impeachment being a reasonable issue, the intention is to SUBVERT the US Constitution. As a logical matter, I can see this as a basis for impeachment and conviction. As a practical matter however, the practical difficulties to making the case would be EXTREMELY destructive to our social fabric.
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An article written by the National Security Division of the DOJ:
http://www.jnslp.com/wp-content/uploads/2012/04/Virtual-Checkpoints-and-Cyber-Terry-Stops.pdf
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I am having a hard time opening that on the German lap top I have been lent. Is there a way you could post it here?
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I am having a hard time opening that on the German lap top I have been lent. Is there a way you could post it here?
It's a 33 page PDF, so probably not.
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Understood. If you happen to remember, please remind of this when I get back.
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Taking some discussion from the Presidential 2012 thread over to here.
Asked: "The authority to make such a move [selective privater company bailouts and investments] is contained in Article ___ of the constitution?"
Court citations?
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Other bailouts were going on at that time like AIG, Bear Stearns. I recall a congressional committee questioning the Treasury Secretary and Fed Chair (video link below) about where they derived that authority [to bail out non-financial institutions]. Which provision in the constitution gives authority to the Treasury for the extraordinary actions taken? Geithner literally could not grasp the question much less the answer, kept answering that congress had authorized it. Bernancke pointed to congressional right to authorize funds as they did in TARP to the 1930s legislation for emergency lending in financial crisis. Could not point to a constitutional limit on that authority. "The actions we've taken have been solely and entirely in the interest of protecting the American economy from financial collapse." A brokerage here, an insurance company there. General Motors not mentioned. Ends justify means.
Video: http://www.youtube.com/watch?v=wSWztq4yc_U Interesting question and non-answers, that's all.
If congress has the power to authorize funds, is there no limit on how it is spent?
The equal protection clause limits the powers of States: 'No State shall... deny to any person within its jurisdiction the equal protection of the laws.'
Is there an unenumerated right to equal treatment from the federal government or where does the constitution limit the federal government from picking winners and losers in the private economy, to pick a better connected competitor and give them competitive advantage over you to survive and to prosper. No limits?
Perhaps it comes back to powers that were never granted to congress or the executive in the first place. Did the power to regulate interstate commerce in our founding mean the power to alter the playing field in favor of certain players, at the disadvantage of others in private commerce including private commercial, legal contracts, such as the position of the secured bondholders of General Motors?
Did "promote the general Welfare" and "those things of a general welfare that they could not provide themselves" mean no limits? Bernancke referred to a "practical limit", his power to manage monetary policy, including fabrication of money into the multiples of trillions. Congress likewise. Not even limited by whjat they can agree to tax. No other limits? Really??
JDN wrote about the GM bailout: "A few suffered in exchange for the greater good. Hundreds of thousands of jobs were saved especially if you look downstream at suppliers, etc."
I disagree with the result, but let's say he is right about the ends, where was the power to do that authorized in the constitution?
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http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2010074#captchaSection
What is the lawyer’s genius — the talent that distinguishes us from other professions? Movies and television suggest that it is more than legal knowledge and technical skills; it is the way lawyers use creativity and cunning to outwit their adversaries. Lawyers in films and television act much like the Trickster figure in mythology and folklore. Moreover, study of the professional lives of the best real life lawyers reveals these same trickster talents. The paper argues that lawyers should embrace the trickster identity because it celebrates the valuable contributions lawyers make to the public good.
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http://www.newyorker.com/reporting/2012/05/21/120521fa_fact_toobin
In a different way, though, Citizens United is a distinctive product of the Roberts Court. The decision followed a lengthy and bitter behind-the-scenes struggle among the Justices that produced both secret unpublished opinions and a rare reargument of a case. The case, too, reflects the aggressive conservative judicial activism of the Roberts Court. It was once liberals who were associated with using the courts to overturn the work of the democratically elected branches of government, but the current Court has matched contempt for Congress with a disdain for many of the Court’s own precedents. When the Court announced its final ruling on Citizens United, on January 21, 2010, the vote was five to four and the majority opinion was written by Anthony Kennedy. Above all, though, the result represented a triumph for Chief Justice Roberts. Even without writing the opinion, Roberts, more than anyone, shaped what the Court did. As American politics assumes its new form in the post-Citizens United era, the credit or the blame goes mostly to him.
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Haven't read the Trickster piece yet (though the premise seems quite promising and appealing to this Jungian) but I have read the Citizens United piece.
I readily grant it is fascinating but find tedious having to continuously filter out the author's specious reasoning and spurious assertions of moral and legal parity between overturning legislation that violates the C with the overrunning of legislation in the name of liberal biases.
The fundamental problem is the the decision upholding McCain Feingold was a huge error. M-F should have been overturned from the beginning and the due weight of stare decisis simply is not enough to overcome the stifling of free speech.
The documentary in question was about one of the candidates. It boggles my mind that anyone could think stifling it could pass C'l muster. Ugh :x
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Concerning the Trickster piece-- is this something that one has to buy? I'm clicking on download without result.
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I was able to open the paper. But, you have a copy in your email inbox.
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Received. Thank you.
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http://www.insidecounsel.com/2012/05/02/public-approval-of-supreme-court-reaches-new-low
Public approval of major social phenomena, the economy, politicians and appointed officials is always apt to wax and wane with time. For the U.S. Supreme Court, though, public opinion is currently waning like a crescent moon.
The Pew Research Center for the People & the Press yesterday released a survey indicating that public opinion of the high court is currently at a quarter-century low. And unlike previous evaluations of the court over the past decade, this time there is very little partisan divide as Republicans, Democrats and independents all responded with relatively unfavorable ratings.
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http://www.esquire.com/features/thousand-words-on-culture/end-of-law-in-america-0612
The collapse of Americans' faith in the Supreme Court has been recent but dramatic. Somewhere in between Bush v. Gore and Clarence Thomas's paid appearance at the Koch brothers' retreat and Antonin Scalia comparing surgery to broccoli, Americans noticed that some of the foremost justices in the country are buffoons. Since 2009, public approval of the Supreme Court has declined fifteen percentage points, and according to one survey less than one out of four Americans has confidence in the court's judgment. With the decision on health care scheduled for June, the country's already tenuous regard for the Court may grow even more strained. The idea of the Court as an above-the-fray guardian of the Constitution is, by this point, strictly the stuff of civics classes and nostalgia. In ordinary life, the law has never been held in as much contempt as it is now. Quite simply, nobody follows it anymore.
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The list of examples reads like a partisan list. I remember reading about the progressive efforts to paint Thomas and not being impressed that there was much substance to them or much character behind the accusations. Scalia a buffoon? Really? :roll: Is Kagan's failure to excuse herself from Obamacare mentioned? Are Ginsburg's non-belief in the Constitution and her efforts to substitute international progressivism for it mentioned? Indeed, is her remarkable conversion to deference to southern state's rights in electoral matters in Bush v. Gore mentioned? Blah, blah, blah.
I read the article's accusation of results driven cases by the "right" Justices in search of any reasoned examples in vain.
Is this a professor thing you're doing here BD? I know you think MUCH better than this.
The scoffing at laws theme though has considerable merit.
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Your last point was the real take away for me in the article. I think the idea of Americans committing three felonies a day is interesting, and the continued decline adherence to drug laws (of Democratic presidents, I should add, which may balance your concern of the partisan agenda) is also worth noting.
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http://redtape.msnbc.msn.com/_news/2012/06/01/11998060-first-amendment-rights-can-be-terminated-when-cops-cameras-dont-mix?lite
"Your First Amendment rights can be terminated," yells the Chicago police officer, caught on video right before arresting two journalists outside a Chicago hospital. One, an NBC News photographer, was led away in handcuffs essentially for taking pictures in a public place. He was released only minutes later, but the damage was done. Chicago cops suffered an embarrassing "caught on tape" moment, and civil rights experts who say cops are unfairly cracking down on citizens with cameras had their iconic moment.
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Karma can be a real bitch sometimes , , , :evil: :-D :lol:
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"The Pew Research Center for the People & the Press yesterday released a survey indicating that public opinion of the high court is currently at a quarter-century low."
Give some credit to the President for calling them buffoons on camera in front of the nation and the world. The recent audio coverage of the healthcare hearing with clips of it in the media was also a strange way for the layman to view their work. They look and sound better behind closed doors.
"there is very little partisan divide as Republicans, Democrats and independents all responded with relatively unfavorable ratings"
Add the dissatisfaction of the left on Citizens United plus Bush v. Gore to how conservatives view the abortion and takings rulings and you have some discontent. I suppose independents just see 4 hardened extremists on each side and one unpredictable justice deciding all close issues.
Meanwhile a divided congress gets about a 14% approval. You would think it would be zero, what is happening there for any side to approve?
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It is early June with a landmark decision on healthcare coming late this month. I hope veryone who is interested will take the time to write their own healthcare decision. What is the strongest argument of the other side to your decision and what is the crucial argument that trumps that. Bigdog and others, I would love to hear from you, your students or from your readings prior to those 9 people getting the last word.
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This is an interesting discussion on the use of drones and the impact on civil liberties.
http://www.usatoday.com/news/opinion/forum/story/2012-05-30/domestic-drones-privacy-faa-uavs/55288498/1
"Trying to recover liberties after losing them is like trying to regain your lost virginity." The difference I notice is that most people try really hard to lose their virginity.
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http://www.nytimes.com/2012/06/08/us/politics/44-percent-of-americans-approve-of-supreme-court-in-new-poll.html?nl=todaysheadlines&emc=edit_th_20120608
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Making it only 5 times more popular than Congress.
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Understood. If you happen to remember, please remind of this when I get back.
http://www.jnslp.com/wp-content/uploads/2012/04/Virtual-Checkpoints-and-Cyber-Terry-Stops.pdf
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http://m.reason.com/26821/show/288f810f6e1a36127afcbb16c362fa43/
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Lets use this thread for any discussion of the Contempt Citation issues with regard to Rep. Issa's committee and AG Holder.
Big development this morning with the last minute assertion of Executive Privilege! Why wasn't this brought up previously? Doesn't this require an asssertion that the President was involved?
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Lets use this thread for any discussion of the Contempt Citation issues with regard to Rep. Issa's committee and AG Holder.
Big development this morning with the last minute assertion of Executive Privilege! Why wasn't this brought up previously? Doesn't this require an asssertion that the President was involved?
No. Recall, for example, VP Cheney's contention that his energy task force meeting records were subject to executive privilege. More on executive privilege: http://www.theblaze.com/blog/2012/06/20/what-is-executive-privilege-and-what-does-it-mean-for-ff-investigation/
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This suggests the next step is the Supreme Court which will take ? long. Can this be done before November?
"Once executive privilege is asserted, coequal branches of the Government are set on a collision course. The Judiciary is forced into the difficult task of balancing the need for information in a judicial proceeding and the Executive’s Article II prerogatives. This inquiry places courts in the awkward position of evaluating the Executive’s claims of confidentiality and autonomy, and pushes to the fore difficult questions of separation of powers and checks and balances. These ‘occasion for constitutional confrontation between the two branches’ are likely to be avoided whenever possible.”
Crafty ask's,
"Doesn't this require an asssertion that the President was involved?"
Bigdog says, "no".
But doesn't this mean yes:
"So what does Obama’s invocation of executive privilege mean for the Fast & Furious investigation moving forward?
It may have very serious implications for the Obama White House. Holder previously testified that President Obama was not directly involved in discussions about Fast & Furious, and President Obama told CNN Espanol in a recorded interview that he had no involvement and only found out about the scandal “on the news.” However, today’s assertion of executive privilege puts both claims in question."
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Sorry to muddle the waters with a completely unrelated case:
http://www.theatlantic.com/national/archive/2012/06/the-supreme-court-splinters-apart-over-the-confrontation-clause/258634/#.T-IsheJt5W0.facebook
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Please note that I am not asserting that the president is involved or not. My "no" was answering the question about executive privilege based solely on presidential involvement (please see the link I provided above for more details).
For more on the contempt charge and exec privilege claim:
http://thehill.com/homenews/administration/233627-issa-says-hes-disappointed-plans-to-move-forward-with-contempt-vote
http://www.rollcall.com/news/barack_obama_asserts_executive_privilege_on_fast_and_furious_documents-215528-1.html?ET=rollcall:e13421:80133681a:&st=email&pos=epm
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Thanks for those links BD.
http://gowdy.house.gov/news/documentsingle.aspx?DocumentID=300249
Here's this from one particular Congressman staking out his ground.
Rep. Gowdy's Statement on President Obama's invoking Executive Privilege regarding Fast and Furious
By Rep. Trey Gowdy
Washington -
Today, Rep. Trey Gowdy (SC-4), released the following statement inregards to President Obama’s Executive Privilege on the documents related to Fast and Furious, and the House Committee on Oversight and Government Reform’s investigation.
“The assertion of executive privilege is legally compromised and calculated solely to delay Congress from exercising its constitutional responsibility to provide oversight.”
“The President claims he knew nothing about Fast and Furious prior to Agent Brian Terry's murder and no one at the Department of Justice has suggested the President was part of the drafting of a demonstrably false letter dated February 4, 2011, to a committee of congress.”
“So, my question to the President is: What are you asserting privilege over? Did you know about Fast and Furious before Brian Terry's murder? Did you approve the operation? Did you participate in the drafting of a false letter to congress? Unless the answer to all of those questions is yes, there is no matter overwhich the President can assert privilege. It is merely the latest ploy to delay the investigation.”
Rep. Trey Gowdy (SC-4) is a former federal and state prosecutor who prosecuted scores of firearms cases while working for the United States Attorney's Office.
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More seriously, here's this: (hat tip to a lurking GM for both of these)
Executive Privilege and how the House should move forward legally
by Mark Levin on Wednesday, June 20, 2012 at 2:41pm •
As the Supreme Court recognized in US v. Nixon, the Executive Branch has a legitimate interest in confidentiality of communications among high officials so that the President can have the benefit of candid advice. However, as President Washington himself recognized, that privilege does not protect the President or his underlings from embarrassment or public exposure for questionable actions.
As the Supreme Court has also recognized repeatedly, the Congress, in the exercise of its constitutional powers, has the essential power to investigate the actions of the Executive Branch.
In this case, the exercise of Executive Privilege seems, in its timing and over-inclusiveness, to be nothing less than a political delaying tactic to prevent exposure of wrongdoing and incompetence that resulted in the murder of a American law enforcement agent and injury and death of many others. Further, a wholesale claim of privilege is facially improper: the President should be held to the standard that anyone claiming privilege is held to: identify each document in a log so that privilege can be disputed. (U.S. v. Nixon, 1974)
Because among the categories of documents sought are all those relating to the recantation by Holder of testimony before Congress, the demand goes to the core of the Congressional power under Article I. In this respect, this is not a general or oversight inquiry but a determination of why the Attorney General of the United States testified falsely before Congress about his own knowledge of a federal program. Presumptively, none of this category of documents is protected by Executive Privilege for wrongdoing per se is not protected by the privilege.
The right way to proceed is to hold Holder in contempt by resolution of the House and seek authorization from the House for the Committee, by its Chairman, to proceed by civil action to compel production of the documents. (Holder will not enforce a holding of contempt against himself -- and by the way, he should have authorized, say, the assistant attorney general for legal counsel, to handle the contempt matter once the House voted as at that point he is representing his own interests and not those of the nation generally). Chairman Issa should file suit in federal court in DC and seek expedited action. There is no need for Senate action. The use of this procedure has been acknowledged by the Congressional Research Service in a 2007 study. Further, a privilege log should be sought by Issa and ordered produced immediately by the court, in camera inspection done promptly by the judge, and a final order entered compelling production of all documents for which no legitimate reason justifies Executive Privilege.
Yes, some documents may be covered by EP, but the blanket attachment of that label flouts the law and the Constitution, and harms the legitimate assertion of EP by Presidents of either party in the future. The Constitution is far too important to be subject to the caprice of this President and an AG who, on its face, wants to be free from scrutiny about why he testified falsely before a Committee of Congress.
Executive Privilege is a very important implied executive power, used in various forms since the presidency of George Washington. Therefore, it's misuse and abuse, to cover-up wrongdoing, conceal embarrassing information, or advance a political agenda, diminishes the ability of future presidents to assert it legitimately.
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http://pjmedia.com/andrewmccarthy/2012/06/20/the-plot-thickens-obama-asserts-executive-privilege-to-block-fast-furious-disclosures/?singlepage=true
The Plot Thickens: Obama Asserts Executive Privilege to Block Fast & Furious Disclosures
June 20, 2012 - 9:26 am - by Andrew C. McCarthy
The Obama administration has a narrative about Fast & Furious. The Wall Street Journal obligingly reported it this morning, as follows:
The gun-walking tactics in Fast and Furious turned up in earlier ATF cases, during the Bush administration. When they were uncovered by Justice officials in the Obama administration, a top Justice official raised concerns with ATF officials, according to Justice documents released last year. But the officials never alerted Mr. Holder, didn’t do enough to prevent similar cases and weren’t aware the operation was under way until months later, according to Justice documents.
Mr. Holder, in a letter last week to Mr. Issa, said, “The record in this matter reflects that until allegations about the inappropriate tactics used in Fast and Furious were made public, department leadership was unaware of those tactics.”
There are a variety of reasons to be skeptical of this version of events. To name only two:
(a) there were wiretaps in the F&F investigation, and when the government seeks a wiretap, federal law requires it to explain what investigative tactics have been used in the case, an explanation that is vetted by top DOJ officials because the government cannot apply for the wiretap without the approval of the attorney general or his designee (a high Justice Department official) — it seems highly unlikely, assuming DOJ complied with wiretap law, that top Justice Department officials did not know about the gun-walking tactic until late in the game; and
(b) the gun-walking tactic — which in F&F involved providing well over a thousand firearms to violent criminals — was shocking, and it is hard to believe that if “Justice officials” knew enough to raise their concerns with the ATF brass, they failed to alert Attorney General Holder or follow through to make sure ATF and the U.S. attorney’s office — both arms of the Justice Department — stopped the tactic.
But let’s put all that aside for argument’s sake and assume that the Obama administration’s narrative is true. If this is what really happened, Attorney General Holder does not deserve our condemnation; he deserves a commendation. And if this is really what happened, what are the chances that the administration that can’t shovel national defense secrets out fast enough to the New York Times would withhold a paper trail that covers Mr. Holder in glory?
The issue in F&F is not the withholding of DOJ documents. The issue is the reckless provision of an arsenal fit for an army to violent cartels, quite predictably resulting in the murders of possibly hundreds of people including at least one United States law enforcement officer. That is the reason Congress did not go away, as it usually does, when the Justice Department ignores or slow-walks demands for information. What happened here is too grave to take “no” for an answer.
If this were a Republican administration, the press would long ago have made the Department’s obstruction of Congress a five-alarm scandal. Bush administration Attorney General Alberto Gonzales was forced to resign over a matter that was less than frivolous compared to F&F. The press is in the tank for Obama, so Holder & Co. have relatively smooth sailing — even when it became clear that they provided blatantly false information to Congress about the use of the gun-walking tactic. Chairman Darrell Issa (R., CA) has been heroic in pursuing this investigation at a time when Republicans have been generally feckless in challenging Obama’s abuses of power.
But while Holder has been in the eye of what little storm there was, it has always been the case that F&F is Obama’s scandal. Holder has never done anything other than implement Obama’s policies and manage relations with Congress as Obama wished them to be conducted. Obviously, the hope was that if DOJ was intransigent enough, the House would get frustrated and bored and move on to other things. That hasn’t happened, thanks to Rep. Issa and his colleagues. But the focus on Holder and withheld documents should not obscure that F&F is really about Obama and the murders of a federal agent and hundreds of others — very likely, to promote the Left’s political argument that American Second Amendment rights are the cause of international violence.
Because Issa has been dogged, we have now gotten down to brass tacks. The prospect of the attorney general’s being held in contempt finally prompted the president — the only official in the government empowered to assert executive privilege — to claim that the documents sought are being withheld at his (Obama’s) direction, based on his constitutional authority.
Executive privilege is a vestige of Richard Nixon’s desperate effort to conceal criminality in the Watergate scandal. The last thing Obama wanted to do, with the November election looming, was resort to the Nixon strategy (which, we should recall, failed in the end). And, again, if the Obama administration’s story was true, they would want to release the documents that support it.
They really don’t want you to see what is in those documents.
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In the interest of fairness I think it should be pointed out that Bush claimed Executive Privilege SIX times.
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And Clinton did it 14 times. It shouldn't be the number of times executive privilege is used (the fact that EP exists and should exist is not controversial), it should be the scope of the invocation.
An article about the political use/fallout of FF and the executive privilege claim: http://thehill.com/homenews/campaign/233995-obama-fits-fight-to-his-november-election-narrative
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One key point of confusion is whether Republicans are now saying that invoking “executive privilege” implies that the White House was involved in the disputed communications with the DOJ. In other words, did the White House get involved with the more recent disputed documents? In a statement, Issa said “executive privilege only applies to materials that directly pertain to communications with the president and his senior advisers.”
Democrats and the Justice Department disagree. They argue that it is “executive branch” privilege, rather than a presidential privilege. Rep. John Tierney (D-Mass.) told The Daily Beast that Republicans have previously agreed the privilege can apply to departments in the executive branch. He cited Michael Mukasey, an attorney general under George W. Bush, who he said had argued that “a president can invoke executive privilege for those in his administration that need to be protected from public disclosure so he can have a full and vigorous debate.”
"With Democrats still in control of the Senate and supporting Obama, there is little more that House Republicans can do beyond next week’s vote to compel Holder or the president to do anything."
http://www.thedailybeast.com/articles/2012/06/21/democrats-gop-draw-lines-in-eric-holder-fast-and-furious-contempt-battle.html
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Agreed that EP exists and should exist and that the question presented is based upon the particulars of the case in question. So BD, what is your take on this so far?
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Holder's Many Privileges
Obama invokes the arguments of the Bush Justice Department..
The Attorney General is supposed to protect a President from legal and political snares, a part of his job description that Eric Holder seems to have missed. He's now succeeded in drawing President Obama into a brawl with Congress by invoking "executive privilege" to withhold documents.
For weeks, Mr. Holder has resisted Congress's subpoena for documents investigating the botched drug-war operation Fast and Furious. But he expressly stopped short of claiming executive privilege, a power invoked only 24 times since the Reagan era that typically protects communications directly with the President or his senior aides. Mr. Holder instead claimed "deliberative privilege" within a Cabinet Department, a vague and much weaker claim that neither courts nor Congress have honored.
But suddenly on Wednesday, facing the threat of a criminal contempt vote in the House, Mr. Holder asked the President to invoke executive privilege after all. This is no small claim, and it raises a few new questions. Such as:
Did White House officials know and approve Fast and Furious before it went awry, and did they advise the Justice Department on how to respond to Congress's investigation into the operation's failure?
How can the President invoke a privilege to protect documents he and the White House are supposed to have had nothing to do with?
And what is so damaging or embarrassing in those documents that Mr. Obama is now willing to invest his own political capital to protect it from disclosure—at least until after the election?
Keep in mind that this uproar began over an obscure 2009 operation of the Bureau of Alcohol, Tobacco and Firearms (ATF) to let some 2,000 illegal weapons get into the hands of a Mexican drug cartel in an effort to track the guns to other traffickers and kingpins. In December 2010, Border Patrol Agent Brian Terry was killed during a gunfight, and two of the operation's illegal weapons were linked to the crime.
Congress decided to investigate, and in a February 4, 2011 letter to Congress, the Justice Department flatly denied that the operation existed. Ten months later it admitted that wasn't true and retracted the letter.
Since that modified, limited mea culpa, Mr. Holder has acknowledged that the program was fatally flawed and said he was the one who ended it. But rather than cooperate fully with the investigation, Mr. Holder's department began an epic stonewall to block Congressional attempts to find out what really transpired.
Enlarge Image
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Attorney General Eric Holder talks to reporters after meeting with House Oversight and Government Reform Committee Chairman Darrell Issa in Washington, D.C., on Tuesday.
.Among the facts worth pursuing are wiretap applications leaked to the House Oversight Committee that indicate senior Justice Department officials knew about the program when it was originally denied. In March 2011, former Acting ATF Director Kenneth Melson sent an email suggesting the Department should recant its denial based on the wiretap documents. Also curious is that Justice has given at least 80,000 documents to the Department's Inspector General for the internal investigation but only some 7,600 to Congress.
These columns have long defended the ability of executive branch officials to advise Presidents freely, and to protect that advice from Congressional trawling operations. But Congress also has every right to investigate a policy failure, especially one that cost an American law enforcement agent his life.
In this case, Congress has been seeking internal emails and documents not about advice to the President but between Justice officials to see if they misled Congress. Mr. Holder has been around the Beltway long enough to know that these kinds of communications aren't typically protected by executive privilege, and that Congress eventually gets its way.
One of the ironies of Mr. Holder's claim is that, in his letter to Mr. Obama requesting executive privilege, he cites Bush Administration arguments during the battle over the dismissal of several U.S. Attorneys. Readers may recall how Democrats, including a Senator named Obama, denounced the "tendency" of the Bush Administration "to hide behind executive privilege."
Yet compared to Mr. Holder, Bush Attorney General Alberto Gonzales was a model of candor and his department complied with nearly every document request. The Bush White House also turned over piles of documents, and Deputy Chief of Staff Karl Rove and White House counsel Harriet Miers eventually both gave interviews to House investigators. You can find them on Democratic Congressman John Conyers's website. The Reagan Justice Department also bent to Congress when Democrats sought documents while probing the EPA in the 1980s.
These document fights are invariably settled politically, and we hope this one is too. A committee voted 23-17 Wednesday to hold Mr. Holder in contempt, and if the entire House follows, the matter will be referred to a U.S. Attorney who works for the AG, who will no doubt tell him not to prosecute. Meanwhile, the American people can reach their own conclusions about Mr. Holder's credibility. His serial privilege claims make him—and now the President who is coming to his rescue—very hard to believe.
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White House Press Secretary Jay Carney said today there was no cover-up by the White House in the “Fast and Furious” gun-walking investigation, saying President Barack Obama’s decision to invoke executive privilege to block Congressional access to documents was “entirely about principle.”
http://www.rollcall.com/news/no_fast_and_furious_cover_up_jay_carney_asserts-215580-1.html?ET=rollcall:e13440:80133681a:&st=email&pos=epm
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There is something charmingly futile about House Republicans’ move to hold Attorney General Eric Holder in contempt of Congress.
Even if the full House follows the Committee on Oversight and Government Reform’s vote Wednesday to hold him in contempt, the decision about whether to prosecute him will be left to a Justice Department run by . . . Eric Holder.
http://www.washingtonpost.com/opinions/in-congress-blowing-gunsmoke/2012/06/20/gJQA4eULrV_story.html (this is an especially interesting article with details I hadn't heard)
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Two good articles on executive privilege: history, scope, sources, etc. The first is a short newspaper article, the second FAR longer and more detailed.
http://www.boston.com/news/nation/washington/articles/2012/06/21/what_is_executive_privilege/
http://www.fas.org/sgp/crs/secrecy/RL30319.pdf
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Missing in the charming futile analysis is that the shoe is more often on the other foot.
if Executive Privilege is absolute, Cpngressional Oversight is non existent. EP has a specificpurpose. This isn't it.
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Putting aside the Holder/OFF issue, generally I would proffer that IMHO there most certainly is such a thing as Congressional meddling that violates the Separation of Powers and even short of that there is the very real and very practical matter that the power to make fishing expedition demands upon a particular agency/bureaucracy can be a very real burden on its manpower and focus.
"EP has a specific purpose. This isn't it."
My sentiments exactly. Each side is going to need to sharpen its articulation. I think Issa has the better of it by far on the merits-- lets see how well he makes the case to full House and to the American people-- the latter including of course the bad faith and/or mental illiteracy of the Pravdas.
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I spend a fair amount of time discussing the rise of presidential power, and lamenting it (see several posts on the Public Forum). I do the same here. I agree with Doug (and Crafty) that this use of EP is, again, expanding the powers of the president... largely just to expand them. I hope that Obama reconsiders. And I hope that Congress will assert itself here, and elsewhere.
Worth noting it that, arguably, the SCOTUS has been less deferential to presidents in recent years in areas of EP and the like. It would be interesting to see if the case goes to Court.
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Why Dodd-Frank Is Unconstitutional
The financial regulations signed into law in 2010 do not honor checks and balances. They eliminate them..
By C. BOYDEN GRAY
AND JIM R. PURCELL
When President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act into law nearly two years ago, he stated that "our financial system only works—our market is only free—when there are clear rules and basic safeguards that prevent abuse, that check excess, that ensure that it is more profitable to play by the rules than to game the system."
We completely agree. Which is why we filed a lawsuit on Thursday asking a federal court to declare that two parts of Dodd-Frank violate a bedrock rule of law: the Constitution's separation of powers, which the Founders designed specifically to limit the growth of government.
Dodd-Frank created both the Financial Stability Oversight Council and the Consumer Financial Protection Bureau, giving each agency effectively unlimited power. The FSOC can declare a financial firm "systemically important"—that is, too big to fail—based on "any" "risk-related factors" that it "deems appropriate." And the CFPB can punish even responsible lenders who in good faith offer loans that the bureau later deems to be "unfair," "deceptive" or "abusive."
Those open-ended standards place no limits on the regulators' power. Indeed, in January newly appointed CFPB Director Richard Cordray told Congress that he believes it is "probably not useful" to try to define in advance what an "abusive" lending practice is. Instead, he intends to use his enforcement powers to retroactively punish lenders based on his view of the "facts and circumstances" of each case.
Ordinarily, when regulators wield broad power, their discretion is still limited by checks and balances. The Constitution empowers the president and Congress, as well as our courts, to prevent regulators from running amok with excessive, arbitrary or even partisan regulations.
But Dodd-Frank does not honor checks and balances. It eliminates them. The CFPB is not subject to Congress's "power of the purse," which James Madison knew to be Congress's "most complete and effectual weapon." Instead, Dodd-Frank lets the CFPB claim more than $400 million from the Federal Reserve each year and prohibits Congress from even reviewing that budget. The president's control over the CFPB is limited because by law he can remove the agency's director only under strictly limited circumstances. Finally, Dodd-Frank limits the courts' review of CFPB's legal interpretations.
Moreover, Mr. Obama nullified one of Congress's few remaining limits on the CFPB—namely, Senate review and confirmation of its nominated director—by deeming the Senate to be in "recess" during a short break in early January and unconstitutionally appointing Mr. Cordray director without the Senate's advice and consent.
The FSOC is similarly free from checks and balances. For example, when the Council—a working group of the Treasury secretary, Federal Reserve chairman, comptroller of the currency, and other unelected regulators—anoints a financial institution as too big to fail, the courts are prohibited from even reviewing whether the regulators properly interpreted the applicable laws.
It is one thing for Congress to eliminate just one check or balance, but it is quite another to eliminate virtually all of them at once. As the Supreme Court recognized two years ago in Free Enterprise Fund v. PCAOB, when you eliminate more and more checks and balances, that "novel structure does not merely add to" the agency's "independence, but transforms it"—that is, transforms it into something that the Constitution does not tolerate.
The Consumer Financial Protection Bureau and the Financial Stability Oversight Council's constitutional violations are not merely the stuff of law-school debates. They pose a direct threat to economic recovery. Community banks cannot collaborate with borrowers to create workable loans so long as there's the risk that the CFPB might later decide that those loans were "unfair." And community banks won't have much money to lend anyway if the FSOC enjoys free rein to pick which financial institutions are too big to fail, thereby encouraging investors to direct their capital to big, politically connected players at the expense of smaller financial firms.
We speak from experience. One of us is chairman and CEO of a small community bank in Texas that has been investing in its community for over a century. The other is a former White House counsel who has witnessed firsthand how commitment to the rule of law promotes economic growth.
Of course, the government will respond that we are "against consumers" or that we oppose "financial stability." And of course that's false. Along with the other plaintiffs in our case, the 60 Plus Association and the Competitive Enterprise Institute, we are taking a stand because we know that the surest protection for consumers and financial stability is the rule of law, beginning with the Constitution.
Mr. Gray, former White House counsel to President George H.W. Bush, is counsel for the plaintiffs in State National Bank of Big Spring v. Geithner. Mr. Purcell is chairman and CEO of the State National Bank of Big Spring, a plaintiff in the case.
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Two great clips from John Stewart here on this-- surprisingly hard hitting
http://hotair.com/archives/2012/06/22/bad-news-jon-stewart-not-exactly-buying-the-executive-privilege-claim/
Also this paragraph from the page in question caught my attention
"Actually, there is a key difference … but it doesn’t help Democrats. The issue in 2007 involved the use of non-delegable executive authority specifically granted under Article II to make political appointments — in the event, those of US Attorneys, who like all other political appointees serve at will at the pleasure of the President. As courts have ruled in Nixon and Espy, executive privilege applies in the exercise of non-delegable Article II powers as part of the separation of powers in the government. Operation Fast and Furious was conducted by a federal agency under powers delegated to the DoJ that are shared between Congress and the President. Furthermore, the subpoenas in this case relate to official misconduct and lawbreaking — not just the gunrunning but also false testimony before Congress. Presidents cannot claim executive privilege to shield documents in those circumstances, as the Espy case explicitly states."
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3 big things: Obamacare strike down, AZ immigration law upheld?, and .will Breyer and or Ginsburg step down this week before we head into 16 years of the Romney Rubio surge to limited govt greatness.
ACA: Maybe the ruling will be out before I finish typing into my handheld. I was hoping we could all get our armchair opinions posted first. Procrastination crept in because it is hard to find a constitutional issue. The power isn't authorized. A wise Latina can see that. ?
Proponents pretend there was no other way, but there are plenty, such as tax and spend more. They know how to do that. Or fee for service, works for every other industry.
Proponents compare to state car insurance laws, but that is state and you can opt out.
Proponents say it is no different than ths Mass mandate, but that would be true only if 49 states copied them, not a new federal mandate.
Proponents say it is no different than a federally mandated social security retirement plan, but that is very carefully framed in federal law as nothing more than a current account tax and spend law.
Obamacare is an expansion of federal powers that requires a new amendment to implement. 4 justices know that. 5 will vote to strike down. J. Sotomayer faces the toughest choice of her life. Is she obligated to uphold that old document of limits on government or is she more beholden to symbolically stand with the people who got her there - to uphold the limits on government.
The suspense for me will be to read what utter nonsense on which the dissenters base their dissent. I plan to read that section first. What is their view on the limits of government, if not this, then what?
Other views?
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Update, AZ law partly upheld, partly struck down, healthcare ruling Thurs, resignations Friday. (?)
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Interesting timing for resignation(s)! I would regard it as quite unlikely that an Obama nominee could get affirmed before January!
I look forward to reading good analysis of the AZ case.
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Interesting timing for resignation(s)! I would regard it as quite unlikely that an Obama nominee could get affirmed before January!
I look forward to reading good analysis of the AZ case.
http://s3.documentcloud.org/documents/372493/scalia-statement.pdf
I can't open this right now but it should be the Scalia dissent.
Both Gov Brewer and Pres Obama declared victory. Obama ICE not taking AZ cases?
I reserve what I think of this court and these decisions until Thurs.
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Dem Pres, Dem Senate today, both trailing in real polls. Breyer 73 and male, Ginsberg 79. Are ya feelin lucky?
Resigning Friday would look cynically political and pessimistic.
I don't rule it out.
R's could stop only on cloture. A tough precedent to set just before switching to the majority.
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I forget :oops: How many votes in the Senate are required to confirm a nomination to SCOTUS?
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"Imagine: A Republican president submits to Congress a bill abolishing the capital gains tax. Congress rejects it. The president then orders the IRS to stop collecting capital gains taxes, and declares that anyone refusing to pay them will suffer no fine, no penalty, no sanction whatsoever. (Analogy first suggested by law professor John Yoo.) It would be a scandal, a constitutional crisis, a cause for impeachment. Why? Because unlike, for example, war powers, this is not an area of perpetual executive-legislative territorial contention. Nor is cap-gains, like the judicial status of unlawful enemy combatants, an area where the law is silent or ambiguous. Capital gains is straightforward tax law. Just as Obama's bombshell amnesty-by-fiat is a subversion of straightforward immigration law. It is shameful that Congressional Democrats should be applauding such a brazen end-run. Of course it's smart politics. It divides Republicans, rallies the Hispanic vote and pre-empts Marco Rubio's attempt to hammer out an acceptable legislative compromise. Very clever. But, by Obama's own admission, it is naked lawlessness." --columnist Charles Krauthammer
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"There was no Department of Justice for nearly a century after the Constitution was adopted. And while the post of attorney general was established by the first Congress, it was conceived as a part-time position, with no staff, limited to providing legal advice to the president and representing the federal government in civil litigation. There was no thought that there would be a criminal law-enforcement mission for the central government, much less that the feds would regulate firearms (and do so by sending them to murderous foreign drug cartels). The Framers were quite clear that law enforcement would remain the exclusive province of the states. I rehearse all this history because I've always thought it very presumptuous of the Justice Department to claim a power to conceal information from Congress when it is completely dependent on Congress for its existence and its mission. Congress could repeal the Justice Department tomorrow. Congress writes the statutes that the Justice Department enforces, is the master of the Department's jurisdiction, and pays for everything the Department does -- without which budget the Justice Department could do nothing." --columnist Andrew C. McCarthy
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I forget :oops: How many votes in the Senate are required to confirm a nomination to SCOTUS?
Simple majority.
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Thank you.
Please refresh my memory on cluture too.
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Thank you.
Please refresh my memory on cluture too.
I should also add that the Judiciary committee hears the testimony first, and like in a piece of legislation, will vote to move the nomination vote to the Senate floor. The Judiciary committee never has voted to not move it to the floor (if that makes sense; though the C. Thomas nomination almost failed in committee), but in theory it IS possible.
Cloture requires 60 votes.
I think Doug is right when he says "R's could stop only on cloture. A tough precedent to set just before switching to the majority." when discussing a SC confirmation battle. The GOP might loathe a potential nominee, but it would be awefully tough to live this down, and to live with it when they take the Senate. OTOH, I think he is participating in some wishful thinking when he states that there will be "16 years of the Romney Rubio surge to limited govt greatness."
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So, if there is a resignation, BO will get to appoint another Justice? :-o :-o :-o
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So, if there is a resignation, BO will get to appoint another Justice? :-o :-o :-o
Likely. I also disagree with Doug that there will be retirements. I thought that it would happen last year, but they all seem so ensconsced on the Court now I would be somewhat surprised to see a retirement. I think the lesson of Thurgood Marshall's retirement would also ring too true for the libs to retire.
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And , , , what was that lesson?
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Oh, sorry. He retired at the height of GHW Bush's popularity, when it seemed that he would be reelected with no problem. Then, well, he didn't. But, this allowed C. Thomas to sit on the Court.
So, no matter how bad it looks for Obama at the moment, there is at least a 50/50 chance of reelection. I doubt the any of the Supremes would retire this far out from an entirely winnable election.
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But if he loses, a Justice could retire and Baraq could jam his nominee through the lame duck session?
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Did you see the way recess appointments have been used? USSC justices can be appointed in such a manner. A "real" appointment would likely take more time than 2 months, but if it looked dire in September, say, there might be a "surprise" retirement.
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During a lame duck sessiom I think not. There would no political ptessure to close debate and allow a vote. Right now is the timing. If.there is a timely resignation and a timely and qualified nominee, then there is pressure on the minority to allow the Senate to perform it's constitutonal function before the fall term of the Court.
The reasons for a retirement would need to be personal and 16 years of limited government greatness is beyond wishful, but there actually could be a long stretch coming where a far left replacement would not be in the cards.
Strangely, I hope both those justices stay on.
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A USSC Justice could be a recess appointment?!?!?!? :-o :-o :-o
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A USSC Justice could be a recess appointment?!?!?!? :-o :-o :-o
Presidents since George Washington have made recess appointments. Washington appointed South Carolina judge John Rutledge as Chief Justice of the United States during a congressional recess in 1795. Because of Rutledge's political views and occasional mental illness, however, the Senate rejected his nomination, and Rutledge subsequently attempted suicide and then resigned.
New Jersey judge William J. Brennan was appointed to the Supreme Court by President Dwight D. Eisenhower in 1956 through a recess appointment. This was done in part with an eye on the presidential campaign that year; Eisenhower was running for reelection, and his advisors thought it would be politically advantageous to place a northeastern Catholic on the court. Brennan was promptly confirmed when the Senate came back into session. President Eisenhower, in a recess appointment, designated Charles W. Yost as United States ambassador to Syria.[6] Eisenhower made two other recess appointments, Chief Justice Earl Warren and Potter Stewart.
http://en.wikipedia.org/wiki/Recess_appointment
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So, just to be extra clear, recess appointments can be undone by the next session?
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Yes. But, how that would play out is anyone's guess. Politics are a bitch sometimes.
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We live in interesting times , , ,
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http://features.blogs.fortune.cnn.com/2012/06/27/fast-and-furious-truth/?hpt=hp_t2
In the annals of impossible assignments, Dave Voth's ranked high. In 2009 the federal Bureau of Alcohol, Tobacco, Firearms and Explosives promoted Voth to lead Phoenix Group VII, one of seven new ATF groups along the Southwest border tasked with stopping guns from being trafficked into Mexico's vicious drug war.
Some call it the "parade of ants"; others the "river of iron." The Mexican government has estimated that 2,000 weapons are smuggled daily from the U.S. into Mexico. The ATF is hobbled in its effort to stop this flow. No federal statute outlaws firearms trafficking, so agents must build cases using a patchwork of often toothless laws. For six years, due to Beltway politics, the bureau has gone without permanent leadership, neutered in its fight for funding and authority. The National Rifle Association has so successfully opposed a comprehensive electronic database of gun sales that the ATF's congressional appropriation explicitly prohibits establishing one.
http://nationaljournal.com/congress-legacy/first-democratic-lawmaker-says-holder-should-be-held-in-contempt-20120627
The first Democratic member of Congress has said that he will vote to hold Attorney General Eric Holder in contempt for withholding documents related to the “Fast and Furious” investigation that has plagued the Justice Department, the Salt Lake Tribune reports.
Rep. Jim Matheson, D-Utah, joined House Republicans on Tuesday with his announcement. Most Democratic members are expected to support Holder.
http://thecaucus.blogs.nytimes.com/2012/06/26/hoyer-challenges-issa-to-show-e-mails/?smid=fb-share
With the House just days away from a vote on holding Attorney General Eric H. Holder Jr. in contempt, Representative Darrell Issa, Republican of California, appeared on national television on Sunday to say he had e-mails showing that the architects of a federal gun-smuggling investigation intended to use the operation to build a case for reinstating the lapsed ban on assault-weapons sales.
“We have e-mail from people involved in this that are talking about using what they’re finding here to support the — basically assault weapons ban or greater reporting,” Mr. Issa, the chairman of the House Oversight and Government Reform Committee, said on ABC’s “This Week.”
On Tuesday, Representative Steny H. Hoyer, Democrat of Maryland and the House minority whip, challenged Mr. Issa to prove it.
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BD:
We're looking here at a somewhat tricky question of thread coherency. Lets use this thread for the Executive Privilege claim, and the rest of it goes in the Gun Rights thread. Yes?
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BD:
We're looking here at a somewhat tricky question of thread coherency. Lets use this thread for the Executive Privilege claim, and the rest of it goes in the Gun Rights thread. Yes?
Yes, sir. Sorry. While I attempt thread coherency, sometimes the issues are very complex. I'll delete and shift.
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Woof BD:
Understood, no worries. What with OFF being such a large matter in its own right, I worried about it muddling up the Constitutional issues orientation of this thread so my thought is to bifurcate, with the EP issues here and the rest of it there.
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"Born in other countries, yet believing you could be happy in this, our laws acknowledge, as they should do, your right to join us in society, conforming, as I doubt not you will do, to our established rules. That these rules shall be as equal as prudential considerations will admit, will certainly be the aim of our legislatures, general and particular." --Thomas Jefferson
Editorial Exegesis
"Arizona and other states suffering from out-of-control illegal immigration won an important if partial victory in the Supreme Court [Monday]. In a rebuke of the Obama administration, all eight justices (Elena Kagan recused herself) upheld Arizona's requirement that police officers determine the immigration status of anyone they stop, detain, or arrest if a 'reasonable suspicion exists that the person is an alien unlawfully present in the United States.' ... The Court threw out three other provisions of SB 1070, including one that made it a misdemeanor for an unauthorized alien to seek work in Arizona. But taken in perspective, these aren't critical to the effectiveness of Arizona's law. ... But as noted, this is only a partial victory. For example, in upholding the core provision of the law, the justices read it narrowly and left the door open to challenges to the way it is enforced. Also, Justices Scalia and Thomas got it right when they argued in their dissents that all four provisions of SB 1070 should have been upheld. There is no conflict between federal immigration law and SB 1070. As Scalia notes, Arizona has 'moved to protect its sovereignty -- not in contradiction of federal law, but in complete compliance with it.' Arizona's laws do 'not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively.' As Scalia scathingly concludes, 'If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.' There is a reason we have 50 states instead of one, and the states are not mere administrative subdivisions of the federal government. Each has its own powers and its own interests, a fact that is of particularly acute interest when the federal government is failing to meet one of its fundamental responsibilities, which is precisely what is happening with illegal immigration. ... - n the issue of immigration the states remain dependent upon a federal government that is not to be depended on." --National Review
Share your thoughts on the Court's ruling.
Essential Liberty
"Arizona and other states are fighting the Obama doctrine of cherry-picking which legal requirements the chief executive will enforce. This was the basis of the policy announced June 15 that the government would give large numbers of illegal immigrants de-facto amnesty by suspending deportation proceedings against them and allowing them to work in the country legally. The Department of Homeland Security added fuel to the fire Monday by announcing it was suspending agreements with Arizona police over enforcement of federal immigration laws. These and other actions call into question President Obama's commitment to his sworn executive duty under Article 2, Section 3, Clause 4 of the Constitution to 'take care that the laws be faithfully executed.' ... The framers of the Constitution didn't envision a president preventing states from upholding the law. ... When the federal government abrogates its constitutional duty to protect the states, the states must protect themselves. A statute on the books is useless when the occupant of the White House calculates that it's in his political interest not to enforce it." --The Washington Times
Upright
"The whole federal conflict with Arizona has come about not because Arizona wanted to make its own laws contradicting federal law, but because it wanted to enforce federal laws itself. What does it say about the Obama administration's priorities that it effectively scraps its sworn pledge to uphold the law, usurps the legislative function by ignoring federal laws, punishes those who comply and puts its own re-election first?" --Investor's Business Daily
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There are no limits on government.
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Constitutional? YES!
5-4 decision affirms Obamacare!
Here are the big main points out of the ruling:
Court rules 5-4 to uphold individual mandate
Court says the requirement to have insurance is a tax, and is constitutional.
Court says on Medicaid that the federal government may not take Medicaid from states that refuse to take part. (That is a limited ruling, without striking it down. In the ruling the court offered the government a way to remedy this potential problem.)
Court vindicates, affirms Presidential and congressional power in an important issue like health care.
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Court affirms that you have no Individual rights on healthcare, not a right to choose fee for service, not even a right of privacy.
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Ugh.
I'm having a hard time following the logic. What's the holding here?
Behavior that constitutionally cannot be compelled can be used to define who is taxed?
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Just reading headlines so far, looks like J Roberts agreed the mandate is a tax, even though it specifically could not have passed as a tax and our two faced Pres famously said it was not a tax. They overturn our language, not just our constotution.
We cant require citizenship papers, but they can stop you for healthcare papers.
The first step in lowering healthcare costs in America was to hire more IRS agents. George Orwell could not write a creepier script.
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In case you are interested, here is the decision. Only 193 pages: http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf.
The syllabus, pages 1-6, has the "Cliffs Notes" version of the holding.
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http://www.cnn.com/interactive/2012/06/us/scotus.healthcare/?hpt=hp_t1
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Chris Edwards of Cato predicts (tongue in cheek) that Congress will use its new taxing power to produce the following new laws:
Federal Broccoli Act of 2013: Eat your broccoli, else pay the IRS $1,000.
Federal Recycling Act of 2014: Fill your blue box and put on the curb, else pay the IRS $2,000.
Federal Green Car Act of 2015: Make your next car battery powered, else pay the IRS $3,000.
Federal Domestic Jobs Act of 2016: Don’t exceed 25 percent foreign content on family consumer purchases, else pay the IRS $4,000.
Federal Obesity Act of 2017: Achieve listed BMI on your mandated annual physical, else pay the IRS $5,000.
Federal National Service Act of 2018: Serve two years in the military or the local soup kitchen, else pay the IRS $6,000.
Federal Housing Efficiency Act of 2019: Don’t exceed 1,000 square feet of living space per person in your household, else pay the IRS $7,000.
Federal Population Growth Act of 2020: Don’t exceed two children per couple, else pay the IRS $8,000.
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By JAMES FREEMAN
Barack Obama's constant complaint that the nation's problems are all George W. Bush's fault has grown tiresome. But today even many Republicans may wonder if Mr. Obama has a point. In a presidency marked by an explosion of federal spending culminating in gigantic taxpayer bailouts, Mr. Bush's additions to the Supreme Court represented his one unmitigated triumph. Until today.
Bush-nominated Chief Justice John Roberts earned himself years of favorable coverage in the New York Times by casting the deciding vote in favor of ObamaCare. After the world witnessed the obliteration of the government's case during oral argument, Mr. Roberts handed the White House a victory anyway. In joining the liberal Justices to declare that a federal mandate to buy insurance is permissible because the bill included a monetary penalty and is therefore a tax, Mr. Roberts helped to stretch the definition of Congress's ability to tax, even as he enabled America's next great entitlement. Did the Framers not understand the taxing power as one given to the federal government to enact general levies in order to fund itself? Now "taxing" seems to be approved as a behavioral tool even if it raises no revenue.
Mr. Roberts' apologists are saying that the chief has now set appropriate limits on the Commerce Clause, but in return he has helped expand the definition of Washington's ability to tax. Judging by this case, there's no limit to what the federal government can order us to do as long as they attach a monetary penalty for disobedience. And when the politicians are assembling the votes to issue a new order to us, they can also deny that the penalty is a tax but count on the Court to define it that way after the fact and legitimize it. Does Mr. Roberts really believe that the Framers intended that the feds enjoy a general police power as long as they attach financial punishments to each directive from Washington?
The other silver lining some see is that all the liberal Justices have now agreed that President Obama was wrong when he claimed that the penalty wasn't a tax. That may be worth some debating points for Mitt Romney but in return limited government has suffered a blow.
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Wesbury
Step Two – Going Backward – Election More Important Than Ever
In one of the least likely outcomes in Supreme Court history, Chief Justice Roberts, who was widely considered a conservative voice on the Court, proved to be the swing vote in one of the largest expansions of US government involvement in the economy ever.
Justice Kennedy, who many feared would be the swing vote in favor of the Affordable Care Act (ACA or Obamacare), joined Justices Scalia, Thomas and Alito in dissenting against the new law. In his oral statement today at the Supreme Court, Kennedy said, "In our view, the entire Act before us is invalid in its entirety." In other words, if Roberts would have joined these four, the entire law would probably have been struck down.
Instead, the Chief Justice “threaded the needle,” or “cut the baby in half” and said that while the Commerce Clause would not allow Obamacare, the power of Congress to tax and spend does allow it. In other words, you can be taxed if you don’t buy health insurance. As far as we know, this is the only tax in American history that can be levied for not doing something. In other words, you can live in the back of your brother’s property, grow your own food, build your own house out of lumber you cut down, but still be forced to pay a tax just because you’re a breathing citizen of the United States
The tax is 2.5% of income with a ceiling linked to the average cost of insurance and a floor of $695 no matter what your income. The ACA described this as a “penalty,” which Roberts said was not constitutional under the Commerce Clause. Nonetheless, he argued that “It is not our [the Supreme Court’s] job to protect the people from the consequences of their political choices.”
As a result, he found a way to make Obamacare constitutional, by using the argument that it is a “tax” not a “penalty.” And since Congress has the power to tax, the law will stand. We do not agree with this argument and find it interesting given that Justice Roberts said at his nomination hearing that “Judges are like umpires. Umpires don’t make the rules, they apply them. Nobody ever went to a game to see the umpire.” It certainly seems he found a way to be at the center of the game.
At the same time, the Supreme Court ruled that the new Medicaid mandates on states cannot be enforced by too heavily penalizing the states. In other words, states either opt in or opt out of the expansion in Medicaid envisioned under Obamacare, but cannot be penalized by taking away monies that have nothing to do with the new expansion of Medicaid.
Some conservative commentators are taking solace in the fact that Roberts’ decisions plus the four conservative dissents created a working majority for the most limited interpretation of the Commerce Clause since the 1930s. We agree. However, if the federal government is free to use its taxing authority as expansively as the Court now allows, we don’t see the gain for those who support limited government.
A Step Backward
What all of this means is that the US is facing the prospect of looking much more like Europe. Government’s size and scope is expanding, taxes are rising, and a single-payer healthcare system is not that far off as long as citizens can be “penalized” for not buying health insurance. Long-term growth prospects are now reduced and the Plow Horse Economy has lost some of its forward momentum.
We do not believe the ruling, in and of itself, will cause a recession. However, it will continue to hold down price-earnings ratios and push off a new high in the stock market until after the election in November, an election that has suddenly become “one of the most important in our lifetimes.”
The silver lining in Roberts’ decision is that if the “penalty” is now a “tax,” it can be repealed with just a simple majority in the US Senate via the budget reconciliation process, with no filibuster allowed. If it had been upheld and still considered a “penalty” it would have needed a 60-vote, filibuster proof majority to turn back. As a result, even more so than yesterday, the direction of the US economy hinges on the election in November. Will the US become more like Europe, with lackluster growth, high unemployment, higher tax rates, and eventually major debt problems, or not?
The bottom-line: we stand by our Plow Horse Economy, but one that will grow at a 2.5% to 3% growth rate for the rest of this year – we had been forecasting 3% to 3.5% growth in the second half – and an 8% or above unemployment rate by November – we had been forecasting a rate at 7.8% or slightly below.
Interest rates will remain at record low levels, while stocks will face a more difficult road. Downside policy risks have increased, but stocks remain seriously undervalued already and could get a lift as the economy improves going into the second half. All of this could change quickly following the elections in November, but the US has now taken a step backward. Taxing “inactivity” is a new chapter in American History. Justice Roberts has made his mark.
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http://thehill.com/blogs/floor-action/house/235475-house-votes-holder-in-contempt-of-congress
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"Judging by this case, there's no limit to what the federal government can order us to do as long as they attach a monetary penalty for disobedience"
*And* if the Democrat party bribes just enough voters with that tax revenue to maintain power - the sky is the limit.
Could the framers have imagined this?
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http://www.realclearpolitics.com/video/2012/06/28/mark_levin_on_obamacare_decision_absolutely_lawless.html
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?
I used to like to read George's stuff but this is another example of how he seems to have learned to walk ass first:
http://www.realclearpolitics.com/video/2012/06/28/mark_levin_on_obamacare_decision_absolutely_lawless.html
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That's Levin's URL, not Will's.
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http://www.washingtonpost.com/opinions/george-will-supreme-court-gives-conservatives-a-consolation-prize/2012/06/28/gJQAWyhY9V_print.html
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The Roberts Rules
The Chief Justice rewrites ObamaCare in order to save it.
Thursday was destined to be an historic day for American liberty, and it was, though the new precedent is grim. The remarkable decision upholding the Affordable Care Act is shot through with confusion—the mandate that's really a tax, except when it isn't, and the government whose powers are limited and enumerated, except when they aren't. One thing is clear: This was a one-man show, and that man is John Roberts.
The Chief Justice ruled that ObamaCare's mandate violated the Commerce Clause, joined by the Court's conservative bloc, but he also said that the mandate fell within Congress's power to tax, joined by the Court's liberal bloc. In practice this is a restraint on federal power without real restraint—and, worse, the Chief Justice had to rewrite the statute Congress passed in order to salvage it. The ruling will stand as one of the great what-might-have-beens of American constitutional law.
The novel question raised by ObamaCare's command to buy health insurance or else pay a penalty—the first-ever purchase mandate in U.S. history—was whether Congress could create commerce in order to regulate it. In his 1-4-4 opinion, Chief Justice Roberts writes that construing the Commerce Clause as the Obama Administration argued "would open a new and potentially vast domain to congressional authority. . . . The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress's actions have reflected this understanding."
Note that this rejection of federal compulsion, which the four conservatives supported albeit in dissent, is the same one that the liberal legal establishment spent years deriding as frivolous and beyond debate: Of course Washington has carte blanche to do whatever it wants to do. "That is not the country the Framers of our Constitution envisioned," the Chief Justice writes, before going on to envision it himself by grounding the mandate in Congress's power to "lay and collect Taxes."
According to Chief Justice Roberts, the penalty is merely a tax on not owning health insurance, no different from "buying gasoline or earning income," and it thus complies with the Constitution. This a large loophole. The result is that Washington has unlimited power to impose new purchase mandates and the courts will find them constitutional if Congress calls them taxes, or even if it calls them something else and judges call them taxes.
That was true with ObamaCare. The Pelosi Democrats explicitly structured the mandate as a regulatory "penalty." Congress voted down a direct tax in 2009. Supreme Court precedents going back to the 1920s and 1930s define penalties and taxes as mutually exclusive and critically different.
Every lower court that heard the health-care cases rejected the taxing argument. Administration lawyers devoted only 21 lines of their reply brief to this argument and it barely came up at oral arguments. The Chief Justice in effect revised the statute in order to find it constitutional.
But if the mandate is really a tax, why doesn't the law known as the Anti-Injunction Act apply, which says that taxes can't be challenged legally until they've been collected? The Chief Justice actually rules that the mandate is a tax under the Constitution and a mandate for the purposes of tax law.
In their brutal (and, in a rarity, jointly signed) dissent, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito write that the Chief Justice's logic "is not to interpret the statute but to rewrite it. . . . One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression." They score the Chief Justice for carrying "verbal wizardry too far, deep into the forbidden land of the sophists."
Justice Kennedy dissented angrily from the bench, and it is to his credit that he defended the federalist system of shared powers that is the hallmark of his years on the Court. The particular tragedy is that four Justices would have overturned not merely the purchase mandate but all of ObamaCare as unconstitutional. Only John Roberts prevented it.
One telling note is that the dissent refers repeatedly to "Justice Ginsburg's dissent" and "the dissent" on the mandate, but of course they should be referring to Ruth Bader Ginsburg's concurrence. This wording and other sources suggest that there was originally a 5-4 majority striking down at least part of ObamaCare, but then the Chief Justice changed his mind.
The Justices may never confirm this informed speculation. But if it is true, this is far more damaging to the Court's institutional integrity that the Chief Justice is known to revere than any ruling against ObamaCare. The political class and legal left conducted an extraordinary campaign to define such a decision as partisan and illegitimate. If the Chief Justice capitulated to this pressure, it shows the Court can be intimidated and swayed from its constitutional duties. If this was a play to compete with John Marshall's legacy, the result is closer to William Brennan's.
The Court did rule 7-2 against ObamaCare's expansion of Medicaid, the supposedly voluntary federal-state program that once covered only the poor. The majority included liberal Justices Stephen Breyer and Elena Kagan, who held this expansion to be unconstitutional because the feds commandeered state resources.
The problem is that this also involved rewriting the law. The majority merely created an opt-out that Governors and states could elect to preserve some measure of independent control, instead of telling Congress to start over. Still, this is the first time the Court has found a law enacted under Congress's spending power to be unconstitutionally coercive.
But this and even the five votes limiting Congress under the Commerce Clause pale against the Chief Justice's infinitely elastic and dangerous interpretation of the taxing power. Nancy Pelosi famously said we need to pass ObamaCare to find out what's in it. It turns out we also needed John Roberts to write his appendix.
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second post
Supreme Court Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito dissenting from the majority opinion that upheld most provisions of the Affordable Care Act on Thursday:
The provision challenged under the Constitution is either a penalty or else a tax. Of course in many cases what was a regulatory mandate enforced by a penalty could have been imposed as a tax upon permissible action; or what was imposed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty. But we know of no case, and the Government cites none, in which the imposition was, for constitutional purposes, both. The two are mutually exclusive. Thus, what the Government's caption should have read was "ALTERNATIVELY, THE MINIMUM COVERAGE PROVISION IS NOT A MANDATE-WITH-PENALTY BUT A TAX." It is important to bear this in mind in evaluating the tax argument of the Government and of those who support it: The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.
In answering that question we must, if "fairly possible," construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than unconstitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. "[A]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . . or judicially rewriting it." In this case, there is simply no way, "without doing violence to the fair meaning of the words used," to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.
Our cases establish a clear line between a tax and a penalty: "[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act." In a few cases, this Court has held that a "tax" imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress' taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. When an act "adopt the criteria of wrongdoing" and then imposes a monetary penalty as the "principal consequence on those who transgress its standard," it creates a regulatory penalty, not a tax.
So the question is, quite simply, whether the exaction here is imposed for violation of the law. It unquestionably is. The minimum-coverage provision is found in [the Affordable Care Act's individual-mandate provision], §5000A, entitled "Requirement to maintain minimum essential coverage." (Emphasis added.) It commands that every "applicable individual shall . . . ensure that the individual . . . is covered under minimum essential coverage." (emphasis added). And the immediately following provision states that, "f . . . an applicable individual . . . fails to meet the requirement of subsection (a) . . . there is hereby imposed . . . a penalty." (emphasis added). And several of Congress' legislative "findings" with regard to §5000A confirm that it sets forth a legal requirement and constitutes the assertion of regulatory power, not mere taxing power. . . .
We never have classified as a tax an exaction imposed for violation of the law, and so too, we never have classified as a tax an exaction described in the legislation itself as a penalty. To be sure, we have sometimes treated as a tax a statutory exaction (imposed for something other than a violation of law) which bore an agnostic label that does not entail the significant constitutional consequences of a penalty—such as "license" or "surcharge." But we have never—never—treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a "penalty." Eighteen times in §5000A itself and elsewhere throughout the Act, Congress called the exaction in §5000A(b) a "penalty." . . .
Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off. The Federalist No. 58 "defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue." We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.
Finally, we must observe that rewriting §5000A as a tax in order to sustain its constitutionality would force us to confront a difficult constitutional question: whether this is a direct tax that must be apportioned among the States according to their population. Perhaps it is not (we have no need to address the point); but the meaning of the Direct Tax Clause is famously unclear, and its application here is a question of first impression that deserves more thoughtful consideration than the lick-and-a-promise accorded by the Government and its supporters. The Government's opening brief did not even address the question—perhaps because, until today, no federal court has accepted the implausible argument that §5000A is an exercise of the tax power. And once respondents raised the issue, the Government devoted a mere 21 lines of its reply brief to the issue. At oral argument, the most prolonged statement about the issue was just over 50 words. One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression.
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Apparantly the law can be repealed with only 51 votes in the Senate. Therefore repeal is not simply a pipe dream.
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If Obama is re-elected, repeal will never happen regardless if Republicans take control of the senate.
Even if Obama is not re-elected, it will be interesting to see if the Republicans will be able to overcome a filibuster.
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OBAMACARE, THE COMMERCE CLAUSE, AND SUPREME COURT DECISION
by Mark Levin on Friday, June 29, 2012 at 11:15am
This may seem a little technical, but it is necessary. So follow along with me. A number of politicians and commentators are claiming that the Supreme Court in the Obamacare case "limited" the reach of the commerce clause, i.e., five justices held that individuals cannot be mandated to buy insurance under the commerce clause. Actually, the five justices did not limit anything. They simply did not accept the Obama administration's ridiculous argument that inactivity is commerce. The status quo stands. However, the bigger point is this.
When a court issues an opinion, it is said to be the "Opinion of the Court." The Opinion of the Court is the controlling precedent. Chief Justice Roberts wrote the Opinion of the Court for Parts I (background on the Obamacare law), II (the Anti-Injunction Act is not a bar to the lawsuit proceeding and being decided) and III-C (Obamacare is valid under the tax power).
But respecting Parts III- A, the commerce clause and necessary and proper section, Roberts is writing for himself, not for a majority.
Furthermore, the Dissent is labeled as: “Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Alito, dissenting.” It is Not labeled as “dissenting in the judgment, concurring in part” or some permutation.
You can’t say it was the “opinion of the court” that the mandate violated the commerce clause. You have to cobble together sections where Roberts is writing for himself and the dissent (which isn’t formally joined Robert’s writing), is writing for itself.
Justice Thomas, in his separate dissenting opinion, wrote:
“The joint dissent and THE CHIEF JUSTICE correctly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause.”
Notably, this does not explicitly state that the dissenters joined with the Chief’s opinion respecting the commerce clause (or necessary and proper clause).
If five justices had intended for their view of the commerce clause (and necessary and proper clause) to be controlling as the majority view, they would have said so by joining or concurring in each others' parts. They didn't. So, while we can cobble them together, as a formal legal matter, it is a troubling issue. While the status quo stands re the commerce clause (and necessary and proper clause), there was no formal majority on those issues.
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OBAMACARE, THE COMMERCE CLAUSE, AND SUPREME COURT DECISION
by Mark Levin on Friday, June 29, 2012 at 11:15am
This may seem a little technical, but it is necessary. So follow along with me. A number of politicians and commentators are claiming that the Supreme Court in the Obamacare case "limited" the reach of the commerce clause, i.e., five justices held that individuals cannot be mandated to buy insurance under the commerce clause. Actually, the five justices did not limit anything. They simply did not accept the Obama administration's ridiculous argument that inactivity is commerce. The status quo stands. However, the bigger point is this.
I completely agree. However, it is also the case that by ruling in this fashion, the USSC continued a status quo that itself limited the reach of the Commerce Clause, at least as compared to prior precedent coming in the New Deal, Warren and Burger Courts. The Rehnquist Court moved to retract the limits of the CC. See http://articles.latimes.com/1995-04-27/news/mn-59611_1_supreme-court for an example.
When a court issues an opinion, it is said to be the "Opinion of the Court." The Opinion of the Court is the controlling precedent. Chief Justice Roberts wrote the Opinion of the Court for Parts I (background on the Obamacare law), II (the Anti-Injunction Act is not a bar to the lawsuit proceeding and being decided) and III-C (Obamacare is valid under the tax power).
Mostly true. The Opinion of the Court is as controlling as the author and subsequent users want it to be. Sometimes, the Court takes great pains to limit the precedential value of the opinion. See Bush v. Gore. And, there is the idea that only the central holdings are precedent, not the extra portions of the opinion, which are called dicta. What consitutes dicta is often decided by the future court, not the author of a particular opinion.
But respecting Parts III- A, the commerce clause and necessary and proper section, Roberts is writing for himself, not for a majority.
Yep.
Furthermore, the Dissent is labeled as: “Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Alito, dissenting.” It is Not labeled as “dissenting in the judgment, concurring in part” or some permutation.
Yep.
You can’t say it was the “opinion of the court” that the mandate violated the commerce clause. You have to cobble together sections where Roberts is writing for himself and the dissent (which isn’t formally joined Robert’s writing), is writing for itself.
Justice Thomas, in his separate dissenting opinion, wrote:
“The joint dissent and THE CHIEF JUSTICE correctly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause.”
Notably, this does not explicitly state that the dissenters joined with the Chief’s opinion respecting the commerce clause (or necessary and proper clause).
If five justices had intended for their view of the commerce clause (and necessary and proper clause) to be controlling as the majority view, they would have said so by joining or concurring in each others' parts. They didn't. So, while we can cobble them together, as a formal legal matter, it is a troubling issue. While the status quo stands re the commerce clause (and necessary and proper clause), there was no formal majority on those issues.
A point worth noting. A better way to word the position might be that it is the "opinion of a majority of the court" (note: wording matters; NOT "majority opinion of the court" which connotes what Levin is pointing out is a fallacy).
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Enjoying both Obj's Levin piece and BD's commentary. Good stuff.
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Hat tip to BD:
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For the Jackson List:
When the Supreme Court of the United States announces on Thursday its decision regarding the constitutionality of the Affordable Care Act, the meaning and continuing vitality of Wickard v. Filburn (1942) is likely to be a central topic in the Justices’ opinions.
In the 1930s and later, Roscoe Filburn owned and operated a small farm in Montgomery County, Ohio. He maintained a herd of dairy cattle, sold milk, raised poultry and sold poultry and eggs. Filburn also raised a small acreage of wheat. He sold some of this wheat, used some to feed his poultry and livestock, used some to make flour for home consumption, and used some for future seeding.
In 1938, Congress passed and President Roosevelt signed the Agricultural Adjustment Act. Seeking to stabilize farm prices, the Act authorized the U.S. Department of Agriculture to control the volume of commodities such as wheat that moved in interstate and foreign commerce, thereby avoiding surpluses and shortages and resulting low and high prices.
In 1940, the Department of Agriculture established a “marketing quota” for Filburn’s 1941 wheat crop. It authorized him to plant 11.1 acres that would yield an estimated 223.11 bushels of wheat. Filburn nonetheless sowed 23 acres. His 11.9 “excess” acres yielded 239 bushels. In response, the Secretary of Agriculture fined Filburn $.49 per excess bushel—$117.11 in all. He refused to pay. He then filed a lawsuit in federal court, alleging that the Act’s wheat marketing quota provisions, which applied even to wheat that a farmer grew wholly for home consumption, exceeded Congress’s constitutional power “[t]o regulate Commerce … among the several States….” U.S. CONST., Art. I, sec. 8, cl. 3 (“the Commerce Clause”).
In November 1942, the Supreme Court unanimously rejected farmer Filburn’s constitutional argument. Justice Robert H. Jackson wrote for the Court—Wickard v. Filburn is one of his earliest and most enduringly famous Supreme Court opinions.
The crux of the Wickard decision was the Supreme Court’s understanding that Filburn’s “home-growing”—his not-buying the excess wheat that he desired to have—was commercial activity in the interstate market for wheat. As Jackson explained, even wheat that is
never marketed … supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the [constitutionally-authorized Congressional] regulatory function quite as definitively as prohibitions or restrictions thereon. This [case’s] record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of [statutory] regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.
The Court also dealt, directly, with Filburn’s policy objection to a law that forced him to buy what he wished not to buy:
It is said … that this Act, forcing some farmers into the market to buy what they could provide for themselves, is an unfair promotion of the markets and prices of specializing wheat growers [i.e., big-time wheat farmers]. It is the essence of regulation that it lays a restraining hand on the self-interest of the regulated and that advantages from the regulation commonly fall to others. The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process. Such conflicts rarely lend themselves to judicial determination. And with the wisdom, workability, or fairness, of the plan of regulation we have nothing to do.
To read Wickard v. Filburn, 317 U.S. 111 (1942), in full, click here.
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More than a month later, Justice Jackson received an insightful letter from his friend Sherman Minton, a former U.S. Senator who had become a U.S. Circuit Judge:
New Albany, Ind.
Dec 17 1942
My dear Bob —
This is a letter from one friend to another—not from a judge of an inferior (very inferior) Court to a Justice of the Supreme Court. I just finished reading your very interesting opinion in Wickard vs Filburn. On page 6 [317 U.S. at 120] you state “Even today, when this power has been held to have great latitude, there is no decision of this Court that such activities may be regulated where no part of the product is intended for interstate commerce or intermingled with the subjects thereof.”
I venture to suggest that U.S. vs. Wrightwood Dairy 315 US. 110 [(1942)]
is in conflict with that statement. In that case the dairy regulated didn’t produce or buy a drop of milk outside of Illinois. All its milk was produced in Illinois. It was processed wholly within Illinois and never touched a drop of milk from outside the state. It was all sold + intended to be sold in Illinois. And the Supreme Court held it could be regulated because it competed with interstate milk.
We are shifting our base + to make it appear that we are not we change the words we use. For instance on page 10 of the same opinion [317 U.S. at 125] you say a matter may be regulated by Congress “if it exerts a substantial economic effect on interstate Commerce,” as against the old test of whether it affects directly or indirectly interstate commerce. I am afraid we will have as much trouble applying your test as the old one.
What a pity U.S. v. Butler [(1936)] was ever written + we didn’t, so far as agriculture is concerned, assume to regulate it + subsidize it under the Welfare Clause instead of the Commerce Clause. Then we wouldn’t have to do so much shadow boxing to get around old opinions.
If we are going to adopt the unlimited concept as to interstate Commerce why not say so + throw in the ash can the old cases that disagree[?] Let’s be brutally frank.
I suppose I am wrong and you are right—I never did have any finesse.
Whether one agrees with you or not one must admit that you write the clearest most readable opinions of all.
Sorry I didn’t have time to visit with you personally when I was in Washington.
With all good wishes for the holiday season, I am,
Sincerely yours
Shay Minton
Justice Jackson promptly wrote back to Judge Minton (who seven years later would join Jackson on the Supreme Court). Jackson’s letter makes clear that he—the Court—meant Wickard v. Filburn to be the statement of judicial deference and restraint that it has, in all the years since, come to be in U.S. constitutional law:
December 21, 1942
Honorable Sherman Minton
U.S. Circuit Court of Appeals
New Albany, Ind.
Dear Shea [sic]:
I am glad to have your letter and sorry that we did not have a chance to chat longer when you were here.
You are right in criticizing the sentence in my opinion in the Wickard case. Of course what I meant to refer to was exclusive of the competition theory which I dealt with later under the general discussion of the Shreveport [(1914)] doctrine.
If we were to be brutally frank, as you suggest, I suspect what we would say is that in any case where Congress thinks there is an effect on interstate commerce, the Court will accept that judgment. All of the efforts to set up formulae to confine the commerce power have failed. When we admit that it is an economic matter, we pretty nearly admit that it is not a matter which courts may judge.
However, in the Wickard case the effect is easily apparent, although whether the effect is good or ill might be difficult to say. There is probably a good deal of wisdom in the policy of our earlier judges in going only so far as the immediate case requires in making a constitutional decision. I admit, however, that if I could have found a more satisfactory formula, I would have come out with it, and I know that the Wickard case is by no means a simple or satisfactory solution. I really know of no place where we can bound the doctrine of competition as expounded in the Shreveport, the Wrightwood, and the Wickard cases. I suppose that soy beans compete with wheat, and buckwheat competes with soy beans, and a man who spends his money for corn liquor affects the interstate commerce in corn because he withdraws that much purchasing power from that market. The Shreveport case and those that follow seem to me to be best understood as a sort of strategic retreat by the courts from the effort to control the action of Congress in the field of interstate commerce.
I always read your opinions with interest, and from them I gather, although it is only from between the lines, that you are really enjoying judicial work. It is quite a violent change from the kind of life you and I had been leading, but it certainly has its compensations.
When you are in town, I hope you will come in and see me.
Sincerely yours,
[/s/ Robert H. Jackson]
Twelve years later, just before his death, Justice Jackson wrote three lectures that he had agreed to deliver at Harvard University in 1955. In one, he reiterated his broad view of the national power that the Commerce Clause confers:
There can be no doubt that in the original Constitution the states surrendered to the Federal Government the power to regulate interstate commerce, or commerce among the states. They did so in light of a disastrous experience in which commerce and prosperity were reduced to the vanishing point by states discriminating against each other through devices of regulation, taxation and exclusion. It is more important today than it was then that we remain one commercial and economic unit and not a collection of parasitical states preying upon each other’s commerce. I make no concealment of and offer no apology for my philosophy that the federal interstate commerce power should be strongly supported and that the impingement of the states upon that commerce which moves among them should be restricted to narrow limits.
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As always, thank you for your interest and please share this with others.
Sincerely,
John
Professor John Q. Barrett
St. John’s University School of Law
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A Vast New Taxing Power
The Chief Justice's ObamaCare ruling is far from the check on Congress of right-left myth.
The commentary on John Roberts's solo walk into the Affordable Care Act wilderness is converging on a common theme: The Chief Justice is a genius. All of a sudden he is a chessmaster, a statesman, a Burkean minimalist, a battle-loser but war-winner, a Daniel Webster for our times.
Now that we've had more time to take in Chief Justice Roberts's reasoning, we have a better summary: politician. In fact, his 5-4 ruling validating the constitutional arguments against purchase mandates and 5-4 ruling endorsing them as taxes is far more dangerous, and far more political, even than it first appeared last week.
This is a minority view. By right-left acclaim, at least among elites, the Chief Justice has engineered a Marbury v. Madison-like verdict that camouflages new limits on federal power as a reprieve for President Obama's entitlement legacy and in a stroke enhanced the Supreme Court's reputation—and his own. This purported "long game" appeals to conservatives who can console themselves with a moral victory, while the liberals who like to assail the Chief Justice as a radical foe of democracy can continue their tantrum.
It's an elegant theory whose only flaw is that it is repudiated by Chief Justice Roberts's own language and logic. His gambit substitutes one unconstitutional expansion of government power for another and rearranges the constitutional architecture of the U.S. political system.
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His first error is the act of rewriting the plain text of a law, instead of practicing the disinterested interpretation that is the task of the judiciary, regardless of the partisan outcome. The second error is converting the health insurance mandate's penalty into a tax. Ninety years of precedents have honed precise and widely divergent legal meanings for taxes and penalties for violating laws or regulations, and they are not interchangeable.
The Chief Justice did not simply change a label—as if Congress said something was a penalty when it was really a tax. Rather, these categories are defined by their purposes and effects, by how they operate in practice. Taxes are "exactions" whose main goal is raising revenue, while penalties punish individuals for breaking the law. The boundaries can blur—legitimate taxes may also have strong punitive aims—but scarcely so in this case. ObamaCare's mandate was designed to regulate individual conduct to help achieve universal coverage. If it succeeds perfectly, it should collect $0.
Even if Democrats had passed the mandate tax as rewritten by the Chief Justice, and they did not, the Supreme Court until Thursday has never held that Congress can call anything it wants a tax. The taxing power like the Commerce Clause is broad, and the courts are generally deferential. But all powers the Constitution enumerates are also limited, and these limits—unique to each power—must be meaningful and enforceable by the legal system.
The Chief Justice's compounding errors deprive the taxing power of any viable limiting principles. Article I, section 8 gives Congress an independent grant of power to "lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States." Taxes must originate in the House, the political body designed to be most responsive to voters. There are also important additional safeguards on the type of exactions known as "direct taxes."
Indirect taxes—"duties, imposts and excises"—are taxes on activities and products. They are passed on by a seller, triggered by a transaction and more or less optional: Consumers don't have to buy taxed goods and services. Direct taxes, on the other hand, are those that the federal government is empowered to impose on individuals as citizens. They cannot be avoided because they are levied on the existence of people.
America has its origins in a rebellion against arbitrary and pernicious taxation and the Framers wanted to make it extremely difficult to impose or raise direct taxes. These can easily morph into plenary police powers, the regulation of private behavior and conduct that the Constitution vests in the states. For this reason, while the taxing power in addition to raising revenue can achieve regulatory results, those regulatory results must be constitutional themselves.
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That boundary held for 225 years until Thursday's ruling, as the Court had repeatedly struck down Congress's efforts to arrogate to itself police powers under either the Commerce Clause or the taxing power. The Chief Justice ruled instead that the mandate was an unconstitutional exercise of federal police powers under the Commerce Clause, only to transform the taxing power into a license for the federal government to impose taxes whose defining feature is commanding people as members of society.
Chief Justice Roberts concedes that "Congress's ability to use its taxing power to influence conduct is not without limits" and that in the 19th and early 20th centuries the Supreme Court "policed these limits aggressively, invalidating punitive exactions obviously designed to regulate behavior otherwise regarded at the time as beyond federal authority." But then he writes that "more recently we have declined to closely examine the regulatory motive or effect of revenue-raising measures."
His error—or more likely, his deliberate sleight-of-hand—is that this modern jurisprudence does not deal with direct taxes but indirect taxes and income taxes. Income taxes were authorized in 1913 by the Sixteenth Amendment, which was necessary to bypass the other important limit on direct taxes, called apportionment.
The Constitution says that "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken." Colloquially, direct taxes are known as head taxes and they must be spread among the states according to population. Apportionment's onerous limits were meant to protect against abuse and sectional favoritism. If Congress uses direct taxes, the residents of South Carolina will pay the same overall share as Massachusetts, and so forth.
But apportionment would defeat the mandate tax's "whole point," the Chief Justice writes, since every state will have a different percentage of citizens that are uninsured. So he cryptically rules that "A tax on going without health insurance does not fall within any recognized category of direct tax."
But if not a direct tax, then what kind of tax is it? It is not an indirect tax because it applies to a failure to purchase something, what the Chief Justice calls "an omission," not an optional transaction. It is not a tax on income because that merely hits "accessions to wealth," not what people choose or choose not to do with those accessions.
The result is that Chief Justice Roberts has created the only tax in U.S. history that exceeds its own constitutional limits and is meant to execute powers that the Court otherwise ruled were invalid. His discovery erases the limiting principle—apportionment—that constrains the taxing power for everything besides income and excises.
In the process, Chief Justice Roberts has hollowed out dual federal-state sovereignty and eviscerated the very limit on the Commerce Clause that he posits elsewhere in his opinion and that has some conservatives singing his praises. From now on, Congress can simply regulate interstate commerce by imposing "taxes" whenever someone does or does not do something contrary to its desires.
The Chief Justice seems to understand this, so he tries to articulate his own new limiting principle for the tax power. His mandate tax isn't a mandate but merely a suggestion: choose to buy insurance or "pay money into the Federal Treasury, no more," an act he likens to a tax on gasoline. He also temporizes that "taxes that seek to influence conduct are nothing new."
True enough, but the punishments in the tax code for inactivity come in the form of not being able to claim benefits that Congress in its graces bestows. Such as: If you don't borrow to buy a home, you don't get a mortgage interest deduction.
Congress has never passed a tax on a lack of gasoline or a tax on a failure to buy gasoline, any more than Congress can regulate inactivity under the Commerce Clause by telling people to buy gasoline or else pay a penalty. The reality is that Washington would love to regulate the ordinary economic choices that used to be beyond its purview, and now it will be able to abuse the ad hoc "tax" permit that the Chief Justice has given it.
***
The John-Roberts-as-Daniel-Webster school argues that the long-term limits on the Commerce Clause and other aspects of the ruling are a good trade for the loss of upholding ObamaCare, and government excess has now reached its high-water mark and will recede over time. That false hope seems unlikely given the subversion of the taxing power and unleashing a general federal police power. This is equally harmful to liberty and dual sovereignty.
One possible saving grace is that this center-right country remains suspicious of taxation, and therefore the Chief Justice increases accountability somewhat through truth-in-labeling. But note how Democrats are already claiming that the ObamaCare mandate is not really the tax that is the only reason it was upheld.
White House chief of staff Jack Lew said Sunday that "The law is clear. It's called a penalty." Neither sentence is true. On Friday, the Obama re-election "truth team" was even less subtle in a memo titled "They're lying about ObamaCare" that made the same claim. Chief Justice Roberts has created a creature that is not a tax for political purposes but is a tax for constitutional purposes.
Chief Justice Roberts's ruling is careless about these bedrock tax questions, and they are barely addressed by either the Court's liberal or conservative wings. His ruling, with its multiple contradictions and inconsistencies, reads if it were written by someone affronted by the government's core constitutional claims but who wanted to uphold the law anyway to avoid political blowback and thus found a pretext for doing so in the taxing power.
If this understanding is correct, then Chief Justice Roberts behaved like a politician, which is more corrosive to the rule of law and the Court's legitimacy than any abuse it would have taken from a ruling that President Obama disliked. The irony is that the Chief Justice's cheering section is praising his political skills, not his reasoning. Judges are not supposed to invent political compromises.
"It is not our job," the Chief Justice writes, "to protect the people from the consequences of their political choices." But the Court's most important role is to protect liberty when the political branches exceed the Constitution's bounds, not to bless their excesses in the interests of political or personal expediency or both. On one of the most consequential cases he will ever hear, Chief Justice Roberts failed this most basic responsibility.
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second post
CBS: Justice Roberts Switched Views To Uphold Health Care Law
Posted on July 1, 2012 at 3:07pm by Erica Ritz
CBS News’ Jan Crawford is reporting that Chief Justice John Roberts originally sided with the Supreme Court’s four conservative justices to strike down the heart of Obama’s health care reform law, often referred to as “Obamacare,” but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.
CBS continues (all subsequent emphasis added):
Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy – believed by many conservatives to be the justice most likely to defect and vote for the law – led the effort to try to bring Roberts back to the fold.
“He was relentless,” one source said of Kennedy’s efforts. “He was very engaged in this.”
But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, “You’re on your own.”
The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress’ power under the Commerce Clause, the sources said.
Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts’ decision, the sources said, as if they were no longer even willing to engage with him in debate.
And while the Supreme Court is notoriously secretive– no law clerks or secretaries are allowed in the room when the justices discuss cases and cast their initial votes– Roberts’ drastic shift was noted in this closely-watched case.
CBS explains a possible reason for the change of heart:
[Unlike some other justices] Roberts pays attention to media coverage. As Chief Justice, he is keenly aware of his leadership role on the Court, and he also is sensitive to how the Court is perceived by the public.
There were countless news articles in May warning of damage to the Court – and to Roberts’ reputation – if the Court were to strike down the mandate. Leading politicians, including the President himself, had expressed confidence the mandate would be upheld.
Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.
It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.
It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.
Others maintain that Roberts just came to realize the historical impact of striking down such a law, and political pressure had nothing to do with it.
But CBS continues:
Roberts then engaged in his own lobbying effort – trying to persuade at least Justice Kennedy to join his decision so the Court would appear more united in the case. There was a fair amount of give-and-take with Kennedy and other justices, the sources said. One justice, a source said, described it as “arm-twisting.”
Even in Roberts’ opinion, which was circulated among the justices in early June, there are phrases that appear tailored to get Kennedy’s vote. Roberts even used some of the same language that Kennedy used during oral arguments.
[...]In fact, Kennedy was the most forceful and engaged of all the conservatives in trying to persuade Roberts to stand firm to strike down the mandate. Two sources confirm that he didn’t give up until the very end.
The story also says that the conservative dissent was not originally written as a majority opinion, as some have thought, but reads differently than expected because the conservatives simply refused to acknowledge Roberts’ opinion.
The article concludes with Kennedy’s strong statement from the dissent: “The fragmentation of power produced by the structure of our government is central to liberty, and when we destroy it, we place liberty in peril…Today’s decision should have vindicated, should have taught, this truth; instead our judgment today has disregarded it.”
National Review Online’s Avik Roy said of the revelation: “The bottom line, if Jan Crawford is right, is that conservative justices can be blackmailed by left-wing editorialists. It’s not a pretty picture.”
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Third post
"[A]t the risk of being a broken record [on ObamaCare], we remain focused on the wrong issue because conservatives and Republicans do not want any part of the right issue. Congress would not be able to tax anyone a penny if the subject matter on which lawmakers sought to spend the money raised was not within Congress's constitutional authority to address. Health care and health insurance are precisely such issues. So why does Congress get to raise taxes for and spend money on them? Because the country -- very much including Republican leaders and many conservatives -- has bought on to the wayward progressive premise that the General Welfare Clause of the Constitution empowers Congress to spend on anything it wants to spend on as long as their is some fig-leaf that ties the spending to the betterment of society. That, and not an inflated understanding of the Commerce Clause, has always been the problem. Republicans are afraid to touch this because, if you follow the logic, you'd have to conclude that Congress has no constitutional authority to set up a social security system, a Medicare or Medicaid program, or most to the innumerable Big Government enterprises that Republicans support while, of course, decrying Big Government. Republicans occasionally want to limit what government spends, but they don't want to acknowledge any constitutional limits on what government could spend -- that's what has gotten us to this point." --columnist and former DoJ attorney Andrew McCarthy
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I took a cooling off period following the Obamacare stunner and I am still fuming mad.
1) This point of Bigdog's is most insightful: "...it is the "opinion of a majority of the court" (note: wording matters; NOT "majority opinion of the court..."
I still have more reading to do, but 5 justices did not agree on much. 5 so-called conservatives found a limitat in the commerce clause but that revelation turns out meaningless as a new path is paved to make the biggest expansion EVER in government control of and participation in commerce without 5 justicec relying on the commerce clause.
2) My neighbor's dog barking is taxing. Regulations are taxing on the economy. Can this be ruled a tax? Sure. But that is not what it is.
3) My title "You can't be serious!" comes from the famous John McEnroe line he hollered at chair umpires like Roberts every time they ruled a close line call against him. I still play tennis at a nationally competitive level and have a theory different from Roberts on close line calls. If a ball is a millionth of an inch out and no one but you with your perfect vantage point can possibly see it out, all others see it as in, and even you don't see it out for the first month after you look at it, then you do not call it out. Roberts did not see it as a tax. Proponents didn't see it as a tax. 8 other justices didn't see it as a tax. It wasn't written as a tax. Clever reconsiderations do not make it into what it isn't supposed to be. It includes at least two dozen new taxes and it is most certainly taxing on the economy and on certain people but the act itself is a government takeover of a major sector of the economy with a shift of responsibility of all the the decisions that go with that. In its entirety, it is not a tax, it is commerce control. If it takes you a month to see it as something you couldn't see previously and no one else can see and you still can't articulate why by your publication deadline or convince even one of your peers seeing the same line call, then perhaps it is not. If you must see it as no one else sees it, then write a one justice dissent, not side with people who see it totally differently to decide in favor of a government takeover of the American economy over all individual liberties on a single-justice, manufactured theory.
4) Where are unenumerated rights in the challenge to the law? We had some rights and they are gone. One is a right to the policy I had before Obamacare which is gone, another is the right to merely pay fee for service as we do with almost everything else and yet another would be the privacy to not have to tell the government at all about the private matters of your health services procurement. 55 million have been aborted since Roe v Wade based on a right of privacy in so-called healthcare but when it does not directly enable the killing of the most innocent most in need of protection, the right of privacy is nowhere to be found?
5) Is the default priority restraint from the legislative process or truth to the meanings contained in our limited government constitution.
6) A mandate to buy government approved health insurance is not constitutional, but a penalty on not buying it is. Good grief.
7) The Wichard Filburn point posted is well taken. This is terrible law and a cause or enabler of what keeps going wrong on the Court, IMHO.
7) There is NOT a silver lining in this ruling. Maybe we will rise up and take the law and the tyrants down. Maybe we will not. But the limited government meaning of our constitution just keeps getting ever-smaller and it makes me sick to my stomach.
8.) Romney's adviser did not call it a tax because that would mean Romney's mandate was a tax.
9) Obamacare's effect on the economy however is a trillion and a half dollar tax and worse, yet every economist says you don't raise taxes in a recession. We just did!
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In terms of popularity of the Court, no one likes when they rule against you but...
I disagreed strongly with the ruling relating to funeral protests. That said, because they sided with a basic freedom, freedom of speech I perhaps admire them more not less for disagreeing with me. When they tromp all over our individual rights and liberties, that is another matter. I have no respect for them and all their manufactured, hypocritical constructions whatsoever.
At age 78 Justice Kennedy grows a limited government backbone. Where was that in Kelo?
At age 57 Chief Justice Roberts decides he'd rather be a politician. It's not too late your honor to change careers.
Liberal appointees / liberal justices prove over and over and over that they only vote their own political views on the Court.
Restraint in the pursuit of freedom isn't what won any of our freedoms.
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http://pjmedia.com/blog/roberts-v-roberts/?singlepage=true
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http://www.motherjones.com/politics/2012/06/supreme-court-roberts-obamacare-charts
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Umm , , , I confess I didn't find that particularly lucid. The terms in question were never defined, nor the methodology. Who says a decision is left or right? Using what criteria?
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That discussion/description on the methodology can be found using the Martin-Quinn scores, a link to which is included in the article, and is http://mqscores.wustl.edu/index.php. A further discussion can be found at http://scdb.wustl.edu/index.php. These are two of the most common databases used by quantative scholars who study the USSC, including political scientists, and an increasing number of lawyers and economists.
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Oh. :oops: :lol:
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http://schultzstake.blogspot.com/2012/06/obama-won-by-losing-thoughts-on-health.html
President Obama won by losing on Thursday. Yes his health care legislation was upheld but it came at the expense of federal power and perhaps further losses down the line in terms of civil rights and other forms of federal power. The media will report that by a 5-4 decision the Supreme Court affirmed the individual mandate and upheld the Obama Health Care Act. But a tighter and more thorough reading demonstrates this to be a very conservative decision and Obama lost big legally.
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http://www.tnr.com/blog/plank/104554/the-fatal-flaw-in-john-roberts-analysis-the-commerce-clause
But Roberts' tax argument actually undermines his argument about the inapplicability of the Commerce Clause. Roberts reasoned that Obamacare really imposes a mandate only on those subject to its tax penalty—which is limited to those who have thousands (probably tens of thousands) of dollars in earned income. What Roberts seems to have missed is that you cannot have earned income without engaging in commerce. (Gift income does not count as earned income subject to this tax).
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"The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it; or, that the legislature may alter the Constitution by an ordinary act."
...
"Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void."
- Chief Justice John Marshall writing in Marbury v. Madison 1803
http://www.constitution.org/ussc/005-137a.htm
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By MICHAEL I. MEYERSON
Americans of all political stripes invoked the Declaration of Independence this Fourth of July week. Some read the document and found, as Harvard Prof. Alan Dershowitz has, that it "rejected Christianity, along with other organized religions, as a basis for governance." Others saw the same language proving the opposite, that our nation was founded on "Judeo- Christian values." Such definitive statements do not tell the full story. The American Framers, in their desire to unite a nation, were theologically bilingual—not only in the Declaration of Independence but beyond.
That document was the work of many hands. As is well known, the first draft was written by Thomas Jefferson. That version began with a religious reference that largely remained in the final version, stating that the United States were assuming the independent status, "to which the laws of nature and of nature's god entitle them."
The phrase "Nature's God" is not a product of traditional religious denominations, but is generally associated with 18th-century Deism. That philosophy centered on what has been called "natural theology," a belief that while a "Creator" started the universe and established the laws of nature, the modern world saw no divine intervention or miracles.
The most famous religious phrase in the Declaration—that people are "endowed by their Creator with certain inalienable rights"—was not included in Jefferson's original draft. He had written that people derive inherent rights form their "equal Creation." The iconic language was added by a small committee, including Benjamin Franklin and John Adams.
"Creator" was a theologically ambiguous word. Most Deists used it, but it was also commonly spoken by the most orthodox religions of the day. Timothy Dwight, a Congregational minister who served as president of Yale College from 1795-1817, delivered a sermon stating that the Bible contained "as full a proof, that Christ is the Creator, as that . . . the Creator is God."
Often overlooked in discussing the Declaration of Independence are two more religious references, both added to its closing paragraph by other delegates in the Continental Congress. The delegates described themselves as "appealing to the Supreme Judge of the world for the rectitude of our intentions," and they affirmed their "firm reliance on the protection of divine Providence."
These phrases were widely regarded as being far more traditionally religious than the earlier language. Ashbel Green, a Presbyterian minister and Jefferson critic who served as chaplain of the House of Representatives in the 1790s, cited these sections to assert that had they not been added, Jefferson would have permitted the American call for independence to be "made without any recognition of the superintending and all disposing providence of God."
But even after the congressional editing, the language of the Declaration wasn't limited to a particular faith. Deliberately designed to be as inclusive as possible, it was a quintessentially American achievement—specific enough to be embraceable by those with orthodox religious views but broad enough to permit each American to feel fully included and equally respected.
George Washington maintained this adroit balance when he became president. In his first inaugural address, written with the assistance of James Madison, Washington declared that it would be "peculiarly improper to omit in this first official Act, my fervent supplications to that Almighty Being who rules over the Universe."
Even Jefferson and Madison, often described as believing in a total separation of religion and government, continued the practice of using inclusive religious language. Jefferson urged in his first inaugural, "May that infinite power, which rules the destinies of the universe, lead our councils to what is best," while Madison stated that, "my confidence will under every difficulty be best placed . . . in the guardianship and guidance of that Almighty Being whose power regulates the destiny of nations."
The Framers didn't see such nondenominational language as divisive. They believed it was possible—in fact desirable—to have a public expression of religion that is devout, as long as it recognizes and affirms the variety of belief systems that exist in our pluralistic nation.
Mr. Meyerson, a professor of law at the University of Baltimore School of Law, is author of "Endowed by Our Creator: The Birth of Religious Freedom in America," recently published by Yale University Press.
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http://www.latimes.com/news/nationworld/nation/la-na-court-term-20120708,0,2123711.story
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I was wrong about Supreme Court resignations. I'm glad they are all feeling well though I don't think very highly of some of their opinions.
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"...the power to control Supreme Court nominations is the grand prize in the coming presidential election. Long after Barack Obama and Mitt Romney fade in our memories, the Supreme Court justices one of them appoints will still be rendering the rulings that determine the future course of our nation."
Necessarily tied to 2012 Presidential and Senate thread, this piece includes a nice summary of some cases where the swing vote actually went conservative. "Swing vote" to some of us means which conservative in name only takes his or her turn to vote with the totally predictable liberal bloc to continue to undermine the American Creed and feed the continuing expansion of government.
http://online.wsj.com/article/SB10001424052702304141204577509250108648814.html
Clint Bolick: The Supreme Court Stakes in 2012
The replacement of a single conservative justice by President Obama in a second term would turn the court sharply to the left.
By CLINT BOLICK
Many conservatives are angry with Chief Justice John Roberts, whose decisive vote in late June not only sustained a disastrous health-care law. It also interpreted the Constitution to permit Congress to penalize behavior through its taxing power that it cannot control through its power to regulate commerce.
Magnifying the harm is a CBS News report—and informed suspicions from a number of sources—that Chief Justice Roberts initially voted to strike down the law but switched in the face of veiled threats from President Barack Obama and concerns about the court's reputation and his own.
Some conservatives were also disappointed that Chief Justice Roberts joined fellow conservative Justice Anthony Kennedy and the four liberal justices earlier in June in striking down portions of Arizona's immigration law. They considered the ruling a blow against federalism.
The upshot is that Chief Justice Roberts has become a "swing" justice on the Supreme Court—along with Justice Kennedy, who has occupied the swing position held by Justice Sandra Day O'Connor until she was replaced by conservative Justice Samuel Alito in 2006. The court now is composed of three solid conservatives and four solid liberals, with Chief Justice Roberts and Justice Kennedy leaning conservative.
Even that mixture makes the current court the most conservative in nearly a century. But it also means that the replacement of a single conservative justice by President Obama in a second term would turn the court sharply to the left.
The ObamaCare ruling highlights the stakes. Chief Justice Roberts joined the liberal justices in finding that the penalty imposed on individuals who refuse to sign up for government-prescribed health insurance is a permissible tax. But he sided with his fellow conservatives in holding that the mandate to buy insurance itself exceeded Congress's power to regulate interstate commerce. Inactivity, the court held, is not commerce.
By contrast, the liberal justices argued that anything that even indirectly affects commerce (which amounts to everything) can be regulated. With the replacement of one conservative justice by a liberal, congressional power under the Constitution's Commerce Clause will be boundless.
By holding the line in June, then, the conservative majority ensured, at least for now, that the power of the national government remains limited. That portion of the health-care decision continues an important trend in which the court has set boundaries on federal regulatory power that had been erased during the New Deal.
Over the past two decades of its conservative majority, in fact, the court has reined in government power and protected important individual rights in a number of areas, almost always in 5-4 votes divided along conservative/liberal lines. Among them:
• First Amendment. In its Citizens United decision in 2010 and its ruling the next year in Free Enterprise Club v. Bennett, which struck down Arizona's scheme providing public "matching funds" to candidates, the court has protected the right to vigorously participate in political campaigns.
• Second Amendment. The court has recognized an individual right to keep and bear arms, which the four liberal justices would have extinguished, and which now hangs by the thread of a single vote.
• School choice. Last month marked the 10th anniversary of the 5-4 Zelman v. Simmons-Harris ruling upholding the constitutionality of issuing school vouchers that can be used for tuition at parochial schools, among others. This was the case that the court's liberal dissenters preposterously predicted would unleash religious strife akin to that in Bosnia and Northern Ireland.
• Property rights. The conservative majority has ruled that some excessive property regulations—such as forced dedication requirements in return for development permits—are unconstitutional. It has also ruled that regulations that destroy property value—such as ones that essentially forbid development—require compensation. But Justice Kennedy joined the liberal majority in the infamous 2005 Kelo decision upholding the use of eminent domain for private purposes.
• Racial preferences. The court has restricted the use of racial preferences and may forbid them altogether in Fisher v. University of Texas, which will be argued before the court next term. The liberal justices recognize few limits on the use of race for social-engineering purposes.
• Federalism. In several cases, the conservative majority has expanded state autonomy and limited the federal government's power to regulate states. These include Horne v. Flores, upholding Arizona's English-only law in 2009; Chamber of Commerce v. Whiting in 2011, upholding Arizona's law penalizing employers who hire illegal immigrants; and Northwest Austin Utility District v. Holder, a 2009 decision allowing a Texas utility district to opt about of Section 5 of the Voting Rights Act, which requires many states and local entities to obtain Justice Department permission to make any changes affecting voting.
The court's conservative majority so far has endured for 21 years, since Justice Clarence Thomas replaced Thurgood Marshall. Since then, there have been six appointments to the court. None, however, has affected the court's balance, with two conservatives replacing conservatives and four liberals replacing liberals.
That may be about to change. Three justices—liberal Ruth Bader Ginsburg and conservatives Antonin Scalia and Justice Kennedy—will reach their 80s during the next presidential administration. So whoever wins in November likely will have the chance either to reinforce the conservative majority, or to alter the court's balance for the first time in nearly a generation.
The stakes never have been higher. First, because as human longevity increases, lifetime tenure has grown increasingly valuable. The average tenure of a Supreme Court justice today is 25 years—spanning more than six presidential terms. And presidents are catching on, naming ever-younger justices. If the newest justice, Elena Kagan, serves for all of her current life expectancy, she will remain on the court until 2045.
Second, the science of nominating philosophically consistent justices has grown more precise. In the past, presidents from Abraham Lincoln to Franklin Roosevelt to Richard Nixon tried to pack the court with reliable fellow-thinkers, with decidedly mixed success. Dwight Eisenhower famously remarked that his two biggest mistakes both served on the Supreme Court (Earl Warren and William Brennan). John F. Kennedy appointed Byron White, who turned conservative toward the end of his tenure, and George H.W. Bush appointed David Souter, who was liberal from day one.
These days, however, justices are carefully chosen on the basis of long philosophical track records. Indeed, most Supreme Court justices today remain more true to their principles than the presidents who appoint them.
A Republican president may spend like a drunken sailor or destroy capitalism in order to save it, and a Democrat may bail out Wall Street and fail to bring the troops home. But they will never disappoint their respective bases on Supreme Court nominations.
All of this underscores that in terms of lasting importance, the power to control Supreme Court nominations is the grand prize in the coming presidential election. Long after Barack Obama and Mitt Romney fade in our memories, the Supreme Court justices one of them appoints will still be rendering the rulings that determine the future course of our nation.
Mr. Bolick is vice president for litigation at the Goldwater Institute and author of "Two-Fer: Electing a President and a Supreme Court," published in April by the Hoover Institution.
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Good stuff. Two quick things, though. A new justice wouldn't necessarily mean the Court shifts ideologically. First, if Justice RBG or Breyer were to retire, a new Obama appointee wouldn't shift the makeup of the USSC all that much. Moreover, the new justice might not be the justice Obama thought he was getting. Two quick examples, though there are more: legend has it that when asked about mistakes made as president, Ike replied that he had made two, "and they were both on the Supreme Court." And, remember all the cries of "not another Souter"? GHWB didn't get the conservative he thought he had on the bench.
Second, despite all of the media wanks talking about Roberts possible switch, it is very common that justices swith views between the conference vote and the final opinion being released.
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http://opinionator.blogs.nytimes.com/2012/07/11/the-mystery-of-john-roberts/?hp
Ramesh Ponnuru, a senior editor of National Review and leading conservative blogger, wrote that Chief Justice Roberts “acted less like a judge than like a politician, and a slippery one.” Randy Barnett, a Georgetown University law professor and intellectual father of the Commerce Clause argument against the statute, predicted on the Volokh Conspiracy blog that “it’s hard to imagine Republican politicians citing John Roberts as the type of justice they favor nominating in the future” (odd, because the Roberts opinion, actually accepting Professor Barnett’s Commerce Clause analysis, has left liberals seriously alarmed about the court’s future direction on congressional power). Clint Bolick, a leading libertarian who advocates aggressive activism — sorry, “engagement” — by the court to shrink government power, wrote in The Wall Street Journal that “the upshot is that Chief Justice Roberts has become a ‘swing’ justice on the Supreme Court” and is no longer a “solid conservative.”
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http://constitutionalism.blogspot.com/2012/07/list-of-constitutional-rights.html
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"My construction of the constitution is very different from that you quote. It is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal." --Thomas Jefferson, letter to Samuel Adams Wells, 1819
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"A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be your constant companion of your walks." --Thomas Jefferson, letter to Peter Carr, 1785
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I went to buy Scalia's new book for my mom, but it was $45 :-o Sorry Mom , , ,
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http://nationaljournal.com/magazine/john-roberts-tipping-the-scales-20120726
Interesting article on Roberts and the Roberts Court.
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http://jolt.law.harvard.edu/digest/telecommunications/united-states-v-skinner
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http://www.nybooks.com/articles/archives/2012/oct/11/should-we-have-new-constitutional-convention/
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"Exactly 50 years ago, in 1962, the Supreme Court agreed to hear another handwritten petition, this one from Clarence Gideon. The court appointed Abe Fortas, a prominent lawyer and future Supreme Court justice, to represent him. The next year, the court decided Gideon v. Wainwright, the landmark decision that said the government must provide lawyers to poor people accused of serious crimes.
Mr. Millbrook may be a less attractive petitioner than Mr. Gideon, who was acquitted at a retrial of charges that he had broken into a pool hall.
It is hard to know what to make of Mr. Millbrook’s lawsuits. He may be a magnet for mistreatment, or he may have a flexible relationship with the truth. Or he may have cried wolf several times before actually encountering one."
http://www.nytimes.com/2012/10/17/us/politics/supreme-court-grants-inmates-petition-in-sovereign-immunity-case.html?_r=0
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Second Circuit rules DOMA unconstitutional. Opintion linked below.
http://www.washingtonblade.com/content/files/2012/10/Windsor-ruling.pdf
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I'll be reading that BD.
Here's what appears to be a Separation of Powers/Poltical Question argument advanced by DOJ:
DOJ’s Startling Argument Seeking Dismissal of Fast and Furious Lawsuit
John G. Malcolm
October 17, 2012 at 3:23 pm
On Monday night, the Department of Justice (DOJ) filed a brief asking a federal court to dismiss the lawsuit the House of Representatives filed challenging the President’s invocation of executive privilege in the Operation Fast and Furious case.
The House suit seeks to force the Administration to release documents that it is still withholding from Congress, an issue which was discussed in an earlier Heritage Legal Memorandum.
In the midst of the Watergate crisis, President Nixon told the nation, “If the President does it, that means it’s not illegal.” In a similar fashion, DOJ’s brief argues, in essence, that if the President invokes executive privilege, that means it was a valid assertion and that no court of law should ever be permitted to review the matter, period.
DOJ states repeatedly in the brief that it has made “substantial” efforts to accommodate Congress—providing roughly 7,000 pages of documents, some heavily redacted, in comparison to the roughly 100,000 pages of documents that were provided to DOJ’s inspector general, who also testified that he did not receive all the documents he wanted to review from the Administration—and that “Congress’s legitimate informational interests have been largely satisfied” (as if it were within DOJ’s purview to make such a determination, rather than Congress’s, and that “largely” satisfying Congress’s legitimate needs is enough).
DOJ argues that Congress’s only recourse to resolve this dispute is to use “political tools,” such as the appropriations process or making “its case to the people through the electoral process.”
DOJ contends, “The combination of robust alternative remedies and the historical absence of involvement by the Judiciary have provided incentives for both Branches to work in earnest through the process of negotiation, accommodation, and ultimate resolution,” but that this “process would unravel if courts were available to dictate what information may be demanded or withheld. Judicial intervention would move the Branches toward litigation, not accommodation, and would dramatically alter the separation of powers.”
These are breathtaking arguments that, if adopted, would permit the President to stonewall virtually any congressional inquiry by ignoring subpoenas or invoking executive privilege in an improper fashion to, say, prevent the disclosure of embarrassing information or criminal conduct.
Were a court to adopt DOJ’s argument, which seems highly unlikely given Supreme Court and other precedent, then a President could simply ignore a congressional subpoena or improperly invoke executive privilege, and Congress would be forced to either drop the matter or escalate the conflict by instituting impeachment proceedings, withholding funding of some valuable government service—something significant enough to the get the President’s and the public’s attention—or trying to persuade the public to vote the President out of office (even though the President might be withholding the very information that would enable the public to make an informed decision).
In some situations, those might be superior tools, but the courts should not be closed to Congress in every instance just because it has those other tools. In a statement, House Oversight Committee chairman Darrell Issa (R–CA) said that DOJ’s argument “should trouble Americans who believe the President and the Federal government are not above the law.”
The DOJ brief states that, were a court to exercise jurisdiction here, “then countless other suits are sure to follow, given the volume of document requests issued by dozens of Senate and House Committees that perform oversight functions.”
However, the government acknowledges that in the entire history of our country, only three cases challenging executive privilege have ever been filed and that never before has an Attorney General been held in contempt.
It seems implausible that this trickle of cases is likely to turn into the veritable flood that DOJ envisions. The court is likely to, and should, reject DOJ’s startling argument.
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Some discussions on the history/prior use of exective privlege:
http://www.cnn.com/2012/06/20/politics/executive-privilege-history/index.html
http://apps.law.georgetown.edu/state-secrets-archive/resourcedocuments/Carlinnote29_29.pdf
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So BD, what's your take on EP in the OFF case?
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BD:
Although I am not in agreement with some of the reasoning on certain fundamental points, I must say that the federalism argument is not without merit.
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So BD, what's your take on EP in the OFF case?
I think the original conception of executive privilege (spelled out in Nixon, but argued for since G. Washington was president), is correct. I think it began to go too far under Clinton (legal issues) and was codified in the Cheney energy taskforce case, which is unfortunate. I disagree with Obama here, but it is another example of the creep of presidential power claims, which tend to build on success and excess of those who came before the sitting one making the claim.
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So, are you saying that he can stonewall the OFF investigation with it? That Issa's committee's subpoenas are meaningless? What, if any, are the limits on assertions of EP?
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http://www.fas.org/sgp/crs/secrecy/R42670.pdf
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Well, I jumped right to page 30 :lol:
What is your opinion BD?
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So, are you saying that he can stonewall the OFF investigation with it? That Issa's committee's subpoenas are meaningless? What, if any, are the limits on assertions of EP?
Adding my layman's view into the mix, subject to being informed or corrected here on the forum. )
We all believe in Executive Privilege with limits. The executive should normally be able to get candid advice from his advisers in private. Crafty's question is right on the money with his question, what are those limits. When does a competing interest rise above the importance of protecting EP. It would appear from reading BD's link that this is not entirely settled law. It is a judgment call to decide when a legislative or public right to know rises above this privilege.
My understanding in the case of the Cheney energy task force is that the Vice President was getting candid advice from individuals and a group of contacts and industry experts, up to the point perhaps of writing parts of legislation that I think never got passed. What happened behind closed doors IMO isn't crucial because the end product, their written proposal or bill is public, can be read, argued, amended, introduced, not introduced, passed or voted down. If some crony wanted $100 million in the bill to go to Exxon or Haliburton, it would be in the bill; we don't need to subpoena the parties or break any secrecy to find that out. Not at all similar to Fast and Furious IMHO.
Same question was asked about Hillary's healthcare task force, though as First Lady she was not really an Executive Branch official.
Not executive branch, but a similar question would be to ask who advised and wrote the clauses and inner workings of 'Obamacare' for former House Speaker Nancy Pelosi. Do we have a right to know that? Maybe not, just a right to oppose the bill.
What about the quesiton of the White House sending out Susan Rice to 5 major Sunday shows to essentially disseminate false information to the American people about the attack Benghazi. Some of us would like to know who sent her out there to send out a knowingly false message and why. Are the discussions protected in secrecy if the intent was to mislead?
Executive Privilege in Operation Fast and Furious: Is there is a legitimate and compelling public interest in knowing who authorized the sale/transport of these weapons? Does it rise above the principle of EP? How else would we prevent this or something worse from happening again? Congress appropriated the funds used but not the operation. They were not fully informed prior, during or after the use of public funds. Laws were likely broken (I believe) and people died. An international alliance was put in jeopardy. What is our right to know, through the investigative committees of the House of Representatives?
The irony of asserting Executive Privilege in Operation Fast and Furious is that we were being told that no one in the Attorney General's Office or White House had any knowledge, documents or discussions whatsoever on this operation. The assertion of privilege would seem to refute that. Either they did know and authorized the operation or else the assertion is frivolous (“transparently invalid”) it would seem to me. The assertion is designed to forestall the investigation past election day or indefinitely.
The 255 to 67 contempt vote including a majority within the President's own party voting against the White House is telling.
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Richard Milhouse Obama.
0 bodies from Watergate. Where is the outrage?
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I'll have to get back to you on executive privilege. I'm working on a project that demands attention. Related to this, I give you this letter, which may interest those of concerned/worried/thoughtful about Posse Comitatus/martial law. The author is now dean at Georgetown Law. Beth Nolan, mentioned in footnote 1 was OLC and former White House Counsel.
http://www.justice.gov/olc/pca1fnl.htm
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This isn't my answer, but might interest you if you've not read it: Holder's letter to Obama requesting the use of executive privilege.
http://www.justice.gov/olc/2012/ag-ff-exec-priv.pdf
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"I'm not sure that I would've been President Obama's nominee if I weren't a woman." --Justice Elena Kagan
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"I'm not sure that I would've been President Obama's nominee if I weren't a woman." --Justice Elena Kagan
This is probably true. It is also true that many, many, many SC justices wouldn't be or have been on the Court if they didn't met a demographic "requirement." The truth in the statement doesn't mean she is unqualified.
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Ture enough. Her thinking about the C. is what does that :x
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http://www.forbes.com/sites/jimpowell/2012/04/29/obamas-plan-to-seize-control-of-our-economy-and-our-lives/
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http://www.forbes.com/sites/jimpowell/2012/04/29/obamas-plan-to-seize-control-of-our-economy-and-our-lives/
The middle is good, and rings (sort of) true. The beginning indicates that he doesn't understand the process that EOs go through prior to issuance.
The end indicates that he can't count.
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So Professsor, please flesh it out for us :-D
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The process includes seeking advice from affected bureaucratic agencies, including the miliatary, say, given the fears addressed in the article. It also is vetted by the OMB for financial considerations. And, by the Office of Legal Counsel for "form and legality." Within OLC several proposed EOs are either significantly altered to conform with the law, or withdrawn because they don't.
As for the last portion, I am aware of 19 cases in which a court overturned an EO. See Schubert, The Presidency in the Courts (361-365) and Howell, Power Without Persuasion (198-201).
One thing he did do a good job on was noting limits without actually overturning an EO (see Obama and Gitmo; and for more details http://cstl-cla.semo.edu/Renka/PRG/PRG_Reports/Spring_2010.pdf 13-15).
http://www.forbes.com/sites/jimpowell/2012/04/29/obamas-plan-to-seize-control-of-our-economy-and-our-lives/
The middle is good, and rings (sort of) true. The beginning indicates that he doesn't understand the process that EOs go through prior to issuance.
The end indicates that he can't count.
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http://www.theblaze.com/stories/there-is-no-right-to-secede-see-the-letter-where-justice-scalia-shoots-down-idea-of-leaving-the-union/
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A 28th amendment specifically authorizing secession for states and/or individuals might be easier to pass and ratify than the next budget deal.
Pondering secession aloud is still legal but dangerous to one's future political prospects.
A political compromise short of secession would be for congress and legislatures to offer opt out plans to individuals, the ability to not have to pay into or receive from a myriad of controversial and inefficient government programs.
http://www.theblaze.com/stories/there-is-no-right-to-secede-see-the-letter-where-justice-scalia-shoots-down-idea-of-leaving-the-union/
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http://www.theblaze.com/stories/there-is-no-right-to-secede-see-the-letter-where-justice-scalia-shoots-down-idea-of-leaving-the-union/
That Scalia is a flaming liberal - like Roberts. :wink:
Is there no freedom of association anymore?
The colonists, signers of the Declaration of Independence (and framers) believed they had a right of secession, judging by their actions.
Secession issue was "resolved by the Civil War" - ?
The Civil War was 'resolved' before the passage and ratification of the 19th amendment, the right of women to vote. Women tend to be anti-war. Women will not support civil war and America will never (I am told) support a war against women.
I would like to see a red-blue secessional overlay jurisdictional map involving maximum consent of the governed. Republicans can tax themselves and pay extra for national defense. Democrats can tax themselves and pay for welfare and transfer programs. We could have cooperative agreements (imagine that) where both sides pay for legitimate functions of government.
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When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
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The Privilege to Speak
The New York Times Co. wants a monopoly on the Constitution.
By JAMES TARANTO
http://online.wsj.com/article/SB10001424127887323713104578131200617146638.html?mod=WSJ_Opinion_MIDDLETopOpinion
A corporate division has once again exercised its First Amendment rights to argue that corporations don't have First Amendment rights. This time, however, the New York Times Co. claims to have discovered a loophole that protects its First Amendment rights.
Justice Alito
In an editorial today, the Times Co.'s eponymous flagship newspaper answers Justice Samuel Alito, who in a terrific speech last week at the Federalist Society in Washington penetratingly ("speciously," according to the Times) defended the court's 2010 ruling in Citizens United v. Federal Election Commission. That 5-4 ruling struck down portions of two laws that imposed government censorship on political speech by corporations and unions (though they made an exception for "media corporations" such as the New York Times Co. and News Corp., which publishes The Wall Street Journal and this website).
Alito elaborated an argument this column made in January 2010, just after he and his colleagues handed down Citizens United. He noted that many landmark free-speech decisions vindicated the rights of corporations, including two that involved the New York Times Co. Here's the company's response:
In New York Times v. Sullivan, in which the First Amendment was used to rein in the law of libel, the Supreme Court focused on the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." It made almost no mention of the fact that The Times was a corporation. Nor were the free speech rights of a corporation any part of the ruling in the Pentagon Papers case.
Really? The free speech rights of a corporation weren't "any part" of a case styled New York Times Co. v. United States?
As for the libel case, it was similarly styled New York Times Co. v. Sullivan. Leaving out the "Co." is a common journalistic shorthand, but in this case a misleading one. The editorial also omits that Times v. Sullivan concerned a political advertisement, the very sort of communication that the Times insists is not protected by the First Amendment.
At least this time, unlike in its 2010 editorial about which we wrote back then, the Times Co. acknowledges that it had been exempted from the censorship regime it endorsed. "It is not the corporate structure of media companies that makes them deserving of constitutional protection," the Times Co. asserts today. "It is their function--the vital role that the press plays in American democracy--that sets them apart."
Here is how Citizens United, the appellant in the 2010 case, describes its function:
Citizens United is an organization dedicated to restoring our government to citizens' control. Through a combination of education, advocacy, and grass roots organization, Citizens United seeks to reassert the traditional American values of limited government, freedom of enterprise, strong families, and national sovereignty and security. Citizens United's goal is to restore the founding fathers' vision of a free nation, guided by the honesty, common sense, and good will of its citizens.
Citizens United is a nonprofit advocacy organization, incorporated under Section 501(c)4 of the Internal Revenue Code. The same is true, by the way, of many corporations that oppose Citizens United, including, as we have noted, Common Cause.
Surely advocacy of ideas about public policy plays a "vital role" in democracy. But it isn't clear if the Times Co. thinks 501(c)4 corporations are protected by the First Amendment or not. In its 2010 editorial, the company obliquely opined that Citizens United involved "a narrower, technical question involving the broadcast of a movie that attacked Hillary Rodham Clinton during the 2008 campaign."
In a 2010 interview with this columnist, the great First Amendment lawyer Floyd Abrams--who represented both the Times Co. in the 1971 Pentagon Papers case and Sen. Mitch McConnell, a friend of the court on Citizens United's side in the 2010 case--answered this dodge:
"Here is a very committed, very conservative entity that does a film attacking then-Sen. Hillary Clinton when she seemed likely to be nominated for president by the Democratic Party," Mr. Abrams says. "I ask myself: Well, isn't it obvious that that sort of speech must be protected by the First Amendment? And then I hear in response to that, 'Well, they could have used a PAC. Or they could have put the film out farther away from the election. Or they could have refrained from taking any money from any corporate grantor.'
"And my reaction is sort of a John McEnroe: You cannot be serious! We're talking about the First Amendment here, and we're being told that an extremely vituperative expression of disdain for a candidate for president is criminal in America?"
One could draw a distinction between nonprofit corporations and those that "exist to make money," as the Times Co. put it in 2010, and argue, as the Times Co. did only implicitly, that the former are entitled to First Amendment protections while the latter are not. But the Times Co. is a for-profit entity. It would be on the wrong side of that line. Hence the "function" argument.
The court has long recognized a somewhat analogous distinction: between commercial and political speech. The former is protected by the First Amendment, but not as strongly as the latter. If a company, for example, fails to live up to a promise to customers, it can be sued or prosecuted for false advertising. When a politician breaks his promises, voters' only recourse is through the ballot box.
But that is a distinction between types of speech, not types of organizations. The New York Times Co. would be laughed out of court if it claimed a "media exemption" from laws regulating its commercial dealings with advertisers and subscribers. The government may not censor its editorial product (except in very limited circumstances) because it is the type of expression that is entitled to the strongest First Amendment protection.
The Times Co.'s notion that only certain types of corporations are "deserving of constitutional protection" is pernicious. It recasts freedom of expression as a privilege rather than a right. It assigns to the government the authority to determine which corporations are to be favored with the "media" distinction allowing them to engage in political debate.
The Times Co. wants itself and similar corporations to enjoy a monopoly on free speech. The only way to accomplish that is through a regime in which the government effectively licenses the press. That would be an anathema to America's constitutional tradition.
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http://www.nytimes.com/2012/11/27/us/judges-rulings-follow-partisan-lines.html?hpw
From the artiicle:
A book scheduled to be published in January by Harvard University Press provides the most comprehensive and detailed empirical analysis yet of the role played by ideology and political affiliation in judicial decision making. It is called “The Behavior of Federal Judges,” and it collects and analyzes a daunting amount of data.
Its authors are Lee Epstein, who teaches law and political science at the University of Southern California; William M. Landes, who teaches law and economics at the University of Chicago; and Judge Richard A. Posner of the federal appeals court in Chicago. They conclude that “federal judges are not just politicians in robes, though that is part of what they are.”
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"Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings -- give us that precious jewel, and you may take every things else! Guard with jealous attention the public liberty. Suspect every one who approaches that jewel." --Patrick Henry, Speech to the Virginia Convention, 1788
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Just in case our limited government zeal becomes so extreme and that our very few and simple laws, taxes and regulations are successfully in place, working as intended, with consent of the governed, and in case Congress is tempted to not meet at all during the year, the constitution requires:
"The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day."
I think the framers envisioned a smaller government than what we got.
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Supreme Court Rules That Temporary Government-Induced Flooding of Private Property Can Qualify as a Taking
Ilya Somin • December 4, 2012 2:51 pm
Today, the Supreme Court issued a unanimous decision in Arkansas Game and Fish Commission v. United States. The case involved a claim by the Arkansas Game and Fish Commission that the federal government’s repeated deliberate flooding of its property between 1993 and 2000 constituted a taking requiring compensation under the Fifth Amendment, which mandates that the government pay “just compensation” for takings. The flooding caused extensive damage to forest land owned by the Commission.
Today’s opinion by Justice Ruth Bader Ginsburg rules that temporary flooding can qualify as a taking at least sometimes, but tells us very little about how to determine whether a given case of flooding qualifies as a taking or not:
We rule today, simply and only, that government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence... of a compensable taking....
Also relevant to the takings inquiry is the degree to which the invasion is intended or is the foreseeable result of authorized government action.... So, too, are the character of the land at issue and the owner’s “reasonable investment-backed expectations” regarding the land’s use.... Severity of the interference figures in the calculus as well.
So far as it goes, I think the Court’s decision is clearly correct. For reasons I discussed here, there is no good reason to hold that temporary flooding can never count as a taking. This is especially true if the flooding was deliberate and inflicted permanent damage on the property owner’s land. Temporary physical invasions qualify as takings in many other contexts (e.g. – overflights by aircraft), and there is nothing special about flooding that should lead the Court to create a categorical exception. To the contrary, allowing the government to temporarily flood private property without paying any compensation whatsoever would severely undermine the purpose of the Just Compensation Clause, which is, as a 1960 decision puts it, to “bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”
Unfortunately, the Court gives very little guidance on how to determine whether a given case of flooding is a taking or not. The opinion lists several factors that might be relevant, but does not explain how many need to be present before a taking can be said to have occurred, or what to do if some factors cut one way and some the other. It also says nothing about how much deference, if any, is due to the government in such cases. The Court does not even address the federal government’s extremely dubious argument that damage inflicted by flooding on downstream owners is categorically excluded from qualifying as a taking, even though the justices expressed great skepticism about this claim at the oral argument. These and other issues will have to be dealt with by the lower court on remand.
I suspect that the justices bought unity at the expense of clarity here. In the meantime, it seems clear that Arkansas Game and Fish Commission is going to result in further litigation in the lower courts, as property owners and government agencies advance competing interpretations of the Court’s vague standards for determing whether a temporary flood qualifies as a taking or not.
That said, the Court did take an important step in decisively rejecting the federal government’s extreme position that temporary flooding can never be a taking. The case is therefore joins Sackett v. EPA as a rare unanimous victory for property rights in the Supreme Court.
UPDATE: In this post, I explained why the Court is applying the Just Compensation Clause to this case despite the fact that it involves the flooding of government-owned land, while the text of the Fifth Amendment specifies that it applies only to “private property.” Under longstanding current Supreme Court precedent, the Takings Clause applies to both private and state-owned land. I have some doubts about the correctness of those decisions, but the Court is unlikely to overrule them anytime soon.
UPDATE #2: Brian Hodges of the Pacific Legal Foundation comments on this post here:
Professor Ilya Somin.... praised today’s U.S. Supreme Court decision in Arkansas Game & Fish Commission v. United States as “a rare unanimous victory for property rights” and “an important step in rejecting the federal government’s extreme position that temporary flooding can never be a taking....”
Professor Somin highlights, however, a couple a paragraphs toward the end of the decision that injected unnecessary confusion into an otherwise clear opinion....
While I agree that the language is unclear, I am not so sure that the quoted passage will cause too much confusion in future litigation. The passage lists, without differentiation, various tests, developed over the years, to determine regulatory and/or physical takings. For example, the Court recites the “intent or foreseeability” and “character of the invasion” tests from Ridge Line, Inc. v. United States (2003) and Portsmouth Harbor Land & Hotel v. United States (1922)—both are tests that have never been applied to regulatory takings....
Although some may be tempted to argue that the Court created a chimera from blended regulatory and physical takings tests, the Court did not intend to do so. Instead, the Court stated that its decision was narrow, “We rule today, simply and only, that government induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.” And elsewhere, in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002), the Court advised that it is “inappropriate to treat cases involving physical takings as controlling precedents for the evaluation of a claim that there has been a ‘regulatory taking’ and vice versa.” The upshot being that the tests that control physical invasion takings still control physical takings cases, and the tests that control regulatory takings still only apply in regulatory takings cases.
I continue to believe that the opinion is clear in rejecting the government’s extreme claim that temporary flooding can never be a taking, but unclear as to the standards that determine when temporary flooding is a taking. As Hodges notes, the Court lists a grab bag of relevant factors drawn from both regulatory and physical takings cases. So it is by no mean clear which set of precedents applies here. Of course one can argue that the language listing possible relevant factors is just dictum and that the sole holding is, as the Court puts it, “only... that government induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.” But if the list of factors is just dictum, that makes the opinion less clear, not more, as lower courts would have even less guidance on the question of how to figure out whether a given case of temporary flooding qualifies as a taking or not.
UPDATE: Robert H. Thomas of the Inverse Condemnation blog rounds up other reactions to the decision here.
http://www.volokh.com/2012/12/04/supreme-court-rules-that-temporary-government-induced-flooding-of-private-property-can-qualify-as-a-taking/
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For the previous post in the thread, temporary takings, that is good news. There was a similar ruling for partial takings, I recall. Still not overturned is Kelo, the power to take private property to transfer to other private ownership.
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A good piece with an unfortunate conclusion, a shell bill successfully gets around the origination requirement??
WSJ December 4, 2012 By JAMES TARANTO
Too Good to Be True - An ObamaCare challenge that's almost certain to fail.
From BusinessInsider.com we learn of a new legal challenge to ObamaCare--"a challenge that only could have been made after the Supreme Court's ruling" in National Federation of Independent Business v. Sebelius, which upheld most of the Patient Protection and Affordable Care Act:
The right-leaning Pacific Legal Foundation amended its challenge to the ACA after the Supreme Court upheld the insurance mandate under Congress' taxing powers.
The group's challenge turns on the Origination Clause in the U.S. Constitution, which requires that bills for raising revenue start in the House of Representatives.
Problem is, the group argues, Obamacare started in the Senate. . . .
Of course, it's not entirely clear whether Pacific Legal will ultimately prevail on this reasoning.
We'd say it's almost entirely clear that it will not.
The Origination Clause provides that "all Bills for raising Revenue shall originate in the House of Representatives." In order to prevail, the plaintiff in this case would have to establish both that ObamaCare was a "Bill for raising Revenues" and that it originated in the Senate.
Not every law imposing a tax is a "Bill for Raising Revenues." In the court's most recent Origination Clause case, U.S. v. Munoz-Flores (1990), the court unanimously upheld the 1984 Victims of Crime Act, which imposed "a monetary 'special assessment' on any person convicted of a federal misdemeanor." A six-justice majority held that even though the act raised revenue, it was not a bill for raising revenue:
The special assessment provision was passed as part of a particular program to provide money for that program--the Crime Victims Fund. Although any excess was to go to the Treasury, there is no evidence that Congress contemplated the possibility of a substantial excess, nor did such an excess in fact materialize. Any revenue for the general Treasury that 3013 creates is thus "incidenta[l]" to that provision's primary purpose."
Pacific Legal contrasts the Munoz-Flores assessment with the ObamaCare mandate tax on the ground that the latter "is more akin to an income tax, whose revenues go to the general treasury and are used for general Government operations."
That is a plausible distinction. But it is also plausible to argue that the revenues from the ObamaCare mandate tax are "incidental" to its primary purpose, which is to encourage people to buy insurance. That Congress did not even write the mandate as a tax would seem to strengthen, not weaken, the argument that its revenues are incidental.
We'd be delighted to see Pacific Legal's lawsuit succeed. But if one assumes that Chief Justice John Roberts adopted the "saving construction" for political reasons, it strikes us as highly unlikely that he would now strike down ObamaCare on Origination Clause grounds when he could sustain it without nearly the level of intellectual gymnastics he employed in the NFIB case.
It's also inaccurate to say that the court's opinion upholding ObamaCare opened the door to an Origination Clause challenge. For the law contains many other taxes--including a Medicare levy on investment income and excise taxes on such things as medical devices and tanning salons--which Congress knowingly enacted as taxes for the purpose of raising revenue. And Congress did, however unrealistically, foresee a surplus. It's still far from clear that ObamaCare was a "Bill for raising Revenue," since its main purpose was to remake the health insurance market. But these other taxes, not the mandate, provide the strongest argument that it was.
Even if we assume ObamaCare was a "Bill for raising Revenue," there's one further problem. Although it's true that the version of the law that was finally enacted passed the Senate before the House, it was, as Pacific Legal notes in its pleading, styled a "House Resolution." Here's what happened (citations omitted):
In September, 2009, the House unanimously passed H.R. 3590, entitled the "Service Members Home Ownership Tax Act of 2009." The bill would have "amend[ed] the Internal Revenue Code of 1986 to modify first-time homebuyers credit in the case of members of the Armed Forces and certain other Federal employees"; H.R. 3590 had nothing to do with health insurance reform. In November of that year, the Senate "amended" the House bill by gutting its contents, replacing those contents with health-insurance reforms (including the purchase requirement and associated payment), and renaming the bill the "Patient Protection and Affordable Care Act." The Senate's purported amendment resulted in the Affordable Care Act that became law.
This procedural dodge is known as a "shell bill" and is designed precisely to evade Origination Clause challenges. Pacific Legal notes in a press release that "the Supreme Court has never ruled on whether such a gut and switch ploy is constitutional." But the law at issue in Munoz-Flores was enacted in the same way, and one justice argued in a concurring opinion that that was sufficient to pass constitutional muster under the Origination Clause:
The enrolled bill's indication of its House of origin establishes that fact as officially and authoritatively as it establishes the fact that its recited text was adopted by both Houses. . . . We should no more gainsay Congress' official assertion of the origin of a bill than we would gainsay its official assertion that the bill was passed by the requisite quorum, or any more than Congress or the President would gainsay the official assertion of this Court that a judgment was duly considered and approved by our majority vote. Mutual regard between the coordinate branches, and the interest of certainty, both demand that official representations regarding such matters of internal process be accepted at face value.
That justice was Antonin Scalia, one of the four dissenters in NFIB v. Sebelius. There is every reason to think the Origination Clause will not save us from ObamaCare.
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From lawyers who worked on the previous, unsuccessful challenge. (WSJ excerpt)
The Opening for a Fresh ObamaCare Challenge
By defining the mandate as a tax, one that will not be uniformly applied, the Supreme Court ran afoul of the Constitution.
By DAVID B. RIVKIN, JR. AND LEE A. CASEY
ObamaCare is being implemented, having been upheld as constitutional by the Supreme Court in June in a series of cases now known as National Federation of Independent Business v. HHS. It is becoming increasingly clear, however, that the court took a law that was flawed but potentially workable and transformed it into one that is almost certainly unworkable. More important, the justices also may have created new and fatal constitutional problems.
ObamaCare, or the Affordable Care Act, was conceived as a complex statutory scheme designed to provide Americans with near-universal health-care coverage and to effectively federalize the nation's health-care system. The law's core provision was an individual health-insurance purchase mandate, adopted by Congress as a "regulation" of interstate commerce. The provision required most Americans to buy federally determined minimum health-care insurance, or to pay a penalty more or less equivalent to the cost of that coverage.
Equally important were provisions requiring creation of state-run health-care insurance exchanges (where middle-income earners could obtain the prescribed coverage) and an expanded Medicaid program (also administered by the states) to cover people with incomes up to 133% (later upped to 138%) of the federal poverty level. An income of up to $31,809 for a family of four would qualify for Medicaid. States that failed to join in the Medicaid expansion were threatened with the loss of all federal Medicaid dollars, nearly a quarter of all state expenditures.
In the ObamaCare ruling, the Supreme Court correctly held that Congress could not impose the individual mandate as a constitutional regulation of interstate commerce and that Congress could not constitutionally use its spending power to coerce the states to expand Medicaid. Rather than strike down the law, however, the court construed the insurance-purchase mandate and its penalty as a "tax" on the failure to have health insurance. The justices also interpreted the Medicaid-expansion requirements as optional—permitting states to opt out of these provisions while staying within the traditional Medicaid program. Given that interpretation, the court's majority upheld the statute as constitutional.
The court's determination to preserve ObamaCare through "interpretation" has exacerbated the law's original flaws to the point that it has become palpably unworkable. By transforming the penalties for failing to comply with the law's requirements into a "tax," the court has given the public a green light to ignore ObamaCare's requirements when it is economically beneficial. Law-abiding individuals, who might otherwise have complied with the law's expensive purchase mandate to avoid being subjected to financial penalties, can simply now choose to pay a tax and not sign up for coverage. There is certainly no stigma attached to simply paying a tax, and noncompliance with the law's other requirements—such as those imposed on employers—is arguably made more attractive on the same basis. This effect fundamentally undercuts Congress's original purpose, which was to expand health-care coverage to the greatest number of people, not to improve federal revenues.
Similarly, having reviewed the likely costs and benefits, states are now taking advantage of the court-granted flexibility. Seven states, including Texas, Mississippi and Georgia, have so far opted out of the Medicaid-expansion provisions, and eight (with more certain to come) are refusing to create the insurance exchanges, leaving this to a federal bureaucracy unequipped to handle these new administrative burdens. As a result, a growing number of low-income Americans will be unable to obtain the free or cost-effective insurance that Congress originally meant them to have, although they remain subject to the mandate-tax.
Policy problems aside, by transforming the mandate into a tax to avoid one set of constitutional problems (Congress having exceeded its constitutionally enumerated powers), the court has created another problem. If the mandate is an indirect tax, as the Supreme Court held, then the Constitution's "Uniformity Clause" (Article I, Section 8, Clause 1) requires the tax to "be uniform throughout the United States." The Framers adopted this provision so that a group of dominant states could not shift the federal tax burden to the others. It was yet another constitutional device that was simultaneously designed to protect federalism and safeguard individual liberty.
The Supreme Court has rarely considered the Uniformity Clause's reach, but it cannot be ignored. The court also refused to impose meaningful limits on Congress's power to regulate interstate commerce for decades after the 1930s, until justices began to re-establish the constitutional balance in the 1990s with decisions leading up to the ObamaCare ruling this summer. And although the court has upheld as "uniform" taxes that affect states differently in practice, precedent makes clear that a permissible tax must "operate with the same force and effect in every place where the subject of it is found," as held in the Head Money Cases (1884). The ObamaCare tax arguably does not meet this standard.
ObamaCare provides that low-income taxpayers, who are nevertheless above the federal poverty line, can discharge their mandate-tax obligation by enrolling in the new, expanded Medicaid program, which serves as the functional equivalent of a tax credit. But that program will not now exist in every state because, as a matter of federal law, states can opt out. The actual tax burden will not be geographically uniform as the court's precedents require.
Thus, having transformed the individual mandate into a tax, the court may face renewed challenges to ObamaCare on uniformity grounds. The justices will then confront a tough choice. Having earlier reinterpreted the mandate as a tax, they would be hard-pressed to approve the geographic disparity created when states opt out of the Medicaid expansion. But that possibility is inherent in a scheme that imposes a nominally uniform tax liability accompanied by the practical equivalent of a fully off-setting tax credit available only to those living in certain states. To uphold such a taxing scheme would eliminate any meaningful uniformity requirement—a result that the Constitution does not permit.
ObamaCare was always a poorly conceived and constitutionally deficient statute. The Supreme Court's ruling upholding the law has simply made it worse. In the future, that decision is likely to be seen as a prime reason that the federal courts should judge and never legislate... more at the link.
https://buy.wallstreetjournal.com/offers/html/offerSeAff.html?trackCode=aap5few2
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:-o :-o :-o :evil: :evil: :evil: :-D :-D :-D
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http://thehill.com/blogs/blog-briefing-room/news/271741-supreme-court-to-hear-2-historic-cases-on-gay-marriage
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In a related article, "On same-sex marriage, options open":
http://www.scotusblog.com/2012/12/on-same-sex-marriage-options-open/#more-156291
Note the participation of famous conservative attorney Thedore Olsen.
http://thehill.com/blogs/blog-briefing-room/news/271741-supreme-court-to-hear-2-historic-cases-on-gay-marriage
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I hope the Court learned the lesson about judicial imperialism from the Roe v. Wade experience.
The correct decision is that this is a matter for the democratic process. Whether that should be limited to the States or the Feds should define (due to "full faith and credit" issues) I do not have an opinion at the moment.
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I think 5-4, Kennedy writing the opinion. In favor of same sex marriage.
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You may be right but I hope your prediction to be wrong.
"Intelligence is the amount of time it takes to forget a lesson." (me? I forget!) It would be profoundly stupid were the court to arrogantly once again commit the sin of hubris despite the near daily reminders of the arrogance and foolishness of the Roe decision.
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It would be nice if we could extend all rights, all privileges, recognize all relationships, guarantee respect for life, liberty and pursuit of happiness for all without destroying the meaning of bedrock terms like husband and wife, mother and father.
FAFSA (federal financial aid) has already gone to the Parent One, Parent Two designations. Are the old gender based terms m*ther and f*ther banned by law or removed by bureaucrats for terms terms stripped of half their meaning and all of their uniqueness. Which one are YOU? How will you know or how will you decide?
Family units are fluid. Maybe we need the federal government to quit recognizing these relationships at all as they lose their meanings. How would that promote the general Welfare our nation?
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Tenth Situation A conservative case against the Defense of Marriage Act
By JAMES TARANTO
More than 40 years after it first declined to take up the question of same-sex marriage (Baker v. Nelson is the answer to the trivia question) the U.S. Supreme Court has done so. On Friday it announced that it will hear two appeals of lower-court decisions in favor of same-sex marriage. One struck down California's Proposition 8, the other a section of the federal Defense of Marriage Act. It seems to us, for reasons we'll explain below, that there is a very strong case against DOMA, which even conservatives uncomfortable with same-sex marriage should consider.
By contrast, the case against Proposition 8, at least as served up to the justices by the Ninth U.S. Circuit Court of Appeals, is a mess. Judge Stephen Reinhardt's February opinion in Perry v. Brown (designated Hollingsworth v. Perry at the high court) is a dazzlingly complicated piece of work with a manifestly political objective. It reminds us of Chief Justice John Roberts's opinion in the ObamaCare case.
As we noted in February, Reinhardt led a three-judge panel that struck down Proposition 8, a 2008 ballot measure that amended California's constitution by defining marriage as an opposite-sex union only. But Reinhardt declined to find a federal constitutional right to same-sex marriage. If the decision is sustained, same-sex marriage would become legal in California, but only there.
What made the Reinhardt ruling seem especially clever, including to us, is that it was a direct appeal to Justice Anthony Kennedy, who is thought to hold the pivotal vote. Reinhardt's opinion, as we noted, "relies almost entirely" on Romer v. Evans, a 1996 Kennedy opinion that struck down an antigay Colorado ballot initiative. The more we think about the analogy, though, the more problematic it is.
Amendment 2 prohibited any governmental agency in Colorado from enacting "any statute, regulation, ordinance or policy" under which "homosexual, lesbian or bisexual orientation, conduct, practices or relationships" would provide a basis for "minority status, quota preferences, protected status or claim of discrimination." That would have nullified ordinances in Aspen, Boulder and Denver that prohibited discrimination on the basis of sexual orientation, and it would have prevented the enactment of future such laws.
California passed Proposition 8 in reaction to a state Supreme Court ruling that interpreted the state's constitution as requiring the recognition of same-sex marriages. Here is how Reinhardt described the analogy between the two measures (citations omitted):
Proposition 8 is remarkably similar to Amendment 2. Like Amendment 2, Proposition 8 "single out a certain class of citizens for disfavored legal status. . . ." Like Amendment 2, Proposition 8 has the "peculiar property" of "withdraw[ing] from homosexuals, but not others," an existing legal right--here, access to the official designation of "marriage"--that had been broadly available, notwithstanding the fact that the [U.S.] Constitution did not compel the state to confer it in the first place.
Like Amendment 2, Proposition 8 denies "equal protection of laws in the most literal sense," because it "carves out" an "exception" to California's equal protection clause, by removing equal access to marriage, which gays and lesbians had previously enjoyed, from the scope of that constitutional guarantee. Like Amendment 2, Proposition 8 "by state decree . . . put [homosexuals] in a solitary class with respect to" an important aspect of human relations, and accordingly "imposes a special disability upon [homosexuals] alone." And like Amendment 2, Proposition 8 constitutionalizes that disability, meaning that gays and lesbians may overcome it "only by enlisting the citizenry of [the state] to amend the State Constitution" for a second time.
The trouble with this analogy is that Kennedy's decision in Romer did not hinge on Amendment 2's withdrawal of "an existing legal right." Rather, its crucial defect was that it singled out homosexuals and put them "in a solitary class":
The amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution.
Romer v. Evans applied only to Colorado because only Colorado had such a amendment on its books. But it seems clear that if another state's voters passed an identical amendment, it too would be unconstitutional even if it were entirely pre-emptive--that is, if the state had no existing laws that the amendment would nullify. Nor would Amendment 2 have been saved had it excepted antidiscrimination ordinances already on the books.
By contrast, Proposition 8 is substantively similar to amendments in many other states, including every state in the Ninth Circuit save Hawaii and Washington. One can make a logical argument, as the trial judge did, that these amendments--indeed, the traditional definition of marriage--violate equal protection. Or one can argue, as the Ninth Circuit's Judge N. Randy Smith did in dissent, that the government has a rational basis for declining to legalize same-sex marriage.
The case for striking down Proposition 8 while leaving other states' similar amendments on the books rests on political logic--on the notion that Californians are "ready" to accept same-sex marriage, while residents of many other states are not. But if that's the argument, why not leave it to Californians to decide via another ballot measure?
The trouble with Reinhardt's approach isn't just that it's too clever by half but that it does violence to the basic relationship between federal and state governments. The U.S. Constitution trumps state constitutions, so that if there is a federal right to same-sex marriage, states are obliged to recognize it. But Reinhardt's decision in effect would empower state judges to make an interpretation of the state constitution irrevocable. There's no basis in the U.S. Constitution for that, and, as Justice Samuel Alito recently observed, there is another amendment after the Ninth.
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Associated Press
Edith Windsor
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The Tenth Amendment, which protects states' rights, is the strongest argument against Section 3 of the 1996 Defense of Marriage Act, which defines marriage for federal purposes. (Section 2, which asserts pre-emptively that no state is obliged to recognize another state's same-sex marriages, is not under challenge.)
Edith Windsor, a New York resident, married Thea Clara Spyer in Canada in 2007. When Spyer died in 2009, the Internal Revenue Service refused to recognize Windsor as a "surviving spouse" and collected $363,053 in death tax on her share of the estate. In October the Second U.S. Circuit Court of Appeals ruled in her favor, and Windsor v. U.S. is the DOMA case (among many) that the high court agreed to review.
In answering one of the defenses of DOMA, Chief Judge Dennis Jacobs goes to the heart of the states' rights argument (again, omitting citations):
Statements in the Congressional Record express an intent to enforce uniform eligibility for federal marital benefits by insuring that same-sex couples receive--or lose--the same federal benefits across all states. However, the emphasis on uniformity is suspicious because Congress and the Supreme Court have historically deferred to state domestic relations laws, irrespective of their variations.
To the extent that there has ever been "uniform" or "consistent" rule in federal law concerning marriage, it is that marriage is "a virtually exclusive province of the States." As the Supreme Court has emphasized, "the states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce. . . . The Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce." DOMA was therefore an unprecedented intrusion "into an area of traditional state regulation."
If California has the right to define marriage as it sees fit, why doesn't New York? By the same token, note the tension between Jacobs's acknowledgment that regulating marriage is a state power and Reinhardt's insistence on micromanaging California marriage law.
One way the justices could resolve it, of course, would be by taking the politically explosive step of holding that the 14th Amendment obliges all states to legalize same-sex marriage. Another would be to strike down DOMA, let Proposition 8 stand, and leave it to the states to sort the matter out.
But to let Reinhardt's opinion stand would be an act of political expediency that would leave the law muddled. One suspects that after nearly a quarter century on the bench, Justice Kennedy is cognizant of this risk
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One conservative case for gay marriage is that if you accept that some of the population is homosexual, why not encourage every attempt at committed monogamy as we do with heteros?
My beef expressed previously has to do with parenting, and the removal of meanings of terms like mother and father, and of a man and a woman becoming husband and wife. Everyone including single people should be able to designate legal things like who should make crucial decisions for them when they become unable.
DOMA is a pretty good example often offered of 'conservatives' arguing against states' rights. On the other side of the coin is that after we admit most states' rights have disappeared and have been superseded with federal powers over almost everything (grow wheat on your own property?), why should conservatives have to play the political game under a different set of rules?
If the Supreme Court rules unambiguously in favor of states' rights on gay marriage, what liberal causes with unconstitutional federal powers will then be put at risk?
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An additional variable in the case of DOMA is the "full faith" clause of the C. whereby States must give respect to the acts of other states e.g. driver licenses and , , , marriage? Thus arguably this becomes a matter for federal action?
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An additional variable in the case of DOMA is the "full faith" clause of the C. whereby States must give respect to the acts of other states e.g. driver licenses and , , , marriage? Thus arguably this becomes a matter for federal action?
That was exactly the justification used in passing it. But if that is not strong enough to uphold it, what other federal actions should be struck down with it? Will we be moving in the direction of recognizing states' rights, or just selective recognition depending on the issue.
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http://themonkeycage.org/blog/2012/12/10/the-dimensions-of-law-and-the-same-sex-marriage-cases/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+themonkeycagefeed+%28The+Monkey+Cage%29
"These two cases will be among the most closely-watched cases of the Supreme Court’s term, and may be among the most consequential decisions it makes this year. When arguments are held in March, there will surely be a large crowd outside of the Court, and Court-watchers and interest groups will surely wait in suspense for the decision in late June. Already, speculation has begun to abound about how the Court will decide these cases, and how individual justices will vote. Much attention is being paid in particular to Justice Kennedy, who is widely seen as the pivotal member of the Court."
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Crafty, regarding Robert Bork on Rest in Peace:
"Personally I opposed Bork's nomination on the grounds that he did not believe that there is a right to privacy in the Ninth Amendment, but I regarded him as an honorable man."
I think I understand your point and agree on the privacy point but I think your right of privacy would have fared much better with Bork on the court than Kennedy or most of the others who followed. Bork I think would also have been quite restrained about reading government powers into the constitution as well.
One request: Could you (or anyone else) please put to words what you believe the text of that widely accepted unenumerated right might be. It sure seems like a moving target.
Bork was saying in confirmation that Griswold could be overturned by legislature instead of by courts, much like what Roberts said more recently upholding Obamacare. Is there a right of privacy in health care?
Kennedy, who followed Bork, told the committee he did believe in a right of privacy. He found a right of privacy in Lawrence, but went on to concur in Kelo where you can forget about privacy in your home, you don't have a right to live there. Like the Japanese American internment, maybe the right of privacy is transferable. The government can tell you where your right of privacy will or will not be.
Kelo is a property rights case, not a privacy case they say. Where would you have privacy if not on your own bought and paid for property? I don't know but not there, see also Wickard v. Filburn. :-(
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Working from memory, Bork said that there is NO right to privacy because the word "privacy" did not appear in the Constitution.
In my opinion, this is a profoundly wrong reading of the Constitution because it makes the Ninth Amendment meaningless-- which violates statutory interpretation jurisprudence to the effect that the language of a law-- including our supreme law!--should not be read so as to make it meaningless.
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By a Georgetown Law Prof yet! :-P :x :cry:
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Let’s Give Up on the Constitution
By LOUIS MICHAEL SEIDMAN
Published: December 30, 2012
AS the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.
Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?
Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.
As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?
Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience. When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states. Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.
No sooner was the Constitution in place than our leaders began ignoring it. John Adams supported the Alien and Sedition Acts, which violated the First Amendment’s guarantee of freedom of speech. Thomas Jefferson thought every constitution should expire after a single generation. He believed the most consequential act of his presidency — the purchase of the Louisiana Territory — exceeded his constitutional powers.
Before the Civil War, abolitionists like Wendell Phillips and William Lloyd Garrison conceded that the Constitution protected slavery, but denounced it as a pact with the devil that should be ignored. When Abraham Lincoln issued the Emancipation Proclamation — 150 years ago tomorrow — he justified it as a military necessity under his power as commander in chief. Eventually, though, he embraced the freeing of slaves as a central war aim, though nearly everyone conceded that the federal government lacked the constitutional power to disrupt slavery where it already existed. Moreover, when the law finally caught up with the facts on the ground through passage of the 13th Amendment, ratification was achieved in a manner at odds with constitutional requirements. (The Southern states were denied representation in Congress on the theory that they had left the Union, yet their reconstructed legislatures later provided the crucial votes to ratify the amendment.)
In his Constitution Day speech in 1937, Franklin D. Roosevelt professed devotion to the document, but as a statement of aspirations rather than obligations. This reading no doubt contributed to his willingness to extend federal power beyond anything the framers imagined, and to threaten the Supreme Court when it stood in the way of his New Deal legislation. In 1954, when the court decided Brown v. Board of Education, Justice Robert H. Jackson said he was voting for it as a moral and political necessity although he thought it had no basis in the Constitution. The list goes on and on.
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The fact that dissenting justices regularly, publicly and vociferously assert that their colleagues have ignored the Constitution — in landmark cases from Miranda v. Arizona to Roe v. Wade to Romer v. Evans to Bush v. Gore — should give us pause. The two main rival interpretive methods, “originalism” (divining the framers’ intent) and “living constitutionalism” (reinterpreting the text in light of modern demands), cannot be reconciled. Some decisions have been grounded in one school of thought, and some in the other. Whichever your philosophy, many of the results — by definition — must be wrong.
IN the face of this long history of disobedience, it is hard to take seriously the claim by the Constitution’s defenders that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text. Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.
This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.
Nor should we have a debate about, for instance, how long the president’s term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor. Nor, finally, should we have an all-powerful president free to do whatever he wants. Even without constitutional fealty, the president would still be checked by Congress and by the states. There is even something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country.
What would change is not the existence of these institutions, but the basis on which they claim legitimacy. The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief. Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine. The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.
The deep-seated fear that such disobedience would unravel our social fabric is mere superstition. As we have seen, the country has successfully survived numerous examples of constitutional infidelity. And as we see now, the failure of the Congress and the White House to agree has already destabilized the country. Countries like Britain and New Zealand have systems of parliamentary supremacy and no written constitution, but are held together by longstanding traditions, accepted modes of procedure and engaged citizens. We, too, could draw on these resources.
What has preserved our political stability is not a poetic piece of parchment, but entrenched institutions and habits of thought and, most important, the sense that we are one nation and must work out our differences. No one can predict in detail what our system of government would look like if we freed ourselves from the shackles of constitutional obligation, and I harbor no illusions that any of this will happen soon. But even if we can’t kick our constitutional-law addiction, we can soften the habit.
If we acknowledged what should be obvious — that much constitutional language is broad enough to encompass an almost infinitely wide range of positions — we might have a very different attitude about the obligation to obey. It would become apparent that people who disagree with us about the Constitution are not violating a sacred text or our core commitments. Instead, we are all invoking a common vocabulary to express aspirations that, at the broadest level, everyone can embrace. Of course, that does not mean that people agree at the ground level. If we are not to abandon constitutionalism entirely, then we might at least understand it as a place for discussion, a demand that we make a good-faith effort to understand the views of others, rather than as a tool to force others to give up their moral and political judgments.
If even this change is impossible, perhaps the dream of a country ruled by “We the people” is impossibly utopian. If so, we have to give up on the claim that we are a self-governing people who can settle our disagreements through mature and tolerant debate. But before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance.
Louis Michael Seidman, a professor of constitutional law at Georgetown University, is the author of the forthcoming book “On Constitutional Disobedience.”
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You'll see this theme more as things move "forward". Disarm the people, the constitution is meaningless....
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The publishing of the names and addresses of the gun owners makes me come back to this question, what is the right of privacy?
Confirming what Crafty posted about Robert Bork is this: "Many originalists, including most famously Judge Robert Bork in his ill-fated Supreme Court confirmation hearings, have argued that no such general right of privacy exists."
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html
Bork was extreme in this view and was not confirmed. My question to any and all: put to words the best we can, what is our right of privacy?
Answered two ways, what right of privacy is protected now by at least 5 and maybe 9 Justices. Reaching further, how should it be defined for those of us inclined to support an even greater protection of our privacy?
Is there a right to not tell the government about your gun purchases and holdings? Is there a right that if you do tell them that the information can only be used for law enforcement investigations, and beyond that is protected as private? Is there a right to not tell the government about your healthcare finance choices? (Guess not.) Is there a right to tell the U.S. Census Bureau nothing more than how many live in your household? Is there right to not carry and show ID on the street if you are not buying liquor or doing anything wrong? Is there a right to not be filmed or if filmed to not have your image used for anything more than the security purposes of the filming either in private establishment or public place? The questions go on and on with no definition.
Seems to me that the 'right of privacy' is something we all step on quite freely whenever it doesn't fit with our other objectives.
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Excellent post Doug. May I ask that you post it on the Privacy/4th Amendment thread?
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The Ninth Circuit Earns a Merit Badge in San Diego The liberal appellate court wisely overrules a lower court's decision to boot the Boy Scouts from public land.
by MARK PULLIAM The San Diego-Imperial Council of the Boy Scouts of America got an early (and unexpected) Christmas present from the Ninth Circuit Court of Appeals on Dec. 20. It came in the form of a unanimous, 41-page decision reversing a 2003 district-court ruling that the City of San Diego had violated the federal and state constitutions by leasing city property to the Boy Scouts on the same terms as it routinely does to many other nonprofit organizations. Amazingly, in the 2003 decision Judge Napoleon Jones ordered the Scouts evicted from San Diego's Balboa Park, where they had maintained a presence since 1918.
Barnes-Wallace vs. Boy Scouts of America has been a much-followed case, and not just in San Diego. Represented by the ACLU, two couples (one couple who are agnostics and the other lesbians) sued the council and city in 2000 claiming that the leases were unconstitutional—because the Boy Scouts disapprove of homosexuality and require Scout members to profess a belief in God. In the three-judge panel's opinion last month, however, the Ninth Circuit unanimously ruled that the leases did not confer an unconstitutional benefit on a religious organization.
Why was the Ninth Circuit decision so unexpected? Because the appeals court has a reputation as one of the most liberal in the nation, and the decision it was reviewing meshed nicely with liberal views concerning sexual preferences and the separation of church and state. If any court was going to disregard controlling Supreme Court precedents—such as the 2000 Boy Scouts of America v. Dale decision, which held that the Boy Scouts have a First Amendment right to exclude homosexuals—it would have been the Ninth Circuit.
The panel that decided Barnes-Wallace included two judges appointed by Democratic presidents: William Canby by Jimmy Carter, and Marsha Berzon by Bill Clinton. Judge Berzon was openly skeptical of the Boy Scouts' legal position at oral argument.
To make matters more disheartening for the Boy Scouts, the case had been pending in the Ninth Circuit for almost a decade. The most recent round of oral arguments took place in June 2011, 18 months before the decision. This created the impression that the panel was reluctant to issue what it knew would be a controversial decision.
In addition, soon after Judge Jones issued his 2003 decision, the city decided to settle with the plaintiffs. San Diego agreed to pay the plaintiffs almost $1 million for attorneys' fees and not to assist the Boy Scouts in their appeal.
Abandoned by the feckless San Diego City Council and facing delays and hostile questioning in court, the Boy Scouts could have been excused if they uttered their motto, "Be prepared," with a certain fatalistic gloom. While the Scouts were allowed to remain on the leased property pending the outcome of the appeal, they were ready for the worst.
Yet the Ninth Circuit overturned Judge Jones's decision in its entirety, holding that there is "no evidence that the City's purpose in leasing the subject properties to the Boy Scouts was to advance religion, and there is abundant evidence that its purpose was to provide facilities and services for youth activities."
And how about this for common sense: "There is no dispute that the Scout defendants primarily provide camping, water sports, and other outdoor youth activities at Camp Balboa and the Youth Aquatic Center that are typical of a secular camp facility."
As the father of two Eagle Scouts, and as a former Scout leader, I can only imagine the relief and vindication that the Boy Scouts must feel in light of the Ninth Circuit's ruling. The Scouts were being ousted from facilities that they built and in which they had invested millions of dollars. They were forced to expend hundreds of thousands of dollars on attorneys' fees, which could have gone toward scouting programs. A decade of uncertainty was debilitating to the Scouts and, in hindsight, wasteful and unnecessary.
The Ninth Circuit's decision should bolster the Boy Scouts'—and the public's—faith in the rule of law. Justice was finally done, but it was long overdue.
Here's a suggestion: Maybe the city should ask for the return of its nearly million-dollar settlement from the plaintiffs and donate it to the Scouts. The gesture wouldn't make up for all the Scouts have gone through, but it would at least show the kids that grown-ups can behave honorably.
Mr. Pulliam is an attorney who spent many years as an adult volunteer with Troop 506 in La Jolla, Calif. He now resides in Austin, Texas.
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http://www.nytimes.com/2013/01/15/us/clarence-thomas-breaks-silence-in-supreme-court.html?partner=rss&emc=rss&_r=0
"One of the abiding mysteries at the Supreme Court is why Justice Clarence Thomas has failed to say a word in almost seven years of arguments. On Monday, when he finally broke his silence, the mystery was replaced by a riddle: Just what did Justice Thomas say?"
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http://www.heritage.org/constitution/#!/articles/1/essays/71/state-bill-of-attainder-and-state-ex-post-facto
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http://www.upworthy.com/if-corporations-are-people-then-lets-go-ahead-and-really-make-them-people?c=cp2
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Oy vey.
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Word on the street is that senators would favor this nominee.
http://www.thedailybeast.com/newsweek/2010/04/28/a-mirror-to-obama-s-self-image.html
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As you are no doubt aware, Obama's NLRB recess appointments were struck down as unconstitutional (see http://online.wsj.com/article/SB10001424127887324039504578263772492524536.html). A few thoughts:
1. This is interesting. http://fpc.state.gov/documents/organization/50801.pdf
2. Please note the discussion of Evans (mostly pages 7-16).
3. This might prove to be intercircuit conflict of the sort the SCOTUS loves to answer.
4. The Office of Legal Counsel (historically, not simply under Obama) has a decidedly different take on the president's recess appointment power than does the court decision of yesterday.
5. Given the long history of recess appointments, I wonder what the reaction to a USSC decision severally curtailling the power would be. Are we looking at another Chadha case in which the Court's opinion is ignored?
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What were the facts and holding of the Chada decision and how was it ignored?
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http://www.breitbart.com/Breitbart-TV/2013/01/27/CBS-Runs-Segment-Calle-Lets-Give-Up-On-The-Constitution?utm_source=BreitbartNews&utm_medium=facebook
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Obama's Abuse of Power
An appeals court says his recess appointments are unconstitutional..
President Obama has shown increasing contempt for the constitutional limits on his power, and the courts are finally awakening to the news. A unanimous panel of the D.C. Circuit Court of Appeals ruled on Friday that the President's non-recess recess appointments are illegal and an abuse of executive power.
On January 4, 2012, Mr. Obama bypassed the Senate's advice and consent power by naming three new members of the National Labor Relations Board and appointing Richard Cordray to run the Consumer Financial Protection Bureau. Other Presidents have made recess appointments and we've supported that executive authority.
But here's the Obama kicker: He consciously made those "recess" appointments when the Senate wasn't in recess but was conducting pro-forma sessions precisely so Mr. Obama couldn't make a recess appointment. No President to our knowledge had ever tried that one, no doubt because it means the executive can decide on his own when a co-equal branch of government is in session.
In Noel Canning v. NLRB, a Washington state Pepsi bottler challenged a board decision on grounds that the recess appointments were invalid and that the NLRB thus lacked the three-member quorum required to conduct business. The D.C. Circuit agreed, while whistling a 98 mile-per-hour, chin-high fastball past the White House about the separation of powers.
In the 46-page opinion, the three-judge panel said that "not only logic and language, but also constitutional history" reject the President's afflatus. The Federalist Papers refer to recess appointments expiring at the end of the following session of Congress, the court explained, so it stands to reason that recess appointments were intended to be made only when the Senate is in a recess between sessions, not any time the Senators step out of the Capitol.
"An interpretation of 'the Recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement," wrote Chief Judge David Sentelle for the court, "giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law."
Judge Sentelle added, in a clear warning to the lawyers who let Mr. Obama walk out on this limb, that "Allowing the President to define the scope of his own appointments power would eviscerate the Constitution's separation of powers."
In a particular surprise, two of the three judges also ruled that recess appointments are only allowed to fill vacancies that arise during the time the Senate is in actual recess. This has not been the recent practice, and it means that Presidents could not wait, say, until a recess in December to appoint a controversial replacement for a Secretary of State who resigned in October.
The court nonetheless makes a plausible case based on the text of the Constitution, government practice in the decades after ratification and legal precedent. Mr. Obama's imperial overreach has invited the courts to re-examine the Constitution's Appointments Clause and tilt the balance of power back toward the Senate.
Meantime, the ruling potentially invalidates dozens of NLRB decisions since the illegal recess appointments were made. A similar mess occurred in 2010 when the Supreme Court ruled in New Process Steel v. NLRB that some 600 decisions made by the NLRB without a three-member quorum were invalid.
The decision also means that Mr. Cordray has no authority to run the consumer financial bureau, which has been busy issuing thousands of pages of regulations since he was illegally imposed in the job. Mr. Obama renominated Mr. Cordray this week, which is an insult to the Senate and after this ruling to the Constitution too.
One question is whether Mr. Cordray can legally keep accepting his paycheck. Especially as a former Attorney General in Ohio, he ought to resign for having agreed to play along as a constitutional usurper.
White House spokesman Jay Carney criticized the unanimous decision Friday, which is consistent with the President's sense of constitutional entitlement. Mr. Obama decided last year he could selectively enforce the immigration laws, exempting certain young people even if Congress hadn't passed the Dream Act. We support the Dream Act but not his unilateral way of imposing it.
Mr. Obama has also signaled his intention to govern as much as possible by stretching the legal bounds of regulation and executive orders. The D.C. Circuit ruling is thus a particularly timely warning that while Mr. Obama was re-elected, has most of the press in his pocket and is popular with 52% of the public, he's subject to the rule of law like everybody else.
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Obama's Abuse of Power
And I read in 'other media' that his was a rogue action of a bunch of Republican appointed judges.
Had Obamacare been struck down, Fast and Furious prosecuted, unilateral EPA rulings struck down etc., by now we would see a clear pattern of abuse.
What the hell do we need a National Labor Relations Board for anyway? Aren't employers and employees all consenting adults capable of freely entering in contracts?
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I finally took the very painful step of reading the Obamacare decision in its entirety, a part of my life lost to invasive government that I will never get back. Everyone should have been required to read it before the last election IMHO as that election was about the selection of Supreme Court members and it was about the question of keeping versus repealing Obamacare at the political level. Would anyone like to discuss the Court decision at this late date? I admit coming into this with a strong bias against it.
The decision has 4 main parts. Chief Justice John Roberts, former conservative, was the deciding vote, upholding for reasons different than the 4 so-called liberal members also voting to uphold the law. Paraphrasing Roberts, if you can find a way to uphold a law then you do that and he did. He found a way to construe a mandate as a tax even though the supporters of the bill said and wrote explicitly the opposite. His view is quite easily refuted in the dissent IMO.
Justice Ginsburg wrote the main pro-Obamacare opinion. I found her legal opinion to be mostly a political opinion in favor of the legislation (flawed IMO), starting off with the premise that the function of the legislation is to lower costs and pointing to nothing in it that does that. She explains it is about the need to pay somehow for at least minimum emergency services but the bill is not at all argued to be about simply paying for minimum emergency services. The Ginsburg opinion could just as easily been written by Nancy Pelosi or White House staff. Paraphrasing badly, she argues that legislation that clearly goes FAR beyond any previous federal government power in precedent is supported in precedent in the sense that we are always expanding federal powers to keep up with the needs and times.
The main dissent I found to be rambling, unclear and repetitive. Four 'conservative' justices seemed so blown away by the big expansion of government power that they could not point exactly to why, how or where it violated the constitution, a formerly limited powers document.
Last was an additional short dissent by Justice Thomas where he feels a need to add in dissent that he would also overturn many previous expansions of the Supreme Court definitions of Commerce Clause powers if other Juistices were so inclined. No one joined that opinion.
My view as an opponent is that the weak arguments of the four liberals was entirely predictable. The interpretation of Chief Justice Roberts is shocking. Either he is smarter than everyone else in America to find and take a completely solo view or he completely lost it here under the historic pressure. Worst to me was that the main arguments I would make against the legislation were never made by the lawyers in opposition or by the Justices in dissent. Put simply by this layman, Obamcare is not a enumerated power and it STOMPS ALL OVER some very obvious unenumerated rights: a) I have or had before this legislation a right of choice to procure healthcare services like with all other products and services, as needed, by paying a listed or negotiated fee for service price and terms payment option. b) I had the right to choose a plan that offers a different array of service and cost levels than than that very chosen by the federal government in this legislation. Now I don't. And c) I had a right of privacy regarding all these arrangements. Why, how and where (I guess I know when) did I lose my right to not disclose to the government my personal financial arrangements for healthcare products and services. The provider may be required in tax law to report revenues as captured but as far as I know that's it. The income tax amendment allows the government to know my income and tax it, and that's it. I don't know any situation where I am required to take or disclose every available deduction or expense. The comparison to car insurance by some was a complete non-starter. For one thing it was states acting individually and no one ever lost the right after the insurance mandate to ride with someone else, walk or stay home without penalty. With this you most certainly did.
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http://themonkeycage.org/blog/2013/01/27/recess-is-over/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+themonkeycagefeed+%28The+Monkey+Cage%29
More on the recess appointment, court decision, and Chadha gets a turn at the end of the article.
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BD et al:
"Actually the court went much farther than merely holding that the Obama appointments override the Senate’s prerogative to decide for itself when it is in recess. Indeed, the opinion turns on an allegedly emphatic difference between the Senate being in recess, and “the Recess of the Senate” envisioned in Article II, Section 2:3"
Despite the author's snideness in response to this point, this makes perfect sense to me. It is the contrary ("Let's recess until tomorrow" and then the Prez makes an appointment) that is illogical.
With regard to your post of the 26th, I staggered through about half of it then gave up-- why so much weight given to AG opinions? He is but an employee of the executive branch , , ,
This issue was discuessed at some length on the roundtable portion of the Bret Baier's Special Report the other day. BB and Charles Krauthammer were quite clear that it was Senator Harry Reid who began the practice in question here, and that, unlike Obama, President Bush respected the Senate's power to declare whether it was in session or not. The one trying to break new ground here was Obama.
Doug:
I applaud your effort in reading the whole damn thing. :-D I find your discontent with the quality of the main dissent interesting. OTOH I am on my way out the door and have not the time at the to re-enter the lists on this issue at the moment.
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BD et al:
With regard to your post of the 26th, I staggered through about half of it then gave up-- why so much weight given to AG opinions? He is but an employee of the executive branch , , ,
In part because the "AG's" opinion is really the OLC's opinion, and it has been a clearing house for the executive branch's best understanding of the recess appointment for several decades, and this is true of either party in the WH. Also, like the USSC (in some ways), the opinions of OLC usually build on each other, with what amounts to precedent. In other words, no matter what was said on FOX, chances are exceptionally good that there was some precedent for this.
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Heh heh :-)
In general you may well be right, but working from memory here, "Jeet Kune Do is a matter of responding to the specific instance in front of us, not the general rules".
The specifics are " that it was Senator Harry Reid who began the practice in question here, and that, unlike Obama, President Bush respected the Senate's power to declare whether it was in session or not. The one trying to break new ground here was Obama."
PS: Does your non-response on "a recess" and "the recess" mean that you concede the point? :-D
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Absolutely.
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http://blog.tenthamendmentcenter.com/2013/01/colorado-ndaa-nullification-introduced/
http://www.businessinsider.com/virginias-response-to-gun-control-2013-1
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I found this very interesting. It is very long, but I post the whole thing here so it does not become lost to us should the site in question go under.
Your thoughts BD (or anyone!)?
http://freedomoutpost.com/2013/01/james-madison-rebukes-nullification-deniers/
James Madison Rebukes Nullification Deniers
Nullification Deniers! Here’s what James Madison really said.
This is The Age of Ignorance. Our “intellectuals” can’t think. Our “scholars” parrot each other. The self-educated fixate on idiotic theories. Our People despise Truth and disseminate lies.
Nullification deniers such as Matthew Spalding of Heritage Foundation, Jarrett Stepman of Human Events, law professor Randy Barnett, David Barton of Wallbuilders, and history professor Allen C. Guelzo, say that nullification by States of unconstitutional acts of the federal government is unlawful and impossible. They make the demonstrably false assertions that:
■States don’t have the right to nullify unconstitutional acts of the federal government because our Constitution doesn’t say they can do it;
■Nullification is literally impossible;
■The supreme Court is the final authority on what is constitutional and what is not; and The States and The People must submit to whatever the supreme Court says; and
■James Madison, Father of Our Constitution, opposed nullification.
Their assertions contradict our Declaration of Independence, The Federalist Papers, our federal Constitution, and what James Madison, Thomas Jefferson, and Alexander Hamilton really said.
What are the Two Conditions Precedent for Nullification?
The deniers seem unaware of the two conditions our Framers saw must be present before nullification is proper and possible. These conditions are important – you will see why!:
■The act of the federal government must be unconstitutional – usually a usurpation of a power not delegated to the federal government in the Constitution; and
■The act must be something The States or The People can “nullify”- i.e., refuse to obey: the act must order them to do something or not do something.
What is “Interposition” and What is “Nullification”?
A State “interposes” when it stands between the federal government and The Citizens of the State in order to protect them from the federal government. Interposition takes various forms, depending on the circumstances. Hamilton refers to interposition in Federalist No. 33 (5th para):
“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard [the Constitution] they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.” [emphasis mine]
“Nullification” is one form of interposition. Now! Here are three highly relevant illustrations:
When the act of the federal government is unconstitutional and orders The States or The People to do – or not do – something, nullification is the proper form of interposition.
When the act of the federal government is unconstitutional, but doesn’t order The States or The People to do – or not do – something (the alien & sedition acts), nullification is not possible. The States may interpose by objecting, as in The Virginia & Kentucky Resolutions of 1798.
When the act of the federal government is constitutional, but unjust (the Tariff Act of 1828), the States may not nullify it; but may interpose by objecting and trying to get the Tariff Act changed.
Our Founding Principles in a Nutshell
In order to understand The Right of Nullification, one must also learn the Founding Principles set forth in The Declaration of Independence (2nd para). Then one can see that “when powers are assumed which have not been delegated, a nullification of the act” 1 is “the natural right, which all admit to be a remedy against insupportable oppression.” 2 These Principles are:
1.Rights come from God;
2.People create governments;
3.The purpose of government is to secure the rights God gave us; and
4.When a government We created seeks to take away our God given rights, We have the Right – We have the Duty – to alter, abolish, or throw off such government.
Let us look briefly at these Principles:
1. Our Declaration of Independence (2nd para) recognizes that God is the grantor of Rights. So Rights don’t come from the Constitution, the supreme Court or the federal government.
2. The Preamble to our Constitution shows that WE THE PEOPLE created the federal government. It is our “creature”. Alexander Hamilton says this in Federalist Paper No. 33 (5th para); and Thomas Jefferson, in his draft of The Kentucky Resolutions of 1798 (8th Resolution). As our “creature”, it may lawfully do only what WE authorized it to do in our Constitution.
We created a “federal” government: An alliance of Sovereign States 3 associated in a “federation” with a national government to which is delegated supremacy over the States in few and defined areas only. James Madison says in Federalist No. 45 (9th para):
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which … concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” [boldface mine]
Do you see? We delegated only “few and defined” powers to the federal government. These are the “enumerated powers” listed in the Constitution. 4
These enumerated powers concern:
■Military defense, international commerce & relations;
■Control of immigration and naturalization of new citizens;
■Creation of a uniform commercial system: Weights & measures, patents & copyrights, money based on gold & silver, bankruptcy laws, mail delivery & some road building; and
■With some of the Amendments, protect certain civil rights and voting rights (for blacks, women, citizens who don’t pay taxes, and citizens 18 years and older).
It is only with respect to the enumerated powers that the federal government has lawful authority over the Country at large. All other powers are “reserved to the several States” and The People.
3. Our Constitution authorizes the federal government to secure our God-given Rights in the following ways: 5
It is to secure our rights to life and liberty by:
■Military defense (Art. I, Sec. 8, cl. 11-16);
■Laws against piracy and other felonies committed on the high seas (Art. I, Sec. 8, cl. 10);
■Protecting us from invasion (Art IV, Sec. 4);
■Prosecuting traitors (Art III, Sec. 3); and
■Restrictive immigration policies (Art. I, Sec. 9, cl. 1).
It is to secure our property rights by:
■Regulating trade & commerce so we can produce, sell & prosper (Art. I, Sec. 8, cl.3). The original intent of the interstate commerce clause is to prohibit States from levying tolls & taxes on articles of commerce as they are transported thru the States for buying & selling.
■Establishing uniform weights & measures and a money system based on gold & silver (Art I, Sec. 8, cl. 5) – inflation via paper currency & fractional reserve lending is theft!
■Punishing counterfeiters (Art I, Sec. 8, cl. 6);
■Making bankruptcy laws to permit the orderly dissolution or reorganization of debtors’ estates with fair treatment of creditors (Art I, Sec 8, cl. 4); and
■Issuing patents & copyrights to protect ownership of intellectual labors (Art I, Sec 8, cl 8)
It is to secure our right to liberty by:
■Laws against slavery (13th Amendment);
■Providing fair trials in federal courts (4th, 5th, 6th, 7th, and 8th Amendments); and
■Obeying the Constitution!
This is how our federal Constitution implements The Founding Principle that the purpose of government is to secure the rights God gave us.
4. The fourth Founding Principle in our Declaration is this: When government takes away our God given rights, We have the Right & the Duty to alter, abolish, or throw off such government. Nullification is thus a natural right of self-defense:
Thomas Jefferson said:
“… but where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non foederis,) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them…” 6 [boldface mine]
James Madison commented on the above:
“… the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression…” 7
Alexander Hamilton says in Federalist No. 28 (5th para from end):
“If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success …” [boldface mine]
Hamilton then shows how The States can reign in a usurping federal government:
“…the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority…”
Do you see?
But the nullification deniers do not see because, in addition to their apparent unfamiliarity with the original source writings on nullification (as well as The Federalist Papers), they reject, or do not understand, the Founding Principle that Rights pre-date & pre-exist the Constitution and come from God. Nullification is not a paltry “constitutional right”!It has a hallowed status – it is that natural right of self-defense which pre-dates & pre-exists the Constitution.
Now, let us look at the false assertions made by the nullification deniers.
False Assertion 1:
That States can’t nullify unconstitutional acts of the federal government because the Constitution doesn’t say they can do it.
1. As we have just seen, Jefferson, Madison, and Hamilton saw nullification of unconstitutional acts of the federal government as a “natural right” – not a “constitutional right”. And since Rights come from God,there is no such thing as a “constitutional right”!
2. The Right of Nullification, transcending as it does, the Constitution; and being nowhere prohibited by the Constitution to the States, is a reserved power. The 10th Amendment says:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Nothing in the federal Constitution prohibits The States from nullifying unconstitutional acts of the federal government. Thus, nullification is a reserved power of the States & The People.
3. We saw where Madison says in Federalist No. 45 that the powers delegated to the federal government are “few and defined”, and all other powers are “reserved to the several States”.
Thus, it is the federal government which is supposed to look to the Constitution for the list of “enumerated powers” We The People delegated to it.
The States don’t go to the Constitution to look for permission because they retain all powers they didn’t exclusively 8 delegate to the federal government, or prohibit by Art. I, Sec. 10.
The nullification deniers have it backwards: They permit the federal government to ignore the “enumerated powers” limitations set forth in the Constitution; but insist The States can’t do anything unless the Constitution specifically says they can!
Do you see how they pervert Our Constitution?
False Assertion 2:
That Nullification is literally impossible.
We saw above the two conditions which must exist before nullification is proper and possible:
■The act of the federal government must be unconstitutional,and
■The act must be something The People or The States can refuse to obey.
Here are examples of unconstitutional federal acts the States can and should nullify:
The Constitution does not delegate to the federal government power to ban Christianity from the public square. But in 1962, the supreme Court first ordered The States to stop prayers in the public schools. That Court next banned the Ten Commandments from the public schools. Since those orders were usurpations of powers not lawfully possessed by the Court,the States should have nullified them by directing their School Boards to ignore them.
If Congress by “law”, or the President by “executive order”, orders The People to turn in our guns, We must refuse to comply. The Constitution doesn’t authorize the federal government to disarm us. So, The States and The People must nullify such law or order by refusing to obey.
Here are examples of unconstitutional & unjust State laws Martin Luther King nullified:
The Jim Crow laws required black people to sit at the back of the bus, and prohibited them from eating in public places and using public restrooms, water fountains, park benches, etc. Using non-violent civil disobedience, MLK led black people to refuse to obey these unjust and unconstitutional (Sec. 1, 14th Amdt.) laws. This was nullification by brave Citizens!
Now, I’ll show you unconstitutional acts which couldn’t be nullified because they weren’t directed to anything The States or The People could refuse to obey:
In 1798, Thomas Jefferson wrote The Kentucky Resolutions, and James Madison wrote The Virginia Resolutions. These Resolutions objected to laws made by Congress which purported to grant to the President dictatorial powers over aliens and seditious words.
Kentucky and Virginia could object, but they couldn’t prevent the President from enforcing the alien & sedition acts, because the President had the raw power to send out thugs to arrest aliens or people who had spoken or written “seditious” words; and then to persecute them.
So Jefferson and Madison showed why the alien & sedition acts were unconstitutional, protested them, and asked other States to join the protest.
Now! Note Well: Randy Barnett, law professor, and other deniers crow that the Virginia and Kentucky Resolutions prove there is no “literal power” of nullification in the States.
But Barnett should know better because he is a lawyer. Every litigation attorney knows this: At a motion hearing before the judge, opposing counsel whips out a court opinion which he cites as authority for a legal point. He gives the judge a highlighted copy and gives you (opposing counsel) an un-highlighted copy. While he is making his argument to the judge, you must listen to what he is saying, and at the same time, read the opinion and develop an argument which “distinguishes” the opinion opposing counsel is using from the case at bar. When opposing counsel finishes, the judge looks at you and says, “And how do you respond?” You must be ready with your argument right then.
Are we to believe that Randy Barnett, law professor, sitting in his ivory tower and under no pressure, is unable to distinguish between situations where a State does have a “literal power” to nullify an unconstitutional act of the federal government [when it orders The State or The People to do -or not do - something]; and when The State does not have a “literal power” to nullify the act [because, as with the alien & sedition acts, it does not dictate something The States or The People can refuse to obey]?
False Assertion 3:
That the supreme Court is the final authority on what is constitutional and what is not; and The States and The People must submit to whatever the supreme Court says.
The federal government has become a tyranny which acts without constitutional authority.
This came about because we were lured away from The Founding Principle that the purpose of government is to secure the Rights God gave us; and were seduced into believing government should provide for our needs and protect us from the challenges of Life.
Progressives of the early 1900s 9 transformed the federal government into the Frankensteinian monster it is today. They imposed the regulatory welfare state where the federal government regulates business and commerce, natural resources, human resources, and benefits some people [e.g., welfare parasites, labor unions & obama donors] at the expense of others.
The Progressives claimed the power to determine what is in the “public interest” and have the federal government implement their notions of what advances the “public interest”.
Under the Progressives, the federal government was no longer limited by the enumerated powers delegated in the Constitution; but would follow the “will of the people” as expressed by their representatives in the federal government. In other words, the Progressives gave the federal government a blank check to fill out anyway they want. People in the federal government now claim power to do whatever they want to us.
The federal government imposed by the Progressives is evil:
■In order to provide benefits to some; the federal government violates the God-given property rights of others. The federal government robs Peter to pay Paul.
■In order to protect us from the challenges of life (including made up problems such as “global warming” and “lack of medical insurance”), the federal government violates everyone’s God-given rights to Liberty.
And thus today, the federal government:
■Usurps powers not delegated to it in the Constitution. Most of what it does is unconstitutional as outside the enumerated powers delegated in our Constitution.
■Has become an instrument of oppression, injustice, and immorality.
■Has taken away most of our God given rights, and is now conniving to take away our God given right to self-defense.
Now you know how the federal government was transformed from being the securer of our God given rights to a tyranny which oppresses some of the people for the benefit of others; and takes everyone’s Liberty away – except for those in the ruling class.
So! What do We do? What can We do?
The nullification deniers insist We must obey whatever Congress and the President dictate unless five (5) judges on the supreme Court say We don’t have to. They say the supreme Court is the final authority on what is constitutional and what is not.
But think: Who created the federal government?
We did! It is our “creature”. Is the “creature” to dictate to the “creator”?
The nullification deniers say, “Yes!” They say that:
■Every law made by Congress [the Legislative Branch of the federal government] is “supreme”; and
■Every executive order issued by the President [the Executive Branch of the federal government] is binding; and
■The States and The People must obey, unless and until five (5) judges on the supreme Court [the Judicial Branch of the federal government] say the law or executive order is unconstitutional.
In other words, only the federal government may question the federal government.
Under their vision, the federal government WE created with the Constitution is the exclusive and final judge of the extent of the powers WE delegated to it; and the opinion of five (5) judges, not the Constitution, is the sole measure of its powers.
Jarrett Stepman regurgitates the statist lie that “the ultimate decision maker in terms of America’s political system is the Supreme Court.”
Randy Barnett, law professor, chants the statist refrain, “…What has the Supreme Court said and meant? and … Are there now five justices to sustain the claim?”.
Barnett selects two paragraphs from Madison’s Report on the Virginia Resolutions (1799-1800), (which address the alien & sedition acts), and claims they show Madison “expressly denies, or at minimum equivocates about whether, there is a literal power of nullification in states”.
Well, We saw above that States couldn’t nullify the alien & sedition acts because they purported to grant dictatorial powers to the President; and did not require The States or The People to do – or not do – something.
And the two paragraphs Barnett claims are so “telling” as to The States’ lack of “literal power” to nullify anything, and as to the ultimate authority of the Judicial Branch, appear under Madison’s discussion of the last two Resolutions where Virginia had asked other States to join the protest. Madison merely says the citizens and legislature of Virginia have the right to communicate with other States; and in so doing, they are not exercising a judicial function.
Now! Note Well: Madison actually says, in the same Report Barnett cites, that it is “a plain principle, founded in common sense” that The States are the final authority on whether the federal government has violated our Constitution! Under his discussion of the 3rd Resolution, Madison says:
“It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts; that where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort, whether the bargain made, has been pursued or violated. The Constitution of the United States was formed by the sanction of the States, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that it rests on this legitimate and solid foundation. The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.” [emphasis mine]
A bit further down, Madison explains that if, when the federal government usurps power, the States cannot act so as to stop the usurpation, and thereby preserve the Constitution as well as the safety of The States; there would be no relief from usurped power. This would subvert the Rights of the People as well as betray the fundamental principle of our Founding:
“…If the deliberate exercise, of dangerous power, palpably withheld by the Constitution, could not justify the parties to it, in interposing even so far as to arrest the progress of the evil, and thereby to preserve the Constitution itself as well as to provide for the safety of the parties to it; there would be an end to all relief from usurped power, and a direct subversion of the rights specified or recognized under all the State constitutions, as well as a plain denial of the fundamental principle on which our independence itself was declared.” [emphasis mine]
A bit further down, Madison answers the objection “that the judicial authority is to be regarded as the sole expositor of the Constitution, in the last resort”.
Madison explains that when the federal government acts outside the Constitution by usurping powers, and when the Constitution affords no remedy to that usurpation; then the Sovereign States who are the Parties to the Constitution must likewise step outside the Constitution and appeal to that original natural right of self-defense.
Madison also says that the Judicial Branch is as likely to usurp as are the other two Branches. Thus, The Sovereign States, as The Parties to the Constitution, have as much right to judge the usurpations of the Judicial Branch as they do the Legislative and Executive Branches:
“…the judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority as well as by another — by the judiciary as well as by the executive, or the legislature.”
Madison goes on to say that all three Branches of the federal government obtain their delegated powers from the Constitution; and they may not annul the authority of their Creator. And if the Judicial Branch connives with other Branches in usurping powers, our Constitution will be destroyed. So the Judicial Branch does not have final say as
“…to the rights of the parties to the constitutional compact, from which the judicial as well as the other department hold their delegated trusts. On any other hypothesis, the delegation of judicial power, would annul the authority delegating it; 10 and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution, which all were instituted to preserve.”
Shame on you nullification deniers who misrepresent what Madison said, or ignorantly insist that Madison said the Judicial Branch is the Final Authority!
False Assertion 4:
That James Madison opposed Nullification by States of Unconstitutional Acts of the Federal Government.
Matthew Spalding (Heritage Foundation) and David Barton (Wallbuilders) cite South Carolina’s Nullification Crisis of 1832 as “proof” that James Madison “vehemently opposed” nullification.
What Spalding and Barton say is not true. Did they read what Madison wrote on S. Carolina’s doctrine of nullification? Are they so lacking in critical thinking skills that they can’t make the distinction between the nullification doctrine Madison (and Jefferson & Hamilton) embraced, and the peculiar doctrine of nullification advanced by S. Carolina?
We saw in Madison’s Report on the Virginia Resolutions (1799-1800) that in a proper case, “interposing even so far as to arrest the progress of the evil” is essential “to preserve the Constitution itself as well as to provide for the safety of the parties to it”.
And we saw above that the condition which must be present before nullification is proper, is that the act of the federal government must be unconstitutional.
Now, let’s look at The Tariff Act of 1828 and the S. Carolina Nullification Crisis:
South Carolina was an agricultural state. During the 1820’s, they bought manufactured goods from England. England bought cotton produced by S. Carolina and other Southern States.
However, “infant industries” in the Northeast were producing some of the same manufactured goods as England; but they were more expensive than the English imports. So they couldn’t compete with the cheaper imports.
So! In 1828, Congress imposed a high tariff on the English imports. The Southern States called this the “tariff of abominations”, because the tariff made the English goods too expensive to buy; and since the Southern States stopped buying English goods, the English stopped buying Southern cotton. The Southern States had to pay more for manufactured goods, they lost the major buyer of their cotton; and their economy was weakened.
Now! Note Well: Our Constitution delegates specific authority to Congress to impose tariffs on imports, and the tariff must be the same in each State (Art. I, Sec. 8, cl. 1).
Thus, the Tariff Act of 1828 was constitutional! 11
So! Can you, dear Reader, see something which Matthew Spalding, Ph.D., and David Barton are unable to see? South Carolina wanted to nullify a constitutional law!Of course, Madison opposed S. Carolina’s peculiar doctrine of nullification! Madison (and Jefferson & Hamilton) always said the act nullified must be unconstitutional!
In his Notes on Nullification (1834), 12 Madison addressed S. Carolina’s peculiar doctrine. He said that in the Report of a special committee of the House of Representatives of South Carolina in 1828, a doctrine of nullification was set forth which asserted that:
■A State has a “constitutional right” to nullify any federal law; and
■The nullification is presumed valid, and is to remain in force, unless ¾ of the States, in a Convention, say the nullification isn’t valid.
What Madison opposed was the particular doctrine of nullification set forth by S. Carolina; and what Madison actually said about the S. Carolina doctrine is this:
■The federal government has delegated authority to impose import tariffs;
■The Constitution requires that all import tariffs be uniform throughout the United States;
■States can’t nullify tariffs which are authorized by the Constitution;
■¼ of the States don’t have the right to dictate to ¾ of the States on matters within the powers delegated to the federal government;
■Nullification is not a “constitutional right”;
And near the end of his Notes, Madison quoted with approval Thomas Jefferson’s statement:
“…but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non foederis,) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them…”
Madison then says:
“Thus the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression.” [emphasis mine]
Do you see? Madison is saying that:
■S. Carolina couldn’t nullify the Tariff Act of 1828 because the Act was constitutional.
■Nullification is a “natural right”- it is not a “constitutional” right. Rights don’t come from the Constitution.
■All agree that when the federal government acts outside of the Constitution, nullification by the States is the proper remedy.
Application Today
When WE THE PEOPLE ratified our Constitution, and thereby created the federal government, WE did not delegate to our “creature” power to control our medical care, restrict guns and ammunition, dictate what is done in the public schools, dictate how we use our lands, and all the thousands of things they do WE never gave them authority in our Constitution to do.
Accordingly, each State has a natural right to nullify these unconstitutional dictates within its borders. These dictates are outside the compact The Sovereign States made with each other –WE never gave our “creature” power over these objects.
As Jefferson and Madison said, without Nullification, The States and The People would be under the absolute and unlimited control of the federal government.
And that, dear Reader, is where these nullification deniers, with their false assertions and shameful misrepresentations, would put you.
To sum this up:
■Nullification is a natural right of self-defense.
■Rights don’t come from the Constitution. Like all Rights, the right of self-defense comes from God (The Declaration of Independence, 2nd para).
■Nullification is a reserved power within the meaning of the 10th Amendment. The Constitution doesn’t prohibit States from nullifying, and We reserved the power to do it.
■God requires us to disobey civil authorities when they violate God’s Law. That’s why the 2nd para of the Declaration of Independence says we have the duty to overthrow tyrannical government. See: The Biblical Foundation of our Constitution.
■Nullification is required by Oath of Office: Article VI, cl. 3 requires all State officers and judges to “support” the federal Constitution. Therefore, when the federal government violates the Constitution, the States must smack them down.
Conclusion
Our Founders and Framers were a different People than we of today. They were manly men who knew statecraft & political philosophy and could think. But our “experts” of today have been indoctrinated with statism and can’t think. They just repeat what they hear. We need them to man up, throw off the indoctrination, learn our Founding Documents including The Federalist Papers, get a Logic Book, and stop disseminating misinformation! We need them to repudiate cowardice as the proper response to the evil which is overtaking our Land. Man up, People! PH
Endnotes:
1 Thomas Jefferson, The Kentucky Resolutions of 1798, 8th Resolution.
2 James Madison, Notes on Nullification (1835). The quote is near the end. Use “find” function.
3 The deniers seem unaware that The States retained sovereignty in all matters not exclusively delegated to the federal government. Alexander Hamilton says in Federalist No. 32 (2nd para):
“An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention [the Constitution] aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not … EXCLUSIVELY delegated to the United States…” [caps are Hamilton's; boldface mine]
Federalist No. 62 (5th para):
“…the equal vote allowed to each State [each State gets two U.S. Senators] is …a constitutional recognition of the portion of sovereignty remaining in the individual States and an instrument for preserving that residuary sovereignty… [in order to guard] … against an improper consolidation of the States into one simple republic.” (Madison or Hamilton) [boldface mine]
See also Federalist No. 39 (Madison) (6th para, et seq.)
In Madison’s Report on The Virginia Resolutions (1799-1800), he several times refers, in his discussion of the 3rd Resolution, to the States acting “in their sovereign capacity” when, as “the parties to the constitutional compact” they decide“in the last resort, whether the compact made by them be violated”:
“…The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition….” [boldface mine]
4 Contrary to the misconstructions long and unlawfully applied by the federal government, the federal Constitution is one of enumerated powers only. E.g.:
“…the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignity over all other objects…” (Federalist No. 39, 3rd para from end) (Madison) [boldface mine]
“…the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects...” (Federalist No. 14, 8th para) (Madison) [boldface mine]
“…It merits particular attention … that the laws of the Confederacy [Congress], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land…Thus the legislatures, courts, and magistrates, of the respective members [the States], will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS…” [caps are Hamilton’s] (Federalist No. 27, last para)
5 Our Constitution authorizes the federal government to secure our God-given rights in the ways appropriate for the national government of a Federation. The States secure them in other ways.
6 The Kentucky Resolutions of 1798,8th Resolution.
7 Madison’s Notes on Nullification (1834). The quote is near the end. Use “find” function.
8 This explains the limited “exclusive jurisdiction” of the federal government, and the areas where the federal government and The States have “concurrent jurisdiction”.
9 Teddy Roosevelt ran on the Progressive Platform of 1912. Both major parties have been dominated by progressives ever since.
10 Hamilton says, respecting the Legislative Branch (Federalist No. 78, 10th para):
“…every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.” [emphasis mine]
11 The Tariff Act of 1828 was constitutional; but benefited the Northeast at the expense of the South. It thus violated our Founding Principle that governments exist to secure the rights God gave us. God never gave us the right to be free of competition in business! Since the tariff was constitutional, but unjust, the remedy was to get Congress to fix it.
12 Madison’s Notes on Nullification (1834) are long & rambling. Copy to Word, enlarge the type, & color-code to sort out the strands of arguments. Keep in mind that what Madison is addressing is S. Carolina’s peculiar doctrine where they wanted to nullify a constitutional tariff! PH
Read more: http://freedomoutpost.com/2013/01/james-madison-rebukes-nullification-deniers/#ixzz2JeU3A9Uf
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http://thinkprogress.org/justice/2012/08/13/685441/rick-perry-breaks-with-the-nra-and-the-supreme-court-suggests-states-should-be-allowed-to-ban-guns/?mobile=nc
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http://blog.consource.org/post/43406986307/colonialoriginsofconstitution
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http://www.supremecourt.gov/publicinfo/speeches/1.pdf
A speech by retired Justice Stevens defendig Kelo.
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http://www.supremecourt.gov/publicinfo/speeches/1.pdf
A speech by retired Justice Stevens defending Kelo.
Justice Stevens makes my blood boil but I am glad you posted this. Stevens thinking on full display illuminates the differences between the competing ways of viewing the constitution and its role in limiting government and protecting individual rights.
Before I go off on a layman's rant, may I ask of Bigdog, Crafty, others, do you agree with Stevens, or if not, what are the flaws of his thinking?
Stevens: "neither the text of the Fifth Amendment Takings Clause, nor the common law rule that it codified, placed any limit on the states' power to take private property, other than the obligation to pay just compensation to the former owner."
Huh?
Justice Steves alleges that Kelo is model of judicial restraint. Judicial restraint to Stevens is to look the other way when faced with government oppression of basic individual rights and liberties.
What individual right is the New London redevelopment plan tromping all over? Obviously the right of private property ownership, the right to own your own home. Is that right fully enumerated in the constitution? No. Was the right of privacy in Roe which Stevens concurred enumerated? No. Do you have the right to live in your home without being judged by coveters or tyrannical government about whether your usage, with no complaints on record, is optimal for the community?? Not under the Kelo/Stevens legacy.
What did the constitution say about unenumerated or under-enumerated rights? See the 9th amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Did the founders and framers see a right to property ownership? Yes, obviously so. See the 5th amendment: "...nor shall private property be taken for public use, without just compensation". Does this literally prohibit takings for any other purpose than public use? No it implies it.
Were the framers aware of threats to private property ownership existing before the constitution was written? Yes. When was the following written, by whom, and how many framers owned a copy: "Thou shalt not covet thy neighbor's house..."??
What did Madison say when he originally opposed the Bill of Rights? A listing of rights could be dangerous, leading to the erroneous conclusion that only those rights specifically listed were actually protected? Prescient.
Had the framers written in greater length on "private property...taken for public use", wouldn't they just risk even more of the danger that Madison warned above? The 5th amendment reference contributes powerfully to the idea that private property ownership was very much an unenumerated right in the framing, to be violated only for "public use". Stevens is grasping to find that doesn't say "only" public use. Would he also conclude that takings for other than public use do NOT require just compensation? Why doesn't he conclude that? Where was his narrow textual reading of the articles and amendments during his finding of trimesters in Roe?
When did we go from "public use" to public purpose meaning any purpose? In previous case law he points to Berman. Over 97 percent of the individuals forcibly removed from their homes by the “slum-clearance” project upheld by this Court in Berman were black, Justice Thomas happened to notice. (http://www.law.cornell.edu/supct/html/04-108.ZD1.html) No matter to Stevens. Expanding on the creeping powers of government and eroding the rights of individuals in each incremental case is judicial restraint in Stevens' view. Maybe we need a little less of that!
Justice Thomas wrote: "The Constitution’s text, in short, suggests that the Takings Clause authorizes the taking of property only if the public has a right to employ it, not if the public realizes any conceivable benefit from the taking."
Like the stunned dissenters in NFIB v. Sebelius repeatedly questioned, what powers doesn't the federal government have if they have all of these? Stated differently since this is about local government powers, what rights have you retained now that you lost all of these? Very few. If you follow the Stevens hypocrisy of original text selectivity carried forward by enough others, you will retain only those rights that are recognized by 5 elites on a given day, generally those linked in politics to liberal causes.
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Well, I'm on record already for thinking Kelo to be a hideous and outrageous decision so I'll leave first crack at it to BD.
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Oh, I didn't like the decision, either. I read the speech though, and thought of Doug. A well reasoned response, by the way.
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Thanks Bigdog. When Justice Stevens said Kelo was the most unpopular decision in his entire career I assumed he was caught reading the forum. :wink:
Do you see some of these same problems in the healthcare decision? Roberts view aside, the other four never seem to object to expansions of government powers and the corresponding losses of individual rights and freedoms. As much as owning a home, isn't something as basic as the right to choose what services you want to buy or insure in my opinion a basic right in a free society? Aren't healthcare choices part of a right to privacy? Especially in the wake of Roe!
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I'd like to know what limits on government power, if there are any, Justice Stevens sees in the US Constitution.
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Thanks Bigdog. When Justice Stevens said Kelo was the most unpopular decision in his entire career I assumed he was caught reading the forum. :wink:
Do you see some of these same problems in the healthcare decision? Roberts view aside, the other four never seem to object to expansions of government powers and the corresponding losses of individual rights and freedoms. As much as owning a home, isn't something as basic as the right to choose what services you want to buy or insure in my opinion a basic right in a free society? Aren't healthcare choices part of a right to privacy? Especially in the wake of Roe!
There is a great deal here, Doug, so let me try to address some of it. This can be an extended dialogue if necessary.
I disagree with the idea that none of "the other four never seem to object to expansions of government powers and the corresponding losses of individual rights and freedoms." For example, the plurality of USSC decisions are unanimous. It just seems to be the 5-4 that get press. (See http://www.supremecourt.gov/opinions/12pdf/11-820_j426.pdf orhttp://www.supremecourt.gov/opinions/12pdf/11-770_j4ek.pdf for examples announced this week with an interesting splits that call your point to question.
A person is most secure in his home. And if you don't agree with Roe, why cite it? You might win on Obamacare, but then you would necessarily have to compromise on abortion, which I think you are against at least as much as ACA. Is there another argument to be made without so much fallout for your own beliefs?
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On the first part regarding unanimous cases and interesting splits, point taken! I admit reading only high profile cases.
"A person is most secure in his home. And if you don't agree with Roe, why cite it?"
The womb is where a person first felt secure. Whoops: http://www.numberofabortions.com/
I agree wholeheartedly with the finding of a right of privacy in the womb in Roe and a right of privacy in the home as seen by the dissenters in Kelo, and in my health insurance records and choices. The right of privacy in the home would not shield you in the event of a killing or even a case of mistreatment of animals, see Michael Vick. Ditto for the womb, in my opinion. Short of the interest of protecting another life, all the choices and records of the womb are hers.
My point bringing up Roe may be lost because it is not the same Justices on Roe, Kelo and ACA. That said, I think these four Justices recognize privacy quite clearly even while an innocent life is taken in one situation yet don't give it a thought or a mention that I noticed for the citizen who is home minding his or her own business. That neglect troubles me.
"Is there another argument to be made without so much fallout for your own beliefs?"
I will accept your help in answering that. I gave my best shot above at making the distinction. For me, privacy is recognized in all cases but not past the point where the health policy records, the home or the womb become tied to a terror case, a killing, evidence of mistreatment, endangerment of others, etc. That's when privacy ends and the authorities can come in - to protect others. These Justices are in effect sending in the authorities when you are sitting home, harming no one, paying your property taxes and all the healthcare expenses you incur (actual, not ACA) in full and on time. For that, they can still take your home.
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http://pjmedia.com/eddriscoll/2013/02/24/the-raj-koothrappali-approach/?singlepage=true
The Raj Koothrappali Approach to Constitutional Law
February 24th, 2013 - 10:13 am
While I was on the treadmill at the gym yesterday, I finally listened to the podcast that Glenn Reynolds, our friendly neighborhood Instapundit and University of Tennessee law professor, recorded recently with Russ Roberts, economics professor at George Mason University. At about 30:00 minutes into the recording, Reynolds and Roberts had the following exchange over Louis Michael Seidman’s piece in the New York Times at the conclusion of 2012, ominously titled, “Let’s Give Up on the Constitution.”
I quickly typed this up from the MP3, apologies if there are any errors in the transcription:
ROBERTS: We had a recent guest on the program, Louis Michael Seidman, and he suggested that the Constitution’s out of date. It makes us beholden to a group of dead people who lived over two hundred years ago, and we should just ignore it, unless something in it makes sense. He happens to be a defender of the Second Amendment – he wouldn’t get rid of that. Or the First Amendment; he likes that one, too. But, basically [he thinks] we should keep good laws and get rid of bad ones; [keep] good practices, and get rid of bad ones. So you just avoid the Constitutional Convention all together. You just stop using the Constitution! What do you think of his argument?
REYNOLDS: I call this the Raj Koothrappali approach to Constitutional Law. I don’t know if you watch Big Bang Theory, but Raj is Indian of course, and he’s lecturing his sister from India on Hindu rules about modesty and sexual proprietary, and she just looks at him and says, “You’re talking to me about this, as you’re eating a cheeseburger!” He just looks at her and says, “Some of it makes sense; some of it’s crazy – whatta do?!” And that’s basically the Seidman approach to the Constitution, right? The parts he likes make sense, and the others are crazy – whatta do?
Here’s the problem with public officials — because that’s really [Seidman’s] audience — deciding to ignore the Constitution: If you’re the president, if you’re a member of Congress, if you are a TSA agent, the only reason why somebody should listen to what you say, instead of horsewhipping you out of town for your impertinence, is because you exercise power via the Constitution. If the Constitution doesn’t count, you don’t have any legitimate power. You’re a thief, a brigand, an officious busybody, somebody who should be tarred and feathered and run out of town on a rail for trying to exercise power you don’t possess.
So if we’re going to start ignoring the Constitution, I’m fine with that. The first part I’m going to start ignoring is the part that says, I have to do whatever they say.
ROBERTS: But his argument is that we already ignore the Constitution; it’s not really much of a binding document.
REYNOLDS: Oh, well, then I’m free to do whatever I want! And actually, that is a damning admission, because what that really says is: If you believe Seidman’s argument; if you believe that we already ignore the Constitution anyway, then in fact, the government rules by sheer naked force, and nothing else. And if that’s what you believe, then all of this talk of revolution suddenly doesn’t seem so crazy, it seems almost mandatory.
ROBERTS: Well, he would say – well, I won’t speak for him, but some would say that, well, there’s a social contract, we’ve all agreed to kind of play by these rules…
REYNOLDS: Oh really?!
ROBERTS: …of electing officials, and…
REYNOLDS: Well, the rules I agreed to electing these officials are the Constitution. I thought we were going to ignore that. That’s my social contract.
Indeed.™ Listen to the whole thing.
Seidman’s article brings to mind a quote from a boring white guy who’s been dead for 80 years, and whose thoughts are even more anathema to the current beltway elite than the Constitution or the Declaration of Independence:
President Calvin Coolidge rose to the occasion of the 150th anniversary of the Declaration of Independence on July 4, 1926, with a speech providing a magisterial review of the history and thought underlying the Declaration. His speech on the occasion deserves to be read and studied in its entirety. The following paragraph, however, is particularly relevant to the challenge that confronts us in the ubiquitous variants of progressive dogma that pass themselves off today as the higher wisdom:
About the Declaration there is a finality that is exceedingly restful. It is often asserted that the world has made a great deal of progress since 1776, that we have had new thoughts and new experiences which have given us a great advance over the people of that day, and that we may therefore very well discard their conclusions for something more modern. But that reasoning can not be applied to this great charter. If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions. If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people. Those who wish to proceed in that direction can not lay claim to progress. They are reactionary. Their ideas are not more modern, but more ancient, than those of the Revolutionary fathers.
— From Scott Johnson of Power Line, posted on July 4th, 2010.
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"President Calvin Coolidge rose to the occasion of the 150th anniversary of the Declaration of Independence on July 4, 1926, with a speech providing a magisterial review of the history and thought underlying the Declaration. His speech on the occasion deserves to be read and studied in its entirety"
GM:
Any chance your mastery of Google Fu can come up with the URL for this speech?
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And in a moment of pure serendipity, it has crossed my path 8-)
http://www.presidency.ucsb.edu/ws/?pid=408
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And in a moment of pure serendipity, it has crossed my path 8-)
http://www.presidency.ucsb.edu/ws/?pid=408
I like this line:
"It was in no sense a radical movement but took on the dignity of a resistance to illegal usurpations. It was conservative and represented the action of the colonists to maintain their constitutional rights which from time immemorial had been guaranteed to them under the law of the land."
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http://www.washingtonpost.com/politics/retired-supreme-court-justices-still-judge--and-get-judged/2013/03/10/1b22943c-897f-11e2-8d72-dc76641cb8d4_story.html?wpisrc=nl_politics
Retired Supreme Court justices still judge — and get judged
For years, Justice Sandra Day O’Connor’s opinion set the direction for the Supreme Court on a host of issues, including important social concerns such as abortion, affirmative action and the way the nation’s elections are financed.
But later this month, the retired justice herself has an opinion — in a voting registration case from her home state of Arizona — that the Supreme Court will review.
O’Connor was in the panel majority that said Arizona’s requirement of proof of citizenship when registering to vote in federal elections conflicted with federal law. An en banc decision of the U.S. Court of Appeals for the 9th Circuit affirmed the panel’s ruling.
O’Connor’s role in the case brings attention to a little-noticed aspect of a justice’s legacy: The work often continues long after leaving the high court.
Justices are appointed for life, of course. But since 1937, they have been allowed to take senior status and continue to serve on lower federal courts. The idea grew out of President Franklin D. Roosevelt’s ill-fated court-packing plan.
According to a study by Minor Myers III, a professor at Brooklyn Law School, 25 justices have taken senior status since then and 11 of them served on lower courts.
Some have been prolific. Myers reports that former justice Tom C. Clark, who retired from the court in 1967, began hearing cases in 1970 and over the next seven years sat on panels that produced nearly 400 decisions. He served on all of the nation’s geographic circuits.
Clark and Willis Van Devanter, the first justice to take advantage of senior status, also presided over trials as district judges.
Justice Lewis F. Powell regularly heard cases on the U.S. Court of Appeals for the 4th Circuit in Richmond, his home, after his retirement in 1987. But a fellow justice, Potter Stewart, did not find the life to his liking.
It was “no fun to play in the minors after a career in the major leagues,” Stewart said.
In the past quarter-century, retired justices William J. Brennan, Thurgood Marshall and Byron R. White also served.
Among the current justices on senior status, John Paul Stevens decided when he left the high court in 2010 — at age 90 — that he would not sit on the lower courts. Instead, he lectures and writes, including a 2011 book “Five Chiefs,” about the chief justices with whom he served.
Justice David H. Souter, 73, is a regular on the federal appeals court in Boston, where he served briefly before his nomination to the high court in 1990. Stephen L. Wasby, a University of Albany professor emeritus of political science who has studied the former justices, describes Souter in an upcoming study as “someone laboring in quiet workmanlike fashion like most court of appeals judges and as befits his low-key personality.”
None of his opinions have come before the Supreme Court.
O’Connor, 82, has served on most of the nation’s appeals courts since she left the high court in 2006. But of course that is only a small part of her work: she has served on commissions, been outspoken on the subject of judicial independence, launched an online civics initiative aimed at middle-schoolers and just released a book about the court’s history, “Out of Order.”
Wasby, who says O’Connor’s lower-court work results in “moderate-to-conservative outcomes, pretty much what we would expect from her Supreme Court service,” said the Arizona decision is the first of hers to be accepted for review by the justices.
She served on the panel, but not the en banc review. (As an example of the rarified world of appellate jurisprudence, both opinions were written by Judge Sandra Segal Ikuta — a former O’Connor clerk.)
According to Myers’ research, retired justices do not fare particularly well at the high court.
Although he looked only at opinions written by former justices, rather than decisions in which they played a role, he found that the court vacated the only opinion it reviewed by former justice Stanley F. Reed. The court overturned two of the three opinions it considered written by the prolific Clark.
But former justice Charles E. Whittaker probably got the worst treatment from a former colleague.
The request to have a retired justice serve is made from a court to the chief justice. Whittaker, who left the high court in 1962, was prepared to serve. But Myers quotes from a book by David N. Atkinson that says Chief Justice Earl Warren nixed the idea of Whittaker.
Warren reportedly told another judge, “Tell him that I never could get him to make up his mind, and I’ll be damned if I will let him do that to me again trying cases.
“So the answer is no.”
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The Reuters story that follows introduces the facts and issues for the current Supreme Court case on gay marriage. This will be an interesting case to follow, perhaps a landmark decision, IMO. Gay marriage advocates picked a perfect case to try because Ms. Windsor is missing out on a couple million of tax sheltered money because of not the preference of a heterosexual-marriage. (When did marriage start needing a hyphen?)
It is easy for me to sympathize with both sides of this argument. Conservatives should probably want gays to be monogamous, paired and settled for life for many of the same reasons other than procreation that we wish that for heteros.
On the other hand, what right was Ms. Windsor denied that is not also denied to a heterosexual single person? A single heterosexual person does not have a right to either marriage (that requires consent of another person) nor a right to the estate-sheltering, tax deduction in question.
There are two logical, constitutional end-points I can see in this case (the two least likely outcomes of this Court): 1) Uphold current law by ruling that the legislative branch by definition has already set tax law and DOMA law in the way that we-the-people have determined best advances the 'general welfare' of the people. 2) Or they could strike down all tax code preferences encouraging marriage and all other social preferences if the Court believes a government committed to equal protection can not be in the business of setting preferences or treating different people and different groups differently. In that view, equal protection would come to mean that all income from all people and all sources must be taxed evenly.
The least logical decision (most likely) is to strike down thousands of years of language, common law and natural law that define a marriage to be when a man and a woman make a choice and a commitment to become a husband and wife often leading to also becoming a father and a mother, with gender terms intentionally specific. Instead, carve out the politically expedient exception that two same-sex adults can become legally recognized as husband(?) and wife(?), spouse 1 and spouse 2(?), but leave in place all other discrimination in the law against all other persons and groups.
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http://news.yahoo.com/analysis-death-taxes-supreme-courts-gay-marriage-case-050623739.html
Analysis: Death, taxes and Supreme Court's gay marriage case
By Kim Dixon | Reuters
By Kim Dixon
WASHINGTON (Reuters) - Edith Windsor and Thea Spyer, the lesbian couple at the center of a major gay rights case set to go before the Supreme Court this month, were in many ways a typical New York power couple.
Spyer was a psychologist; Windsor, a consultant at IBM. They met in a Greenwich Village restaurant in the 1960s and lived together for decades, summering at a Long Island beach house.
They waited until they were in their mid-70s to marry in Canada in 2007. When Spyer died in 2009, Windsor inherited her spouse's estate, worth about $4.1 million, according to lawyers.
But because she is gay, Windsor missed out on one of the most lucrative tax breaks enjoyed by affluent Americans - the exemption from federal estate tax on wealth passed from one spouse to another.
"The biggest benefit of marriage, financially, is when you die," said Fred Slater, a New York tax accountant.
The spousal exemption to the estate tax is denied to same-sex couples because of the Defense of Marriage Act (DOMA), a law passed by Congress and signed by the president in 1996 that defines marriage as between a man and a woman.
Windsor is challenging DOMA in a case the nine-member high court will hear on March 27. At its core, Windsor's fight is with the Internal Revenue Service over how much federal tax she owes on Spyer's estate.
She seeks the return of hundreds of thousands of dollars in taxes she would not have had to pay if she and Spyer had been of opposite sexes. Her challenge asks whether married gays should be able to claim the same exemption as married heterosexuals do.
The Supreme Court ruling is likely to affect estate taxes paid by only the most affluent of gays. But at stake is a bigger question: Are married gay couples entitled to the same federal tax and other benefits as married heterosexuals?
A ruling is expected by the end of June.
More broadly, however, if the court strikes down DOMA, married gay couples would likely be able to file their income tax returns jointly in states that allow gay marriage - a prospect with ramifications as complex as the tax code itself.
ESTATE TAX IMPACT
In bringing her case to the Supreme Court, Windsor argues that DOMA violates the U.S. Constitution's guarantee of equal protection. DOMA backers say the law is valid.
Of the 50 states, 31 have constitutional amendments banning gay marriage. It is legal in nine states and Washington, D.C.
The remaining states' policies vary, with some recognizing marriage from other states, some providing some of the legal benefits of marriage and others denying marriage by state laws, but not constitutional amendments.
The Obama administration said in 2011 that it viewed DOMA as a violation of the U.S. Constitution and said it would no longer defend it in court. A group appointed by the Republican majority in the U.S. House of Representatives has asked the justices to uphold DOMA.
When Spyer died, the general estate tax exemption was $3.5 million. So Windsor inherited that amount from Spyer tax-free, including gifts received during Spyer's lifetime.
But because they were a lesbian couple, under the DOMA law Windsor could not take advantage of the spousal exemption, which says that a spouse may inherit any amount tax-free from a deceased spouse.
So Windsor was charged $363,000 in estate tax by the federal tax-collecting Internal Revenue Service. She paid her IRS bill but then sued, seeking a refund. She won in district court and in a federal appeals courts, but her case gradually took on increased prominence and eventually made its way to the Supreme Court.
The Williams Institute, a University of California-Los Angeles think tank that studies sexual orientation, estimates that if DOMA is overturned, only about 50 same-sex couples would qualify for the spousal exemption each year.
The institute based its estimate on figures from the U.S. Census and the nonpartisan Tax Policy Center, a think tank.
MARRIAGE PENALTY
But if Windsor wins her case, there would also be changes ahead in income tax filing and other benefits for some 130,000 same-sex married couples, as estimated by the Census Bureau.
A post-DOMA landscape would expose married gays to some of the same problems faced by married opposite-sex couples.
For instance, tax bracket and tax credit variations for singles versus married couples might mean wealthier couples and the working poor could face a "marriage penalty," while middle-income couples with one breadwinner could get a tax break.
"Equality is not always a net fiscal positive" for couples, said Brian Moulton, legal director of the Human Rights Campaign, which advocates for gay rights.
The maximum amount free of tax, whether for a spouse or not, has risen since Spyer died in 2009, and is now $5.25 million. As a result, most estates are passed on tax-free.
Only 3,600 estates were subject to estate tax in 2012, according to government figures, while the richest 10 percent of Americans paid almost all of the estate tax collected, said the Tax Policy Center.
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http://www.politico.com/story/2013/03/prop-8-hearing-roberts-cousin-89271.html
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http://www.theatlantic.com/national/archive/2013/03/how-will-justice-kennedy-decide-on-the-supreme-courts-gay-marriage-cases/274312/
From the article:
I doubt that Justice Anthony Kennedy suffers from insomnia. But if he ever does, this would be the week. At the Justices' conference Friday, Kennedy may have to choose between his two great legal loves--the sovereignty of the states on the one hand and the dignity and rights of gay men and lesbians on the other.
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From the article:
Evan Wolfson, the president of the advocacy group Freedom to Marry, who was one of the earliest proponents of marriage equality, told me that he is “very hopeful that the rulings in both marriage cases will be good to great, rather than bad.” Wolfson believes that the “momentum we’ve been building has created a climate that says to the Justices they can do the right thing and know that not only will history vindicate them, but it will be true to where the American people already are.”
It might be best to add some caution to that optimism. It is possible that a procedural rule, misunderstood even by most lawyers, could derail one or both of the cases. The anticipated dramatic advances could be deferred if the Court feels the parties before it lack “standing.” That prospect has some gay-rights legal advocates increasingly worried.
Read more: http://www.newyorker.com/online/blogs/newsdesk/2013/03/whats-standing-in-the-way-of-gay-marriage.html#ixzz2OZLmqxlZ
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Of course there is also the little matter of whether the Constitution declares that gay marriage is required by the Constitution , , ,
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http://www.brookings.edu/research/opinions/2013/03/27-supreme-court-drugsniffing-dog-villasenor
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CD, BD, others, Are you ready to issue what your opinion would be on the two gay marriage cases, ahead of the Court's decision? Standing, rational basis, strict scrutiny, it all seems very complicated. If it is like the Obamacare decision, I tend to learn the most from the dissent.
Gays who aren't husband and wife, gender specific, are treated no differently under the law than all single people, an argument I haven't heard them make. For better or worse, the movement for sameness for gays (or singles, transgenders or group arrangements), can only lead to the ending all preferential treatment aimed at the institution formerly known as marriage with no hyphen.
I believe in an extreme passion for protecting the rights of life, liberty and pursuit of happiness for all including gay. OTOH, it is of no interest to me whether the plaintiff Windsor was in a committed relationship, until death do we part, with her sister, friend or gay partner. God Bless her freedom to associate, for them to love and look after each other, etc. The only logical discrimination ruling to me would be to strike down all recognition of marriage that treats any person differently than anyone else. It would be a shame to do that, to eliminate public recognition of marriage as proposed elsewhere.
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Here is a WSJ Editorial Board member disagreeing with the Editorial Board, an interesting take:
Maybe Scalia Was Wrong March 28, 2013
How the Supreme Court could uphold Proposition 8.
By JAMES TARANTO
The most telling question in two days of oral arguments on same-sex marriage came yesterday in U.S. v. Windsor, the Defense of Marriage Act case. The questioner, not surprisingly, was Justice Anthony Kennedy, who addressed Solicitor General Donald Verrilli:
You are insisting that we get to a very fundamental question about equal protection, but we don't do that unless we assume the law is valid otherwise to begin with. And we are asking is it valid otherwise. What is the Federal interest in enacting this statute and is it a valid Federal interest assuming, before we get to the equal protection analysis?
Let's uproot some of the legal weeds so we have a clear view:
The justices are debating whether Section 3 of DOMA, the provision barring the federal government from recognizing any same-sex marriages is unconstitutional. (Section 2, which permits states to refrain from recognizing other states' same-sex marriage, is not under challenge.)
There are two arguments against Section 3: the federalism argument and the equal-protection argument. The federalism argument is that marriage and family law have traditionally been state domains, and therefore Congress lacks authority to legislate in these areas. The equal-protection argument is that DOMA unconstitutionally discriminates against homosexuals.
Kennedy seems to be giving serious consideration to striking down DOMA's Section 3 based on the federalism argument alone. In this column's view, that would be the correct outcome, which is to say that we respectfully dissent from The Wall Street Journal's editorial position. "The Justices can help the Constitutional system, the country's political temper and the Court's reputation by letting the people decide how to define the core family unit of society." http://online.wsj.com/article/SB10001424127887323501004578386392725153194.html?mod=wsj_share_tweet
Kennedy's evident reluctance to take up the equal-protection argument in Windsor is almost certainly a clue as to his thinking about Hollingsworth v. Perry, the case challenging California's Proposition 8.
In Hollingsworth, observers on either side could find reason for encouragement in Kennedy's questioning at oral argument. On the one hand, as we noted Tuesday, he expressed serious misgivings about the court's imposing a novel social policy on the nation. On the other, he mused about "the voice of these children"--which, as blogress Ann Althouse notes, is a slogan from the Family Equality Council, a gay-rights group that filed a friend-of-the-court brief urging the court to strike down both Proposition 8 and DOMA.
But there is no federalism argument in Hollingsworth, which concerns a state law. It is entirely an argument about equal protection. If Kennedy is reluctant to reach the question in Windsor, how can he even form an opinion in Hollingsworth?
One answer to that question is that he may not have to. In both Hollingsworth and Windsor, the executive branch of the government--California's governor and attorney general in the former case, the Obama administration in the latter--has declined to defend the law under challenge. Other parties have been appointed to argue the case instead, and among the questions the justices considered were whether those parties even had standing to argue the defense.
The court could hold that the designated defenders in Hollingsworth have no standing and thus the case is not properly before the court. Our understanding is that in the event of such a ruling, the Ninth Circuit's opinion would be vacated and the original trial court ruling would be reinstated. That would mean California would be required to establish same-sex marriage, but the laws of no other state would change, and no court elsewhere would be obliged to follow the trial judge's precedent.
It seems to us it would be odd for the justices to hold that the defenders have standing in Windsor but not in Hollingsworth. On this question, however, we enter a rare plea of ignorance. Perhaps there is some pertinent difference, and if an expert in federal procedure would like to produce an explanatory email or blog post, we promise to read it.
At any rate, there is another possibility. Perhaps the equal-protection question in Hollingsworth is more easily resolved than the one in Windsor.
Some argue that Kennedy effectively resolved the Hollingsworth question a decade ago, and in favor of same-sex marriage. Among them are the legal journalist Jeffrey Toobin, the distinguished legal scholar Richard Epstein and . . . Justice Antonin Scalia. This columnist was an early adherent of this view--see our August 2010 column titled "Scalia Was Right," a phrase Toobin borrows in The New Yorker this week--but we've changed our mind.
In 2003 Justice Kennedy wrote the majority opinion in Lawrence v. Texas, which struck down state laws against consensual sodomy as a violation of the right to privacy. Kennedy quoted an earlier dissent by Justice John Paul Stevens and declared that it was thenceforth the view of the court: "The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack."
But the miscegenation analogy, the favorite of same-sex marriage's proponents, is misleading. Whether or not one finds the comparison morally compelling, it overlooks an important legal distinction. Laws that distinguish between individuals on the basis of race are (at least in theory) almost impossible to justify, because the Supreme Court has held that they are subject to "strict scrutiny," the most forbidding standard of review.
Neither the Obama administration nor the appellees in the marriage cases argue that the court should apply strict scrutiny in evaluating laws that make distinctions based on homosexuality. The court, led by Justice Kennedy, expressly declined to do so in Romer v. Evans (1996), which struck down a Colorado ballot initiative denying all legal protections to homosexuals. Romer was an equal-protection case while Lawrence was a privacy case, but in both of them the court applied the lowest level of scrutiny: It struck down the laws in question on the ground that disapproval of homosexuality was not even a "rational basis" for the laws under challenge.
That's where Scalia comes in. He vigorously dissented from both Romer and Lawrence, arguing for the right of a democratic majority to embody its moral views in the law. In Lawrence, Kennedy noted that the decision "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter."
"Do not believe it," Scalia replied:
If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), "when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "the liberty protected by the Constitution"?
It's a rhetorical question, but under rational-basis analysis it's easily answered: Providing benefits to homosexual couples costs the taxpayers money. If the lesbian widower Edith Windsor prevails in the DOMA case, for instance, the IRS will have to refund $363,053 it collected in death taxes from her late wife's estate. It doesn't get more rational than that.
That's why the Second U.S. Circuit Court of Appeals applied "intermediate scrutiny"--the same level that applies to distinctions between the sexes--in its equal-protection analysis when it decided Windsor v. U.S. The Obama administration argues for "heightened scrutiny," which the Supreme Court has never used and which is, like intermediate scrutiny, stricter than rational basis and more relaxed than strict scrutiny.
Applying a higher level of scrutiny would be a major legal step. If Kennedy is averse to reaching the equal-protection question in Windsor, that suggests it is a step he would prefer not to take. Which leads to the question: How would one resolve Hollingsworth using a rational-basis test?
As we noted March 13, the administration's friend-of-the-court brief offers one idea. California, in common with eight other states, has a law on the books providing for "civil unions" that come with all the benefits of marriage. The administration argues that since civil unions and marriages are materially identical, those states--unlike those without civil unions, or with ones that are lesser than marriage--have surrendered the option of claiming a rational basis in protecting the public fisc.
The only plausible reason they have for denying the name marriage, the argument continues, is disapprobation of homosexuality, which the court rejected as a rational basis in both Romer and Lawrence. Thus, the administration urges, if the court won't apply heightened scrutiny it should order those nine states to abolish the distinction between civil unions and marriages.
There's no indication what Justice Kennedy made of this particular argument; he didn't ask Verrilli any questions on Tuesday. But it seems to us that it misunderstands the nature of the rational-basis test and runs counter to the logic of Romer and Lawrence. Rational basis is a test that involves both ends and means. Promoting public health, for example, would obviously be a rational basis for a statute banning smoking in bars, but it might not suffice to justify a statute banning smoking only in gay bars.
In both Romer and Lawrence, Kennedy stressed the mismatch between the (at least theoretical) onerousness of the means and the amorphous nature of the end (expressing disapprobation of homosexuality).
From Romer: "Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies. . . . [The law's] sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests."
From Lawrence: "When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. . . . The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged."
California law, by contrast, treats homosexual couples as equal to heterosexual couples in every respect except for the official name it applies to their relationships. And "civil unions" implies no disapprobation, merely a lesser degree of approbation than "marriage." It's hard to imagine a less onerous law.
If Scalia was right, then Romer and Lawrence stand for the view that to disapprove of homosexuality, or even to view it less favorably than heterosexuality, is an irrational idea that cannot be allowed to influence public policy even in the most minimal ways. But that sounds like strict scrutiny to us.
If Scalia was wrong, the court could uphold Proposition 8 on the ground that it imposes a burden so minimal that the rational-basis test is far easier to meet than it was in Romer or Lawrence.
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Prop 8 goes down 6-3. Heightened scrutiny. Kennedy writes. RBG concurs, but only because heightened scrutiny belongs to her.
DOMA goes down 6-3. Some combination of equal protection, contract clause. Roberts writes.
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Prop 8 goes down 6-3. Heightened scrutiny. Kennedy writes. RBG concurs, but only because heightened scrutiny belongs to her.
DOMA goes down 6-3. Some combination of equal protection, contract clause. Roberts writes.
I can't disagree with your prediction. Your vote would be with the 6?
A similar view was expressed by the NYT:
NY Times Editorial, Sunday March 23, 2013:
http://www.nytimes.com/2013/03/24/opinion/sunday/heightened-scrutiny-of-proposition-8-and-doma.html?_r=0
Heightened Scrutiny
By THE EDITORIAL BOARD
One of the central questions in the two gay marriage cases to be argued before the Supreme Court this week is whether gays and lesbians are a protected class under the Constitution. Under longstanding principles, government actions that fall heavily on “discrete and insular minorities” historically subject to prejudice and stigma are to be given particular scrutiny.
The 3.4 percent of Americans who identify as gay, lesbian, bisexual and transgender clearly qualify as this kind of minority. Laws classifying individuals based on sexual orientation — the anti-gay-marriage initiative in California called Proposition 8 and the federal Defense of Marriage Act — must be given heightened scrutiny.
Justice Ruth Bader Ginsburg, then the foremost advocate for gender equality, swayed the court 40 years ago to adopt that standard for gender-based distinctions. The court concluded “that classifications based upon sex” were “inherently suspect.” But it has not yet decided how to treat laws based on sexual orientation. The solicitor general and others argue persuasively that such laws require close review just as those based on gender do.
The United States Court of Appeals for the Second Circuit struck down the Defense of Marriage Act for defining marriage as between a man and a woman. The appeals court convincingly found that in focusing on sexual orientation, the act warranted heightened scrutiny under the test the Supreme Court established for gender-based laws — and that the statute was unconstitutional when reviewed closely. The test considers whether members of the group have experienced invidious discrimination; whether individuals can leave the group without losing a basic part of their identities; whether the group’s defining characteristic is relevant to its ability to contribute to society; and whether members can protect themselves in the political process.
Gays, lesbians, bisexuals and transgender people share a common “immutable” characteristic because their sexual orientation is fundamental to who they are and they have indisputably been discriminated against. Until a decade ago, the Supreme Court upheld state laws making “private sexual conduct” between people of the same sex a crime. In the five most recent years for which the government has data, through 2011, hate crimes in the United States fell by 19 percent. But hate crimes based on sexual orientation went up by 3 percent. The discrimination has nothing to do with the ability to contribute to society.
Finally, gays and lesbians, as a minority group, cannot protect themselves from discrimination in a political process governed by the majority. If they had power, Proposition 8 and the Defense of Marriage Act would never have passed, nor would the laws currently on the books in 39 states that specifically restrict marriage to opposite-sex couples.
As the brief for the United States said in the Defense of Marriage Act case, “This is the rare circumstance in which a faithful application of the court’s established criteria compels applying heightened scrutiny to an additional classification.” Neither of the laws in the two cases before the court can withstand this serious constitutional examination.
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From Doug: "I can't disagree with your prediction. Your vote would be with the 6?"
You can if you like. Many court watchers seem to be predicting the justices will DIG Prop 8 based on standing. So, from what I've read, anyway, I seem to be the minority there.
And, yes, it would.
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"Until a decade ago, the Supreme Court upheld state laws making “private sexual conduct” between people of the same sex a crime." And President Clinton signed DOMA and and and.
So is the Constition no longer to be strictly contructed and meanings never intended now imputed to be constitutionally compelled?
IMHO such a doctrine is profoundly destructive to the the Constition and the role of the Judiciary in our system-- the judiciary becomes a third political branch instead of remaining a branch dedicated to applying the law as written and intended.
And what of those who believe gay behavior to be morally/spiritually wrong? Is their opinion now to become a thought crime? With regard to those for whom this is a matter of religious belief, is the free exercise of their religion now illegal?
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Original intent is onlt one way to interprete the Constitution. Another, and one that is generally considered "conservative" is meaning of the words.
Since there is a clause that says: "...nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws it is pretty easy to see that some people are equally protected when denied the right to marry.
And there is this: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."
And this: "No State shall enter into any ... Law impairing the Obligation of Contracts."
And, there is a long-standing understanding of the dichotomy of belief and action. Assuming the SCOTUS strikes DOMA, you (broadly defined) can believe that marriage means a man and woman. It just won't be supported legally. There were (are?) plenty of people who felt that marriage between different races is unbiblical (or similar). That does not mean that the belief is A), true or B) legally enforceable.
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Ah, yes. The meaning of the words - to marry.
In the older dictionaries, pre-2013, non-hyphenated marriage meant some kind of ceremony where a man and a woman consent to become husband and wife. Does DOMA or Prop 8 remove that right for anyone? No (IMO). Must change the meaning of the privilege in order to deny it. Opting out of that union is also a right.
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So using your logic BD, laws against incest and bigamy are also unconstitutional?
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Ah, yes. The meaning of the words - to marry.
In the older dictionaries, pre-2013, non-hyphenated marriage meant some kind of ceremony where a man and a woman consent to become husband and wife. Does DOMA or Prop 8 remove that right for anyone? No (IMO). Must change the meaning of the privilege in order to deny it. Opting out of that union is also a right.
Is the meaning of the words "to marry" in the Constitution?
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So using your logic BD, laws against incest and bigamy are also unconstitutional?
Only if your logic is to contract out incest, GM.
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I'm not sure what your answer means. If equal protection applies to two males, then why not 3 or 6 males?
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OK, let's try this again, even though we've this already:
1, states already allow incest. Do you know how many states allow first cousins to marry? Do you want to overturn those laws, GM, even though they are between a man and a woman?
2, states allow girls to marry men, when those females are not yet legal of legal voting, drinking, etc. age. Do you want to overturn those laws, GM, even though at least one of the marriage partners is still a minor?
3, how much of using a dictionary to define marriage is circular logic? Could it be that the dictionary definition has changed to define marriage as a man/woman because the state defines as such?
4, there are plenty of biblical marriages which are not a man and a woman. Or marriage laws/rules that we now hold be anachronistic.
5, since you are into logic: since Mormons believe in pologamy, and since Mormons are Christian, polygamy is Christian.
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You are throwing out a lot of chaff rather than answering the question.
If two males have equal protection rights to marry, does that apply to 3 males ?
If not, why not?
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Incidentally, why do you want small government and a lack of a nanny state except in policy spaces you disagree with? If there was a national ban on soda, or guns or... well, nearly everything else, you would be talking dictatorship. Why homosexual marriage?
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You are throwing out a lot of chaff rather than answering the question.
No, GM, it is you who do this. The question is about gay marriage. Not pologamy. But, you brought it up. It is you who bring up "chaff." Is it because there is no discernable constitutional provision to ban gay marriage, so you hope to complicate the issue?
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DOUG: "Ah, yes. The meaning of the words - to marry.
"In the older dictionaries, pre-2013, non-hyphenated marriage meant some kind of ceremony where a man and a woman consent to become husband and wife. Does DOMA or Prop 8 remove that right for anyone? No (IMO). Must change the meaning of the privilege in order to deny it. Opting out of that union is also a right."
BD "Is the meaning of the words "to marry" in the Constitution? "
MARC: No, the meaning of the verb is in the English language. Advocates of gay marriage, in order to by-pass the political effort required to change the law by the political process (as they did with abortion), now seek to change the meaning of the word in order to bootstrap themselves into the language of the Constitution. I'm calling bullexcrement. No where in the C. is the SCOTUS empowered to redefine words so as to override the expressed will of the majority and by so doing impose its personal predilections.
Also, looks like Charles Krauthammer read my post from yesterday:
http://www.theblaze.com/stories/2013/03/31/krauthammer-gay-marriage-case-could-lead-to-an-all-out-assault-on-religion/
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Marc, I know this is no surprise, but I disagree with you, for all of the points I made earlier about what IS in the Constitution. And, as religion IS in the Constitution, I would have an issue if an "all out war" on religion erupted. But, by the same token that CK brings up in his article, why shouldn't a Quaker, or Episcopalian same sex couple NOT be recognized?
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If the people so vote, then so be it.
It is not for the Court to impose a new meaning to the word "marriage" to impose its personal politics.
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"The farce that is the Supreme Court of the United States has now taken up a new cause: same-sex marriage. To push that cause, the anti-Constitutional members of the Supreme Court prepared to declare that the federal government cannot define marriage for the purpose of federal benefits under the Defense of Marriage Act (DOMA). This is the same Supreme Court that declared last year that the federal government can force individuals to buy health insurance. To simplify, then: The federal government can't define how federal cash gets spent, but it can define how your cash gets spent. There is no logical principle that undergirds any of this." --columnist Ben Shapiro
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It isn't the right or privilege to marry that is in question, gays have always had that same right as heterosexuals (see Billie Jean King, Rock Hudson), it is the right to marry the person you love, who consents.
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DOMA does not stop any state from performing or recognizing gay marriages or single out gay marriage apart from other permutations. It is saying that the other states and the Feds don't have to recognize other unions from the states who do that as the same as a husband-wife marriage, which is defined as one of each gender. http://thomas.loc.gov/cgi-bin/query/z?c104:H.R.3396.ENR:
Prop 8 also does not single out gay marriage either any more than does it excluded larger groups:
Sec. 7.5. "Only marriage between a man and a woman is valid or recognized in California. "
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In political language, the disadvantaged group is called LGBT, meaning not just gays but all Lesbians, Gays, Bi-sexuals, trans-sexuals. Addressing the needs of the last group alone, transgender, would mean an end to all gender distinctions, as it is a changeable state. Interestingly (to me), an end to all gender distinctions was written in the Equal Rights Amendment - which the nation failed to ratify.
Somewhere between about 2.5% and 3.4%(Gallup) of adults identify as gay, a significant political minority. Presumably Bi-sexuals and Polygamists whose needs are more than one are not helped by a gay marriage ruling. They are much smaller groups and even more vulnerable to discrimination by the majority. They don't have political power, but how does that change the meaning of the words of the constitution? After DOMA or Prop 8 is struck down, it is still constitutional to prohibit recognition of these multiple partner unions? They still cannot marry whomever they love that will consent. Why doen't that fail the same test of logic or scrutiny, treating individuals from different groups differently?
Singling out hetero-marraige(-hyphened) for public policy preference was electorally intentional, the opposite of a sin tax, to encourage certain behaviors for the general welfare. Singling out gay couples to add to the special treatment class is still offering special treatment to members of selected groups at the exclusion of others. It still draws a moral line in law, damaging for example the children with polygamist upbringings, to extrapolate the plaintiffs attorneys' logic. It also leaves in discrimination against single people in tax and estate law, which is the majority of new parents, if child rearing was the concern. Why not strike down everything to do with marriage, family or any other recognition used for preference? Isn't that really what is in question?
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Because the leftist groupthink in Hollywood and academia haven't yet found polygamy to be an effective tool in destroying what's left of the American family.
This is why BD can't address my questions.
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Good post Doug.
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I don't address your question, GM, because it is not the question at hand. You have shifted the question, and I choose not to address it. And nevermind, of course, that you ignore my points.
It is a good post, Doug. But it ignores the equal protection and contract clauses, which requires states to recognize contracts made in other states. DOMA does violate that.
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Question:
Why is it that CCW permits are not recognized in other states but driver's licenses are?
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Question:
Why is it that CCW permits are not recognized in other states but driver's licenses are?
As far as I'm concerned, they do.
:-D
I did once get an answer, but I don't recall what it was.
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I don't address your question, GM, because it is not the question at hand. You have shifted the question, and I choose not to address it. And nevermind, of course, that you ignore my points.
It is a good post, Doug. But it ignores the equal protection and contract clauses, which requires states to recognize contracts made in other states. DOMA does violate that.
I guess Justice Sotomayor though it was applicable. At Least Ted Olson attempted to answer it.
http://www.npr.org/blogs/thetwo-way/2013/03/28/175623980/in-light-of-high-court-arguments-what-does-gay-marriage-tells-us-about-polygamy
One of the more interesting exchanges to emerge from the Supreme Court hearings on gay marriage this week, wasn't about the sexes, instead it was when Justice Sonia Sotomayor asked a question about polygamy.
Sotomayor asked Ted Olson, the lawyer asking the court to repeal California's ban on gay marriage, that if he was right and "marriage is a fundamental right" could any state restrictions ever exist. In other words, does declaring gay marriage a civil right, pave the way to legalization of, say, polygamy?
Olson responded:
"You've said in the cases decided by this Court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing. And if you — if a State prohibits polygamy, it's prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status. It's selecting them as a class, as you described in the Romer case and as you described in the Lawrence case and in other cases, you're picking out a group of individuals to deny them the freedom that you've said is fundamental, important and vital in this society, and it has status and stature, as you pointed out in the VMI case."
During the second hearing, which considered the constitutionality of the Defense of Marriage Act, attorney Paul Clement took the opposing position, saying the government has the right to define marriage as between a man and a woman.
"If you look at historically, not only has the Federal Government defined marriage for its own purposes distinctly in the context of particular — particular programs, it's also intervened in — in other areas, including in-state prerogatives," Clement siad. "I mean, there's a reason that four state constitutions include a prohibition on polygamy. It's because the Federal Congress insisted on them."
All Things Considered's Robert Siegel had the same question, so, today, he talked to Jonathan Turley, a law professor at George Washington University, who represents the reality TV stars "Sister Wives," and is seeking to overturn a Utah law that effectively bans polygamy.
Turley said that polygamy is now where gay marriage was a decade ago, when Supreme Court decided Lawrence v. Texas, which stopped states from prohibiting sexual acts between same-sex couples. The implication is that polygamy will move forward in time.
"You cannot defend a new civil liberty, while denying it to others. I think there's a grander more magnificent trend that can see in the law and that is this right to be left alone," Turley said. "People have a right to establish their families as long as they don't harm others."
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...Doug...it ignores the equal protection and contract clauses, which requires states to recognize contracts made in other states. DOMA does violate that.
States, I agree, could be required to honor the contract between spouse 1 and spouse 2 (formerly referred to as husband and wife) as they travel freely through a different state or move there. How does that change the contract between state 2 and individual 1 or 2 as it applies to taxes or anything else, if the marriage preference (or penalty) in that state is defined as applying only to one-man-one-woman-marriages?
Can one state legislature, or ten of them, change the definition of a federal tax benefit when DOMA so specifically lays out what in federal law is defined as qualifying for that preference?
If the issue truly is equal protection, I still fail to see how adding one group or two to the preferred group remedies the equal protection violation. No one to my awareness ever answers that.
The tax code is filled with preferences for all kinds of reasons. Encouraging households potentially capable of natural offspring to marry is about as rational of a basis as there can be if we are to accept any preference. [Of course rational basis is out the window here.) Must everyone get a credit for not planting wheat in their yard if any farmer gets that deduction? Isn't almost every page of the 8000 page Federal Tax Code loaded with preferences toward individuals from named groups and discrimination against everyone else?
I get it that at least one Justice will see 'heightened scrutiny' applying to sexual orientation and other Justices will follow, but I don't see 'heightened scrutiny for sexual orientation' in the original text or meaning of the original words in the constitution. Why didn't the Court strike down all marriage preferences when they first came out? Obviously marriage as it was defined then was a hetero-phenonmenon, and it didn't even reach all heteros. Was there no challenge on equal protection in the tax code until now or were the precedents from the past wrongly decided?
I favor all income from all people in all industries, earned legally, taxed the same, which would have solved most of this. Estates are essentially an accumulation of after tax income. Some other clause, takings, or cruel and unusual punishment ought to stop the legislating of theft of those privately held assets.
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From GM's post: "You cannot defend a new civil liberty, while denying it to others [the Polygamists]. I think there's a grander more magnificent trend that can see in the law and that is this right to be left alone," Turley said. "People have a right to establish their families as long as they don't harm others."
First of all, who is stopping them?
To my friends who innocently ask how gay marriage can possibly affect their marriage, resolving this contentious issue forcefully through the courts perhaps just ended their marriage in terms of every public policy recognition or preference as we knew it. The acceptance of gay marriage coincided with the abandonment of conventional marriage. The majority of all kids are now born out of wedlock and are thus empirically more likely to be poor and have other problems. Meanwhile gay men and virgin lesbians are getting pregnant. Mother and father are now federally called Parent One and Parent Two. Equality and degradation of our greatest institutions are synonymous and within our reach. All to achieve nothing that looks like equal protection under the law IMHO.
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Question:
Why is it that CCW permits are not recognized in other states but driver's licenses are?
As far as I'm concerned, they do.
:-D
I did once get an answer, but I don't recall what it was.
GM and I agree here. And I don't know, either. I'll ask around, though. Excellent question, Crafty.
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GM, I was answering question that Doug asked me about how my vote would go down if I were on the Court. When the polygamy case to the court, let's discuss it. Next time I am asked a question by a SCOTUS justice, I'll address it. Ted Olson is smarter than I, what can I say?
When do I get your answers to my questions?
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"When the polygamy case to the court, let's discuss it".
No, lets discuss it now :-)
"Sotomayor asked Ted Olson, the lawyer asking the court to repeal California's ban on gay marriage, that if he was right and "marriage is a fundamental right" could any state restrictions ever exist. In other words, does declaring gay marriage a civil right, pave the way to legalization of, say, polygamy?"
A real good question from the "Unwise Latina". Please feel free to have at it BD.
Olsen:
"You've said in the cases decided by this Court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing. And if you — if a State prohibits polygamy, it's prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status. It's selecting them as a class, as you described in the Romer case and as you described in the Lawrence case and in other cases, you're picking out a group of individuals to deny them the freedom that you've said is fundamental, important and vital in this society, and it has status and stature, as you pointed out in the VMI case."
Now, this logic presents some interesting questions of own. If the standard is conduct, then on what basis are the sodomy laws unconstitutional? On what basis do the anti-discrimination statutes defend? On what basis can it be claimed to to have marriage be a violation of equal protection?
Please feel free to have at it BD.
:-)
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"GM, I was answering question that Doug asked me about how my vote would go down if I were on the Court."
This is true and I am appreciative of all the responses. Knowing we disagree, the best we can do is test out the arguments in both directions and see where they lead. No pressure, but the Justices may be checking the forum before they decide. I have lived to regret telling Justice Roberts that Obamacare is a tax. :wink:
In tax law, the progressive rate system fails the equal protection test IMO, but is justifiable to others on a concept understood as 'equal protection, different circumstances'. We don't apply the top rate to every dollar or every person; taxpayers have different circumstances. If you were in that situation, that rate would apply to you too. I can't take the depletion deduction of a gold mine because I don't own one. Is that unfair? The blind get an extra deduction. I would have to poke both eyes out to qualify. Probably easier for a gay to pretend to be hetero. A gay can't find happiness in a one man one woman marriage but he or she is free to pursue happiness elsewhere and not receive that legislated benefit. The majority of the 4 trillion dollar budget consists of checks sent to preferred recipients for one reason or another, and not me. If I could not serve in the military because of condition in me from birth or genetics, should I still receive veterans' benefits? I don't see how you logically pick at the edges of a government built on preferences without bringing down the whole system.
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Lawsuit over health care tax could kill ‘Obamacare’
The Washington Times
Sunday, March 31, 2013
"...one lawsuit making its way through the court system could pull the plug on the sweeping federal health care law.
A challenge filed by the Pacific Legal Foundation contends that the Affordable Care Act is unconstitutional because the bill originated in the Senate, not the House. Under the Origination Clause of the Constitution, all bills raising revenue must begin in the House.
The Supreme Court upheld most provisions of the act in June, but Chief Justice John G. Roberts Jr. took pains in the majority opinion to define Obamacare as a federal tax, not a mandate. That was when the Sacramento, Calif.-based foundation’s attorneys had their “aha” moment.
“The court there quite explicitly says, ‘This is not a law passed under the Commerce Clause; this is just a tax,’” foundation attorney Timothy Sandefur said at a Cato Institute forum on legal challenges to the health care act. “Well, then the Origination Clause ought to apply...
http://www.washingtontimes.com/news/2013/mar/31/obamacare-lawsuit-over-health-care-tax-will-test-c/#ixzz2PJsjWvcW
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OK, let's try this again, even though we've this already:
1, states already allow incest. Do you know how many states allow first cousins to marry? Do you want to overturn those laws, GM, even though they are between a man and a woman?
No state allows brothers/sisters to marry. Is that a violation of their equal protection rights? What if first cousins are legally married in one state and then move to a state where it's illegal?
2, states allow girls to marry men, when those females are not yet legal of legal voting, drinking, etc. age. Do you want to overturn those laws, GM, even though at least one of the marriage partners is still a minor?
I probably would.
3, how much of using a dictionary to define marriage is circular logic? Could it be that the dictionary definition has changed to define marriage as a man/woman because the state defines as such?
Because words are supposed to mean things, though as our society continues to degrade, the left uses words to destroy ideas. See Orwell's "love is hate", "peace is war" now we have "Homosexuality is marriage".
4, there are plenty of biblical marriages which are not a man and a woman. Or marriage laws/rules that we now hold be anachronistic.
Rather than looking at 1000s of years ago on another side of the planet, let's look at American culture in the last few centuries. Let's look at cultural/legal constructs that actually function. Even under Jim Crow laws, intact black families resulted in low crime rates and success against a stacked deck. Look at what the destruction of the black family has brought about. We are seeing the same thing happen with whites now and with the same results.
5, since you are into logic: since Mormons believe in pologamy, and since Mormons are Christian, polygamy is Christian.
Actually the mainstream LDS vehemently reject that doctrine and rapidly excommunicate anyone engaging in such conduct. The state of Utah is also pretty aggressive in prosecuting such things.
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Excellent commentary Doug.
Also, would you please post that challenge to Obamacare on the Politics of Health Care thread as well?
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OK, let's try this again, even though we've this already:
1, states already allow incest. Do you know how many states allow first cousins to marry? Do you want to overturn those laws, GM, even though they are between a man and a woman?
No state allows brothers/sisters to marry. Is that a violation of their equal protection rights? What if first cousins are legally married in one state and then move to a state where it's illegal?
Then the marriage contract follows them, GM. You know this. Only in the case of gay marriage is this not the case.
2, states allow girls to marry men, when those females are not yet legal of legal voting, drinking, etc. age. Do you want to overturn those laws, GM, even though at least one of the marriage partners is still a minor?
I probably would.
3, how much of using a dictionary to define marriage is circular logic? Could it be that the dictionary definition has changed to define marriage as a man/woman because the state defines as such?
Because words are supposed to mean things, though as our society continues to degrade, the left uses words to destroy ideas. See Orwell's "love is hate", "peace is war" now we have "Homosexuality is marriage".
4, there are plenty of biblical marriages which are not a man and a woman. Or marriage laws/rules that we now hold be anachronistic.
Rather than looking at 1000s of years ago on another side of the planet, let's look at American culture in the last few centuries. Let's look at cultural/legal constructs that actually function. Even under Jim Crow laws, intact black families resulted in low crime rates and success against a stacked deck. Look at what the destruction of the black family has brought about. We are seeing the same thing happen with whites now and with the same results.
Oh, no, you don't get off that easy. People are bombarded with the marriage is man and wife and we know this because of the Garden of Eden, or other scriptual reasons.
5, since you are into logic: since Mormons believe in pologamy, and since Mormons are Christian, polygamy is Christian.
Actually the mainstream LDS vehemently reject that doctrine and rapidly excommunicate anyone engaging in such conduct. The state of Utah is also pretty aggressive in prosecuting such things.
Actually, you continue in your circular reasoning. To survive after the imposition of marriage laws, and leaving Illinois (at least) due to marital repression and settling in Utah, where there were again told that they could not engage in polygamy, LDS changed its view.
Again, I ask... why are you three all libertarian when it suits your other views, but all over state repression when you disagree with an action?
Why would a right depend on a vote of the people?
Why don't you see the logic that religious freedoms are also for those who have religious views and practices that you don't share?
As for polygamy, I appreciate the offer to answer a question I was obviously relunctant to answer. The question before the Court is gay marriage. that's it. Only gay marriage. Therefore, according to the rules/normes/mores of the Court, the only question that should be answered is about gay marriage. Why did Sotomayor ask. I suspect it had not to do to allay her fears, but either Kennedy's or Roberts's.
I think that the polygamy question is the last gasps of a conservative minority of this country to change the question in the hopes of scaring people about the spectre of the demise of the country. It has nothing to do with the question before the Court.
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Again, I ask... why are you three all libertarian when it suits your other views, but all over state repression when you disagree with an action?
I'm against homosexual activists and their leftist associates shoving their conduct down the public's throats. I'm against activist judges overturning the will of the people so the force of law can be used to intimdate and lash out at those who don't buy into their conduct.
As far as what consenting adults do in the privacy of their own homes, I could care less. That correctly should be outside government regulation, meeting those articulated standards. This isn't about freedom to cohabitate, it's about creating a legal status to bludgeon others with.
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Oh, no, you don't get off that easy. People are bombarded with the marriage is man and wife and we know this because of the Garden of Eden, or other scriptual reasons.
Yes, they are called cultural values. Every culture has them. We are losing ours and the result isn't pretty.
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Again, I ask... why are you three all libertarian when it suits your other views, but all over state repression when you disagree with an action?
I'm against homosexual activists and their leftist associates shoving their conduct down the public's throats. I'm against activist judges overturning the will of the people so the force of law can be used to intimdate and lash out at those who don't buy into their conduct.
As far as what consenting adults do in the privacy of their own homes, I could care less. That correctly should be outside government regulation, meeting those articulated standards. This isn't about freedom to cohabitate, it's about creating a legal status to bludgeon others with.
This is helpful, thank you. I disagree, in that the Constitution provisions, including the ones I've mentioned throughout should be beyond the scope of majoritarian rules. See, as another example, the Second Amendment protections no matter the public opinion.
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The libertarian position, as I see it, is/should be that people are free to be gay and others are free to make of it what they will. The root of the problem is exactly as GM says
"This isn't about freedom to cohabitate, it's about creating a legal status to bludgeon others with."
The problem here is that liberal fascism is creating a legal environment wherein people are not free to make of it what they will, where they are coerced by the power of the state to act contrary to their sense of things.
As for polygamy, I submit that the question most certainaly IS fairly presented. The logic being proffered to change the definition of language ineluctably leads to it, so lets address it now.
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The libertarian position, as I see it, is/should be that people are free to be gay and others are free to make of it what they will. The root of the problem is exactly as GM says
"This isn't about freedom to cohabitate, it's about creating a legal status to bludgeon others with." OK. Perhaps I am a different type of libertarian, then. Can there be only one type of libertarian?
The problem here is that liberal fascism is creating a legal environment wherein people are not free to make of it what they will, where they are coerced by the power of the state to act contrary to their sense of things. I disagree. But you know that. And none of us will change our minds.
As for polygamy, I submit that the question most certainaly IS fairly presented. The logic being proffered to change the definition of language ineluctably leads to it, so lets address it now. Go ahead. As I have stated, I DON"T see the logic "leads to" polygamy. Since I don't share this view, I am uncertain what you want me to address.
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"Sotomayor asked Ted Olson, the lawyer asking the court to repeal California's ban on gay marriage, that if he was right and "marriage is a fundamental right" could any state restrictions ever exist. In other words, does declaring gay marriage a civil right, pave the way to legalization of, say, polygamy?"
A real good question from the "Unwise Latina".
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No. A fundamental right and a right are not the same thing. Hence the difference between strict scrutiny and heightened scrutiny. And, as I have already said, I think: A) were I a justice, this is what I would use and B) this is the level I expect that the Court will use.
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Sorry to be as slow as the Unwise Latina here, but it has been a while since law school and your shorthand about heightenend and strict scrutiny is not registering for me. Isn't Olsen's argument that marriage is a fundamental right? and don't fundamental rights get strict scrutiny?
Anyway, are you saying that hetero marriage does not meet the scrutiny level (whatever it is) but polygamy does not? What is the basis for your distinction?
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Sorry to be as slow as the Unwise Latina here, but it has been a while since law school and your shorthand about heightenend and strict scrutiny is not registering for me. Isn't Olsen's argument that marriage is a fundamental right? and don't fundamental rights get strict scrutiny?
I didn't know you wanted me to agree with T.O.
Anyway, are you saying that hetero marriage does not meet the scrutiny level (whatever it is) but polygamy does not? What is the basis for your distinction?
And, I am saying that homosexuals have been discriminated against in a manner consistent with the need for heightened scrutiny.
On SS: http://www.law.cornell.edu/wex/strict_scrutiny
On HS: http://legal-dictionary.thefreedictionary.com/Strict+Scrutiny+Test, esp: "The strict scrutiny standard of judicial review is based on the equal protection clause of the Fourteenth Amendment," which is what I am arguing. And have been.
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"homosexuals have been discriminated against in a manner consistent with the need for heightened scrutiny"
http://money.cnn.com/2012/12/06/pf/gay-money/index.html
Gay people earn more
@CNNMoney December 6, 2012: 1:37 PM ET
Lesbian, gay, bisexual and transgender (LGBT) Americans earn more, save more and have less debt, a Prudential study shows.
Lesbian, gay, bisexual and transgender people are better at managing their money than the average American, new research shows.
They earn more, save more, have less debt and are better prepared for retirement...
Respondents not only reported significantly higher annual incomes -- $61,500 compared with the national median of $50,054 -- but they also carried about $4,000 less in debt than the average American and had $6,000 more in household savings. They were even slightly more likely to have jobs in the first place, with an unemployment rate of 7% versus the national rate of 7.9%.
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Fundamental question here:
What is the basis for saying that discrimination that is based upon behavior is illegal?
BD:
Regardless of the standard to be applied, the Unwise Latina's question remains. The logic of the pro-gay marriage position also applies to polygamy. As best as I can tell, you are ducking this.
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http://ilovehistory.utah.gov/time/stories/polygamy.html
1852-1890: Opposition to LDS Church's Practice of Polygamy
In short:
Men imprisoned for polygamy at the state penitentiary in 1888.
When the Mormons began to openly practice polygamy in 1852, they lived in the rural West, far from the reaches of the federal government.
However, as the government’s influence and control began to expand farther and father west, the issue of polygamy and the Mormons became a hot political topic. It became so hot that the Republicans called slavery and polygamy the "twin relics of barbarism”—and accused Democrats of supporting both.
More of the story:
The strong arm of the law.
So private citizens and the government crusaded to end polygamy—mostly through laws. Congress passed a series of laws:
The Morrill Anti-Bigamy Act of 1862 prohibited polygamy in the territories. It also limited the value of the land that the LDS church could own, among other things.
The Poland Act of 1874 took away the LDS church’s power over the territory’s judicial system.
The Edmunds Act of 1882 made polygamy a felony, prohibited “unlawful cohabitation,” and took away polygamists’ right to vote and hold political office.
The Edmunds-Tucker Act of 1887 disincorporated the LDS church, allowed the government to seize church assets, punished offenders with large fines and prison, required wives to testify against husbands, and more.
Federal marshals arrested many men, who spent time in prison. Other polygamists went into hiding, including LDS church president John Taylor.
The wives of J. W. Summerhays: Sarah Berrett, Melissa Parker, and Hilda Johnson.
The church was backed into a corner.
Perhaps more serious than the imprisonment of individuals, the acts threatened to bankrupt the LDS church and polygamy was preventing Utah from becoming a state.
In 1890 the Supreme Court ruled in 1890 that the government could indeed seize church property—including temples. With no options left, church president Wilford Woodruff issued a “Manifesto” advising Mormons not to take part in any illegal marriages.
This Manifesto put the rest of the country at ease. Utah could then move toward statehood, which it achieved in 1896.
Saying it more emphatically.
The Manifesto was not very clear, especially for those already in plural marriages. And despite the church’s “advice” not to do it, many people continued to enter into polygamy.
When Americans realized polygamy was continuing, the controversy heated up again. The U.S. Senate refused to seat Reed Smoot, a Mormon apostle who had been elected senator. The long debate over Smoot was big news all over the country.
In 1904 church president Joseph F. Smith issued a more specific and binding decree about polygamy. Among other things, the decree stated that anyone caught entering or performing a plural marriage after 1904 would be subject to excommunication.
Today the practice of polygamy in the United States is continued by groups that are not associated with the LDS church. They are known as FLDS groups, meaning Fundamental Latter-day Saints.
Sounds pretty darn oppressive to me. Strict scrutiny, anyone?
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Vermont couple who lost discrimination suit films anti-gay marriage ad in Maine
Staff Reports
A Vermont couple who agreed to pay $30,000 to settle a discrimination lawsuit filed on behalf of a lesbian couple from New York who claimed that their Inn refused to host their wedding reception because they were a same-sex couple, appear in a new ad advocating against same-sex marriage in neighboring Maine.
Jim and Mary O’Reilly, owners of the Wildflower Inn in Lyndonville, Vt., were charged with violating the Vermont Fair Housing and Public Accommodations Act, which prohibits public accommodations from denying goods and services based on customers’ sexual orientation. The law applies to inns, restaurants, schools, stores, and any other business that serves the general public.
The couple, who say they are devout Catholics, could not “offer our services wholeheartedly to celebrate the marriage between same-sex couples because it goes against everything that we as Catholics believe in.”
They are now using the lawsuit and settlement as a warning to Maine voters to discourage them from support a marriage equality initiative on the November ballot:
Watch:
The couple said in the video that because of the lawsuit, they “can no longer host any weddings” at their Inn, when in fact, the Vermont statute only prohibits them from discriminating against gay couples. It was their decision to discontinue wedding services to avoid hosting gay and lesbian couples.
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Fundamental question here:
What is the basis for saying that discrimination that is based upon behavior is illegal?
BD:
Regardless of the standard to be applied, the Unwise Latina's question remains. The logic of the pro-gay marriage position also applies to polygamy. As best as I can tell, you are ducking this.
Behavior? Like voting? Riding a bus? Working? Buying a gun? Bearing an arm? Starting a business? I can't think of a single reason why any behavior should be protected.
I have expressed reluctance about answering the question for two days. I then answered it the best way that I know how, based on my understanding of the question, the cases and the Constitution. If, after not wanting to answer to doing that very thing you still feel I am ducking the question, I have nothing left to offer the conversation. I wish you all well in finding truth in this question.
I will look forward to the next question, I guess.
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At best, homosexual "marriage" is part of the "everyone gets a trophy" plague in this country. At worst, a way to target any who might dare to dissent with the demise of traditional American values.
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Thoughts while we await the Supreme Court’s decisions on same sex marriage: Most people, politicians and real people alike, can’t seem to make the distinction between druthers and constitutional mandates. We are now being inundated with polls showing a dramatic change in the opinions of the body politic concerning gay marriage. It seems that now most people think that same-sex marriage should be legally recognized. Presumably, this means that all of the state laws not allowing it should be struck down. Suddenly among most of the nation’s chattering class, anyone who thinks otherwise is a Neanderthal.
To a certain extent, both sides of the debate miss the point. On the same-sex marriage side, it is said that constitutional interpretation should comport with evolving public opinion, without the inconvenience of having to amend the Constitution. They believe that, unlike yesterday, today “equal protection” requires that states must recognize same-sex marriage; that “equal protection” means what it says. I assume that this would mean same-sex bathrooms at public facilities and a requirement that we draft women if we ever reinstitute the draft. It would mean that a state could not treat adults and children differently in some cases. Such an interpretation of the equal protection clause would, of course, have been baffling to the drafters of this provision and to courts of the last 200 years. That clause means that those who are similarly situated must be treated similarly without good reason—a rational basis for not doing so.
The left call for the literal interpretation of the Constitutiion only when it fits their needs, and it is misplaced here. The “literal” wording of the 1st Amendment says that Congress shall make no laws abridging the freedom of speech or of the press, but we have laws prohibiting falsely crying fire in a crowded theater as well as laws against libel. The 2nd Amendment says that our right to keep and bare arms shall not be infringed, but there are numerous permissible regulations which qualify that right. Similarly, equal protection has never meant that all people must be treated exactly the same at all times, regardless of the circumstances
There is nothing new in the proponents’ argument. According to them, the Constitution must be interpreted as having “evolved,” as Gallup tells us that public opinion has evolved. The idea of amending an out-of- date constitutional provision is essentially a relic even though it is one constitutional provision that is totally unambiguous with regard to the framer’s intent.
On the other hand many who oppose same-sex marriage argue that it would be much better to let the states and the democratic process decide the matter. I believe that they are correct, but their policy argument begs the question. Is a state law prohibiting it unconstitutional? If it is, it doesn’t matter if I or most people think that it is the “better” approach. We should not fall into a policy debate that should not be decided by the judiciary. Just a a poll should not be determinative, one’s notion of what is the best policy should not be determinative either. The argument should be that such a law is simply not unconstitutional and never has been. Federalism is not only wise, it is enshrined in the Constitutiion. The Constitution granted authority with regards to such matters to the states. And laws passed pursuant to this authority, which have been based upon thousands of years of human history, should be honored untill we change our minds through the sometimes inefficient process known as the Rule of Law.
-Fred Thompson
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Everybody’s outraged that Jeremy Irons said gay marriage could lead to fathers marrying their sons for tax reasons
4:58 PM 04/04/2013
Jim Treacher
In addition to decrying Michael Bloomberg’s nanny-state food fascism, actor Jeremy Irons is making waves this week by presenting a hypothetical about gay marriage that, I’m told, he shouldn’t have presented. Shame, shame, shame, Jeremy Irons!
Here’s Mr. Irons on HuffPost Live yesterday, talking to host Josh Zepps:
“I mean, taxwise it’s an interesting one, because… You see, could a father not marry his son?… It’s not incest between men. Incest is there to protect us from inbreeding. But men don’t breed, so incest wouldn’t cover that. Now if that were so, then if I wanted to pass on my estate without death duties, I could marry my son, and pass on my estate to him.”
Zepps replies that there’s still a “moral approbation” associated with incest, which seems like an odd argument to make regarding any aspect of gay marriage. If we’re going to disregard some people’s “moral approbation” about homosexuality, why should anybody’s “moral approbation” about incest continue to be encoded in law? Saying that it can’t happen because it’s illegal is pretty silly, when you’re talking about changing the law in the first place.
To borrow an argument from gay-marriage proponents: How would a marriage between father and son affect your marriage, gay or straight? How would it take anything away from your marriage? Who are you to tell someone else what the institution of marriage should and shouldn’t be?
But that’s just resorting to logic and making people face the ramifications of their own rhetoric, which is why people like John Aravosis and Sarah Karlan and Mary Elizabeth Williams are hyperventilating over it. You’re not supposed to talk about the unintended consequences, you bigots. They’re unintended!
Jeremy Irons seems confident enough in himself and his opinions not to be worried about getting kicked out of the Cool Kids’ Club. I sincerely thank him for what is sure to be another entertaining meltdown from our moral, ethical, and intellectual betters on the left.
Read more: http://dailycaller.com/2013/04/04/everybodys-outraged-that-jeremy-irons-said-gay-marriage-could-lead-to-fathers-marrying-their-sons-for-tax-reasons/
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How Congress Puts Itself Above the Law
The only way to finally end the sorry tradition of congressional exemptions is with a 28th Amendment..
By GERALD D. SKONING
For years, some have argued that we need a 28th Amendment to the Constitution providing that all members of Congress have to comply with all laws that other citizens have to obey. "Congress shall make no law," the amendment might read, "that applies to the citizens of the United States that does not apply equally to the senators and/or representatives; and, Congress shall make no law that applies to the senators and/or representatives that does not apply equally to the citizens of the United States."
Others apparently have faith in the high moral character of their elected officials and argue that we shouldn't have to enact a constitutional amendment to make sure Congress follows the same laws all Americans do.
Yet history shows that is definitely not the case. Over the decades, Congress has passed innumerable statutes that regulate every aspect of life in the American workplace, then quickly exempted themselves.
In 1938, when the Fair Labor Standards Act established the minimum wage, the 40-hour workweek, and time and a half for overtime, Congress exempted itself from coverage of the law. As a result, for decades congressional employees were left without the protections afforded the rest of Americans working in private industry.
In 1964, with great fanfare, President Johnson signed the landmark Civil Rights Act, including Title VII, which for the first time protected all Americans from employment discrimination on the basis of race, color, religion, sex or national origin. But the law exempted Congress from its coverage, so thousands of staffers and other employees on the Hill were left with no equal-opportunity protection. Staffers could be discriminated against or sexually harassed with legal impunity.
Some will remember Bob Packwood, the former senator from Oregon who resigned his seat in 1995 under threat of expulsion for alleged serial harassment of female staffers and lobbyists. The women who alleged they had been repeatedly victimized by the senator had no legal recourse under federal law. Had Mr. Packwood been a corporate executive instead of a lawmaker, he likely would have been sued for millions.
The same blanket congressional exemption found in Title VII was contained in a total of 10 other federal statutes regulating the American workplace, including protections from age and disability discrimination, occupational safety and health rules, family and medical leave, and many other issues that Congress felt important enough to impose on American industry. These federal laws apply to all civilian employees in the U.S., except those working on the Hill.
Critics advanced the rather sensible and straightforward proposition that U.S. lawmakers should live by the same laws they impose on private employers and state and local elected officials.
Nonetheless, when the comprehensive reform of the Civil Rights Act of 1991 was passed, efforts to eliminate the exemption failed. The immunity of members of Congress from lawsuits for compensatory and punitive damages in cases of employment discrimination continued.
Instead, the federal lawmakers enacted a toothless, self-policing system whereby Congress investigated and enforced its own compliance with civil-rights laws.
Given the choice, private employers no doubt would welcome the opportunity to police themselves on matters of equal-employment opportunity. Who wouldn't prefer self-regulation over dealing with government enforcement agencies and federal court juries considering punitive damages? However, unlike the Congress, private employers don't have the option of self-regulation.
Pressure on Congress mounted and finally, in 1995, with Republicans in control of the House and Senate, the Congressional Accountability Act was passed, eliminating the congressional exemption for all workplace laws and regulations. Some thought passage of the law marked the end of congressional exceptionalism through exemption. They were mistaken.
Insider trading (the buying and selling of stocks based on insider information not available to the general public) has been a violation of federal securities laws for almost 80 years. Yet it was never illegal for members of Congress. Not, that is, until a November 2011 report by CBS's "60 Minutes" shamed Congress into changing the law to prohibit members of Congress and their staffs from trading on inside information. The report was largely based on research conducted by the Hoover Institution's Peter Schweizer for his book, "Throw Them All Out," published that same month. Speaking about the legislators capitalizing on their positions, Mr. Schweizer told Steve Kroft on the program: "This is a venture opportunity. This is an opportunity to leverage your position in public service and use that position to enrich yourself, your friends and your family."
Six months after the "60 Minutes" segment with Mr. Schweizer aired, Congress passed and the president signed the Stop Trading on Congressional Knowledge Act of 2012, which bans insider trading by lawmakers and their staffs. But just last week, while voters were focused on emotional issues such as immigration and gun control, House and Senate members voted to repeal a key provision of the so-called Stock Act—the one that required online posting of their financial transactions.
It's not yet clear whether the president will sign the repeal, but it shouldn't be necessary to take a piecemeal approach to rolling back congressional exemptions, ending them—as with the ones for workplace rules and insider trading—only when they become embarrassing. Nor will blocking exemptions here and there prevent members of Congress, particularly those who serve numerous terms, from developing a sense of privilege that makes them think they're above the law.
America shouldn't need to amend the Constitution to ensure that elected leaders comply with the laws of the land. But given the sorry history of congressional leadership by exemption rather than by example, a 28th Amendment doing precisely that makes sense.
Mr. Skoning is a retired labor and employment lawyer in Chicago.
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A very fine piece. Thanks for the read, Guro.
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Does the Right to Privacy apply to gun ownership?
If not, why not?
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http://www.scotusblog.com/2013/04/recess-appointments-defended-2/
From the article:
The Obama administration asked the Supreme Court on Thursday to restore the President’s power to fill vacancies in government posts when the Senate is out of town. The petition argued that the D.C. Circuit Court got it wrong in January in sharply curtailing that authority. (The Circuit Court’s ruling — discussed in this earlier post – is attached as an appendix to the petition but also can be read here.)
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I look forward to reading that when I get home BD.
Also, anyone care to take a stab at an initial analysis of the issues presented by Doug's excellent question?
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Does or should?
If does, no.
Why? Second is not one of the amendments from which a penumbra emanates.
Does the Right to Privacy apply to gun ownership?
If not, why not?
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If I follow Doug's point correctly, its logic is the penumbra is emanating from the 9th, not the 2d.
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If I follow Doug's point correctly, its logic is the penumbra is emanating from the 9th, not the 2d.
OK, but Griswold says 1, 3, 5, 7 and 9. With its specificity, my answer to "does" would still be no.
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"Looking back, O'Connor said, she isn't sure the high court should have taken the case."
http://www.chicagotribune.com/news/local/ct-met-sandra-day-oconnor-edit-board-20130427,0,1201477.story
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Does the Right to Privacy apply to gun ownership?
If not, why not?
OK, but Griswold says 1, 3, 5, 7 and 9. With its specificity, my answer to "does" would still be no.
I very much appreciate Bigdog's answer, provided in the context of precedent and settled case law. I need to go back and re-read Griswold to better understand the meaning. A follow up question for BD, if I may ask: Should a right of privacy apply to gun ownership? (And if not, why not?)
This question is crucial in the gun control debate. The biggest point of contention remaining is whether or not the government at any level should be keeping a registry. The publishing of the gun owners and addresses in one area reportedly led to break-ins of those homes. Once a gun purchase is approved, the ownership of that gun is a fundamental right. Shouldn't there be a privacy right associated with that transaction and resulting ownership?
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It seems to me (mentioned previously) that a real 'right of privacy' is something we recognize quite selectively and step on quite freely when it doesn't fit with our other objectives.
A right of privacy was recognized by the Court in the Griswold decision to protect the choice of using birth control. Privacy applies to homosexual acts in Lawrence, but not to everything that happens in a bedroom. Privacy guarantees the right to slaughter your unborn young in Roe, up to a point, and less so after the decisions of Webster and Casey. Where else does privacy apply? Where else should it apply? Are tax returns private? Gun ownership? Census questionnaire information disclosed? Is a Colorado medical marijuana license list private - even if it is a violation of federal law? Why is there no right of privacy associated with the procurement of health care services?
Did the right of privacy originate in these Court decisions or did it pre-exist, on all private matters, as a fundamental right, and require a compelling state interest in order to limit or violate it?
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"Looking back, O'Connor said, she isn't sure the high court should have taken the case."
http://www.chicagotribune.com/news/local/ct-met-sandra-day-oconnor-edit-board-20130427,0,1201477.story
State court rulings that struck down the constitutional process of selecting electors should have been left alone?
Her career on the Court was marked by a lot of things of which she was uncertain. Being a Supreme Court Justice without a core principle must have been a heart-wrenching experience. Her 25 year affirmative action / unequal protection need was derived from which article or amendment?
"When I go and sit in the courtroom and look at the bench and see three women, it perks me up," she said.
When I see a Justice Alito of any gender sitting in her seat, it perks me up!
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Doug, BD:
I am sensing the beginning of a very good discussion here on privacy. In that we already have a thread for Constitutional privacy issues, may I ask that we take it there? Doug, would you be so kind as to restate your excellent questions over there?
TIA,
Marc
PS: Good point about privacy and the procurement of health care. Although obvious, I confess I had not made that connection.
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http://www.newrepublic.com/article/113079/sandra-day-oconnor-barry-goldwater-letter-bush-vital-court#
From the article:
Although most of O’Connor’s papers are private, her legendary secrecy could not prevent the publication of her correspondence with others, including Goldwater, who saved her letters to him. On November 1, 1988, then-sitting Justice O’Connor wrote to Goldwater to bemoan the state of the nation on the eve of the presidential contest between Democrat Michael Dukakis and Republican George H.W. Bush.
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This amuses me greatly:
http://mcguire.web.unc.edu/supreme-court-of-rock-and-roll/?doing_wp_cron=1367928019.1689059734344482421875
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http://www.theatlantic.com/national/archive/2013/05/the-joy-of-jury-duty/275444/
From the article:
What are these "democracy" skills? Think about what is required for a politically active nation. As a juror, you are asked to "vote" based on contested facts. You must debate issues framed by contesting parties. This involves listening to others and tolerating dissenting views (as well as expressing your own opinions). Jurors necessarily expand their social interaction with different types of people, broadening perspectives, contacts, and sources of information. To apply the law jurors must understand the law, the rights of the parties, and the legal rules guiding the decision. Each of these participatory skills--deliberation, debate, tolerance, cooperation, civility, legal decision making--is what we need for a democracy to work. The participatory aspect of jury duty shapes our constitutional character. Those habits and skills, our civic education, helps define who we are as Americans.
Or, as another example, take the value of deliberation. In the very first sentence of The Federalist Papers, a collection of essays and arguments in favor of the U.S. Constitution, Alexander Hamilton invited Americans to this different way of deciding, "You are called upon to deliberate on a new Constitution," he wrote (emphasis added). It was a call that perfectly fits the thinking of a democracy. Deliberation involves collective decision making--a willingness to think together using reason and informed discussion to come to a final decision.
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http://chronicle.com/article/How-Conservatives-Captured-the/138461/
From the article:
The history of the Federalist Society is a story of how disaffection, bold ideas, commitment to principle, and enlightened institution-building have created a significant conservative shift in the legal, policy, and political landscape of America over the past 30 years. The society reports that more than 45,000 lawyers and law students are involved in its various activities, with approximately 13,000 dues-paying members. With a national budget of about $10-million, in 2010 its 75 lawyer chapters sponsored nearly 300 events for more than 25,000 lawyers, and the society sponsored 1,145 events at law schools for more than 70,000 students, professors, and others. Through conferences, debates, publications, litigation, education, and by holding key positions in government and the judiciary, the society has changed law and policy in areas like property rights, access to courts, affirmative action, privacy rights including abortion and same-sex marriage, and the influence of international law on the domestic legal system.
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http://chronicle.com/article/How-Conservatives-Captured-the/138461/
From the article:
The history of the Federalist Society is a story of how disaffection, bold ideas, commitment to principle, and enlightened institution-building have created a significant conservative shift in the legal, policy, and political landscape of America over the past 30 years. The society reports that more than 45,000 lawyers and law students are involved in its various activities, with approximately 13,000 dues-paying members. With a national budget of about $10-million, in 2010 its 75 lawyer chapters sponsored nearly 300 events for more than 25,000 lawyers, and the society sponsored 1,145 events at law schools for more than 70,000 students, professors, and others. Through conferences, debates, publications, litigation, education, and by holding key positions in government and the judiciary, the society has changed law and policy in areas like property rights, access to courts, affirmative action, privacy rights including abortion and same-sex marriage, and the influence of international law on the domestic legal system.
Property rights are getting worse. Privacy rights apply only to liberal causes. Roe v. Wade is still essentially the law of the land. Obamacare, the biggest government takeover in history, was upheld. Affirmative action is still happening. The great influence the 'federalists' had on Republican appointments didn't seem so powerful during the Harriet Meirs choice. Or Sandra Day O'Connor, or David Souter. Government powers keep growing while individual rights keep shrinking, in my view. Wickard can still stop Filburn from growing wheat on his own property to feed his own animals. We are perhaps down to one conservative on the Court. The authors obviously come at this from a very different perspective.
Still, I am always happy to read an opposing view. )
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"We are perhaps down to one conservative on the Court."
:roll:
And there has been plenty of literature of how the current SC is among the most pro-business in history.
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"We are perhaps down to one conservative on the Court."
:roll:
And there has been plenty of literature of how the current SC is among the most pro-business in history.
There is a critical difference between being "pro-business" which can mean "pro-big contributors who bought access to public funds and get laws passed to suppress competition" and pro-free market.
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Yes.
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"We are perhaps down to one conservative on the Court."
:roll:
And there has been plenty of literature of how the current SC is among the most pro-business in history.
There is a critical difference between being "pro-business" which can mean "pro-big contributors who bought access to public funds and get laws passed to suppress competition" and pro-free market.
Agreed. But "conservative" is a wide enough description encompass both.
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Doug: "We are perhaps down to one conservative on the Court."
Bigdog: "And there has been plenty of literature of how the current SC is among the most pro-business in history."
GM: "There is a critical difference between being "pro-business" which can mean "pro-big contributors who bought access to public funds and get laws passed to suppress competition" and pro-free market."
Crafty: "Yes."
Bigdog: "Agreed. But "conservative" is a wide enough description encompass both."
----------------
Conservatism does not encompass support for big contributors to buy access to public funds and preferential treatment. True that elected officials who said they were conservative have done this, but it is the exact opposite of all conservative principles, judicial, economic or political, as I understand them.
Not cited by anyone here, but an example of what the literature views as a pro-business decision is Kelo, where big 'business' was the alleged winner over the homeowners. This is a conservative win only if conservatism has no meaning. Business in bed with government power is government, not free enterprise. Like Wickard, Obamacare, and so many others, this was a case of big government expanding its own central planning and control powers over the most basic rights of citizens. It gives government-connected enterprises a path around free market constraints get what they want using the methods of fascism, not freedom. I've been to the private takings court and lost. In New London it was homeowners, but more often the victims of private takings are smaller businesses without government ties in favor of government's deeper pocket cronies.
Growing your own food on your land to feed your own animals is a Court-upheld, federal offense from the 1930s. The pattern of the more recent rulings has not been to uphold, strengthen and expand on these powers. Where, in the last 30 years, did the 'conservative' Court roll back any of the excesses of the New Deal era? If it did, I missed it.
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"We are perhaps down to one conservative on the Court."
There are quite a few Justice Thomas sole dissent opinions on the record. I'll post one in its entirety below, NFIB v. Sebelius (a.k.a. Obamacare), in which Thomas disagreed with the court's "substantial effects" test established in the Wickard, Morrison, and Gonzales rulings. Where are the others on this? I could be wrong, but I took from their silence that they do not support his call to reconsider the precedents that authorized these massive federal government powers at the expense of liberty.
Justice Thomas, NFIB v. Sebelius dissent, June 2012, with no one joining:
I dissent for the reasons stated in our joint opinion, but I write separately to say a word about the Commerce Clause. The joint dissent and The Chief Justice correctly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause. Under those precedents, Congress may regulate “economic activity [that] substantially affects interstate commerce.” United States v. Lopez, 514 U. S. 549, 560 (1995) . I adhere to my view that “the very notion of a ‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.” United States v. Morrison, 529 U. S. 598, 627 (2000) (Thomas, J., concurring); see also Lopez, supra, at 584–602 (Thomas, J., concurring); Gonzales v. Raich, 545 U. S. 1–69 (2005) (Thomas, J., dissenting). As I have explained, the Court’s continued use of that test “has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.” Morrison, supra, at 627. The Government’s unprecedented claim in this suit that it may regulate not only economic activity but also inactivity that substantially affects interstate commerce is a case in point.
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The Kelo decision contained another Justice Thomas opinion with no one joining him. This is only an excerpt of a longer opinion.
Kelo v. New London, Justice Thomas dissenting, June 2005
Long ago, William Blackstone wrote that “the law of the land … postpones even public necessity to the sacred and inviolable rights of private property.” 1 Commentaries on the Laws of England 134—135 (1765) (hereinafter Blackstone). The Framers embodied that principle in the Constitution, allowing the government to take property not for “public necessity,” but instead for “public use.” Amdt. 5. Defying this understanding, the Court replaces the Public Use Clause with a “ ‘[P]ublic [P]urpose’ ” Clause, ante, at 9—10 (or perhaps the “Diverse and Always Evolving Needs of Society” Clause, ante, at 8 (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is “legitimate” and the means “not irrational,” ante, at 17 (internal quotation marks omitted). This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a “public use.”
I cannot agree. If such “economic development” takings are for a “public use,” any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O’Connor powerfully argues in dissent. Ante, at 1—2, 8—13. I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, however, the Court’s error runs deeper than this. Today’s decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government’s eminent domain power. Our cases have strayed from the Clause’s original meaning, and I would reconsider them. ... More at link:
http://www.law.cornell.edu/supct/html/04-108.ZD1.html
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Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Alito, dissenting.
Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it. It can assuredly do that, by exercising the powers accorded to it under the Constitution. The question in this case, however, is whether the complex structures and provisions of the Patient Protection and Affordable Care Act (Affordable Care Act or ACA) go be- yond those powers. We conclude that they do.
This case is in one respect difficult: it presents two questions of first impression. The first of those is whether failure to engage in economic activity (the purchase of health insurance) is subject to regulation under the Commerce Clause. Failure to act does result in an effect on commerce, and hence might be said to come under this Court’s “affecting commerce” criterion of Commerce Clause jurisprudence. But in none of its decisions has this Court extended the Clause that far. The second question is whether the congressional power to tax and spend, U. S. Const., Art. I, §8, cl. 1, permits the conditioning of a State’s continued receipt of all funds under a massive state-administered federal welfare program upon its acceptance of an expansion to that program. Several of our opinions have suggested that the power to tax and spend cannot be used to coerce state administration of a federal program, but we have never found a law enacted under the spending power to be coercive. Those questions are difficult.
The case is easy and straightforward, however, in another respect. What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States. Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to com- pel the States to function as administrators of federal programs.
That clear principle carries the day here. The striking case of Wickard v. Filburn, 317 U. S. 111 (1942) , which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.
As for the constitutional power to tax and spend for the general welfare: The Court has long since expanded that beyond (what Madison thought it meant) taxing and spending for those aspects of the general welfare that were within the Federal Government’s enumerated powers, see United States v. Butler, 297 U. S. 1–66 (1936). Thus, we now have sizable federal Departments devoted to subjects not mentioned among Congress’ enumerated powers, and only marginally related to commerce: the De- partment of Education, the Department of Health and Human Services, the Department of Housing and Urban Development. The principal practical obstacle that prevents Congress from using the tax-and-spend power to assume all the general-welfare responsibilities traditionally exercised by the States is the sheer impossibility of managing a Federal Government large enough to administer such a system. That obstacle can be overcome by granting funds to the States, allowing them to administer the program. That is fair and constitutional enough when the States freely agree to have their powers employed and their employees enlisted in the federal scheme. But it is a blatant violation of the constitutional structure when the States have no choice.
The Act before us here exceeds federal power both in mandating the purchase of health insurance and in denying nonconsenting States all Medicaid funding. These parts of the Act are central to its design and operation, and all the Act’s other provisions would not have been enacted without them. In our view it must follow that the entire statute is inoperative.
I
The Individual Mandate
Article I, §8, of the Constitution gives Congress the power to “regulate Commerce . . . among the several States.” The Individual Mandate in the Act commands that every “applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individ- ual, is covered under minimum essential coverage.” 26 U. S. C. §5000A(a) (2006 ed., Supp. IV). If this provision “regulates” anything, it is the failure to maintain minimum essential coverage. One might argue that it regulates that failure by requiring it to be accompanied by payment of a penalty. But that failure—that abstention from commerce—is not “Commerce.” To be sure, purchasing insurance is ”Commerce”; but one does not regulate commerce that does not exist by compelling its existence.
In Gibbons v. Ogden, 9 Wheat. 1, 196 (1824), Chief Justice Marshall wrote that the power to regulate commerce is the power “to prescribe the rule by which commerce is to be governed.” That understanding is con- sistent with the original meaning of “regulate” at the time of the Constitution’s ratification, when “to regulate” meant “[t]o adjust by rule, method or established mode,” 2 N. Webster, An American Dictionary of the English Language (1828); “[t]o adjust by rule or method,” 2 S. Johnson, A Dictionary of the English Language (7th ed. 1785); “[t]o adjust, to direct according to rule,” 2 J. Ash, New and Complete Dictionary of the English Language (1775); “to put in order, set to rights, govern or keep in order,” T. Dyche & W. Pardon, A New General English Dictionary
(16th ed. 1777). 1 It can mean to direct the manner of something but not to direct that something come into being. There is no instance in which this Court or Congress (or anyone else, to our knowledge) has used “regulate” in that peculiar fashion. If the word bore that meaning, Congress’ authority “[t]o make Rules for the Govern- ment and Regulation of the land and naval Forces,” U. S. Const., Art. I, §8, cl. 14, would have made superfluous the later provision for authority “[t]o raise and support Armies,” id., §8, cl. 12, and “[t]o provide and maintain a Navy,” id., §8, cl. 13.
We do not doubt that the buying and selling of health insurance contracts is commerce generally subject to federal regulation. But when Congress provides that (nearly) all citizens must buy an insurance contract, it goes beyond “adjust[ing] by rule or method,” Johnson, supra, or “direct[ing] according to rule,” Ash, supra; it directs the creation of commerce.
In response, the Government offers two theories as to why the Individual Mandate is nevertheless constitutional. Neither theory suffices to sustain its validity.
A
First, the Government submits that §5000A is “integral to the Affordable Care Act’s insurance reforms” and “necessary to make effective the Act’s core reforms.” Brief for Petitioners in No. 11–398 (Minimum Coverage Provision) 24 (hereinafter Petitioners’ Minimum Coverage Brief). Congress included a “finding” to similar effect in the Act
itself. See 42 U. S. C. §18091(2)(H).
As discussed in more detail in Part V, infra, the Act contains numerous health insurance reforms, but most notable for present purposes are the “guaranteed issue” and “community rating” provisions, §§300gg to 300gg–4. The former provides that, with a few exceptions, “each health insurance issuer that offers health insurance coverage in the individual or group market in a State must accept every employer and individual in the State that applies for such coverage.” §300gg–1(a). That is, an insurer may not deny coverage on the basis of, among other things, any pre-existing medical condition that the applicant may have, and the resulting insurance must cover that condition. See §300gg–3.
Under ordinary circumstances, of course, insurers would respond by charging high premiums to individuals with pre-existing conditions. The Act seeks to prevent this through the community-rating provision. Simply put, the community-rating provision requires insurers to calculate an individual’s insurance premium based on only four factors: (i) whether the individual’s plan covers just the individual or his family also, (ii) the “rating area” in which the individual lives, (iii) the individual’s age, and (iv) whether the individual uses tobacco. §300gg(a)(1)(A). Aside from the rough proxies of age and tobacco use (and possibly rating area), the Act does not allow an insurer to factor the individual’s health characteristics into the price of his insurance premium. This creates a new incentive for young and healthy individuals without pre-existing conditions. The insurance premiums for those in this group will not reflect their own low actuarial risks but will subsidize insurance for others in the pool. Many of them may decide that purchasing health insurance is not an eco- nomically sound decision—especially since the guaranteed-issue provision will enable them to purchase it at the same cost in later years and even if they have developed a pre-existing condition. But without the contribution of above-risk premiums from the young and healthy, the community-rating provision will not enable insurers to take on high-risk individuals without a massive increase in premiums.
The Government presents the Individual Mandate as a unique feature of a complicated regulatory scheme governing many parties with countervailing incentives that must be carefully balanced. Congress has imposed an extensive set of regulations on the health insurance industry, and compliance with those regulations will likely cost the in- dustry a great deal. If the industry does not respond by increasing premiums, it is not likely to survive. And if the industry does increase premiums, then there is a seri- ous risk that its products—insurance plans—will become economically undesirable for many and prohibitively ex- pensive for the rest.
This is not a dilemma unique to regulation of the health-insurance industry. Government regulation typically imposes costs on the regulated industry—especially regulation that prohibits economic behavior in which most market participants are already engaging, such as “piecing out” the market by selling the product to different classes of people at different prices (in the present context, providing much lower insurance rates to young and healthy buyers). And many industries so regulated face the reality that, without an artificial increase in demand, they cannot continue on. When Congress is regulating these industries directly, it enjoys the broad power to enact “ ‘all appropriate legislation’ ” to “ ‘protec[t]’ ” and “ ‘advanc[e]’ ” commerce, NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1–37 (1937) (quoting The Daniel Ball, 10 Wall. 557, 564 (1871)). Thus, Congress might protect the imperiled industry by prohibiting low-cost competition, or by according it preferential tax treatment, or even by granting it a direct subsidy.
Here, however, Congress has impressed into service third parties, healthy individuals who could be but are not customers of the relevant industry, to offset the undesirable consequences of the regulation. Congress’ desire to force these individuals to purchase insurance is motivated by the fact that they are further removed from the market than unhealthy individuals with pre-existing conditions, because they are less likely to need extensive care in the near future. If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, “the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor profane.” The Federalist No. 33, p. 202 (C. Rossiter ed. 1961).
At the outer edge of the commerce power, this Court has insisted on careful scrutiny of regulations that do not act directly on an interstate market or its participants. In New York v. United States, 505 U. S. 144 (1992) , we held that Congress could not, in an effort to regulate the disposal of radioactive waste produced in several different industries, order the States to take title to that waste. Id., at 174–177. In Printz v. United States, 521 U. S. 898 (1997) , we held that Congress could not, in an effort to regulate the distribution of firearms in the interstate mar- ket, compel state law-enforcement officials to perform background checks. Id., at 933–935. In United States v. Lopez, 514 U. S. 549 (1995) , we held that Congress could not, as a means of fostering an educated interstate labor market through the protection of schools, ban the possession of a firearm within a school zone. Id., at 559–563. And in United States v. Morrison, 529 U. S. 598 (2000) , we held that Congress could not, in an effort to ensure the full participation of women in the interstate economy, subject private individuals and companies to suit for gender-motivated violent torts. Id., at 609–619. The lesson of these cases is that the Commerce Clause, even when sup- plemented by the Necessary and Proper Clause, is not carte blanche for doing whatever will help achieve the ends Congress seeks by the regulation of commerce. And the last two of these cases show that the scope of the Necessary and Proper Clause is exceeded not only when the congressional action directly violates the sovereignty of the States but also when it violates the background principle of enumerated (and hence limited) federal power.
The case upon which the Government principally relies to sustain the Individual Mandate under the Necessary and Proper Clause is Gonzales v. Raich, 545 U. S. 1 (2005) . That case held that Congress could, in an effort to restrain the interstate market in marijuana, ban the local cultivation and possession of that drug. Id., at 15–22. Raich is no precedent for what Congress has done here. That case’s prohibition of growing (cf. Wickard, 317 U. S. 111), and of possession (cf. innumerable federal statutes) did not represent the expansion of the federal power to direct into a broad new field. The mandating of economic activity does, and since it is a field so limitless that it converts the Commerce Clause into a general authority to direct the economy, that mandating is not “consist[ent] with the letter and spirit of the constitution.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819).
Moreover, Raich is far different from the Individual Mandate in another respect. The Court’s opinion in Raich pointed out that the growing and possession prohibitions were the only practicable way of enabling the prohibition of interstate traffic in marijuana to be effectively enforced. 545 U. S., at 22. See also Shreveport Rate Cases, 234 U. S. 342 (1914) (Necessary and Proper Clause allows regulations of intrastate transactions if necessary to the regulation of an interstate market). Intrastate marijuana could no more be distinguished from interstate marijuana than, for example, endangered-species trophies obtained before the species was federally protected can be distinguished from trophies obtained afterwards—which made it necessary and proper to prohibit the sale of all such trophies, see Andrus v. Allard, 444 U. S. 51 (1979) .
With the present statute, by contrast, there are many ways other than this unprecedented Individual Mandate by which the regulatory scheme’s goals of reducing insurance premiums and ensuring the profitability of insurers could be achieved. For instance, those who did not purchase insurance could be subjected to a surcharge when they do enter the health insurance system. Or they could be denied a full income tax credit given to those who do purchase the insurance.
The Government was invited, at oral argument, to suggest what federal controls over private conduct (other than those explicitly prohibited by the Bill of Rights or other constitutional controls) could not be justified as necessary and proper for the carrying out of a general regulatory scheme. See Tr. of Oral Arg. 27–30, 43–45 (Mar. 27, 2012). It was unable to name any. As we said at the outset, whereas the precise scope of the Commerce Clause and the Necessary and Proper Clause is uncertain, the proposition that the Federal Government cannot do everything is a fundamental precept. See Lopez, 514 U. S., at 564 (“f we were to accept the Government’s arguments, we are hard pressed to posit any activity by an in- dividual that Congress is without power to regulate”). Section 5000A is defeated by that proposition.
B
The Government’s second theory in support of the In- dividual Mandate is that §5000A is valid because it is actually a “regulat[ion of] activities having a substantial relation to interstate commerce, . . . i.e., . . . activities that substantially affect interstate commerce.” Id., at 558–559. See also Shreveport Rate Cases, supra. This argument takes a few different forms, but the basic idea is that §5000A regulates “the way in which individuals finance their participation in the health-care market.” Petitioners’ Minimum Coverage Brief 33 (emphasis added). That is, the provision directs the manner in which individuals purchase health care services and related goods (directing that they be purchased through insurance) and is therefore a straightforward exercise of the commerce power.
The primary problem with this argument is that §5000A does not apply only to persons who purchase all, or most, or even any, of the health care services or goods that the mandated insurance covers. Indeed, the main objection many have to the Mandate is that they have no intention of purchasing most or even any of such goods or services and thus no need to buy insurance for those purchases. The Government responds that the health-care market involves “essentially universal participation,” id., at 35. The principal difficulty with this response is that it is, in the only relevant sense, not true. It is true enough that everyone consumes “health care,” if the term is taken to include the purchase of a bottle of aspirin. But the health care “market” that is the object of the Individual Mandate not only includes but principally consists of goods and services that the young people primarily affected by the Mandate do not purchase. They are quite simply not participants in that market, and cannot be made so (and thereby subjected to regulation) by the simple device of defining participants to include all those who will, later in their lifetime, probably purchase the goods or services covered by the mandated insurance. 2 Such a definition of market participants is unprecedented, and were it to be a premise for the exercise of national power, it would have no principled limits.
In a variation on this attempted exercise of federal power, the Government points out that Congress in this Act has purported to regulate “economic and financial decision to forego [sic] health insurance coverage and [to] attempt to self-insure,” 42 U. S. C. §18091(2)(A), since those decisions have “a substantial and deleterious effect on interstate commerce,” Petitioners’ Minimum Coverage Brief 34. But as the discussion above makes clear, the decision to forgo participation in an interstate market is not itself commercial activity (or indeed any activity at all) within Congress’ power to regulate. It is true that, at the end of the day, it is inevitable that each American will affect commerce and become a part of it, even if not by choice. But if every person comes within the Commerce Clause power of Congress to regulate by the simple reason that he will one day engage in commerce, the idea of a limited Government power is at an end.
Wickard v. Filburn has been regarded as the most expansive assertion of the commerce power in our history. A close second is Perez v. United States, 402 U. S. 146 (1971) , which upheld a statute criminalizing the eminently local activity of loan-sharking. Both of those cases, however,
involved commercial activity. To go beyond that, and to say that the failure to grow wheat or the refusal to make loans affects commerce, so that growing and lending can be federally compelled, is to extend federal power to virtually everything. All of us consume food, and when we do so the Federal Government can prescribe what its quality must be and even how much we must pay. But the mere fact that we all consume food and are thus, sooner or later, participants in the “market” for food, does not empower the Government to say when and what we will buy. That is essentially what this Act seeks to do with respect to the purchase of health care. It exceeds federal power.
C
A few respectful responses to Justice Ginsburg’s dissent on the issue of the Mandate are in order. That dissent duly recites the test of Commerce Clause power that our opinions have applied, but disregards the premise the test contains. It is true enough that Congress needs only a “ ‘rational basis’ for concluding that the regulated activity substantially affects interstate commerce,” ante, at 15 (em- phasis added). But it must be activity affecting com- merce that is regulated, and not merely the failure to engage in commerce. And one is not now purchasing the health care covered by the insurance mandate simply because one is likely to be purchasing it in the future. Our test’s premise of regulated activity is not invented out of whole cloth, but rests upon the Constitution’s requirement that it be commerce which is regulated. If all inactivity affecting commerce is commerce, commerce is everything. Ultimately the dissent is driven to saying that there is really no difference between action and inaction, ante, at 26, a proposition that has never recommended itself, neither to the law nor to common sense. To say, for example, that the inaction here consists of activity in “the self-insurance market,” ibid., seems to us wordplay. By parity of reasoning the failure to buy a car can be called participation in the non-private-car-transportation market. Com- merce becomes everything.
The dissent claims that we “fai[l] to explain why the individual mandate threatens our constitutional order.” Ante, at 35. But we have done so. It threatens that order because it gives such an expansive meaning to the Commerce Clause that all private conduct (including failure to act) becomes subject to federal control, effectively destroying the Constitution’s division of governmental powers. Thus the dissent, on the theories proposed for the validity of the Mandate, would alter the accepted constitutional relation between the individual and the National Government. The dissent protests that the Necessary and Proper Clause has been held to include “the power to enact criminal laws, . . . the power to imprison, . . . and the power to create a national bank,” ante, at 34–35. Is not the power to compel purchase of health insurance much lesser? No, not if (unlike those other dispositions) its application rests upon a theory that everything is within federal control simply because it exists.
The dissent’s exposition of the wonderful things the Fed- eral Government has achieved through exercise of its assigned powers, such as “the provision of old-age and survivors’ benefits” in the Social Security Act, ante, at 2, is quite beside the point. The issue here is whether the federal government can impose the Individual Mandate through the Commerce Clause. And the relevant history is not that Congress has achieved wide and wonderful results through the proper exercise of its assigned powers in the past, but that it has never before used the Commerce Clause to compel entry into commerce. 3 The dissent treats the Constitution as though it is an enumeration of those problems that the Federal Government can address—among which, it finds, is “the Nation’s course in the economic and social welfare realm,” ibid., and more specifically “the problem of the uninsured,” ante, at 7. The Constitution is not that. It enumerates not federally soluble problems, but federally available powers. The Federal Government can address whatever problems it wants but can bring to their solution only those powers that the Constitution confers, among which is the power to regulate commerce. None of our cases say anything else. Article I contains no whatever-it-takes-to-solve-a-national-problem power.
The dissent dismisses the conclusion that the power to compel entry into the health-insurance market would include the power to compel entry into the new-car or broccoli markets. The latter purchasers, it says, “will be obliged to pay at the counter before receiving the vehicle or nourishment,” whereas those refusing to purchase health-insurance will ultimately get treated anyway, at others’ expense. Ante, at 21. “[T]he unique attributes of the health-care market . . . give rise to a significant free-riding problem that does not occur in other markets.” Ante, at 28. And “a vegetable-purchase mandate” (or a car-purchase mandate) is not “likely to have a substantial effect on the health-care costs” borne by other Americans. Ante, at 29. Those differences make a very good argument by the dissent’s own lights, since they show that the failure to purchase health insurance, unlike the failure to purchase cars or broccoli, creates a national, social-welfare problem that is (in the dissent’s view) included among the unenumerated “problems” that the Constitution authorizes the Federal Government to solve. But those differences do not show that the failure to enter the health-insurance market, unlike the failure to buy cars and broccoli, is an activity that Congress can “regulate.” (Of course one day the failure of some of the public to purchase Amer- ican cars may endanger the existence of domestic automobile manufacturers; or the failure of some to eat broccoli may be found to deprive them of a newly discovered cancer- fighting chemical which only that food contains, producing health-care costs that are a burden on the rest of us—in which case, under the theory of Justice Ginsburg’s dissent, moving against those inactivities will also come within the Federal Government’s unenumerated problem-solving powers.)
II
The Taxing Power
As far as §5000A is concerned, we would stop there. Congress has attempted to regulate beyond the scope of its Commerce Clause authority, 4 and §5000A is therefore invalid. The Government contends, however, as expressed in the caption to Part II of its brief, that “the minimum coverage provision is independently authorized by congress’s taxing power.” Petitioners’ Minimum Coverage Brief 52. The phrase “independently authorized” suggests the existence of a creature never hitherto seen in the United States Reports: A penalty for constitutional purposes that is also a tax for constitutional purposes. In all our cases the two are mutually exclusive. The provision challenged under the Constitution is either a penalty or else a tax. Of course in many cases what was a regu- latory mandate enforced by a penalty could have been imposed as a tax upon permissible action; or what was im- posed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty. But we know of no case, and the Government cites none, in which the imposition was, for constitutional purposes, both. 5 The two are mutually exclusive. Thus, what the Government’s caption should have read was “alternatively, the minimum coverage provision is not a mandate-with-penalty but a tax.” It is important to bear this in mind in evaluating the tax argument of the Government and of those who support it: The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.
In answering that question we must, if “fairly possible,” Crowell v. Benson, 285 U. S. 22, 62 (1932) , construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than un- constitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. “ ‘ “[A]l- though this Court will often strain to construe legis- lation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .” or judicially rewriting it.’ ” Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833, 841 (1986) (quoting Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964) , in turn quoting Scales v. United States, 367 U. S. 203, 211 (1961) ). In this case, there is simply no way, “without doing violence to the fair meaning of the words used,” Grenada County Supervisors v. Brogden, 112 U. S. 261, 269 (1884) , to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.
Our cases establish a clear line between a tax and a penalty: “ ‘[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.’ ” United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996) (quoting United States v. La Franca, 282 U. S. 568, 572 (1931) ). In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. When an act “adopt the criteria of wrongdoing” and then imposes a monetary penalty as the “principal consequence on those who transgress its standard,” it creates a regulatory penalty, not a tax. Child Labor Tax Case, 259 U. S. 20, 38 (1922) .
So the question is, quite simply, whether the exaction here is imposed for violation of the law. It unquestion- ably is. The minimum-coverage provision is found in 26 U. S. C. §5000A, entitled “Requirement to maintain minimum essential coverage.” (Emphasis added.) It commands that every “applicable individual shall . . . ensure that the individual . . . is covered under minimum essential coverage.” Ibid. (emphasis added). And the immediately following provision states that, “f . . . an applicable individual . . . fails to meet the requirement of subsection (a) . . . there is hereby imposed . . . a penalty.” §5000A(b) (emphasis added). And several of Congress’ legislative “findings” with regard to §5000A confirm that it sets forth a legal requirement and constitutes the assertion of regulatory power, not mere taxing power. See 42 U. S. C. §18091(2)(A) (“The requirement regulates activity . . .”); §18091(2)(C) (“The requirement . . . will add millions of new consumers to the health insurance market . . .”); §18091(2)(D) (“The requirement achieves near-universal coverage”); §18091(2)(H) (“The requirement is an essential part of this larger regulation of economic activity, and the absence of the requirement would undercut Federal regulation of the health insurance market”); §18091(3) (“[T]he Supreme Court of the United States ruled that insurance is interstate commerce subject to Federal regulation”).
The Government and those who support its view on the tax point rely on New York v. United States, 505 U. S. 144, to justify reading “shall” to mean “may.” The “shall” in that case was contained in an introductory provision—a recital that provided for no legal consequences—which said that “[e]ach State shall be responsible for providing . . . for the disposal of . . . low-level radioactive waste.” 42 U. S. C. §2021c(a)(1)(A). The Court did not hold that “shall” could be construed to mean “may,” but rather that this preliminary provision could not impose upon the oper- ative provisions of the Act a mandate that they did not contain: “We . . . decline petitioners’ invitation to con- strue §2021c(a)(1)(A), alone and in isolation, as a command to the States independent of the remainder of the Act.” New York, 505 U. S., at 170. Our opinion then proceeded to “consider each [of the three operative provisions] in turn.” Ibid. Here the mandate—the “shall”—is contained not in an inoperative preliminary recital, but in the dispositive operative provision itself. New York provides no support for reading it to be permissive.
Quite separately, the fact that Congress (in its own words) “imposed . . . a penalty,” 26 U. S. C. §5000A(b)(1), for failure to buy insurance is alone sufficient to render that failure unlawful. It is one of the canons of interpretation that a statute that penalizes an act makes it unlawful: “[W]here the statute inflicts a penalty for doing an act, although the act itself is not expressly prohibited, yet to do the act is unlawful, because it cannot be supposed that the Legislature intended that a penalty should be inflicted for a lawful act.” Powhatan Steamboat Co. v. Appomattox R. Co., 24 How. 247, 252 (1861). Or in the words of Chancellor Kent: “If a statute inflicts a penalty for doing an act, the penalty implies a prohibition, and the thing is unlawful, though there be no prohibitory words in the statute.” 1 J. Kent, Commentaries on American Law 436 (1826).
We never have classified as a tax an exaction imposed for violation of the law, and so too, we never have classified as a tax an exaction described in the legislation itself as a penalty. To be sure, we have sometimes treated as a tax a statutory exaction (imposed for something other than a violation of law) which bore an agnostic label that does not entail the significant constitutional consequences of a penalty—such as “license” (License Tax Cases, 5 Wall. 462 (1867)) or “surcharge” (New York v. United States, supra.). But we have never—never—treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a “penalty.” Eighteen times in §5000A itself and else- where throughout the Act, Congress called the exaction in §5000A(b) a “penalty.”
That §5000A imposes not a simple tax but a mandate to which a penalty is attached is demonstrated by the fact that some are exempt from the tax who are not ex- empt from the mandate—a distinction that would make no sense if the mandate were not a mandate. Section 5000A(d) exempts three classes of people from the definition of “applicable individual” subject to the minimum coverage requirement: Those with religious objections or who participate in a “health care sharing ministry,” §5000A(d)(2); those who are “not lawfully present” in the United States, §5000A(d)(3); and those who are incarcerated, §5000A(d)(4). Section 5000A(e) then creates a separate set of exemptions, excusing from liability for the penalty certain individuals who are subject to the minimum coverage requirement: Those who cannot afford coverage, §5000A(e)(1); who earn too little income to require filing a tax return, §5000A(e)(2); who are members of an Indian tribe, §5000A(e)(3); who experience only short gaps in coverage, §5000A(e)(4); and who, in the judgment of the Secretary of Health and Human Services, “have suffered a hardship with respect to the capability to obtain coverage,” §5000A(e)(5). If §5000A were a tax, these two classes of exemption would make no sense; there being no requirement, all the exemptions would attach to the penalty (renamed tax) alone.
In the face of all these indications of a regulatory requirement accompanied by a penalty, the Solicitor General assures us that “neither the Treasury Department nor the Department of Health and Human Services interprets Section 5000A as imposing a legal obligation,” Petitioners’ Minimum Coverage Brief 61, and that “f [those subject to the Act] pay the tax penalty, they’re in compliance with the law,” Tr. of Oral Arg. 50 (Mar. 26, 2012). These self-serving litigating positions are entitled to no weight. What counts is what the statute says, and that is entirely clear. It is worth noting, moreover, that these assurances contradict the Government’s position in related litigation. Shortly before the Affordable Care Act was passed, the Commonwealth of Virginia enacted Va. Code Ann. §38.2–3430.1:1 (Lexis Supp. 2011), which states, “No resident of [the] Commonwealth . . . shall be required to obtain or maintain a policy of individual insurance coverage except as required by a court or the Department of Social Services . . . .” In opposing Virginia’s assertion of standing to challenge §5000A based on this statute, the Government said that “if the minimum coverage provision is unconstitutional, the [Virginia] statute is unnecessary, and if the minimum coverage provision is upheld, the state statute is void under the Supremacy Clause.” Brief for Appellant in No. 11–1057 etc. (CA4), p. 29. But it would be void under the Supremacy Clause only if it was contradicted by a federal “require[ment] to obtain or maintain a policy of individual insurance coverage.”
Against the mountain of evidence that the minimum coverage requirement is what the statute calls it—a requirement—and that the penalty for its violation is what the statute calls it—a penalty—the Government brings forward the flimsiest of indications to the contrary. It notes that “[t]he minimum coverage provision amends the Internal Revenue Code to provide that a non-exempted individual . . . will owe a monetary penalty, in addition to the income tax itself,” and that “[t]he [Internal Revenue Service (IRS)] will assess and collect the penalty in the same manner as assessable penalties under the Internal Revenue Code.” Petitioners’ Minimum Coverage Brief 53. The manner of collection could perhaps suggest a tax if IRS penalty-collection were unheard-of or rare. It is not. See, e.g., 26 U. S. C. §527(j) (2006 ed.) (IRS-collectible pen- alty for failure to make campaign-finance disclosures); §5761(c) (IRS-collectible penalty for domestic sales of to- bacco products labeled for export); §9707 (IRS-collectible penalty for failure to make required health-insurance premium payments on behalf of mining employees). In Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, we held that an exaction not only enforced by the Commissioner of Internal Revenue but even called a “tax” was in fact a penalty. “f the concept of penalty means anything,” we said, “it means punishment for an unlawful act or omission.” Id., at 224. See also Lipke v. Lederer, 259 U. S. 557 (1922) (same). Moreover, while the penalty is assessed and collected by the IRS, §5000A is administered both by that agency and by the Department of Health and Human Services (and also the Secretary of Veteran Affairs), see §5000A(e)(1)(D), (e)(5), (f)(1)(A)(v), (f)(1)(E) (2006 ed., Supp. IV), which is responsible for defining its substantive scope—a feature that would be quite extraordinary for taxes.
The Government points out that “[t]he amount of the penalty will be calculated as a percentage of household income for federal income tax purposes, subject to a floor and [a] ca[p],” and that individuals who earn so little money that they “are not required to file income tax returns for the taxable year are not subject to the penalty” (though they are, as we discussed earlier, subject to the mandate). Petitioners’ Minimum Coverage Brief 12, 53. But varying a penalty according to ability to pay is an utterly familiar practice. See, e.g., 33 U. S. C. §1319(d) (2006 ed., Supp. IV) (“In determining the amount of a civil penalty the court shall consider . . . the economic impact of the penalty on the violator”); see also 6 U. S. C. §488e(c); 7 U. S. C. §§7734(b)(2), 8313(b)(2); 12 U. S. C. §§1701q–1(d)(3), 1723i(c)(3), 1735f–14(c)(3), 1735f–15(d)(3), 4585(c)(2); 15 U. S. C. §§45(m)(1)(C), 77h–1(g)(3), 78u–2(d), 80a–9(d)(4), 80b–3(i)(4), 1681s(a)(2)(B), 1717a(b)(3), 1825(b)(1), 2615(a) (2)(B), 5408(b)(2); 33 U. S. C. §2716a(a).
The last of the feeble arguments in favor of petition- ers that we will address is the contention that what this statute repeatedly calls a penalty is in fact a tax because it contains no scienter requirement. The presence of such a requirement suggests a penalty—though one can imagine a tax imposed only on willful action; but the absence of such a requirement does not suggest a tax. Penalties for absolute-liability offenses are commonplace. And where a statute is silent as to scienter, we traditionally presume a mens rea requirement if the statute imposes a “severe penalty.” Staples v. United States, 511 U. S. 600, 618 (1994) . Since we have an entire jurisprudence addressing when it is that a scienter requirement should be inferred from a penalty, it is quite illogical to suggest that a penalty is not a penalty for want of an express scienter requirement.
And the nail in the coffin is that the mandate and penalty are located in Title I of the Act, its operative core, rather than where a tax would be found—in Title IX, containing the Act’s “Revenue Provisions.” In sum, “the terms of [the] act rende[r] it unavoidable,” Parsons v. Bedford, 3 Pet. 433, 448 (1830), that Congress imposed a regulatory penalty, not a tax.
For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubl- ing. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off. The Federalist No. 58 “defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue.” United States v. Munoz-Flores, 495 U. S. 385, 395 (1990) . We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. See Affordable Health Care for America Act, H. R. 3962, 111th Cong., 1st Sess., §501 (2009); America’s Healthy Future Act of 2009, S. 1796, 111th Cong., 1st Sess., §1301. Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.
Finally, we must observe that rewriting §5000A as a tax in order to sustain its constitutionality would force us to confront a difficult constitutional question: whether this is a direct tax that must be apportioned among the States according to their population. Art. I, §9, cl. 4. Perhaps it is not (we have no need to address the point); but the meaning of the Direct Tax Clause is famously unclear, and its application here is a question of first impression that deserves more thoughtful consideration than the lick-and-a-promise accorded by the Government and its supporters. The Government’s opening brief did not even address the question—perhaps because, until today, no federal court has accepted the implausible argument that §5000A is an exercise of the tax power. And once respondents raised the issue, the Government devoted a mere 21 lines of its reply brief to the issue. Petitioners’ Minimum Coverage Reply Brief 25. At oral argument, the most prolonged statement about the issue was just over 50 words. Tr. of Oral Arg. 79 (Mar. 27, 2012). One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression.
III
The Anti-Injunction Act
There is another point related to the Individual Mandate that we must discuss—a point that logically should have been discussed first: Whether jurisdiction over the challenges to the minimum-coverage provision is precluded by the Anti-Injunction Act, which provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” 26 U. S. C. §7421(a) (2006 ed.).
We have left the question to this point because it seemed to us that the dispositive question whether the minimum-coverage provision is a tax is more appropriately addressed in the significant constitutional context of whether it is an exercise of Congress’ taxing power. Having found that it is not, we have no difficulty in deciding that these suits do not have “the purpose of restraining the assessment or collection of any tax.” 6
The Government and those who support its position on this point make the remarkable argument that §5000A is not a tax for purposes of the Anti-Injunction Act, see Brief for Petitioners in No. 11–398 (Anti-Injunction Act), but is a tax for constitutional purposes, see Petitioners’ Minimum Coverage Brief 52–62. The rhetorical device that tries to cloak this argument in superficial plausibility is the same device employed in arguing that for constitutional purposes the minimum-coverage provision is a tax: confusing the question of what Congress did with the question of what Congress could have done. What qualifies as a tax for purposes of the Anti-Injunction Act, unlike what qualifies as a tax for purposes of the Constitution, is entirely within the control of Congress. Compare Bailey v. George, 259 U. S. 16, 20 (1922) (Anti-Injunction Act barred suit to restrain collections under the Child Labor Tax Law), with Child Labor Tax Case, 259 U. S., at 36–41 (holding the same law unconstitutional as exceeding Congress’ taxing power). Congress could have defined “tax” for purposes of that statute in such fashion as to exclude some exactions that in fact are “taxes.” It might have prescribed, for example, that a particular exercise of the taxing power “shall not be regarded as a tax for purposes of the Anti-Injunction Act.” But there is no such prescription here. What the Government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries ver- bal wizardry too far, deep into the forbidden land of the sophists.
IV
The Medicaid Expansion
We now consider respondents’ second challenge to the constitutionality of the ACA, namely, that the Act’s dramatic expansion of the Medicaid program exceeds Congress’ power to attach conditions to federal grants to the States.
The ACA does not legally compel the States to participate in the expanded Medicaid program, but the Act authorizes a severe sanction for any State that refuses to go along: termination of all the State’s Medicaid funding. For the average State, the annual federal Medicaid subsidy is equal to more than one-fifth of the State’s expenditures. 7 A State forced out of the program would not only lose this huge sum but would almost certainly find it necessary to increase its own health-care expenditures substantially, requiring either a drastic reduction in funding for other programs or a large increase in state taxes. And these new taxes would come on top of the federal taxes already paid by the State’s citizens to fund the Medicaid program in other States.
The States challenging the constitutionality of the ACA’s Medicaid Expansion contend that, for these practical reasons, the Act really does not give them any choice at all. As proof of this, they point to the goal and the struc- ture of the ACA. The goal of the Act is to provide near-universal medical coverage, 42 U. S. C. §18091(2)(D), and without 100% State participation in the Medicaid program, attainment of this goal would be thwarted. Even if States could elect to remain in the old Medicaid program, while declining to participate in the Expansion, there would be a gaping hole in coverage. And if a substantial number of States were entirely expelled from the program, the number of persons without coverage would be even higher.
In light of the ACA’s goal of near-universal coverage, petitioners argue, if Congress had thought that anything less than 100% state participation was a realistic possibility, Congress would have provided a backup scheme. But no such scheme is to be found anywhere in the more than 900 pages of the Act. This shows, they maintain, that Congress was certain that the ACA’s Medicaid offer was one that no State could refuse.
In response to this argument, the Government contends that any congressional assumption about uniform state participation was based on the simple fact that the offer of federal funds associated with the expanded coverage is such a generous gift that no State would want to turn it down.
To evaluate these arguments, we consider the extent of the Federal Government’s power to spend money and to attach conditions to money granted to the States.
A
No one has ever doubted that the Constitution authorizes the Federal Government to spend money, but for many years the scope of this power was unsettled. The Constitution grants Congress the power to collect taxes “to . . . provide for the . . . general Welfare of the United States,” Art. I, §8, cl. 1, and from “the foundation of the Nation sharp differences of opinion have persisted as to the true interpretation of the phrase” “the general welfare.” Butler, 297 U. S., at 65. Madison, it has been said, thought that the phrase “amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section,” while Hamilton “maintained the clause confers a power separate and distinct from those later enumerated [and] is not restricted in meaning by the grant of them.” Ibid.
The Court resolved this dispute in Butler. Writing for the Court, Justice Roberts opined that the Madisonian view would make Article I’s grant of the spending power a “mere tautology.” Ibid. To avoid that, he adopted Hamilton’s approach and found that “the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.” Id., at 66. Instead, he wrote, the spending power’s “confines are set in the clause which confers it, and not in those of section 8 which bestow and define the legislative powers of the Congress.” Ibid.; see also Steward Machine Co. v. Davis, 301 U. S. 548–587 (1937); Helvering v. Davis, 301 U. S. 619, 640 (1937) .
The power to make any expenditure that furthers “the general welfare” is obviously very broad, and shortly after Butler was decided the Court gave Congress wide leeway to decide whether an expenditure qualifies. See Helvering, 301 U. S., at 640–641. “The discretion belongs to Congress,” the Court wrote, “unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.” Id., at 640. Since that time, the Court has never held that a federal expenditure was not for “the general welfare.”
B
One way in which Congress may spend to promote the general welfare is by making grants to the States. Monetary grants, so-called grants-in-aid, became more frequent during the 1930’s, G. Stephens & N. Wikstrom, Ameri- can Intergovernmental Relations—A Fragmented Federal Polity 83 (2007), and by 1950 they had reached $20 billion 8 or 11.6% of state and local government expenditures from their own sources. 9 By 1970 this number had grown to $123.7 billion 10 or 29.1% of state and local government expenditures from their own sources. 11 As of 2010, fed- eral outlays to state and local governments came to over $608 billion or 37.5% of state and local government expenditures. 12
When Congress makes grants to the States, it customarily attaches conditions, and this Court has long held that the Constitution generally permits Congress to do this. See Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17 (1981) ; South Dakota v. Dole, 483 U. S. 203, 206 (1987) ; Fullilove v. Klutznick, 448 U. S. 448, 474 (1980) (opinion of Burger, C. J.); Steward Machine, supra, at 593.
C
This practice of attaching conditions to federal funds greatly increases federal power. “- bjectives not thought to be within Article I’s enumerated legislative fields, may nevertheless be attained through the use of the spending power and the conditional grant of federal funds.” Dole, supra, at 207 (internal quotation marks and citation omitted); see also College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 686 (1999) (by attaching conditions to federal funds, Congress may induce the States to “tak[e] certain actions that Congress could not require them to take”).
This formidable power, if not checked in any way, would present a grave threat to the system of federalism created by our Constitution. If Congress’ “Spending Clause power to pursue objectives outside of Article I’s enumerated legislative fields,” Davis v. Monroe County Bd. of Ed., 526 U. S. 629, 654 (1999) (Kennedy, J., dissenting) (internal quotation marks omitted), is “limited only by Congress’ notion of the general welfare, the reality, given the vast financial resources of the Federal Government, is that the Spending Clause gives ‘power to the Congress to tear down the barriers, to invade the states’ jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed,’ ” Dole, supra, at 217 (O’Connor, J., dissenting) (quoting Butler, 297 U. S., at 78). “[T]he Spending Clause power, if wielded without concern for the federal balance, has the potential to obliterate distinctions between national and local spheres of interest and power by permitting the Federal Government to set policy in the most sensitive areas of traditional state concern, areas which otherwise would lie outside its reach.” Davis, supra, at 654–655 (Kennedy, J., dissenting).
Recognizing this potential for abuse, our cases have long held that the power to attach conditions to grants to the States has limits. See, e.g., Dole, supra, at 207–208; id., at 207 (spending power is “subject to several general re- strictions articulated in our cases”). For one thing, any such conditions must be unambiguous so that a State at least knows what it is getting into. See Pennhurst, supra, at 17. Conditions must also be related “to the federal interest in particular national projects or programs,” Massachusetts v. United States, 435 U. S. 444, 461 (1978) , and the conditional grant of federal funds may not “induce the States to engage in activities that would themselves be unconstitutional,” Dole, supra, at 210; see Lawrence County v. Lead-Deadwood School Dist. No. 40–1, 469 U. S. 256–270 (1985). Finally, while Congress may seek to induce States to accept conditional grants, Congress may not cross the “point at which pressure turns into compulsion, and ceases to be inducement.” Steward Machine, 301 U. S., at 590. Accord, College Savings Bank, supra, at 687; Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252, 285 (1991) (White, J., dissenting); Dole, supra, at 211.
When federal legislation gives the States a real choice whether to accept or decline a federal aid package, the federal-state relationship is in the nature of a contractual relationship. See Barnes v. Gorman, 536 U. S. 181, 186 (2002) ; Pennhurst, 451 U. S., at 17. And just as a contract is voidable if coerced, “[t]he legitimacy of Congress’ power to legislate under the spending power . . . rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ ” Ibid. (emphasis added). If a federal spending program coerces participation the States have not “exercise[d] their choice”—let alone made an “informed choice.” Id., at 17, 25.
Coercing States to accept conditions risks the destruction of the “unique role of the States in our system.” Davis, supra, at 685 (Kennedy, J., dissenting). “[T]he Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.” New York, 505 U. S., at 162. Congress may not “simply commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.” Id., at 161 (internal quotation marks and brackets omitted). Congress effectively engages in this impermissible compulsion when state participation in a federal spending program is coerced, so that the States’ choice whether to enact or administer a federal regulatory program is rendered illusory.
Where all Congress has done is to “encourag[e] state regulation rather than compe[l] it, state governments remain responsive to the local electorate’s preferences; state officials remain accountable to the people. [But] where the Federal Government compels States to regulate, the accountability of both state and federal officials is diminished.” New York, supra, at 168.
Amici who support the Government argue that forcing state employees to implement a federal program is more respectful of federalism than using federal workers to implement that program. See, e.g., Brief for Service Employees International Union et al. as Amici Curiae in No. 11–398, pp. 25–26. They note that Congress, instead of expanding Medicaid, could have established an entirely federal program to provide coverage for the same group of people. By choosing to structure Medicaid as a cooperative federal-state program, they contend, Congress allows for more state control. Ibid.
This argument reflects a view of federalism that our cases have rejected—and with good reason. When Congress compels the States to do its bidding, it blurs the lines of political accountability. If the Federal Government makes a controversial decision while acting on its own, “it is the Federal Government that makes the decision in full view of the public, and it will be federal officials that suffer the consequences if the decision turns out to be detrimental or unpopular.” New York, 505 U. S., at 168. But when the Federal Government compels the States to take unpopular actions, “it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision.” Id., at 169; see Printz, supra, at 930. For this reason, federal officeholders may view this “departur[e] from the federal structure to be in their personal interests . . . as a means of shifting responsibility for the eventual decision.” New York, 505 U. S., at 182–183. And even state officials may favor such a “departure from the constitutional plan,” since uncertainty concerning responsibility may also permit them to escape accountability. Id., at 182. If a program is popular, state officials may claim credit; if it is unpopular, they may protest that they were merely responding to a federal directive.
Once it is recognized that spending-power legislation cannot coerce state participation, two questions remain: (1) What is the meaning of coercion in this context? (2) Is the ACA’s expanded Medicaid coverage coercive? We now turn to those questions.
D
1
The answer to the first of these questions—the meaning of coercion in the present context—is straightforward. As we have explained, the legitimacy of attaching conditions to federal grants to the States depends on the voluntariness of the States’ choice to accept or decline the offered package. Therefore, if States really have no choice other than to accept the package, the offer is coercive, and the conditions cannot be sustained under the spending power. And as our decision in South Dakota v. Dole makes clear, theoretical voluntariness is not enough.
In South Dakota v. Dole, we considered whether the spending power permitted Congress to condition 5% of the State’s federal highway funds on the State’s adoption of a minimum drinking age of 21 years. South Dakota argued that the program was impermissibly coercive, but we disagreed, reasoning that “Congress ha[d] directed only that a State desiring to establish a minimum drinking age lower than 21 lose a relatively small percentage of certain federal highway funds.” 483 U. S., at 211. Because “all South Dakota would lose if she adhere[d] to her chosen course as to a suitable minimum drinking age [was] 5% of the funds otherwise obtainable under specified high- way grant programs,” we found that “Congress ha[d] of- fered relatively mild encouragement to the States to enact higher minimum drinking ages than they would otherwise choose.” Ibid. Thus, the decision whether to comply with the federal condition “remain[ed] the prerogative of the States not merely in theory but in fact,” and so the program at issue did not exceed Congress’ power. Id., at 211–212 (emphasis added).
The question whether a law enacted under the spending power is coercive in fact will sometimes be difficult, but where Congress has plainly “crossed the line distinguishing encouragement from coercion,” New York, supra, at 175, a federal program that coopts the States’ political processes must be declared unconstitutional. “[T]he federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene.” Lopez, 514 U. S., at 578 (Kennedy, J., concurring).
2
The Federal Government’s argument in this case at best pays lip service to the anticoercion principle. The Federal Government suggests that it is sufficient if States are “free, as a matter of law, to turn down” federal funds. Brief for Respondents in No. 11–400, p. 17 (emphasis added); see also id., at 25. According to the Federal Government, neither the amount of the offered federal funds nor the amount of the federal taxes extracted from the taxpayers of a State to pay for the program in question is relevant in determining whether there is impermissible coercion. Id., at 41–46.
This argument ignores reality. When a heavy federal tax is levied to support a federal program that offers large grants to the States, States may, as a practical matter, be unable to refuse to participate in the federal program and to substitute a state alternative. Even if a State believes that the federal program is ineffective and inefficient, withdrawal would likely force the State to impose a huge tax increase on its residents, and this new state tax would come on top of the federal taxes already paid by residents to support subsidies to participating States. 13
Acceptance of the Federal Government’s interpreta- tion of the anticoercion rule would permit Congress to dic- tate policy in areas traditionally governed primarily at the state or local level. Suppose, for example, that Congress enacted legislation offering each State a grant equal to the State’s entire annual expenditures for primary and secondary education. Suppose also that this funding came with conditions governing such things as school curriculum, the hiring and tenure of teachers, the drawing of school districts, the length and hours of the school day, the school calendar, a dress code for students, and rules for student discipline. As a matter of law, a State could turn down that offer, but if it did so, its residents would not only be required to pay the federal taxes needed to support this expensive new program, but they would also be forced to pay an equivalent amount in state taxes. And if the State gave in to the federal law, the State and its subdivisions would surrender their traditional authority in the field of education. Asked at oral argument whether such a law would be allowed under the spending power, th
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"Where, in the last 30 years, did the 'conservative' Court roll back any of the excesses of the New Deal era?"
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0514_0549_ZS.html
http://www.law.cornell.edu/supct/html/99-5.ZS.html
http://www.law.cornell.edu/supct/html/95-1478.ZS.html
http://www.law.cornell.edu/supct/html/99-1178.ZS.html
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Haven't yet had a chance to read BD's two posts (#1000 and #1001) but Doug's post #999 makes sense to me-- including the point about the definition of conservative.
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I will need Bigdog's help to understand if or how these opinions and decisions rolled back what conservatives considered to be the excesses of the New Deal era. (I think that was the point of the article that started this.)
I am aware of the joined dissent on Obamacare, but the point Thomas made alone was that he would go further, "reconsider" (overturn) previous decisions, which is the conservative view IMO. He would roll back federal powers derived from the commerce clause, not just oppose more expansions.
Regarding the 4 cases cited, same. In Lopez, controlling guns in schools was considered beyond the scope of the interstate commerce clause. That is a better decision than the alternative, but not exactly a right turn curtailing government excesses previously authorized (as I read it). US v. Morrison recognized limits on the further expansion of federal power, as did Solid Waste v. Corps of Engineers where the filling of a local pond at a landfill was prohibited under a migratory bird law pretending to be authorized by the commerce clause. (We still pay for a migratory bird commission, see below.) The Court said: "The grant of authority to Congress under the Commerce Clause, though broad, is not unlimited". Whew! And then in Sebelius, dissent aside, the Court essentially said that power IS unlimited. Four justices said that to my reading and one said he would stay up nights until he could find a way, any way, to uphold the expansionary products of the elected government. I wish he had stayed up to ponder the rights of mine he was trampling.
Asking this a different way, after these 30 years, what industry was controlled by the federal government then, that is not now, due to a shift in direction on the Court? I'm in housing. It is hard to find anything more local than housing and urban development. Which Supreme Court decision closed HUD? Even though housing is defined as a federal function, my city state and county all regulate it too!
Conservatives think federal government powers grew beyond original intent. After a conservative Court stripped the federal government of much of its regulatory authority, this is all that remains:
Architect of the Capitol
United States Botanic Garden
Government Accountability Office
Government Printing Office
Congressional Budget Office
Library of Congress
Congressional Research Service
United States Copyright Office
Office of Compliance
United States Capitol Guide Service
United States Capitol Police
Administrative Office of the United States Courts
Federal Judicial Center
Judicial Conference of the United States
Office of Probation and Pretrial Services
United States Sentencing Commission
Council of Economic Advisers
Council on Environmental Quality
Domestic Policy Council
National Economic Council
National Security Council
Office of Administration
Office of Faith-Based and Neighborhood Partnerships
Office of Management and Budget
Office of National AIDS Policy
Office of National Drug Control Policy
Office of Intergovernmental Affairs and Public Engagement
Office of Science and Technology Policy
Office of the President
Office of the First Lady
Office of the First Children
Office of the Vice President
Office of the Second Lady
Office of the Second Children
President's Economic Recovery Advisory Board
President's Intelligence Oversight Board
President's Intelligence Advisory Board
United States Trade Representative
White House Office
White House Military Office
Agricultural Marketing Service
Agricultural Research Service
Animal and Plant Health Inspection Service
Center for Nutrition Policy and Promotion
Economic Research Service
Farm Service Agency
Commodity Credit Corporation
Food and Nutrition Service
Food Safety and Inspection Service
Foreign Agricultural Service
Forest Service
Grain Inspection, Packers and Stockyards Administration
Marketing and Regulatory Programs
National Agricultural Statistics Service
National Institute of Food and Agriculture
4-H
Natural Resources Conservation Service
Risk Management Agency
Federal Crop Insurance Corporation
Rural Business and Cooperative Programs
Office of Rural Development
Research, Education and Economics
Rural Housing Service
Rural Utilities Service
Census Bureau
Bureau of Economic Analysis
Bureau of Industry and Security
Economic Development Administration
Economics and Statistics Administration
Export Enforcement
Import Administration
International Trade Administration
Office of Travel and Tourism Industries
Invest in America
Manufacturing and Services
Marine and Aviation Operations
Market Access and Compliance
Minority Business Development Agency
National Oceanic and Atmospheric Administration
NOAA Commissioned Corps
National Environmental Satellite, Data, and Information Service
National Marine Fisheries Service
National Oceanic Service
National Weather Service
National Telecommunications and Information Administration
Patent and Trademark Office
National Institute of Standards and Technology
National Technical Information Service
Trade Promotion and the U.S. And Foreign Commercial Service
Department of the Army
United States Army
Army Intelligence and Security Command
Army Corps of Engineers
Department of the Navy
United States Navy
Office of Naval Intelligence
U.S. Naval Academy
Marine Corps
Marine Corps Intelligence Activity
Department of the Air Force
United States Air Force
Civil Air Patrol
Air Force Intelligence, Surveillance and Reconnaissance Agency
Joint Chiefs of Staff
J-2 Intelligence
National Guard Bureau
Natural Disaster and Disaster Help Program
J-2 Intelligence Directorate
Air National Guard
Army National Guard
America Citizen Militia
America Citizen Militia Intelligence
Defense Advanced Research Projects Agency
Defense Commissary Agency
Defense Contract Audit Agency
Defense Contract Management Agency
Defense Finance and Accounting Service
Defense Information Systems Agency
Defense Intelligence Agency
Defense Logistics Agency
Defense Security Cooperation Agency
Defense Security Service
Defense Technical Information Center
Defense Threat Reduction Agency
Missile Defense Agency
National Security Agency
Central Security Service
National Reconnaissance Office
National Geospatial-Intelligence Agency
Naval Criminal Investigative Service
Pentagon Force Protection Agency
United States Pentagon Police
American Forces Information Service
Defense Prisoner of War/Missing Personnel Office
Department of Defense Education Activity
Department of Defense Dependents Schools
Defense Human Resources Activity
Office of Economic Adjustment
TRICARE Management Activity
Washington Headquarters Services
West Point Military Academy
Energy Information Administration
Federal Energy Regulatory Commission
National Laboratories & Technology Centers
University Corporation for Atmospheric Research
National Nuclear Security Administration
Power Marketing Administrations:
Bonneville Power Administration
Southeastern Power Administration
Southwestern Power Administration
Western Area Power Administration
Administration on Aging
Administration for Children and Families
Administration for Children, Youth and Families
Agency for Healthcare Research and Quality
Centers for Disease Control and Prevention
National Institute for Occupational Safety and Health
Epidemic Intelligence Service
National Center for Health Statistics
Centers for Medicare and Medicaid Services
Food and Drug Administration
Reagan-Udall Foundation
Health Resources and Services Administration
Patient Affordable Healthcare Care Act Program {to be implemented fully in 2014}
Independent Payment Advisory Board
Indian Health Service
National Institutes of Health
National Health Intelligence Service
Public Health Service
Federal Occupational Health
Office of the Surgeon General
United States Public Health Service Commissioned Corps
Substance Abuse and Mental Health Services Administration
Federal Emergency Management Agency
FEMA Corps
U.S. Fire Administration
National Flood Insurance Program
Federal Law Enforcement Training Center
Transportation Security Administration
United States Citizenship and Immigration Services
United States Coast Guard (Transfers to Department of Defense during declared war or national emergency)
Coast Guard Intelligence
National Ice Center
United States Ice Patrol
United States Customs and Border Protection
Office of Air and Marine
Office of Border Patrol
U.S. Border Patrol
Border Patrol Intelligence
Office of Field Operations
United States Immigration and Customs Enforcement
United States Secret Service
Secret Service Intelligence Service
Domestic Nuclear Detection Office
Office of Health Affairs
Office of Component Services
Office of International Affairs and Global Health Security
Office of Medical Readiness
Office of Weapons of Mass Destruction and Biodefense
Office of Intelligence and Analysis
Office of Operations Coordination
Office of Policy
Homeland Security Advisory Council
Office of International Affairs
Office of Immigration Statistics
Office of Policy Development
Office for State and Local Law Enforcement
Office of Strategic Plans
Private Sector Office
Directorate for Management
National Protection and Programs Directorate
Federal Protective Service
Office of Cybersecurity and Communications
National Communications System
National Cyber Security Division
United States Computer Emergency Readiness Team
Office of Emergency Communications
Office of Infrastructure Protection
Office of Risk Management and Analysis
United States Visitor and Immigrant Status Indicator Technology (US-VISIT)
Science and Technology Directorate
Environmental Measurements Laboratory
Innovation/Homeland Security Advanced Research Projects Agency
Office of Research
Office of National Laboratories
Office of University Programs
Program Executive Office, Counter Improvised Explosive Device
Office of Transition
Commercialization Office
Long Range Broad Agency Announcement Office
Product Transition Office
Safety Act Office
Technology Transfer Office
Border and Maritime Security Division
Chemical and Biological Division
Command, Control and Interoperability Division
Explosives Division
Human Factors Division
Infrastructure/Geophysical Division
Business Operations Division
Executive Secretariat Office
Human Capital Office
Key Security Office
Office of the Chief Administrative Officer
Office of the Chief Information Officer
Planning and Management
Corporate Communications Division
Interagency and First Responders Programs Division
International Cooperative Programs Office
Operations Analysis Division
Homeland Security Studies and Analysis Institute
Homeland Security Systems Engineering and Development Institute
Strategy, Policy and Budget Division
Special Programs Division
Test & Evaluation and Standards Division
United States Department of Housing and Urban Development
US-DeptOfHUD-Seal.svg
Main article: United States Department of Housing and Urban Development
Agencies
Federal Housing Administration
Federal Housing Finance Agency
Center for Faith-Based and Neighborhood Partnerships (HUD)
Departmental Enforcement Center
Office of Community Planning and Development
Office of Congressional and Intergovernmental Relations
Office of Equal Employment Opportunity
Office of Fair Housing and Equal Opportunity
Office of Field Policy and Management
Office of the General Counsel
Office of Healthy Homes and Lead Hazard Control
Office of Hearings and Appeals
Office of Labor Relations
Office of Policy Development and Research
Office of Public Affairs
Office of Public and Indian Housing
Office of Small and Disadvantaged Business Utilization
Office of Sustainable Housing and Communities
Government National Mortgage Association (Ginnie Mae)
Bureau of Indian Affairs
Bureau of Land Management
Bureau of Reclamation
Fish and Wildlife Service
Bureau of Ocean Energy Management
Bureau of Safety and Environmental Enforcement
National Park Service
Office of Insular Affairs
Office of Surface Mining
National Mine Map Repository
United States Geological Survey
Antitrust Division
Asset Forfeiture Program
Bureau of Alcohol, Tobacco, Firearms and Explosives
Civil Division
Civil Rights Division
Community Oriented Policing Services
Community Relations Service
Criminal Division
Diversion Control Program
Drug Enforcement Administration
Environment and Natural Resources Division
Executive Office for Immigration Review
Executive Office for Organized Crime Drug Enforcement Task Forces
Executive Office for United States Attorneys
Executive Office for United States Trustees
Federal Bureau of Investigation
Federal Bureau of Prisons
UNICOR
Foreign Claims Settlement Commission
INTERPOL - United States National Central Bureau
Justice Management Division
National Crime Information Center
National Drug Intelligence Center
National Institute of Corrections
National Security Division
Office of the Associate Attorney General
Office of the Attorney General
Office of Attorney Recruitment and Management
Office of the Chief Information Officer
Office of the Deputy Attorney General
Office of Dispute Resolution
Office of the Federal Detention Trustee
Office of Information Policy
Office of Intergovernmental and Public Liaison
Office of Intelligence and Analysis
Office of Justice Programs
Bureau of Justice Assistance
Bureau of Justice Statistics
Community Capacity Development Office
National Criminal Justice Reference Service
National Institute of Justice
Office of Juvenile Justice and Delinquency Prevention
Office for Victims of Crime
Office of Legal Counsel
Office of Legal Policy
Office of Legislative Affairs
Office of the Pardon Attorney
Office of Privacy and Civil Liberties
Office of Professional Responsibility
Office of Public Affairs
Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking
Office of the Solicitor General
Office of Special Counsel
Office of Tribal Justice
Office on Violence Against Women
Professional Responsibility Advisory Office
Tax Division
United States Attorneys
United States Marshals
United States Parole Commission
United States Trustee Program
Bureau of International Labor Affairs
Bureau of Labor Statistics
Center for Faith-Based and Neighborhood Partnerships (DOL)
Employee Benefits Security Administration
Employment and Training Administration
Job Corps
Mine Safety and Health Administration
Occupational Safety and Health Administration
Pension Benefit Guaranty Corporation
Veterans' Employment and Training Service
Wage and Hour Division
Women's Bureau
Administrative Review Board
Benefits Review Board
Employees' Compensation Appeals Board
Office of Administrative Law Judges
Office of the Assistant Secretary for Administration and Management
Office of the Assistant Secretary for Policy
Office of the Chief Financial Officer
Office of the Chief Information Officer
Office of Congressional and Intergovernmental Affairs
Office of Disability Employment Policy
Office of Federal Contract Compliance Programs
Office of Labor-Management Standards
Office of the Solicitor
Office of Worker's Compensation Program
Ombudsman for the Energy Employees Occupational Illness Compensation Program
National Council for the Traditional Arts
Bureau of Intelligence and Research
Bureau of Legislative Affairs
Office of the Legal Adviser
Executive Secretariat
Office of the Chief of Protocol
Office for Civil Rights
Office of the Coordinator for Counterterrorism
Office of the United States Global AIDS Coordinator
Office of Global Criminal Justice
Policy Planning Staff
Bureau of International Security and Nonproliferation
Bureau of Political-Military Affairs
Bureau of Arms Control, Verification and Compliance
Bureau of Democracy, Human Rights, and Labor
Bureau of Oceans and International Environmental and Scientific Affairs
Bureau of Population, Refugees, and Migration
Office to Monitor and Combat Trafficking in Persons
Bureau of Economic, Energy and Business Affairs
Bureau of Administration
Bureau of Consular Affairs
Office of Overseas Citizens Services
Bureau of Diplomatic Security (DS)
Diplomatic Security Service (DSS)
Office of Foreign Missions (OFM)
Overseas Security Advisory Council (OSAC)
Bureau of Human Resources
Family Liaison Office
Bureau of Information Resource Management
Bureau of Overseas Buildings Operations
Bureau of Resource Management
Foreign Service Institute
Office of Management Policy, Rightsizing and Innovation
Bureau of African Affairs
Bureau of East Asian and Pacific Affairs
Bureau of European and Eurasian Affairs
Bureau for International Narcotics and Law Enforcement Affairs
Bureau of International Organization Affairs
Bureau of Near Eastern Affairs
Bureau of South and Central Asian Affairs
Bureau of Western Hemisphere Affairs
Bureau of Educational and Cultural Affairs
Bureau of International Information Programs
Bureau of Public Affairs
Office of the Historian
Office of Policy, Planning and Resources for Public Diplomacy and Public Affairs
United States Mission to the African Union
United States Mission to ASEAN
United States mission to the Arab League
United States mission to the Council of Europe (and to all other European Agencies)
United States Mission to International Organizations in Vienna
United States Mission to the European Union
United States Mission to the International Civil Aviation Organization
United States Mission to the North Atlantic Treaty Organization
United States Mission to the Organisation for Economic Co-operation and Development
United States Mission to the Organization of American States
United States Mission to the Organization for Security and Cooperation in Europe
United States Mission to the United Nations
United States Mission to the UN Agencies in Rome
United States Mission to the United Nations Office and Other International Organizations in Geneva
United States Observer Mission to the United Nations Educational, Scientific, and Cultural Organization
United States Permanent Mission to the United Nations Environment Program and the United Nations Human Settlements Programme
Bureau of Transportation Statistics
Federal Aviation Administration
Air Traffic Organization
Federal Highway Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
Federal Transit Administration
Maritime Administration
National Highway Traffic Safety Administration
Office of Intelligence, Security and Emergency Response
Pipeline and Hazardous Materials Safety Administration
Research and Innovative Technology Administration
Saint Lawrence Seaway Development Corporation
Surface Transportation Board
United States Department of the Treasury
US-DeptOfTheTreasury-Seal.svg
Alcohol and Tobacco Tax and Trade Bureau
Bureau of Engraving and Printing
Bureau of the Public Debt
Community Development Financial Institutions Fund
Federal Consulting Group
Financial Crimes Enforcement Network
Financial Management Service
Internal Revenue Service
Office of the Comptroller of the Currency
Office of Thrift Supervision
Office of Financial Stability
United States Mint
Office of Domestic Finance
Office of Economic Policy
Office of International Affairs
Office of Tax Policy
Office of Terrorism and Financial Intelligence
Treasurer of the United States
National Cemetery Administration
Veterans Benefits Administration
Veterans Health Administration
Board of Veterans' Appeals
Center for Faith-Based and Community Initiatives
Center for Minority Veterans
Center for Veterans Enterprise
Center for Women Veterans
Office of Advisory Committee Management
Office of Employment Discrimination Complaint Adjudication
Office of Survivors Assistance
Small and Disadvantaged Business Utilization
Veterans Service Organizations Liaison
Administrative Conference of the United States
Advisory Council on Historic Preservation
African Development Foundation
Amtrak (National Railroad Passenger Corporation)
Armed Forces Retirement Home
Central Intelligence Agency
Central Counterintelligence Agency
Commission on Civil Rights
Commodity Futures Trading Commission
Consumer Product Safety Commission
Corporation for National and Community Service
Corporation for Public Broadcasting
Public Broadcasting Service (Partially funded)
National Public Radio (Partially funded)
Court Services and Offender Supervision Agency
Defense Nuclear Facilities Safety Board
Election Assistance Commission
Environmental Protection Agency
Equal Employment Opportunity Commission
Export-Import Bank of the United States
Farm Credit Administration
Federal Communications Commission
Federal Deposit Insurance Corporation
Federal Election Commission
Federal Housing Finance Board
Federal Labor Relations Authority
Federal Maritime Commission
Federal Mediation and Conciliation Service
Federal Mine Safety and Health Review Commission
Federal Reserve System
United States Consumer Financial Protection Bureau
Federal Retirement Thrift Investment Board
Federal Trade Commission
General Services Administration
Helen Keller National Center
Institute of Museum and Library Services
Inter-American Foundation
International Broadcasting Bureau
Merit Systems Protection Board
Military Postal Service Agency
National Aeronautics and Space Administration
National Archives and Records Administration
Office of the Federal Register
National Capital Planning Commission
National Constitution Center
National Council on Disability
National Credit Union Administration
Central Liquidity Facility
National Endowment for the Arts
National Endowment for the Humanities
National Labor Relations Board
National Mediation Board
National Science Foundation
United States Antarctic Program
United States Arctic Program
National Transportation Safety Board
Nuclear Regulatory Commission
Office of the Federal Coordinator, Alaska Natural Gas Transportation Projects
Occupational Safety and Health Review Commission
Office of Compliance
Office of Government Ethics
Office of Personnel Management
Federal Executive Institute
Combined Federal Campaign
Office of Special Counsel
Office of the National Counterintelligence Executive
Office of the Director of National Intelligence
Intelligence Advanced Research Projects Activity
Overseas Private Investment Corporation
Panama Canal Commission
Peace Corps
Postal Regulatory Commission
Railroad Retirement Board
Securities and Exchange Commission
Securities Investor Protection Corporation
Selective Service System
Small Business Administration
Social Security Administration
Tennessee Valley Authority
U.S. Trade and Development Agency
United States Agency for International Development
United States International Trade Commission
United States Postal Service
Strategic Economic and Energy Development
Inspector General - full list U.S. Inspectors General
Abraham Lincoln Bicentennial Foundation
Administrative Committee of the Federal Register
American Battle Monuments Commission
Appalachian Regional Commission
Architectural and Transportation Barriers Compliance Board (United States Access Board)
Arctic Research Commission
Arthritis and Musculoskeletal Interagency Coordinating Committee
Barry M. Goldwater Scholarship and Excellence in Education Foundation
Broadcasting Board of Governors
Chemical Safety and Hazard Investigation Board
Chief Acquisition Officers Council
Chief Financial Officers Council
Chief Human Capital Officers Council
Chief Information Officers Council
Citizens' Stamp Advisory Committee
Commission of Fine Arts
Commission on International Religious Freedom
Commission on Security and Cooperation in Europe (United States Helsinki Commission)
Commission on Wartime Contracting (Will sunset when announced (currently not announced) )
Committee for Purchase from People Who Are Blind or Severely Disabled
Committee for the Implementation of Textile Agreements
Committee on Foreign Investment in the United States
Coordinating Council on Juvenile Justice and Delinquency Prevention
Defense Acquisition University
Delaware River Basin Commission
Denali Commission
Endangered Species Committee
Federal Accounting Standards Advisory Board
Federal Advisory Committees
Federal Executive Boards
Federal Financial Institutions Examination Council
Federal Financing Bank
Federal Geographic Data Committee
Federal Interagency Committee for the Management of Noxious and Exotic Weeds
Federal Interagency Committee on Education
Federal Interagency Council on Statistical Policy
Federal Laboratory Consortium for Technology Transfer
Federal Library and Information Center Committee
Financial Crisis Inquiry Commission
Harry S. Truman Scholarship Foundation
Illinois and Michigan Canal National Heritage Corridor Commission
Indian Arts and Crafts Board
Interagency Alternate Dispute Resolution Working Group
Interagency Council on Homelessness
Interstate Commission on the Potomac River Basin
J. William Fulbright Foreign Scholarship Board
James Madison Memorial Fellowship Foundation
Japan-United States Friendship Commission
Joint Board for the Enrollment of Actuaries
Joint Fire Science Program
Marine Mammal Commission
Migratory Bird Conservation Commission
Millennium Challenge Corporation
Mississippi River Commission
Morris K. Udall and Stewart L. Udall Foundation
National Bipartisan Commission on the Future of Medicare
National Indian Gaming Commission
National Interagency Fire Center
National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling
National Park Foundation
Northwest Power and Conservation Council (Northwest Power Planning Council)
Nuclear Regulatory Commission
Nuclear Waste Technical Review Board
Preserve America
Presidential Commission for the Study of Bioethical Issues
President's Council on Fitness, Sports, and Nutrition
Presidents Management Council
Presidio Trust
Privacy and Civil Liberties Oversight Board
Regulatory Service Center (Office of Information and Regulatory Affairs)
Social Security Advisory Board
Susquehanna River Basin Commission
Taxpayer Advocacy Panel
United States Holocaust Memorial Museum
Veterans Day National Committee
Vietnam Educational Foundation
White House Commission on Presidential Scholars (Presidential Scholars Program)
White House Commission on the National Moment of Remembrance
These organizations are some of the organizations who hold a congressional charter. They aren't part of the United States government, even though some are funded by the United States government.
YMCA of America Inc.
YWCA of America Inc.
Boys and Girls Clubs of America
American Red Cross
American Red Crescent Movement
Boy Scouts of America
Girl Scouts of the USA
National Ski Patrol
National Academy of the Sciences
Quasi-Official Agencies
Legal Services Corporation
Smithsonian Institution
John F. Kennedy Center for the Performing Arts
State Justice Institute
United States Institute of Peace
National Trust for Historic Preservation
Brand USA
Graduate School USDA
Graduate School USA
Private Regulatory Corporation
Public Company Accounting Oversight Board
Internet Corporation for Assigned Names and Numbers
Municipal Securities Rulemaking Board
National Futures Association
Government entities created by acts but are independent or other entities
American Institute in Taiwan
COMSAT
Cotton Incorporated
Dairy Management Inc.
In-Q-Tel
Protestant Episcopal Cathedral Foundation
Washington National Cathedral
Financial Industry Regulatory Authority
Howard University
National Consumer Cooperative Bank
National Corporation for Housing Partnerships
National Endowment for Democracy
National Fish and Wildlife Foundation
National Technical Institute for the Deaf
Neighborhood Reinvestment Corporation
Pennsylvania Avenue Development Corporation
The Financing Corporation
Sister Cities International
Twin Cities International
United States Olympic Committee (also chartered)
United States National Paralympic Committee
United States Anti-Doping Agency
Federal Government Enterprises
Farm Credit System Insurance Corporation
Federal Agricultural Mortgage Corporation (Farmer Mac)
Federal Home Loan Mortgage Corporation (Freddie Mac)
Federal National Mortgage Association (Fannie Mae)
AbilityOne
Federal Home Loan Banks
Farm Credit System
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"I will need Bigdog's help to understand if or how these opinions and decisions rolled back what conservatives considered to be the excesses of the New Deal era."
They change the line of precedent. Much of Roberts's discussion of the Commerece Clause was based on the cases I mentioned.
Also, Thomas by being so fanatical is not much of a strategist. Scalia at least gets other justices to join him, which is how cases are decided in your favor.
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"I will need Bigdog's help to understand if or how these opinions and decisions rolled back what conservatives considered to be the excesses of the New Deal era."
They change the line of precedent. Much of Roberts's discussion of the Commerece Clause was based on the cases I mentioned.
Also, Thomas by being so fanatical is not much of a strategist. Scalia at least gets other justices to join him, which is how cases are decided in your favor.
Was the SCOTUS created by the founders with the intent that they rule on constitutional issues using some sort of strategy?
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Strategy is a fact, GM. If you want change, you strategize.
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OTOH if one does not want change from the strict construction of the Constitution, what is one to do?
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OTOH if one does not want change from the strict construction of the Constitution, what is one to do?
Convince 4 other members of the Court.
And, its pretty hard to live up to strict construction.
Partial list of things not in the Constitution, several things that for damn sure aren't part of the Framers intent: political parties; congressional committees; presidential proclamations/executive orders/directives; nearly all of the executive bureaucracy, including ones that all the conservatives on this board seem to like such as the standing army and sixteen organization intelligence community.
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Of course there are things for which the C. does not provide. Our FF, in their (divinely inspired) wisdom wrote it that way. The point, as I understand Scalia to make it, is that the text is to be strictly constructed.
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And my point is that there is more than a mere solitary sole on the Court who is a conservative is thus supported.
The point, as I understand Scalia to make it, is that the text is to be strictly constructed.
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At least they were able to decide that ObamaCare was a tax, which the IRS will of course administer in a fair and impatial way.
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"And my point is that there is more than a mere solitary sole (sic) on the Court who is a conservative is thus supported." :-D
With Obamacare being a tax, my understanding is that there is now a new basis for challenging the law-- it originated in the Senate, not the House. We shall see , , ,
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I thought the sole opinion of Thomas on Obamacare was strategic, in a long term sense. Putting that view in a clear and concise way into the record is better than having no one express it. The persuasion might take a hundred years.
"And, its pretty hard to live up to strict construction."
I agree with this. These difficult cases don't lend themselves well to purity. So you at least look for the opportunities to take small steps in the direction of constitutional intent. Instead, with Obamacare, we took another giant leap away from constitutionally limited government.
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"Putting that view in a clear and concise way into the record is better than having no one express it."
Yes.
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"Instead, with Obamacare, we took another giant leap away from constitutionally limited government."
Except, of course, you got five justice to sign on to opinions that further curtailed the Commerce clause.
From the article that started the current discussion (note that Barnett argued NFIB at the SCOTUS and is a Federalist Society member):
"In a decision that Chief Justice Roberts might have compared in his own mind with Marbury v. Madison, the court gave the president the decision on the continued existence of the program, but gave the Federalist Society what it was looking for on the law. The court accepted the society's argument that the health-insurance individual mandate was unconstitutional under the commerce clause, in part because it created commerce rather than regulated it, and because it regulated inactivity (failing to purchase health insurance) rather than activity. In addition, the court held that the provision penalizing states that refused to participate in the expansion of Medicaid was unconstitutionally coercive under the spending clause, the first time it had ever struck down legislation on that basis. It remains to be seen how much damage these doctrinal rulings will do in the future, but following the decision, Randy Barnett blogged, 'Who would have thought that we could win while losing?'"
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http://www.longislandpress.com/2013/05/14/u-s-military-power-grab-goes-into-effect/
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http://www.politico.com/blogs/under-the-radar/2013/05/second-appeals-court-invalidates-obamas-nlrb-recess-164150.html?hp=l9
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http://www.politico.com/blogs/under-the-radar/2013/05/second-appeals-court-invalidates-obamas-nlrb-recess-164150.html?hp=l9
This just in, second appeals court justices receive audit notices from IRS.
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Puffington Host analysis:
2 out 3 second appeals court justices found to be racist and waging war on women....
http://www.politico.com/blogs/under-the-radar/2013/05/second-appeals-court-invalidates-obamas-nlrb-recess-164150.html?hp=l9
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I'd love to get some team effort on the issue presented my posse commitatus question in post #116 , , ,
This may help get things started: http://www.dtic.mil/whs/directives/corres/pdf/302521p.pdf
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I'd love to get some team effort on the issue presented my posse commitatus question in post #116 , , ,
This may help get things started: http://www.dtic.mil/whs/directives/corres/pdf/302521p.pdf
IMHO, this issue is much ado about nothing. The military is not going to issue this type of directive without executive and congressional oversight. The directive (see pages 15-16, primarily) includes limits that are in accord with PCA and longstanding law and custom in the US. GM may have more to say in the discussion on military/law enforcement relationship. I'd love his take here.
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While we wait for GM, here is this:
The reliability of this source is unknown to me, but I have seen this mentioned in a couple of other places as well.
===============================
May 20th, 2013
SHTFplan.com
The Posse Comitatus Act of 1878 was originally established to protect
American citizens from the federal use of military troops to enforce and
execute the laws of the land unless expressly authorized by the Constitution or
Congress. Since then, for over a century, this task has fallen upon local
and federal law enforcement. But with the War on Terror taking center stage
in the United States for the last decade, elements within the government
have been working tirelessly to expand the mission of the US military on the
domestic front.
First, they passed the Patriot Act, which gave the government sweeping new
powers to categorize any individual as a terrorist, whether they are
operating on foreign lands or here at home. In 2011, as America brought in the
New Year, they signed into law the National Defense Authorization Act, which
made it possible for American citizens who were categorized as domestic
terrorists under the Patriot Act to be detained and imprisoned indefinitely
without charge or trial.
Finally, last week we learned that, as President Obama came under fire for
the many scandals rocking his administration, the government was quietly
moving to give the Department of Defense unprecedented authority on U.S.
soil, effectively nullifying Posse Comitatus.
Eric Blair of Activist Post writes:
First, the senate is debating an expansion of the already broad powers of
the 2001 Authorization to Use Military Force (AUMF) so the U.S. can
essentially engage any area in the world in the war on terror, including America.
Which brings us to the second development: the Pentagon has recently
granted itself police powers on American soil.
Assistant Secretary of Defense Michael Sheehan told Congress yesterday
that the AUMF authorized the US military to operate on a worldwide battlefield
from Boston to Pakistan. Sheehan emphasized that the Administration is
authorized to put boots on the ground wherever the enemy chooses to base
themselves, essentially ignoring the declaration of war clause in the US
Constitution.
While Americans were distracted with three developing scandals pushed by
both wings of the mainstream media, sinister developments were taking place
behind closed doors. In essence, the US military has granted itself the
power to deploy troops on the streets of America without approval from the
President or Congress, and the AUMF, which was originally designed to target
the terrorists responsible for 9/11, has been expanded to give the government
authority to use military assets on the domestic front without a
declaration from Congress.
Charlie McGrath of Wide Awake News explains:
Thanks to the hard work of Eric Blair at Activist Post we understand that
Washington D.C. has been very busy eroding your freedom.
In fact, Senator Angus King went so far as to say that the hearing he was
involved in was the most astonishing and disturbing hearing he has ever
seen.
Even John McCain, war hawk John McCain, came out and said the government
has gone way beyond its authority.
What are they talking about? The AUMF – Authorization to Use Military
Force.
This piece of legislation that was put into place way back when we started
the war on terror that is now turning from foreign enemies to YOU. Don’t
be shocked by that, because you are on the list if you are a freedom minded,
free thinker that believes in a Constitutional Republic.
They are changing the wording of this thing so that the military can be
used on the streets of this country.
It’s not a conspiracy theory. It’s not some kind of a fancy fantasy that
may come true down the road.
It is happening right now, in the guise of other news events that are not
news events.
Even more terrifying is the fact that West Point has come out recently and
said that you – if you have a theory that the federal government is trying
to take over and implement a national police force – you could fall into
the category of a domestic terrorist.
A domestic terrorist that can be dealt with by military force…
The only conspiracy here is what the government is telling us.
This legislation is real. The militarization of America is in full force.
We are the targets.
http://www.shtfplan.com/headline-news/its-not-a-conspiracy-theory-it-is-happ
ening-right-now_05202013
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I'd love to get some team effort on the issue presented my posse commitatus question in post #116 , , ,
This may help get things started: http://www.dtic.mil/whs/directives/corres/pdf/302521p.pdf
IMHO, this issue is much ado about nothing. The military is not going to issue this type of directive without executive and congressional oversight. The directive (see pages 15-16, primarily) includes limits that are in accord with PCA and longstanding law and custom in the US. GM may have more to say in the discussion on military/law enforcement relationship. I'd love his take here.
I think below is the crucial element:
a. DoD shall be prepared to support civilian law enforcement agencies consistent with the needs of military preparedness of the United States, while recognizing and conforming to the legal limitations on direct DoD involvement in civilian law enforcement activities.
b. Support of civilian law enforcement agencies by DoD personnel shall be provided in accordance with sections 112, 351, 831, 1116, 1751, and 1385 (also known and hereinafter referred to as “The Posse Comitatus Act, as amended”) of title 18, U.S.C. (Reference (n)); chapter 18 of Reference (d); section 1970 of title 2, U.S.C. (Reference (o)) (for support to the
DoDI 3025.21, February 27, 2013
3
U.S. Capitol Police); and other Federal laws, including those protecting the civil rights and civil
liberties of individuals, as applicable.
c. The restrictions in paragraph 1.c. of Enclosure 3 of this Instruction shall apply to all
actions of DoD personnel worldwide.
d. Exceptions, based on compelling and extraordinary circumstances, may be granted to the
restrictions in paragraph 1.c. of Enclosure 3 of this Instruction for assistance to be provided
outside the United States; only the Secretary of Defense or Deputy Secretary of Defense may
grant such exceptions.
In addition, I find it very unlikely that local level law enforcement (especially in my neck of the woods) would allow citizens to be arrested by the military. Per my state's laws, the Nat'l Guard, when under the direction of the Governor, can act as peace officers (Imagine riots/mass disturbances) but federal troops have no such powers. Seizing a person without legal authority is Kidnapping.
The FBI's HRT was formed when planning was started for the LA Olympics and it was at first assumed that any terrorism/hostage taking would be handled by various elite military units taked for the event. When the DOJ actually discussed with those unit commanders how every use of force would be investigated, treated as crime scenes, sworn statements taken and everything normally associated with law enforcement use of force, the military excused themselves from the job. The FBI then formed a team to do hostage rescue/high risk operations while working from the domestic law enforcement paradigm. I expect you'd see the military give the same answer today.
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http://www.iconnectblog.com/2013/05/the-british-american-colonies-and-comparative-subnational-constitutionalism/
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http://www.nationalreview.com/bench-memos/351579/todays-rulings-ed-whelan
The 2012 term is nearly done. Here is some discussion about decisions announced today. Ah, the build up to the ones everyone cares about...
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"Wherever the standard of freedom and independence has been or shall be unfurled, there will her heart, her benedictions and her prayers be. But she goes not abroad, in search of monsters to destroy. She is the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own. She will recommend the general cause by the countenance of her voice, and the benignant sympathy of her example. She well knows that by once enlisting under other banners than her own, were they even the banners of foreign independence, she would involve herself, beyond the power of extrication, in all the wars of interest and intrigue, of individual avarice, envy, and ambition, which assume the colors and usurp the standard of freedom. The fundamental maxims of her policy would insensibly change from liberty to force."
--John Adams, Speech on Independence Day to the House of Representatives, 1821
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http://www.supremecourt.gov/opinions/12pdf/12-307_g2bh.pdf
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If marriage means anything, marriage means nothing? Except for federal benefits. Now when we go to cut federal benefits it will be an attack on gays.
President Kennedy (Anthony Kennedy) decided the case, and had no trouble finding 4 liberals to go along with him.
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http://www.chicagotribune.com/news/chi-supreme-court-gay-marriage-20130626,0,1317682.story
Supreme Court strikes down key part of Defense of Marriage Act
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I like your title: "Constitutional Law: A Political body over-rules a political body on Marriage"
With a few alterations, you could say the same about the Voting Rights Act.
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Makes perfect sense to me to say that when the special circumstances justifying federal intrusion into the sphere of state sovereignty come to an end, so too must the intrusion. How is that a political decision?
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The definition of the special circumstance is political. The question is about voting, the most political of all acts. Congress passed a law, and voted to continue on several occasions. The decision is down ideological lines. How is it NOT political?
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And the definition here is one of Constitutional criteria; the failure to apply the C. is what would be political.
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As is the case on this front, you and I will continue to disagree.
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First this: "And the definition here is one of Constitutional criteria; the failure to apply the C. is what would be political."
I agree with you, but what is political about getting it right with the constitution is that if J. Kennedy's political view happened to be the opposite, he would have gone with his political view instead of with the constitution. (My humble opinion based on his record)
The test is how disciplined each Justice is in adhering to the actual words and meanings in the constitution when it leads them to a vote or decision that is opposite of their personal view.
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One interesting part of DOMA, it was often used as a rare example of conservatives using the federal government to dictate law onto the states. This was not true though because DOMA did not control marriage at the state level; it only defined federal benefits under federal law.
I still don't understand:
a) How is a law that adds gay-marriage to a group receiving special treatment and special benefits in law, to the exclusion of all others, any more constitutional than the old law?
b) How were gays discriminated against in any way that people who are long-term single are not? Why not, from a constitutional perspective, strike down all preferences and penalties for recognizing marriage instead?
c) What other gender distinctions are left that still need to be struck down?
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Justice Scalia in Windsor dissent:
"In the majority's telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one's political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today's Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.
But that the majority will not do. Some will rejoice in today's decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent."
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I don't get Ted Olsen. :|
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202593267885&Lawyers_arguing_in_the_samesex_marriage_cases_&slreturn=20130526193008
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I don't get Ted Olsen. :|
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202593267885&Lawyers_arguing_in_the_samesex_marriage_cases_&slreturn=20130526193008
He argued for individual freedom. And got it.
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I don't get Ted Olsen. :|
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202593267885&Lawyers_arguing_in_the_samesex_marriage_cases_&slreturn=20130526193008
He argued for individual freedom. And got it.
Nothing says freedom like receiving federal benefits.
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I don't get Ted Olsen. :|
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202593267885&Lawyers_arguing_in_the_samesex_marriage_cases_&slreturn=20130526193008
He argued for individual freedom. And got it.
Nothing says freedom like receiving federal benefits.
Olson in oral arguments:
"It's an individual right that this Court again and again and again has said the right to get married, the right to have the relationship of marriage is a personal right. It's a part of the right of privacy, association, liberty, and the pursuit of happiness."
"...marriage is a fundamental right and we are making a classification based upon a status of individuals...".
"...the case that's before you today, is whether or not California can take a class of individuals based upon their characteristics, their distinguishing characteristics, remove from them the right of privacy, liberty, association, spirituality, and identity that - that marriage gives them."
"...this Court is the one that has said over and over again that marriage means something to the individual: The privacy, intimacy, and that it is a matter of status and recognition...".
"If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status."
"I respectfully submit that we've under — we've learned to understand more about sexual orientation and what it means to individuals. guess the — the language that Justice Ginsburg used at the closing of the VMI case is an important thing, it resonates with me, 'A prime part of the history of our Constitution is the story of the extension of constitutional rights to people once ignored or excluded.'"
I'll add that I am surprised that you would turn on Olson. He is a good man who sees consistence with individual freedom and a right to marry. And that is why he argued the case. You do him a disservice.
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Hi Bigdog,
""...the case that's before you today, is whether or not California can take a class of individuals based upon their characteristics, their distinguishing characteristics, remove from them the right of privacy, liberty, association, spirituality, and identity that - that marriage gives them."
"right to privacy, liberty, association, spirituality" was/is not denied.
I am not sure anyone was interfering with this.
Beautiful stuff about love and romance aside the case was brought to avoid estate taxes (from what I read).
In any case the Court has decided.
I do not (and I don't think Doug was either) disparaging Mr. Olsen who is brilliant. But, he is such a crusader for gay marriage? Where did this come from?
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It comes from his view of individual rights. His entire portion of the oral argument was based on this. There is literally nothing (based on a good reading the day after the case went to the USSC and a skim today) that Olson argues about property rights.
And thanks for the questions, ccp.
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From the logic and language of today's holdings it seems clear to me that the court is going to declare that the Constitution compels gay marriage. This is wrong. As was the case in Roe, today's decisions deepen the divide in America as the quote from Scalia captures so well. Twice the people of California have voted for traditional marriage and twice the federal courts have denied the people's will-- this time through a subterfuge based upon standing. OF COURSE I get the general principle about denying standing to individuals, but here the State of CA refused to stand up for the voice of the people through the initiative process of California, a process which under the state's constitution is SUPERIOR to the executive and legislative branches. By denying standing to the parties whom brought the initiative in the absence of the State defending Prop. 8 the SCOTUS has liberated the state government from the control of the people from whom its powers derive.
Justice Kennedy's logic is result driven and as such is intellectually unsound, indeed, dishonest.
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As I noted earlier, as is the case on this front, you and I will continue to disagree.
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Seeking greater clarity in disagreement... I agree Ted Olson (and perhaps BD and many others) see something noble and historic in the changing of marriage to included gay marriage.
The problem of course is that marriage is not marriage, but using the same word for a changed meaning. Marriage as it was, now heterosexual-marriage is (or was) the joining of a man and a woman to become husband and wife, to have and to hold, in sickness and in health, until death do they part (or something like that). Gays and singles have always had the right to wait, opt in, or opt out of that institution, with no legal difference in status than anyone else who waited, opted in, or opted out of that institution. Although half of marriages fail, the institution was so great that we needed to change it!
Marriage which meant heterosexual-marriage, is a unique union. Gay unions no doubt are capable of their own beauty and uniqueness. Do all heteros pursue or find lifelong happiness in hetero-marriage? No. Is it a good idea to encourage, through preferential laws, lifelong bonding for gays and lesbians who want and choose that too? Maybe yes. Should gays have all rights to associate, pursue happiness, bond, create unions, make legal designations? Yes. Will any change of words, meanings or definitions make gay marriage an identical bond to heterosexual-marriage? No.
The issue in Windsor was ESTATE TAXES. Does anyone remember that? Estate taxes on after-tax, accumulated wealth are wrong in a free society in the first place, and secondly they are discriminatory in the way they are levied. Did the noble work of forcing the political view of Anthony Kennedy along with 4 liberals on the nation change the fact that estate taxes are still discriminatory against everyone including me who did not get their status upgraded yesterday by this supreme political body? No.
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"It's an individual right that this Court again and again and again has said the right to get married [man and woman b ecoming husband and wife], the right to have the relationship of [one man, one woman] marriage is a personal right. It's a part of the right of privacy, association, liberty, and the pursuit of happiness."
The Court has NOT said "again and again and again" that other relationships are identical to hetero-marriage. That law is new and was passed by 5 people out of 314 million, against the vote of the people and their elected representatives, no matter how right you or anyone else may think they got it. It was the estate tax law that was discriminatory in Windsor, and still is. Strike THAT down along with all other discriminatory taxation. MHO
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Something creepy happened in Prop 8. The point of 'props' on ballots is to put the people over their elected representatives. The elected representatives then chose not to stand by the will of the people and the Court ruled those who did defend it lacked standing. So current law that is changing society was set by one judge.
Like other subjects in monarchies, we are lucky that our elites are benevolent and infinitely wise.
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"Today the United States Supreme Court decided that the official proponents of California's Proposition 8 did not have the legal right to defend the case. In doing so, the high court overturned the judgment of the Ninth Circuit Court and ordered a dismissal of the case that appealed Judge Walker's 2010 decision. The Supreme Court did not consider the merits of the case and did not make a determination as to the constitutionality of Prop 8.
"Currently there is a stay on performing same-sex marriages that will remain in effect until the Ninth Circuit Court of Appeals removes it. This could occur within 25 days unless the proponents of Proposition 8 take further legal action.
"Governor Jerry Brown has directed the State's counties to begin issuing marriage licenses once the Court of Appeals lifts the stay. "The Governor is doing nothing different than when he failed to defend the people's vote while he was Attorney General," said Karen England, Executive Director of Capitol Resource Institute, "There is a difference between being defeated and being cheated. The Governor and Attorney General of California did not defend our vote. Proposition 8 and the voters of California were cheated not defeated.""
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Justice Scalia in dissent: "It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it."
Crafty and others have this right in my humble layman's opinion, the Court leaped in front of the political process that was already moving their direction, ended the debate and forced the outcome. Just like Roe. What changed in either gayness or in the constitution regarding gayness in the first 224 years that the Supreme Court failed to find this right? Nothing, just a growing political acceptance. Like Obama who was against it before he was for it, the Court's majority said in effect, let's get out in front of this and put our names in the history books.
Another way to implement change is called consent of the governed. Even the abolition of slavery, the end of a slightly more severe discrimination than unrecognized marriage lacking federal benefits, went through the constitutional amendment process.
Charles Krauthammer appears to have been reading the forum:
"Overall, the decision, I think, will inevitably lead to the overturning of all the laws in all the states that disallow gay marriage and it is in the rational the Kennedy opinion. The Kennedy opinion says that the states are sovereign on the issue of marriage and thus the federal government cannot impose its definition in the states.
If Kennedy had stopped with that, it would have been a conservative decision, it would have been essentially been a way of saying status quo prevails, those states that allow it will allow it, and those will do otherwise. But he had a second rationale, it wasn't just the federalist one, and the second rationale was the reason that the federal government cannot discriminate in states in which it is allowed between a gay couple and a straight one is because it undermines the equal protection clause. So, it is a form of discrimination.
So the logic of that is why is it only discrimination if you discriminate against a couple, a gay couple, in a state that allows it like New York and not a discrimination in a state that doesn't allow, like Texas -- it doesn't even allow the marriage in the first place. So in this opinion, I think it is absolutely inevitable seed of overturning all -- essentially nationalizing gay marriage in a way that Roe nationalized and abolished all the abortion laws." (Special Report, June 26, 2013) http://www.realclearpolitics.com/video/2013/06/26/krauthammer_scotus_decision_will_essentially_national_gay_marriage_in_the_way_roe_nationalized_abortion.html
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http://themonkeycage.org/2013/06/27/the-scotus-majority-is-missing-exactly-what-the-vra-sought-to-remedy/
From the article:
On Wednesday the Supreme Court struck down a key provision of the Voting Rights Act that determined which jurisdictions received increased federal oversight of their election procedures. Prior to the ruling in Shelby County v. Holder (summary here), states and counties with low voter turnout or registration during the 1960s, and a history of discriminatory election practices, needed to receive “preclearance” prior to changing any laws or regulations dealing with the electoral process. As the court warned in Northwest Austin Municipal Util. Dist. No. One v. Holder (2009), use of a coverage formula based on election results from 40 years ago “raise serious constitutional questions,” culminating in the present ruling’s call for Congress to “fashion a coverage formula grounded in current conditions” rather than “40-year-old facts having no logical relation to the present day.”
In this post, I address the “present day” turnout situation, making use of a nationwide individual-level database of turnout records, compiled by Catalist, LLC. Focusing on the gap between African-American and non-Hispanic white turnout rates, I’ll show that recent state-level election results appear to back up the Court’s assertion that black voter turnout is often not substantially lower, relative to whites, in southern states. However, the narrow focus on state-level figures hides the fact that higher black voter turnout may actually be associated with VRA-mandated redistricting, instead of a robust sea-change in Southern politics.
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http://themonkeycage.org/2013/06/28/public-opinion-the-court-and-justice-kennedy/
From the article:
But why would the Court respond to public opinion? Judges are not elected by the public. Isn’t the purpose of a counter-majoritarian institution precisely that it does not follow swings in public mood? Still, political scientists have amassed an impressive array of evidence in favor of the hypothesis that the Court follows changes in public opinion. But why?
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"recent state-level election results appear to back up the Court’s assertion that black voter turnout is often not substantially lower, relative to whites, in southern states. However, the narrow focus on state-level figures hides the fact that higher black voter turnout may actually be associated with VRA-mandated redistricting, instead of a robust sea-change in Southern politics."
So the logic here is that the VRA worked means that it is still needed?
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The logic is that it is still needed, and the reasons are laid out in the article and graphically.
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Yes I read it, and perhaps I flatter myself, but I think I understood it. :-D It is just that I do not find the reasoning persuasive.
Back to the Future on Discrimination
June 28, 2013
"Equal laws protecting equal rights; the best guarantee of loyalty and love of country." --James Madison
Still fighting discrimination like it's 1955
The past week was a busy one for the Supreme Court. On Monday, in the area of so-called affirmative action, the Court issued its opinion in Fisher v. University of Texas at Austin, a discrimination case, and, on Tuesday, it issued its opinion in Shelby County v. Holder, which, in effect, negated Section 3 of the Voting Rights Act of 1965.
These cases seem to continue the Supremes' movement away from the Civil Rights Era view of the necessity of race-based preferential treatment. Some background:
Fisher is the latest in a line of discrimination cases that started with the Regents of the University of California v. Bakke in 1978. In Bakke, the Supreme Court ruled as unconstitutional the practice of the University of California (Davis) setting aside seats for minorities to be filled by using different admissions processes in the name of classroom "diversity."
In 2003, the Supreme Court muddied the issue in Grutter v. Bollinger, a 5-4 decision upholding the affirmative action admissions policy of the University of Michigan Law School. Writing for the majority, Justice Sandra Day O'Connor held the Law School had a compelling interest in promoting class "diversity." Therefore, a race-conscious admissions process that favored "underrepresented minority groups" but also took into account other factors evaluated for every individual applicant did not amount to an unconstitutional quota system under Bakke -- at least for 25 years.
While observers hoped that Fisher would clarify some of Grutter's vagueness, it did not.
In Fisher, the plaintiff, a white woman denied admission to UT (Austin), contended that the school's practice of accepting the top 10 percent of each Texas high school's graduating class, regardless of their race, violated the Equal Protection Clause of the Fourteenth Amendment. Some 81 percent of the incoming class was admitted under this procedure. Fisher, with a grade point average of 3.59 and in the top 12 percent of her class, was not. Admission criteria for the remainder of candidates for the incoming class included their talents, leadership qualities, family circumstances and race.
The Supreme Court punted on the main issue. A 7-1 majority (Justice Elena Kagan recusing) voided the appellate court's ruling in favor of UT and remanded the case, holding that the lower court hadn't applied the Grutter and Bakke standard of "strict scrutiny" to the admissions program.
Justice Clarence Thomas, the sole dissenter, wrote that he would have overturned Grutter and thus the whole convoluted legal structure of racial preferences as a violation of the Equal Protection Clause of the Fourteenth Amendment.
There was a more definitive resolution in the Shelby case. Two provisions of the Voting Rights Act (VRA) were in play -- the preclearance requirements of Section 5 and the pre-existing coverage formula in Section 4(b). The part of the VRA that the Supreme Court declared unconstitutional by a 5-4 vote was the coverage formula, which hasn't changed since the inception of the Act. As John Fund at National Review put it, "Section 4 of the Voting Rights Act forced states that had poor minority registration or turnout numbers in the 1960s to remain in a permanent penalty box."
Chief Justice John Roberts, writing for the majority, said, "Congress -- if it is to divide the states -- must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. It cannot rely simply on the past."
It is the coverage formula that triggers the preclearance provisions of Section 5. "Covered jurisdictions" must convince the Justice Department or a three judge panel of the United States District Court for the District of Columbia to "preclear" attempts to change "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting."
Section 5 was left intact. Nevertheless, the Court's four Leftists dissented, with Justice Ruth Bader Ginsburg complaining that the Court is essentially saying the VRA has been so successful that it should be ended. But if there's some reason why the law is still necessary -- say the fact that blacks in Mississippi vote at a higher rate than whites, while the state with the lowest black voter turnout compared to whites is Massachusetts -- Congress could enact a law replacing Section 4 and bringing the preclearance criteria up to date.
More important, regarding the contention that the Supremes nullified the VRA, The Wall Street Journal's James Taranto points to a 2010 Yale Law Journal article that states, "Commonly called the bail-in mechanism or the pocket trigger, ection 3 authorizes federal courts to place states and political subdivisions that have violated the Fourteenth or Fifteenth Amendments under preclearance..."
Taranto goes on to state, "Preclearance under Section 3 does not suffer from the constitutional infirmity that doomed Section 4. It requires a contemporary factual finding of discrimination, either a decision by a judge or an acknowledgment by the defendant jurisdiction."
This isn't the last we will hear of "affirmative action," but suffice it to say, the rulings represent a (small) step forward in voting rights and equality under the law, not "turning back the clock" as Leftists bemoan.
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http://themonkeycage.org/2013/06/28/public-opinion-the-court-and-justice-kennedy/
From the article:
But why would the Court respond to public opinion? Judges are not elected by the public. Isn’t the purpose of a counter-majoritarian institution precisely that it does not follow swings in public mood? Still, political scientists have amassed an impressive array of evidence in favor of the hypothesis that the Court follows changes in public opinion. But why?
"the social-psychological theory that people with more moderate ideological views are more likely to change their views in response to information about what others think. William Mishler and Reginal Sheehan found that: the impact of public opinion is greatest among moderate justices who are likely to hold critical swing positions on the Court."
I like to call these people palm trees; they lean with the wind. We all want to be loved. Those who lack core, guiding principals are the most vulnerable to this human desire.
As I posed previously, it's been 225 years under this constitution, what changed in gayness, what changed in the constitution? Nothing, nothing. It was public opinion that was changed, meaning the need for the Court to step in and settle the issue was becoming less necessary, if it was necessary at all in the first place.
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"Justice Clarence Thomas, the sole dissenter, wrote that he would have overturned Grutter and thus the whole convoluted legal structure of racial preferences as a violation of the Equal Protection Clause of the Fourteenth Amendment."
Only one Justice believes that convoluted, Grutter v Bolllinger, Univ of Michigan Law School, affirmative action decision deserves an overturn? Preferential treatment for underrepresented minority groups, a compelling interest in promoting class diversity? Good grief. College applications, mortgages, everything must take race into consideration, and that is better than treating people equally? These aims were listed in what Article or Amendment? And they help whom?
This supports something I wrote previously, there is perhaps only one conservative on the Court. Why are these common sense, constitutionally based views so often expressed sole dissent?
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http://www.nationalreview.com/article/352350/simulacrum-self-government-mark-steyn
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Article II, Section 3, of the Constitution states that the president "shall take Care that the Laws be faithfully executed."
Timing of the implementation of Obamacare was an essential aspect of the budget constraint issue and budget scoring was an essential element of securing the votes for its passage.
Co-equal branches? The House has repealed Obamacare 37 times. This is a meaningless act because they were not joined by the Senate nor obviously will it be signed by the President.
Yet President Obama unilaterally delayed implementation of the employer mandate, which is one of the most controversial and damaging aspects of the law. And he simultaneously declared that individuals will not even have IRS records verified for their subsidy, encouraging larger numbers to sign up and become reliant on the new law, making it harder to repeal later even if only partially unimplemented.
Health care aside, what is the legality and constitutionality of the Obama administration unilaterally picking and choosing which laws to enforce and which programs to implement?
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See the YouTube video where people are signing a petition to help Obama by repealing the bill of rights.
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Scarier than a movement to repeal the Bill of Rights is the movement to add a another Bill of Rights. *
Ratification is no longer needed; they only need 5 Justices not bound by original text or meaning and anything can become the law of the land.
* right to a livable wage, decent home, adequate medical care, protection from the fear of old age, sickness, accident, and unemployment.
https://en.wikipedia.org/wiki/Second_Bill_of_Rights
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Scarier than a movement to repeal the Bill of Rights is the movement to add a another Bill of Rights. *
Ratification is no longer needed; they only need 5 Justices not bound by original text or meaning and anything can become the law of the land.
* right to a livable wage, decent home, adequate medical care, protection from the fear of old age, sickness, accident, and unemployment.
https://en.wikipedia.org/wiki/Second_Bill_of_Rights
A large percentage of our population is no longer capable of the self government as intended by the founders. Thus we find ourselves in the twilight of this country.
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CA city using ED to prevent foreclosures!
http://www.nytimes.com/2013/07/30/business/in-a-shift-eminent-domain-saves-homes.html?nl=todaysheadlines&emc=edit_th_20130730
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http://www.justice.gov/olc/docs/op-olc-supp.pdf
Includes an opinion on blockading Cuba-- from five days after JFK was inaugurated.
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The small city of Richmond, California has some big ideas about seizing private property, and now it also has a big lawsuit on its hands. This is what happens when politicians use government power to help themselves and their private financial partners at the expense of others.
Last week the Bay Area city became the first in America to say it intends to use eminent domain to seize private mortgages whose value is higher than the current value of the homes they helped to buy. The city wants to force mortgage companies to sell loans on 624 properties, and if they refuse the city is threatening to seize the loans by brute government force.
Richmond wants to refinance the loans through the taxpayer-backed (and broke) Federal Housing Administration, pool them into a new security, and sell them to other private investors. Homeowners will get a free principal reduction, and the politicians will claim they eased the financial burden on borrowers.
The biggest winner will be Mortgage Resolution Partners, the San Francisco-based "community advisory firm" that came up with this idea, has been pitching it around the country, and will earn a fee on the repackaged mortgages. The losers will be investors who currently own the mortgages and are unlikely to receive fair-market value from the city. If the city does pay market value, Mortgage Resolution Partners might not make a profit with its loan rebundling.
Which is where the lawsuit comes in. Three mortgage-bond trustees sued on Wednesday in federal court to block the property seizure as unconstitutional. They have a good argument. The Constitution's Fifth Amendment says eminent domain must be for "public use," but in this case the property seizure would benefit private, often out-of-state investors.
Richmond claims the public purpose is to reduce the number of foreclosures and thus help neighborhoods battered by the housing bust. But the city can't know how many foreclosures there will be because more than two-thirds of the 624 are still current on their monthly payments. Other Richmond homeowners may also have to pay a premium for future home loans due to the new political risk to lenders imposed by Mayor Gayle McLaughlin.
All of this echoes the 2005 Kelo case when New London, Connecticut, seized private homes to clear land so Pfizer Inc. PFE +0.27% could build a research headquarters. Susette Kelo lost her home but Pfizer later abandoned the city. In a notorious 5-4 decision, the Supreme Court blessed the seizure, but we wonder if swing-vote Anthony Kennedy would do the same today. The lawsuit against Richmond says the city's claim to help the local economy is merely a pretext to benefit private investors, and such pretexts are a key issue in Fifth Amendment property-rights cases.
By the way, the plaintiffs include Fannie Mae and Freddie Mac, the government-run mortgage giants that buy mortgages in bulk and could be expected to lose big if other cities follow Richmond's lead. Several cities have expressed interest, including Seattle and Newark, N.J. So taxpayers who bailed out Fan and Fred have a stake in the lawsuit against Richmond.
The largest irony here is that the housing market is finally making a recovery. Last week's second quarter GDP report showed that investment in housing grew by 13.4%, following 12.5% in the first quarter. Leave it to politicians and their financial cronies to interfere with progress.
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http://www.lawyersgunsmoneyblog.com/2013/08/recognizing-the-obvious-unconstitutionality-of-bloombergs-stop-and-frisk-program
Given the data, Scheindlin had little choice but to find that the stop-and-frisk policy violated the Fourth Amendment as well as the equal protection clause of the 14th Amendment. A large number of searches have been conducted without reasonable suspicion, and these suspicionless searches have disproportionately targeted racial minorities. Of 19 individual stops, the court found that nine of the stop-and-frisks were unconstitutional, five of the frisks after stops were unconstitutional, and five were constitutionally permissible.
As MSNBC’s Adam Serwer notes, particularly telling is that most defenses of the NYPD’s program all but conceded its unconstitutionality. Rather than trying to deny that the program was discriminatory, defenders instead tried to change the subject to the question of whether it was effective. This response is defective for two reasons. First of all, effectiveness is not in itself an adequate defense of an unconstitutional policy. Scheindlin makes this clear: “Many police practices may be useful for fighting crime—preventive detention or coerced confessions, for example—but because they are unconstitutional they cannot be used, no matter how effective.”
Even if one were to argue the effectiveness of the policy should cause us to overlook those pesky Fourth and Fourteenth Amendments, the evidence for the NYPD program’s effectiveness is very weak. The argument rests on a post hoc ergo propter hoc fallacy—violent crimes rates have dropped in New York, New York has a discriminatory stop-and-frisk program, so the declining crime rates must have been produced by the discriminatory stop-and-frisk program.
There’s no reason to make this causal inference. The drop in violent crime rates in New York began well before the current stop-and-frisk program. Violent crime is declining nationally, not just in New York. Violent crime continued to drop in New York in 2012 even as the number of stop-and-frisk searches declined.
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http://www.scotusblog.com/2013/08/originalism-its-not-just-for-conservatives-anymore/
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http://www.lawyersgunsmoneyblog.com/2013/08/recognizing-the-obvious-unconstitutionality-of-bloombergs-stop-and-frisk-program
Given the data, Scheindlin had little choice but to find that the stop-and-frisk policy violated the Fourth Amendment as well as the equal protection clause of the 14th Amendment. A large number of searches have been conducted without reasonable suspicion, and these suspicionless searches have disproportionately targeted racial minorities. Of 19 individual stops, the court found that nine of the stop-and-frisks were unconstitutional, five of the frisks after stops were unconstitutional, and five were constitutionally permissible.
As MSNBC’s Adam Serwer notes, particularly telling is that most defenses of the NYPD’s program all but conceded its unconstitutionality. Rather than trying to deny that the program was discriminatory, defenders instead tried to change the subject to the question of whether it was effective. This response is defective for two reasons. First of all, effectiveness is not in itself an adequate defense of an unconstitutional policy. Scheindlin makes this clear: “Many police practices may be useful for fighting crime—preventive detention or coerced confessions, for example—but because they are unconstitutional they cannot be used, no matter how effective.”
Even if one were to argue the effectiveness of the policy should cause us to overlook those pesky Fourth and Fourteenth Amendments, the evidence for the NYPD program’s effectiveness is very weak. The argument rests on a post hoc ergo propter hoc fallacy—violent crimes rates have dropped in New York, New York has a discriminatory stop-and-frisk program, so the declining crime rates must have been produced by the discriminatory stop-and-frisk program.
There’s no reason to make this causal inference. The drop in violent crime rates in New York began well before the current stop-and-frisk program. Violent crime is declining nationally, not just in New York. Violent crime continued to drop in New York in 2012 even as the number of stop-and-frisk searches declined.
I tend to agree with this ruling. If you are going to make a "Terry stop", you need to be able to articulate reasonable suspicion.
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BD:
I thought Scalia was a strict constructionist more than an originalist?
And regarding what the article purports to be inconsistent application of originalism by Scalia et al can't some of those cases be explained in whole or part by respect for stare decisis? For example, I could be wrong but wasn't the original case upholding McCain-Feingold before Scalia ascended to the court? Thus in ruling on the following cases in that line, there would be conflicting impulses between strict constuctionism/originalism and stare decisis.
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On May 2, 1945, President Harry S. Truman appointed Justice Robert H. Jackson to serve as the representative of the United States and Chief of Counsel to prepare and prosecute before an international military tribunal the European Axis leaders and others who had committed atrocities and war crimes.
President Truman memorialized this appointment in an Executive Order, Number 9547 (click here). The President recited, in the Order’s opening language, that he was making his appointment of Justice Jackson to his new, collateral position “y virtue of the authority vested in me as President and as Commander in Chief of the Army and Navy, under the Constitution and statutes of the United States….”
Justice Jackson, acting pursuant to this appointment, then spent more than a year away from the Supreme Court and his judicial work. He missed the entire 1945-46 term of the Court. In summer 1946, as the Supreme Court was in recess and its next Term was approaching, Jackson was still serving, in Allied-occupied Nuremberg, as U.S. Chief of Counsel before the International Military Tribunal (IMT), prosecuting twenty-two accused individual criminals and various accused criminal organizations that had been part of Nazism and the waging of World War II.
In many quarters, Justice Jackson’s absence from the Supreme Court and his prosecutorial efforts at Nuremberg were controversial. Some questioned the legality of Jackson’s appointment. In June 1946, criticism increased after Jackson, defending himself against public attacks, released a statement alleging improper behavior by fellow justices. (For a Jackson List post covering that episode, click here.)
* * *
In late June 1946, the Attorney General of the United States, Tom C. Clark, received a telephone call in Washington from Ralph L. Emmons, a friend and former Department of Justice (DOJ) colleague. Emmons, who had served as United States Attorney for the Northern District of New York from 1936 until 1943, reported that some lawyers in his locality—Binghamton, New York, and its surrounding Broome County—were voicing criticisms of Jackson’s absence from the Court and the legality of his Nuremberg appointment. Emmons, a Jackson friend and defender, apparently was asking Clark to join in defending Jackson (and also, of course, in defending his and Jackson’s shared boss and appointer, President Truman).
Attorney General Clark apparently told Emmons, during their telephone conversation, that Jackson’s appointment was entirely legal. Thereafter, Clark commissioned, from Acting Assistant Solicitor General of the United States George T. Washington [yes, a relative of], a formal analysis of the question.
On July 2, 1946, Clark sent the following letter to Emmons:
I want to thank you for calling to my attention the criticisms which have been made in your region concerning the President's action in appointing Mr. Justice Jackson as United States prosecutor of the Axis war criminals in Europe.
As I told you on the telephone, I think such criticism is entirely unjustified.
I hope the enclosed memorandum, giving the facts about the appointment, will be of use to you. I don't think my name or that of the Department should be mentioned at the present time in this connection. However, if you should wish a formal statement from me later on, please let me know.
TOM C. CLARK
Attorney General
The following was the Department’s legal opinion:
MEMORANDUM
Appointment of Mr. Justice Jackson as Representative and
Chief of Counsel of the United States in the Prosecution of
the Axis War Criminals in Europe
By Executive Order 9547 of May 2, 1945, 10 Fed. Reg. 4961, President Tru¬man designated Robert H. Jackson, Associate Justice of the Supreme Court of the United States, to act as the representative of the United States and as its Chief of Counsel in preparing and prosecuting charges of atrocities and war crimes against such of the leaders of the European Axis powers and their principal agents and accessories as the United States might agree with any of the United Nations to bring to trial before an International Military Tribunal. The appointment carried with it no additional compensation.
This appointment was made pursuant to the agreement entered into on August 8, 1945, by the United States, Great Britain, Russia, and France for the prosecution and punishment of the major war criminals of the European Axis. 59 Stat. 1544, 82 U.N.T.S. 280. The Charter of the International Military Tribunal annexed to and made a part of that agreement provides (art. 14) that each signatory power shall appoint a Chief Prosecutor for the investigation of the charges against and the prosecution of major war criminals, and that the Chief Prosecutors shall act as a committee for the following purposes:
(a) to agree upon a plan of the individual work of each of the Chief Prosecutors and his staff,
(b) to settle the final designation of major war criminals to be tried by the Tribunal,
(c) to approve the Indictment and the documents to be submitted therewith,
(d) to lodge the Indictment and the accompanying documents with the Tribunal,
(e) to draw up and recommend to the Tribunal for its approval draft rules of procedure, contemplated by Article 13 of this Charter.
59 Stat. 1546, 1549, 82 U.N.T.S. 284, 292.
The Charter also provides (art. 15) that the Chief Prosecutors shall individually, and acting in collaboration with one another, perform the following duties:
(a) investigation, collection and production before or at the Trial of
all necessary evidence,
(b) the preparation of the Indictment for approval by the Committee in accordance with paragraph (c) of Article 14 hereof,
(c) the preliminary examination of all necessary witnesses and of the Defendants,
(d) to act as prosecutor at the Trial,
(e) to appoint representatives to carry out such duties as may be as-signed to them,
(f) to undertake such other matters as may appear necessary to them for the purposes of the preparation for and conduct of the Trial.
59 Stat. at 1549, 82 U.N.T.S. at 292−93.
It is hardly necessary to call attention to the fact that the undertaking in¬volved−the indictment, prosecution, and trial of the chief war criminals in Europe−is of supreme importance to the whole civilized world. Nor is it neces¬sary to point out that this grave undertaking is unique in the history of judicial procedure.
It was, therefore, of the utmost importance that the Chief of Counsel for the United States be an exceedingly able man, of wide experience, of exceptional physical vigor, of peculiar aptitude for the task, and of great legal attainments. It was equally important that the President of the United States should be entirely free to select that citizen of the United States who he felt was best qualified to perform the duties of this office.
It must be conceded that Mr. Justice Jackson is eminently qualified to discharge the duties and responsibilities of the task assigned him. His record of accomplish-ment as Chief Prosecutor for the United States in the trial of war criminals now being conducted at Nuremburg speaks for itself. His record in this respect is, in fact, a complete justification of his appointment.
The appointment of Justice Jackson for this special mission is not only without legal objection, but it is also supported by ample precedent. It is a well-established practice for the President to secure the services of federal judges in connection with important national and international matters. This practice arose long ago. It is well illustrated by the following examples: Chief Justice Jay served as special envoy to England at the request of the President. Chief Justice Ellsworth served as special envoy to France. Chief Justice Fuller twice acted as an arbitrator of international disputes. Circuit Judge Putnam served as a commissioner under a conference with Great Britain relating to the seizure of vessels in the Bering Sea. More recently, Justice [Owen J.] Roberts served as chairman of the board appointed by President Roosevelt to investigate the Pearl Harbor disaster of December 7, 1941.
* * *
Additional details and credits—
• Until recently, Attorney General Clark’s opinion was unknown to the public—it was an unpublished document in private Department of Justice files.
• Thanks to Assistant Attorney General Virginia A. Seitz, Office of Legal Counsel (OLC), Attorney Adviser Nathan A. Forrester and their DOJ colleagues, Attorney General Clark’s 1946 opinion was published last month in the first volume of a new series of important opinions written by OLC or its predecessor entities in DOJ from 1933 to 1977. For more information and a link to the volume in PDF form, click here.
• Hat tips to Jess Bravin, who first wrote about OLC’s publication of supplemental opinions (click here) and then mentioned on Facebook that the collection includes the Clark legal opinion regarding Jackson at Nuremberg.
• In August 1946, Attorney General Clark visited Nuremberg and observed a session of the final stage of the IMT trial, regarding the criminality of the charged organizations. For a photograph of Attorney General Clark and his son (and a future Attorney General) Ramsey Clark on that day, seated at the U.S. prosecutors’ table in Courtroom 600 in Nuremberg’s Palace of Justice, see Alex Wohl’s fascinating and important new book Father, Son, and Constitution: How Justice Tom Clark and Attorney General Ramsey Clark Shaped American Democracy (click here).
• By the time Attorney General Clark arrived in Nuremberg in August 1946, Justice Jackson had delivered his closing argument to the IMT regarding the guilt of individual defendants and returned to the U.S., briefly, to catch up on Supreme Court work—their paths did not cross in Nuremberg.
• Their paths of course did cross in Washington. In 1949, Justice Tom C. Clark was appointed to the Supreme Court. He and Justice Jackson became close colleagues and friends during their service together over the next five years.
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****Levin to the Rescue
Published: 8/13/2013 10:08 PM ET
Subscribe to L. Brent Bozell III
By L. Brent Bozell III
Only those happily trampling on the last vestiges of freedom will deny that our federal government as a constitutional republic has ceased to function. The president can no longer control (nor does this one want to control) the enormous and ever-expanding bureaucracy functioning as a government by fiat. The legislative branch, so corrupted, so drunk by the allure of power, so disdainful of its constituents, is unable to stop its bankrupting ways. The judiciary is perhaps the worst. The Supreme Court is openly rejecting the authority of the Constitution itself.
If the federal government refuses to adhere to the enumerated powers of the Constitution, what can the citizenry do about it? The events of the past five years (more, actually) prove this. It has become virtually impossible to stop the agenda of a radical Chief Executive who brazenly uses the federal government as his personal political machine. It is almost impossible to defeat an incumbent member of Congress with all the advantages it has awarded itself. For all intents it is impossible to replace a member of the Supreme Court.
The left is content with this terrible turn of events. By “transformation” they meant the transfer of power to the state. Conservatives are loath to declare American exceptionalism dead, yet are powerless to stop the statist steamroller. With every cycle the situation worsens. At some point the unthinkable -- tyranny -- is upon us. We are running out of time. Only radical surgery will save the patient now.
Enter Mark Levin, M.D., with his new book, "The Liberty Amendments: Restoring the American Republic." Levin is a Constitutional scholar -- and he shines. He argues passionately that the federal government can be brought under control only if new limitations are thrust upon it by its citizenry. He proposes a Constitutional convention, not one called by Congress but one impaneled by two-thirds of state legislatures, and which would require a three-fourths margin to pass any new amendments. It is the lesser known of the two options provided by Article V of the Constitution.
What should a Constitutional convention tackle? Levin offers eleven amendments for consideration, with appropriate subdivisions, each carefully researched and each designed to reduce the power of the state.
Term limits for Congress is the first liberty amendment Levin offers. It is my view also the most important. Only when there are limits (12 years of service) will Congress be populated by men and women driven only by the call to service, not the siren song of power. The millions delivered by special interests for the re-election of incumbents who, in turn, reward said interests with billions in grants, contracts, tax shelters and the like -- will cease.
Levin calls for other limitations on Congress. He proposes an amendment to limit federal spending and another to limit taxation, the combination which will restore fiscal sanity while devolving power from the state. He offers an amendment to repeal the Seventeenth Amendment, returning to the Article 1 mandate that Senators be chosen by their state legislators.
What about the Supreme Court? “hould five individuals be making political and public policy decisions and imposing them on every corner of the nation...as they pursue even newer and more novel paths around the Constitution in exercising judicial review?” Levin points to the obvious: Sometimes mistakes are made (Roberts, anyone?) and America shouldn’t be punished for the rest of that jurist’s life. He proposes 12-year term limits for them as well.
What can be done to control, even reduce the size and scope of the bureaucracy? All federal departments and agencies must be re-authorized by Congress every three years or be terminated -- that’s what.
There’s a liberty amendment to protect and promote free enterprise, now under vicious assault. One to protect private property given the ability of the federal government suddenly to steal it. Amendments to increase the power of the States, and finally, an amendment to protect the voting process.
Who would have thought any such amendments would ever be needed? And that’s the point. Such is the nature of the crisis.
Levin quotes Tocqueville reflecting on the Constitutional Convention of 1776: “t is new in history of society to see a great people turn a calm and scrutinizing eye upon itself when apprised by the legislature that the wheels of its government are stopped...”
It is time for our legislatures once more to issue the clarion call.
Levin hopes “The Liberty Amendments” will launch a national discussion, and it will. Levin is a consequential man, and this is a consequential book. Some critics will dismiss the concept out of hand. It is they who should be dismissed -- unless they have bold new alternatives to propose. Nothing else is working, and nothing else will do. We have reached the tipping point.****
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I've never understood the allure of congressional term limits. They do not allow for a member of Congress to gain the necessary expertise in the rules of the chamber or in the policy space(s) over which they are to have oversight.
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BD,
I checked Levin's website. There is no email contact info. to ask him your supposition. I would think he might answer that the longer one is in Congress the more they serve themselves and learn not to serve Americans from their districts better.
Is it not telling that your point suggests that we need career politicians to spend a lifetime learning how to navigate a political system?
I would submit to you that the reason we need term limits is because there is so much money involved. So much lobbying
that has a corrupting influence not only on serving House members but the family members, their business colleagues, their friends who some how get sucked into the picture. The fact that in order to run one needs lots of money and going against influential politicians who have decades to set up self serving organizations of staffers, contacts, etc. along with decades of name recognition explains why so few incumbents lose their seats. What is it? 95% of incumbents win re-election. How is this possible with an approval rating hovering around, what, 10 or 20%?
I don't think Levin necessarily wants to take away the power of the voters to decide who gets re elected or not. But I think he realizes that with incombuncy comes a real danger of abuse of power, and corruption.
Don't you think corruption is rampant? Revolving doors in and out of the private and public sector. How else can we put some limit on this without term limits? I think this is what Levin is proposing. Term limits are better than allowing a small group of people to control 320 million without which there is almost no limit to their power.
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CCP: I understand your position. I do. And I respect it. I just disagree with it.
Let me give you a concrete example. Intelligence oversight is poor, largely because those charged with oversight are ignorant of the process (as few MoCs have prior experience in the field. But, more importantly, perhaps, the select committees charged with intel oversight are term limited. I think we've seen how lack of oversight plays out.
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Intelligence is corrupted because that's how this executive likes it. How can congress perform oversight when there is no penalty for lying to congress?
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Partially true. But, Congress is not institutionally able to check the executive well in this policy space. And don't act like the situation is Obama specific. It seems to be the way of the executive.
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When I ran for Congress for the first time (1984, in the 32d district of CA) the editorial page of the WSJ (then in its prime IMHO) was running an ongoing series about the 98%(!!!) incumbent re-election rate of the House of Representatives, due in great part to gerrymandering. Indeed, a silhouette of my district illustrated the point in many of the districts.
I made great hay with this in the debates and then Congressman Dan Lungren of the neighboring 42d (now Dana Rhorabacker's sp? district), who had run his brother in the 32d in 1982 due to the high Reagan Democrat vote in 1980) invited me to run for the Reps in 1986. Lacking the $100,000 of seed money he said would be needed, I declined-- in that incumbent Glenn Anderson (who due to his extreme seniority was chairman of the Public Works/porkbarrel committee (and as such he received considerable donations from around the country from various lobbyists) the race would have been quixotic anyway.
I mention this by way of saying I have been thinking about this issue on and off for some 30 years now. During those 30 years I have seen the experience here in California. Also, as a serious student of Mexico for some 40 years I have observed its system of "no re-election" whatsoever as well.
This is what I now make of it:
The Mexican system results in extreme dominance by the executive branch. The legislative branch has no institutional memory, and ever single one of them will need a new job when his term is up. Granted that for most of the time in effect Mexico's PRI was a one party state, which certainly turbocharges the dynamic, but IMO the lack of instutional memory and the need for a new job regardless of the quality of one's performance has powerful consequences.
Here in Calfornia I supported term limits for reasons similar to those of CCP. However based upon the results, I cannot say that things have gotten better, to the contrary I would say that they have gotten worse.
Now I am willing to consider limits if they are long enough, but 12 years seems too short to me for a senator. I would go with 18, and maybe 12 for a Congressman, but I am open to additional thoughts.
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BD wrote:
"Congress is not institutionally able to check the executive well in this policy space"
How so Big dog? Doesn't Congress have people who are knowledgeable do the research them and prep them?
Lack of experience or insight in a specific policy area such as health care did not stop Democrats and Obama from passing a 2,000 page bill that none of them read or probably even really understand what was in it.
The bill was almost written surely by Ivy leagues elites over 20 years.
As for term limits I am not sure I am for them I was only siting Marc Levin's proposal. I am not even sure he is committed to his proposals but has 'thrown' the ideas into the public domain for 'discussion'. The concept of term limits has popped up multiple times over the last 40 years according to Wikipedia which has a decent (it seems to me) historical perspective on those who serve in American government from GW's two term Presidential precedent that seems to have set a standard for 140 yrs. Apparently initially at least till the time of Andrew Jackson House members also limited themselves to two terms.
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I sure would want a Congessman who had been around for more than 4 years if he were responsible for keeping up with the intel folks , , ,
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BD wrote:
"Congress is not institutionally able to check the executive well in this policy space"
Doesn't Congress have people who are knowledgeable do the research them and prep them?
Not in some policy spaces. Intel is much more difficult, because of the secrecy. See http://media.hoover.org/sites/default/files/documents/FutureChallenges_Zegart.pdf for a good beginning discussion.
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It is 0430 here in Bern so I have not the focus to dive into BD's posted piece at the moment, but I would like to pick on this
"Doesn't Congress have people who are knowledgeable do the research them and prep them?"
Does this not restate as "I do not expect the people whom we vote into office to be the real decision makers. I advocate instead a permanent class of congressional staffers wield the true power." ?
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Excellent discussion.
(CCP wrote): "As for term limits I am not sure I am for them I was only siting Marc Levin's proposal. I am not even sure he is committed to his proposals"
I have great respect for Levin, but when I heard him questioned on this it sounded like he was just throwing ideas into the mix. The big idea is the constitutional convention - which I oppose. Levin forgets that the people who want to tear up the constitution and start over are his opponents, not conservatives or so-called originalists. His thought that things couldn't get any worse is badly mistaken.
(Bigdog wrote regarding term limits): "I've never understood the allure of congressional term limits."
Implied is that there is an allure of term limits; they poll well. Newt knew that in the Contract with America and Levin knows that now. It creates the tempting us vs. them matchup, but solves nothing because the problems in congress are the fault of the voters and have nothing to do with members entering a 13th year.
We have term limits now - elections - or as George Will calls them, bringing your representative back to the district for discipline. There are at least 3 legitimate ways to get your member of congress to move along, take him or her down from within their own party, beat them in the general election, or if they just leave voluntarily. The first option here needs to be taken more seriously.
The 90-98% reelection rates (http://www.opensecrets.org/bigpicture/reelect.php) of mostly lousy elected officials indicate something is broken. (Crafty wrote): "due in great part to gerrymandering". This is right. The reelection rate is for districts that have an incumbent running. The gerrymandering means that most districts are not competitive. In these cases, the failed incumbent needs to be kicked out and can only happen from within the party. VERY few people get involved really picking the candidates from within the party, and the rest look at this condescendingly as getting involved with partisan politics. Yes it is partisan politics and it is very important work.
The media, just lower than congress in credibility, is AWOL on exposing incompetence. The members of congress get to make themselves look like good caring people, raise and receive money continuously, while no opposing view is often offered.
(BD writes) Intelligence oversight requires more experienced elected officials. True for intelligence oversight, but most of the federal government is far more intricate than it needs to be. They are wrongly trying to be the solution for all problems and overseer of all industries, payer of all needy - instead of governing, in a limited fashion. Did they really have major league baseball hearings? While we were at war?! And over-taxed, over-spent, over-regulated and whatever else one find fault with.
Article I, Section 4, Clause 2, "The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day." - Can you imagine today if the congress, for the year, had forgotten to meet until December, that the members were back in their districts - in their fields, businesses or professions - not passing more and more laws mostly about what the rest of us shouldn't be doing.
We are on the wrong course because we vote wrong and most often don't even put the right choices on the ballots. The wording and clauses of the constitution are the least of our problems. The electorate is mostly misguided and we haven't had a great leader in a very long time to make any sense of it. Weakening congress and empowering the permanent bureaucrat/technocrat class even further is not the answer.
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"We are on the wrong course because we vote wrong and most often don't even put the right choices on the ballots. The wording and clauses of the constitution are the least of our problems. The electorate is mostly misguided and we haven't had a great leader in a very long time to make any sense of it. Weakening congress and empowering the permanent bureaucrat/technocrat class even further is not the answer."
This makes a lot of sense to me, but , , , I can envision a well drafted amendment or two rolling back the SCOTUS jurisprudence of the interstate commerce clause and strengthening state sovereignty passing the requisite number of State legislatures and once passed having some wonderfully restorative consequences.
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I am loving this discussion. Some thoughts: gerrymandering has some to do with the situation, but there is not consensus on the level of impact (see Mann/Ornstein It's Even worse than We Thought).
90-98% reelection rate is for those who choose to run for reelection. The return rate is about 7-10% lower (see Doug's point three).
I agree with some, disagree on some point. MLB hearings and war: these are separate committees with different jurisdictions. Both need to do their jobs. Hyperpartisanship is enfeebling the role the Congress. Parties need to come together for the sake of the institution. GOP can talk about limiting Obama, but without active oversight, legislation, hearings (with teeth), etc. etc. the executive fills a power vacuum no matter who is president.
How intricate should oversight be in other policy spaces? There is a great deal to agriculture. I'd like that to be intricate, and it seems like a simple policy space. It is certainly less prestigious than foreign policy, for example.
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PJ O'Rourke had a wonderful chapter in his "Parliament of Whores" about the Dept. of Ag. and how it should be abolished made sense to me then and makes sense to me now.
DoA was pretty much deleted by the Gingrich Congress, but then Bush-2 brought it back.
I would note (once again, sorry) that Glenn Beck was quite emphatic (and prescient IMO) that due to the march of progressivism (a.k.a. fascism) the Congress was becoming rather irrelevant.
A point to consider here as well is the FOURTH branch of government-- the bureaucracies. These sometimes act in a quasi-legislative capacity and sometimes in a quasi-judicial capacity. Either way, deep structural questions are presented.
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Partially true. But, Congress is not institutionally able to check the executive well in this policy space. And don't act like the situation is Obama specific. It seems to be the way of the executive.
The last executive I can recall who got even close to Buraq level corruption/criminality was Nixon, and he got impeached.
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I'll challenge that GM. What about the Hillbillary Clintons?
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I am loving this discussion. Some thoughts: gerrymandering has some to do with the situation, but there is not consensus on the level of impact (see Mann/Ornstein It's Even worse than We Thought).
90-98% reelection rate is for those who choose to run for reelection. The return rate is about 7-10% lower (see Doug's point three).
I agree with some, disagree on some point. MLB hearings and war: these are separate committees with different jurisdictions. Both need to do their jobs. Hyperpartisanship is enfeebling the role the Congress. Parties need to come together for the sake of the institution. GOP can talk about limiting Obama, but without active oversight, legislation, hearings (with teeth), etc. etc. the executive fills a power vacuum no matter who is president.
How intricate should oversight be in other policy spaces? There is a great deal to agriculture. I'd like that to be intricate, and it seems like a simple policy space. It is certainly less prestigious than foreign policy, for example.
Perhaps the federal government should only concern it's self with those things it's constitutionally mandated to do. Then we don't have to pass multi-thousand page bills to find out what's in it. We don't have to worry about agriculture oversight, because that's not the role of congress to manage.
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I'll challenge that GM. What about the Hillbillary Clintons?
I don't think they come close to Buraq. Unless I missed it, they didn't have the IRS targeting political opponents.
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Partially true. But, Congress is not institutionally able to check the executive well in this policy space. And don't act like the situation is Obama specific. It seems to be the way of the executive.
The last executive I can recall who got even close to Buraq level corruption/criminality was Nixon, and he got impeached.
Quick historical note: no, he didn't. Only A. Jackson and Clinton have been impeached. Nixon quit before the House voted on the articles of impeachment.
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I'm sorry but I think if you recheck you will see the comparison postulated is between Nixon and Hillbillary
Let see:
*$97,000 laundered by Tyson Foods, the largest employer in the state of AK, into the pocket of the wife of gubernatorial candidate's wife;
*the Rose Law firm billing scandal which Hillary escaped because Webster Hubbell took the fall and in return Chinese front family the Riadys of Indonesia gave him a $700,000 consulting contract for doing nothing,
*the mysterious death of Vince Foster and the papers that were moved out of his office that very night. Were these the missing Rose billing records that were discovered in Hillary's office after the statute of limitations had expired;
*Bill's pardon of the Puerto Rican cop killer terrorists to facilitate his wife senatorial campaign in NY;
*Bill pardon of scumbag financier Mark Rich's dealings with Iran due to the interventions of now AG Eric Holder;
* Sending Johnny Chung to raise $$$ from the Taiwanese in return for sending an aircraft carrier through the straights between Taiwan and the mainland;
*Whitewater;
*sending relevant witnesses out country so as to foil investigations;
*the politics of personal destruction-ask Paula Jones, Juanita Broderick, and others
* impeachment
* Wagging the dog-- distracting the impeachment proceedings with cruise missile launches against Iraq
*etc etc etc
There is a lot more, this is just off the top of my head.
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I am loving this discussion. Some thoughts: gerrymandering has some to do with the situation, but there is not consensus on the level of impact (see Mann/Ornstein It's Even worse than We Thought).
90-98% reelection rate is for those who choose to run for reelection. The return rate is about 7-10% lower (see Doug's point three).
I agree with some, disagree on some point. MLB hearings and war: these are separate committees with different jurisdictions. Both need to do their jobs. Hyperpartisanship is enfeebling the role the Congress. Parties need to come together for the sake of the institution. GOP can talk about limiting Obama, but without active oversight, legislation, hearings (with teeth), etc. etc. the executive fills a power vacuum no matter who is president.
How intricate should oversight be in other policy spaces? There is a great deal to agriculture. I'd like that to be intricate, and it seems like a simple policy space. It is certainly less prestigious than foreign policy, for example.
Perhaps the federal government should only concern it's self with those things it's constitutionally mandated to do. Then we don't have to pass multi-thousand page bills to find out what's in it. We don't have to worry about agriculture oversight, because that's not the role of congress to manage.
I know I eat lettuce from CA/AZ, oranges from Florida, grapefruit from Texas. I know farmers from my state were seeking permission to send excess crops to Cuba a couple/three years ago. All of these issues are legitimate exercise of the interstate commerce clause. And all of these things have a place in the agriculture committee. And I'm not even talking about the science of GMO foods or production of tractors in Illinois that are sent nationwide.
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So, if not for congress' keen oversight, the grapefruit you are eating would be poisonous?
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Was the SCOTUS correct in Wickard v. Filburn?
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http://legalinsurrection.com/2011/08/economic-destruction-by-commerce-clause-farm-equipment-edition/
Economic destruction by Commerce Clause – farm equipment edition
Posted by William A. Jacobson Tuesday, August 2, 2011 at 5:20pm
One of the great unwritten stories of the damage to the economy from team Obama is the relentless attempt to regulate areas that have not previously been regulated.
The health care mandate received a lot of attention and breaks new ground, but there are countless other areas that mostly fly under the popular radar.
Thanks to reader Danelle from Texas for forwarding this article to me about the Obama administration’s attempt to force local farmers and ranchers to obtain commercial long-haul licenses:
Tractors lumbering down country roads are as common as deer in rural Montana, but the federal government wants to place new driving regulations on farmers and ranchers.
“It’s a huge deal for us,” said John Youngberg of the Montana Farm Bureau. After years of allowing state governments to waive commercial driver’s license requirements for farmers hauling crops or driving farm equipment on public roads, the Federal Motor Carrier Safety Administration is poised to do away with the exceptions.
Regulators are suggesting that all wheat shipments be considered interstate, even when farmers making short hauls to local grain elevators aren’t crossing state lines. The change would make commercial driver’s licenses — and all the log books and medical requirements that go with them — a necessity for farmers. Some might not qualify.
The licenses would also be required of farmers driving farm equipment down public roads. Farmers hauling grain for a neighbor or landlord would be considered commercial drivers hauling for someone else.
Ranchers hauling livestock in trailers as small as 16 feet would also be subject to the new rules…
Traditionally, farmers driving farm machinery have been exempt from commercial driver’s licenses, as have farmers hauling wheat, provided they didn’t cross state lines and traveled no farther than 150 air miles to the elevator.
It just never ends. And the rationale sounds very familiar:
FMCSA argues that because grain will ultimately be shipped out of state, it should be regulated as an interstate product at every transportation step. Treated as a product destined to cross state lines, grain becomes federally regulated under the commerce clause of the U.S. Constitution.
Update: I really should have focused on the destruction of a way of life, not just economic destruction. Danelle futher e-mails:
This is regulation on a very personal level to those of us living anywhere in the west. While the bigger impact will be on full time farmers and ranchers, even more of us use the same equipment to transport our horses to rodeos, playdays, or safely down the road to the next pasture. We help our kids haul their livestock projects to County Fairs and Major Livestock Shows. Trailers are used to haul not only farm equipment but a they get things like welding rigs and generators to rural job sites (think oil rigs here). They’re also used in recreation for transporting bikes, quads, dune buggies and dirt track race cars safely to their destinations.
As an aside, last week, the boys and I were driving back to El Paso County from
San Antonio (600 miles of mostly unpopulated desert). I wondered how someone
like Obama would handle being dropped in the middle of that territory in a Chevy
Volt on one of our 110 degree afternoons. Just one section of I-10 is 105 miles
between towns with some very tough hills to get up. And in case you’re worried
about whether today’s youth will be standing up for the 2nd Amendment, we were
on our way home from 8 days at the Texas 4-H Shooting Sports games where over
2300 youths ages 8-18 competed in 43 disciplines including pistol, rifle, bows
and shotgun.
Wow, things really are bigger in Texas.
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*the mysterious death of Vince Foster and the papers that were moved out of his office that very night
I looked at the Vince Foster case and do not see anything that indicates homicide. I'm not saying the Clintons aren't scumbags, and corrupt, but even with your list, it doesn't come close to Buraq's blatant criminality.
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So, if not for congress' keen oversight, the grapefruit you are eating would be poisonous?
Are you doubting the interstate commerce of the nation's food supply? Surely you jest. Since you are looking so keenly at the Constitution, tell me where the interstate commerce needs to be dangerous. Nope... just more than one state. You know: inter.
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So, if not for congress' keen oversight, the grapefruit you are eating would be poisonous?
Are you doubting the interstate commerce of the nation's food supply? Surely you jest. Since you are looking so keenly at the Constitution, tell me where the interstate commerce needs to be dangerous. Nope... just more than one state. You know: inter.
The need to end economic warfare among the states was a driving force behind the push for a more powerful national government. Under the Articles of Confederation, states harassed each other with tariffs and--in James Madison's words--"rival and spiteful measures, dictated by mistaken views of interest." New York and Pennsylvania taxed overseas goods destined for New Jersey, which lacked a seaport. Delaware ignored the trade embargo against Britain and vitiated the union's policy choice and made money in the process. Economic disputes among states provided the impetus for the Annapolis Convention, which in turn led to the Constitutional Convention in Philadelphia.
The Constitution authorizes Congress to regulate commerce among the several states. The central, irreducible purpose of that power is to police state exploitation and discrimination. The constitutional debates contain only nine substantive mentions of the commerce clause. All reference the need to enjoin protectionist or exploitative state legislation; none contemplates affirmative federal regulation over the economy. If the delegates entertained notions of federal minimum wage laws and such, they kept those thoughts to themselves.
http://www.aei.org/article/commerce-and-the-constitution/
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Partially true. But, Congress is not institutionally able to check the executive well in this policy space. And don't act like the situation is Obama specific. It seems to be the way of the executive.
The last executive I can recall who got even close to Buraq level corruption/criminality was Nixon, and he got impeached.
Quick historical note: no, he didn't. Only A. Jackson and Clinton have been impeached. Nixon quit before the House voted on the articles of impeachment.
Sorry, I was sloppy in stating that. Let's look at Nixon's articles of impeachment:
Articles of Impeachment
This is the full text of the Articles of Impeachment adopted by House Judiciary Committee on July 27, 1974.
Article 1
RESOLVED, That Richard M. Nixon, President of the United States, is impeached for high crimes and misdemeanours, and that the following articles of impeachment to be exhibited to the Senate:
ARTICLES OF IMPEACHMENT EXHIBITED BY THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN THE NAME OF ITSELF AND OF ALL OF THE PEOPLE OF THE UNITED STATES OF AMERICA, AGAINST RICHARD M. NIXON, PRESIDENT OF THE UNITED STATES OF AMERICA, IN MAINTENANCE AND SUPPORT OF ITS IMPEACHMENT AGAINST HIM FOR HIGH CRIMES AND MISDEMEANOURS.
ARTICLE 1
In his conduct of the office of President of the United States, Richard M. Nixon, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his consitutional duty to take care that the laws be faithfully executed, has prevented, obstructed, and impeded the administration of justice, in that:
On June 17, 1972, and prior thereto, agents of the Committee for the Re-election of the President committed unlawful entry of the headquarters of the Democratic National Committee in Washington, District of Columbia, for the purpose of securing political intelligence. Subsequent thereto, Richard M. Nixon, using the powers of his high office, engaged personally and through his close subordinates and agents, in a course of conduct or plan designed to delay, impede, and obstruct the investigation of such illegal entry; to cover up, conceal and protect those responsible; and to conceal the existence and scope of other unlawful covert activities.
The means used to implement this course of conduct or plan included one or more of the following:
1.making false or misleading statements to lawfully authorized investigative officers and employees of the United States;
2.withholding relevant and material evidence or information from lawfully authorized investigative officers and employees of the United States;
3.approving, condoning, acquiescing in, and counselling witnesses with respect to the giving of false or misleading statements to lawfully authorized investigative officers and employees of the United States and false or misleading testimony in duly instituted judicial and congressional proceedings;
4.interfering or endeavouring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the office of Watergate Special Prosecution Force, and Congressional Committees;
5.approving, condoning, and acquiescing in, the surreptitious payment of substantial sums of money for the purpose of obtaining the silence or influencing the testimony of witnesses, potential witnesses or individuals who participated in such unlawful entry and other illegal activities;
6.endeavouring to misuse the Central Intelligence Agency, an agency of the United States;
7.disseminating information received from officers of the Department of Justice of the United States to subjects of investigations conducted by lawfully authorized investigative officers and employees of the United States, for the purpose of aiding and assisting such subjects in their attempts to avoid criminal liability;
8.making or causing to be made false or misleading public statements for the purpose of deceiving the people of the United States into believing that a thorough and complete investigation had been conducted with respect to allegations of misconduct on the part of personnel of the executive branch of the United States and personnel of the Committee for the Re-election of the President, and that there was no involvement of such personnel in such misconduct: or
9.endeavouring to cause prospective defendants, and individuals duly tried and convicted, to expect favoured treatment and consideration in return for their silence or false testimony, or rewarding individuals for their silence or false testimony.
In all of this, Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.
Wherefore Richard M. Nixon, by such conduct, warrants impeachment and trial, and removal from office.
Adopted 27-11 by the Committee on the Judiciary of the House of Representatives, at 7.07pm on Saturday, 27th July, 1974, in Room 2141 of the Rayburn Office Building, Washington D.C.
[youtube]http://www.youtube.com/watch?feature=player_embedded&v=omFNIUqtIGQ&safety_mode=true&persist_safety_mode=1&safe=active[/youtube]
http://www.youtube.com/watch?feature=player_embedded&v=omFNIUqtIGQ&safety_mode=true&persist_safety_mode=1&safe=active
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So, if not for congress' keen oversight, the grapefruit you are eating would be poisonous?
Are you doubting the interstate commerce of the nation's food supply? Surely you jest. Since you are looking so keenly at the Constitution, tell me where the interstate commerce needs to be dangerous. Nope... just more than one state. You know: inter.
The need to end economic warfare among the states was a driving force behind the push for a more powerful national government. Under the Articles of Confederation, states harassed each other with tariffs and--in James Madison's words--"rival and spiteful measures, dictated by mistaken views of interest." New York and Pennsylvania taxed overseas goods destined for New Jersey, which lacked a seaport. Delaware ignored the trade embargo against Britain and vitiated the union's policy choice and made money in the process. Economic disputes among states provided the impetus for the Annapolis Convention, which in turn led to the Constitutional Convention in Philadelphia.
The Constitution authorizes Congress to regulate commerce among the several states. The central, irreducible purpose of that power is to police state exploitation and discrimination. The constitutional debates contain only nine substantive mentions of the commerce clause. All reference the need to enjoin protectionist or exploitative state legislation; none contemplates affirmative federal regulation over the economy. If the delegates entertained notions of federal minimum wage laws and such, they kept those thoughts to themselves.
http://www.aei.org/article/commerce-and-the-constitution/
Tell me again how big Monsanto was at the founding? John Deere? The oil to run the tractors? How many bananas were imported in 1787? How many predator species were coming in from Asia and African imports?
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US Customs is a legitimate constitutional entity meant to address things like Asian and African imports. That, like immigration is something for the federal government to regulate. Funny enough, the more things the USG gets involved in, the less it does the things it's actually responsible for.
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US Customs is a legitimate constitutional entity meant to address things like Asian and African imports. That, like immigration is something for the federal government to regulate. Funny enough, the more things the USG gets involved in, the less it does the things it's actually responsible for.
We have achieved partial agreement. But you didn't address all the questions.
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What questions would you like answered ?
What's your take on the bloated omnibus ag pork and graft bills? What limits, if any do you think exist for the commerce clause ?
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What questions would you like answered ?
What's your take on the bloated omnibus ag pork and graft bills? What limits, if any do you think exist for the commerce clause ?
Pork exists in all policy spaces. When the commerece is purely intrastate, there is the limit. I want you to recognize that days of the village based economy have ended, and therefore because of the constitutional power afforded Congress, the reach is necessarily extended.
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Ummm , , , no. :-D
The reach is NOT extended. What is different is the relative size of interstate and intrastate.
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"Pork exists in all policy spaces. When the commerece is purely intrastate, there is the limit." (Wickard-Filburn?) "I want you to recognize that days of the village based economy have ended, and therefore because of the constitutional power afforded Congress, the reach is necessarily extended."
"How intricate should oversight be in other policy spaces? There is a great deal to agriculture. I'd like that to be intricate..."
I agree on the federal role in having a safe food supply, but look at the Dept of Agriculture. In the 1980s while selling to the government, I had the opportunity to work with the US Dept of Agriculture, APHIS (Animal Plant Health Inspection Service). APHIS was headquartered in the warehouse district of Minneapolis where it operated with far more efficiency than other divisions in Washington. Protecting our nation's food supply is good government, maybe great government. But what portion of the Ag budget goes to that end? Very little.
Wickard- Filburn is wrong. I didn't see Bigdog answer that. To others, it was a case where the Supreme Court ruled that growing wheat to feed your own animals, that never left the farm, was interstate commerce. Wrong in so many ways, but the ruling is still the law of the land.
The interstate commerce clause authorized government at the federal level in the context of a limiting-government document. To read that expansively and believe they should control anything and everything because nearly all commerce potentially could cross state lines is wrong (IMHO). Because they can regulate Florida oranges or Idaho potatoes doesn't mean they should. Maybe the quality of that product is adequately governed at the state or local level before it crosses the state line.
Where does a lien against a house cross state lines? When it is bought and sold? So what. If government participates as a player in the market, is that authorized as 'regulation'? How about K-12 education, where does that cross state lines? Or is that the general welfare clause? If the neighborhood school is a federal responsibility, then what on earth are the limits of promoting the general welfare other than congress saying this bill or law promotes the general welfare?
We no longer live in a village-based economy. Have the constitutional limits on government all become obsolete because of that, and because court precedents (Wickard, Obamacare, etc.) have found a way around all of them?
What about 'equal protection'? Why is it legal or constitutional for any government to give any preference to any business (Solyndra), that it does not give to everyone else? Why don't we read THAT clause expansively?
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Former Heritage Foundation president Ed Feulner: "The Constitution doesn't grant us freedoms; it prohibits government from taking them. Nearly all of us, at one time or another, refer to our 'constitutional right to free speech.' While this common phrase may seem harmless, it points to a larger misunderstanding of where our rights come from -- a misunderstanding that undermines many of our most fundamental policy debates. The fact is, the U.S. Constitution protects our God-given rights from government. The government does not (as the phrase above implies) grant those rights to us as citizens. This is perhaps the most widely misunderstood aspect of our system of government."
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Ummm , , , no. :-D
The reach is NOT extended. What is different is the relative size of interstate and intrastate.
Fine. In DOES increase the percentage of commerece which comes under the oversight of Congress (which, as a reminder is the focus from which this discussion arose).
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"Pork exists in all policy spaces. When the commerece is purely intrastate, there is the limit." (Wickard-Filburn?) "I want you to recognize that days of the village based economy have ended, and therefore because of the constitutional power afforded Congress, the reach is necessarily extended."
"How intricate should oversight be in other policy spaces? There is a great deal to agriculture. I'd like that to be intricate..."
I agree on the federal role in having a safe food supply, but look at the Dept of Agriculture. In the 1980s while selling to the government, I had the opportunity to work with the US Dept of Agriculture, APHIS (Animal Plant Health Inspection Service). APHIS was headquartered in the warehouse district of Minneapolis where it operated with far more efficiency than other divisions in Washington. Protecting our nation's food supply is good government, maybe great government. But what portion of the Ag budget goes to that end? Very little.
Wickard- Filburn is wrong. I didn't see Bigdog answer that. To others, it was a case where the Supreme Court ruled that growing wheat to feed your own animals, that never left the farm, was interstate commerce. Wrong in so many ways, but the ruling is still the law of the land.
The interstate commerce clause authorized government at the federal level in the context of a limiting-government document. To read that expansively and believe they should control anything and everything because nearly all commerce potentially could cross state lines is wrong (IMHO). Because they can regulate Florida oranges or Idaho potatoes doesn't mean they should. Maybe the quality of that product is adequately governed at the state or local level before it crosses the state line.
Where does a lien against a house cross state lines? When it is bought and sold? So what. If government participates as a player in the market, is that authorized as 'regulation'? How about K-12 education, where does that cross state lines? Or is that the general welfare clause? If the neighborhood school is a federal responsibility, then what on earth are the limits of promoting the general welfare other than congress saying this bill or law promotes the general welfare?
We no longer live in a village-based economy. Have the constitutional limits on government all become obsolete because of that, and because court precedents (Wickard, Obamacare, etc.) have found a way around all of them?
What about 'equal protection'? Why is it legal or constitutional for any government to give any preference to any business (Solyndra), that it does not give to everyone else? Why don't we read THAT clause expansively?
We have this type of discussion cyclically. I quote me from July 9, 2012, in the discrimination thread:
"As for Guro's point about the Commerece Clause, I think it is (mostly) interpreted in the manner in which the Founders, in particular Madison, intended. The difference isn't the interpretation, it is the commerce. In 1790, commerce was much more local. Family farms, local industry, etc. was much more common. In a world in which Anheuser Busch is owned by a European Company, but the headquarters is in St. Louis, but it is bottled and distributed throughout the country and sold in stores like Walmart (which is headquarted in Arkansas and has stores nation and world wide), where does local commerce begin and end? In 1790, there was no interstate highways, no nationwide train, trucking and airline industry, no FedEx, Amazon or...."
That Wickard remians good law does not mean it remains "the law of the land." You conveniently ignore US v. Lopez (1995), US v. Morrison (2000) for example.
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I fully get the idea that commerce is a lot more complex and a lot more of it is interstate, but I also am of the distinct opinion that the interstate commerce clause is used willy nilly on matters that are truly intrastate.
What were the facts and holdings of Lopez and Martin?
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What if the federal gov't suddenly shut down the Ag Dept.? Poison grapefruit? Dogs and cats living together? Mass hysteria?
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Mold at WA food plant reveals flaws in food safety net
by CHRIS INGALLS / KING 5 News
Bio | Email | Follow: @cjingalls
Posted on February 14, 2012 at 10:45 PM
Updated Wednesday, Feb 15 at 3:23 PM
Related:
•Records reveal history of mold problems at troubled WA food plant
•Federal inspectors told to ignore moldy food at local plant
•Read USDA's statement issued after first story aired
•Read USDA/FDA Memorandum of Understanding
•Read the USDA's statement re: KING 5 investigation
•Read Snokist's response to FDA warning letter
Federal inspectors knew of serious food safety violations at a Washington state fruit processing plant. It seemed like the kind of thing that the United States Department of Agriculture would jump on. But that’s not what happened.
Government whistleblowers tell the KING 5 Investigators that the agency was more concerned about the money Snokist was generating for the USDA than the safety of the citizens it serves.
“I think it’s pretty poor,” said Wendy Alguard, the USDA’s former inspector assigned to Snokist. “All (the USDA) is out to do is try and make money, instead of doing what their original job is, being concerned about the product and the safety of people,” said Alguard.
“Money, it’s money,” agreed Jerry Pierce, the USDA inspector who as Alguard’s predecessor at Snokist.
Applesauce reprocessing
The inspectors say they witnessed employees “reprocessing” large bins of moldy applesauce. Snokist workers scraped mold off the top of spoiled applesauce, heat-treated the remaining applesauce and then mixed it with fresh applesauce to sell it to the public.
“It’s appalling that a company would take those measures just to make a few dollars,” said Alguard.
Both inspectors said they considered the reprocessing a health hazard and immediately reported it to their boss at the USDA.
But they say the USDA never put meaningful pressure on Snokist.
Records obtained by the KING 5 Investigators show the reprocessing continued for more than three years.
Snokist on store shelves
You may have never seen a Snokist can on your store shelf, but you may have eaten the company’s applesauce.
Snokist supplies applesauce to major brands. It ends up in grocery stores under many different store names.
The USDA and the Food and Drug Administration say they do not have a list of companies that recieved Snokist applesauce. They referred KING 5 to Snokist for that information.
Snokist declined to provide a list of the companies and grocery stores that received reprocessed applesauce.
Records filed with the government show that Snokist was supplying fruit products to the Kroger Company, Western Family Foods, Gerber, Monarch, Red Man and Costco. But those records do not reveal whether any of these companies recieved reprocessed applessauce.
An official at one company said his firm had no idea that Snokist was reprocessing applesauce.
USDA response
In a written statement the USDA told KING 5 that its inspectors were “diligent” about keeping the reprocessed applesauce out of the national school lunch program. Snokist was a major supplier of fruit products and bid on school lunch contracts across the United States.
But the USDA says its employees don’t have the authority to halt questionable applesauce that could be going to non-government contracts.
The former inspectors think the USDA could have cracked down on the company, but say their boss didn’t want to lose the “fees” Snokist was paying the USDA to remain in the school lunch program.
User fees
Records obtained by the KING 5 Investigators show Snokist paid more than a half-million dollars in user fees to the USDA in just over three years. The fees pay for USDA inspections and services to monitor the food Snokist is sending to USDA programs like school lunches and food banks.
The inspectors believe their boss ignored their concerns about the applesauce because he didn’t want to lose the money Snokist’s contract brought in to the USDA.
“It was a good boost for my supervisor,” said Pierce. “It made him look good in the western region as well as Washington, DC.”
Another case
There is another case in which the USDA ignored food safety issues with severe consequences.
USDA inspectors worked at the Wright County egg plant in Galt, Iowa where rotten eggs were splattered on equipment, egg drippings coated the floor and the men’s bathroom had no sink for basic hygiene.
Plant employees complained about the unsanitary conditions. “I told the USDA officer about it and she said, ‘Well, just go back and do your job,’” said one Wright County egg plant employee.
In 2010, the plant was blamed for a salmonella outbreak that sickened thousands of people and led to the nation’s largest ever egg recall.
USDA mission
Bill Marler, a Seattle attorney and renowned food safety advocate, says it’s not just about money, it’s also about the USDA’s mission.
"The USDA has an arm that's interested in food safety, but the vast majority of it is interested in purchasing food and getting it to the public," Marler said.
The agency promotes agricultural products, an important role, and may be reluctant to play the part of food police.
“The goal shouldn't be just let's grease the skids to get good food from the farm to your kids lunch plate," said Marler. “There's got to be oversight and food safety concerns along the way"
In principal, the USDA has agreed with that. In a memorandum of understanding with the US Food and Drug Administration, the USDA agrees to report food serious food safety issues spotted by its employees.
"This memorandum of understanding between the FDA and USDA has been around for a long time,” said Marler. “It just doesn't work."
Inspectors claim retaliation
Meanwhile, both inspectors believe they were punished for pressing the issues over Snokist’s moldy applesauce. Wendy Alguard tipped the FDA to Snokist’s applesauce reprocessing. The agency quickly put a stop to it.
Alguard says the USDA tried to transfer her to a less desirable job in California. She was fired late last year after refusing the assignment.
Jerry Pierce says his career was tarnished, as well. He retired from the USDA at the end of 2011.
The USDA inspector who worked at Snokist before Pierce was also terminated by the agency.
A USDA spokesperson denies that there was any retaliation involved.
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http://hotair.com/archives/2013/06/18/white-house-threatens-to-veto-house-farm-bill-because-it-isnt-expensive-enough/
White House threatens to veto House farm bill because it isn’t expensive enough
posted at 11:11 am on June 18, 2013 by Erika Johnsen
Both Senate and House versions of the farm bill that Congress is looking to pass, preferably in short order and definitely before the current bill expires this September, are little better than deliberately gigantic messes full of an impressively convoluted combination of food stamps, corporate pork, tricky amendments, and completely unnecessary federal special treatment that agribusiness lobby claims agriculture for some reason deserves above all other economic sectors. The Hill has a useful rundown of some of the major battles that still need to be fought within Congress before they can agree upon a final bill, but one of the biggest is going to be over the majority of the spending in the bills that goes to food stamp programs. The Senate-passed version of the farm bill cut the food-stamp program by merely $400 million per year, with the support of the Obama administration, but the House is looking to go a little deeper (hi, trillion dollar yearly deficits, anyone?!) — and the Obama administration doesn’t like that at all.
The White House is threatening to veto the House version of a massive, five-year farm bill, saying food stamp cuts included in the legislation could leave some Americans hungry.
The House is preparing to consider the bill this week. The legislation would cut $2 billion annually, or around 3 percent, from food stamps and make it harder for some people to qualify for the program. Food stamps, now called the Supplemental Nutrition Assistance Program, or SNAP, cost almost $80 billion last year, twice the amount it cost five years ago. …
The White House said in its statement Monday that food stamps are “a cornerstone of our nation’s food assistance safety net.” The administration argued that the House should make deeper cuts to farm subsidies like crop insurance instead.
Yes, it’s very easy to talk about the people who will be helped by continued growth in the food stamp program, except that the Obama administration has completely obliterated the normal standards and has grown the program by a whopping 70 percent since 2008 alone — even as the White House continues to insist that employment is improving everyday and our economy is continuing to recover. If that were really the case, why the expanded need for food stamps? You can’t have it both ways, you know.
Oh, and by the way — where is a lot of that corporate and special-interest pork in the farms bills coming from, you might very well wonder?
House members have filed more than 200 amendments to the bill, which is expected to come to the floor later this week.
Ugh.
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What if the federal gov't suddenly shut down the Ag Dept.? Poison grapefruit? Dogs and cats living together? Mass hysteria?
Once again, that is not the issue. That fact is, agriculture (or at least much of it) is, in fact, interstate commerece.
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And your posts on the USDA does not dimish the fact that the interstate commerece of agriculture is legitimate congressional use of oversight.
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GM: We (well YOU actually :lol: ) are wandering a bit far afield from the subject matter of this thread. I respect and probably agree with your point that much of what the DoA does would not be missed if it did not do it, but what you post here would best fit in the Bureaucracy thread-- this here is the Constitutional thread.
BD: Still hoping to hear from you concerning the facts and holding of the Lopez and Martin cases.
Until then (and perhaps even after LOL) I will stand by my motion that SCOTUS jurisprudence of the Interstate Commerce clause intrudes into many areas that are INTRAstate-- and no, I can't give any examples off the top of my head :-)
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What if the federal gov't suddenly shut down the Ag Dept.? Poison grapefruit? Dogs and cats living together? Mass hysteria?
Once again, that is not the issue. That fact is, agriculture (or at least much of it) is, in fact, interstate commerece.
And the intent of the founders was to prevent states from acting like tiny european countries engaging in economic pissing matches, not a loophole where the federal government can assert police powers over the citizenry.
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What if the federal gov't suddenly shut down the Ag Dept.? Poison grapefruit? Dogs and cats living together? Mass hysteria?
Once again, that is not the issue. That fact is, agriculture (or at least much of it) is, in fact, interstate commerece.
And the intent of the founders was to prevent states from acting like tiny european countries engaging in economic pissing matches, not a loophole where the federal government can assert police powers over the citizenry.
Loophole??????????
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BD: Still hoping to hear from you concerning the facts and holding of the Lopez and Martin cases.
Lopez: http://en.wikipedia.org/wiki/United_States_v._Lopez
"The Government's principal argument was that the possession of a firearm in an educational environment would most likely lead to a violent crime, which in turn would affect the general economic condition in two ways. First, because violent crime causes harm and creates expense, it raises insurance costs, which are spread throughout the economy; and second, by limiting the willingness to travel in the area perceived to be unsafe. The Government also argued that the presence of firearms within a school would be seen as dangerous, resulting in students' being scared and disturbed; this would, in turn, inhibit learning; and this, in turn, would lead to a weaker national economy since education is clearly a crucial element of the nation's financial health.
The Court, however, found these arguments to create a dangerous slippery slope: what would prevent the federal government from then regulating any activity that might lead to violent crime, regardless of its connection to interstate commerce, because it imposed social costs? What would prevent Congress from regulating any activity that might bear on a person's economic productivity?"
Morrison: http://en.wikipedia.org/wiki/United_States_v._Morrison
"United States v. Morrison, 529 U.S. 598 (2000), is a United States Supreme Court decision which held that parts of the Violence Against Women Act of 1994 were unconstitutional because they exceeded congressional power under the Commerce Clause and under section 5 of the Fourteenth Amendment to the Constitution."
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"That Wickard remains good law does not mean it remains "the law of the land." You conveniently ignore US v. Lopez (1995), US v. Morrison (2000) for example."
No intent to deceive. Did the federal government lose its authority to regulate a product (or service) like Filburn's, that doesn't cross state lines (and I missed it)? My business is the rental of single family homes, regulated at the city, county, and state levels, in addition to regulation by an entire federal department. My business could not be more like a family farm of 1790 in this regard. None of my products or services have ever crossed state lines.
When the US Department of Housing (HUD) opened a full investigation against me over an accusation easily proven false, I wonder if a simple point to these cases would have sufficed - instead of providing the hundreds of documents they were requiring.
Linking myself, over 700 current federal departments and agencies are listed at the end of the post (link below), more departments and agencies now than before Lopez, Morrison or any previous time in our history (and many more coming). All of these are constitutionally authorized federal powers - in the founders' spirit of a constitutionally limited government? I don't think so. http://dogbrothers.com/phpBB2/index.php?topic=1850.msg72139#msg72139
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While I am glad to know of Lopez and that SOME sort of limits remain on the Interstate Commerce clause, Doug's question seems to me quite fair.
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Not wanting to interrupt the flow of the conversation on the IC Clause, but pasting here GM's post of candidate Obama's thoughts on some C'l issues.
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http://www.boston.com/news/politics/2008/specials/CandidateQA/ObamaQA/
Barack Obama's Q&A
By Charlie Savage
Globe Staff / December 20, 2007
1. Does the president have inherent powers under the Constitution to conduct surveillance for national security purposes without judicial warrants, regardless of federal statutes?
The Supreme Court has never held that the president has such powers. As president, I will follow existing law, and when it comes to U.S. citizens and residents, I will only authorize surveillance for national security purposes consistent with FISA and other federal statutes.
2. In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress? (Specifically, what about the strategic bombing of suspected nuclear sites -- a situation that does not involve stopping an IMMINENT threat?)
The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.
As Commander-in-Chief, the President does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.
As for the specific question about bombing suspected nuclear sites, I recently introduced S.J. Res. 23, which states in part that “any offensive military action taken by the United States against Iran must be explicitly authorized by Congress.” The recent NIE tells us that Iran in 2003 halted its effort to design a nuclear weapon. While this does not mean that Iran is no longer a threat to the United States or its allies, it does give us time to conduct aggressive and principled personal diplomacy aimed at preventing Iran from developing nuclear weapons.
3. Does the Constitution empower the president to disregard a congressional statute limiting the deployment of troops -- either by capping the number of troops that may be deployed to a particular country or by setting minimum home-stays between deployments? In other words, is that level of deployment management beyond the constitutional power of Congress to regulate?
No, the President does not have that power. To date, several Congresses have imposed limitations on the number of US troops deployed in a given situation. As President, I will not assert a constitutional authority to deploy troops in a manner contrary to an express limit imposed by Congress and adopted into law.
4. Under what circumstances, if any, would you sign a bill into law but also issue a signing statement reserving a constitutional right to bypass the law?
Signing statements have been used by presidents of both parties, dating back to Andrew Jackson. While it is legitimate for a president to issue a signing statement to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability.
I will not use signing statements to nullify or undermine congressional instructions as enacted into law. The problem with this administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation. The fact that President Bush has issued signing statements to challenge over 1100 laws – more than any president in history – is a clear abuse of this prerogative. No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that.
5. Does the Constitution permit a president to detain US citizens without charges as unlawful enemy combatants?
No. I reject the Bush Administration's claim that the President has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.
6. Does executive privilege cover testimony or documents about decision-making within the executive branch not involving confidential advice communicated to the president himself?
With respect to the “core” of executive privilege, the Supreme Court has not resolved this question, and reasonable people have debated it. My view is that executive privilege generally depends on the involvement of the President and the White House.
7. If Congress defines a specific interrogation technique as prohibited under all circumstances, does the president's authority as commander in chief ever permit him to instruct his subordinates to employ that technique despite the statute?
No. The President is not above the law, and the Commander-in-Chief power does not entitle him to use techniques that Congress has specifically banned as torture. We must send a message to the world that America is a nation of laws, and a nation that stands against torture. As President I will abide by statutory prohibitions, and have the Army Field Manual govern interrogation techniques for all United States Government personnel and contractors.
8. Under what circumstances, if any, is the president, when operating overseas as commander-in-chief, free to disregard international human rights treaties that the US Senate has ratified?
It is illegal and unwise for the President to disregard international human rights treaties that have been ratified by the United States Senate, including and especially the Geneva Conventions. The Commander-in-Chief power does not allow the President to defy those treaties.
9. Do you agree or disagree with the statement made by former Attorney General Gonzales in January 2007 that nothing in the Constitution confers an affirmative right to habeas corpus, separate from any statutory habeas rights Congress might grant or take away?
Disagree strongly.
10. Is there any executive power the Bush administration has claimed or exercised that you think is unconstitutional? Anything you think is simply a bad idea?
First and foremost, I agree with the Supreme Court's several decisions rejecting the extreme arguments of the Bush Administration, most importantly in the Hamdi and Hamdan cases. I also reject the view, suggested in memoranda by the Department of Justice, that the President may do whatever he deems necessary to protect national security, and that he may torture people in defiance of congressional enactments. In my view, torture is unconstitutional, and certain enhanced interrogation techniques like “waterboarding” clearly constitute torture. And as noted, I reject the use of signing statements to make extreme and implausible claims of presidential authority.
Some further points:
The detention of American citizens, without access to counsel, fair procedure, or pursuant to judicial authorization, as enemy combatants is unconstitutional.
Warrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional.
The violation of international treaties that have been ratified by the Senate, specifically the Geneva Conventions, was illegal (as the Supreme Court held) and a bad idea.
The creation of military commissions, without congressional authorization, was unlawful (as the Supreme Court held) and a bad idea.
I believe the Administration’s use of executive authority to over-classify information is a bad idea. We need to restore the balance between the necessarily secret and the necessity of openness in our democracy – which is why I have called for a National Declassification Center.
11. Who are your campaign's advisers for legal issues?
Laurence Tribe, Professor of Law, Harvard University
Cass Sunstein, Professor of Law, University of Chicago
Jeh C. Johnson, former General Counsel of Department of the Air Force (1998-2001)
Gregory Craig, former Assistant to the President and Special Counsel (1998-1999), former Director of Policy Planning for U.S. Department of State (1997-1998)
12. Do you think it is important for all would-be presidents to answer questions like these before voters decide which one to entrust with the powers of the presidency? What would you say about any rival candidate who refuses to answer such questions?
Yes, these are essential questions that all the candidates should answer. Any President takes an oath to, “preserve, protect and defend the Constitution of the United States." The American people need to know where we stand on these issues before they entrust us with this responsibility – particularly at a time when our laws, our traditions, and our Constitution have been repeatedly challenged by this Administration.
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I don't see how this passes C'l muster, but I admit to a certain admittedly immature glee nonetheless , , ,
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Gun Bill in Missouri Would Test Limits in Nullifying U.S. Law
By JOHN SCHWARTZ
Published: August 28, 2013
JEFFERSON CITY, Mo. — Unless a handful of wavering Democrats change their minds, the Republican-controlled Missouri legislature is expected to enact a statute next month nullifying all federal gun laws in the state and making it a crime for federal agents to enforce them here. A Missourian arrested under federal firearm statutes would even be able to sue the arresting officer.
Lawmakers are considering whether to override a veto of a gun bill by Gov. Jay Nixon of Missouri, who considered the bill unconstitutional.
The law amounts to the most far-reaching states’ rights endeavor in the country, the far edge of a growing movement known as “nullification” in which a state defies federal power.
The Missouri Republican Party thinks linking guns to nullification works well, said Matt Wills, the party’s director of communications, thanks in part to the push by President Obama for tougher gun laws. “It’s probably one of the best states’ rights issues that the country’s got going right now,” he said.
The measure was vetoed last month by Gov. Jay Nixon, a Democrat, as unconstitutional. But when the legislature gathers again on Sept. 11, it will seek to override his veto, even though most experts say the courts will strike down the measure. Nearly every Republican and a dozen Democrats appear likely to vote for the override.
Richard G. Callahan, the United States attorney for the Eastern District of Missouri, is concerned. He cited a recent joint operation of federal, state and local law enforcement officials that led to 159 arrests and the seizing of 267 weapons, and noted that the measure “would have outlawed such operations, and would have made criminals out of the law enforcement officers.”
In a letter explaining his veto, Mr. Nixon said the federal government’s supremacy over the states’ “is as logically sound as it is legally well established.” He said that another provision of the measure, which makes it a crime to publish the name of any gun owner, violates the First Amendment and could make a crime out of local newspapers’ traditional publication of “photos of proud young Missourians who harvest their first turkey or deer.”
But the votes for the measure were overwhelming. In the House, all but one of the 109 Republicans voted for the bill, joined by 11 Democrats. In the Senate, all 24 Republicans supported it, along with 2 Democrats. Overriding the governor’s veto would require 23 votes in the Senate and 109 in the House, where at least one Democrat would have to come on board.
The National Rifle Association, which has praised Mr. Nixon in the past for signing pro-gun legislation, has been silent about the new bill. Repeated calls to the organization were not returned.
Historically used by civil rights opponents, nullification has bloomed in recent years around a host of other issues, broadly including medical marijuana by liberals and the new health care law by conservatives.
State Representative T. J. McKenna, a Democrat from Festus, voted for the bill despite saying it was unconstitutional and raised a firestorm of protest against himself. “If you just Google my name, it’s all over the place about what a big coward I am,” he said with consternation, and “how big of a ‘craven’ I was. I had to look that up.”
The voters in his largely rural district have voiced overwhelming support for the bill, he said. “I can’t be Mr. Liberal, St. Louis wannabe,” he said. “What am I supposed to do? Just go against all my constituents?”
As for the veto override vote, he said, “I don’t know how I’m going to vote yet.”
State Representative Doug Funderburk, a Republican from St. Peters and the author of the bill, said he expected to have more than enough votes when the veto override came up for consideration.
Adam Winkler, a professor of law at the University of California, Los Angeles, who follows nullification efforts nationally, said that nearly two dozen states had passed medical marijuana laws in defiance of federal restrictions. Richard Cauchi, who tracks such health legislation for the National Conference of State Legislatures, said: “Since January 2011, at least 23 states have considered bills seeking to nullify the health care law; as of mid-2013 only one state, North Dakota, had a signed law. Its language states, however, that the nullification provisions ‘likely are not authorized by the United States Constitution.’ ”
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What distinguishes the Missouri gun measure from the marijuana initiatives is its attempt to actually block federal enforcement by setting criminal penalties for federal agents, and prohibiting state officials from cooperating with federal efforts. That crosses the constitutional line, said Robert A. Levy, chairman of the libertarian Cato Institute’s board of directors — a state cannot frustrate the federal government’s attempts to enforce its laws.
Mr. Levy, whose organization has taken a leading role in fighting for gun rights, said, “With the exception of a few really radical self-proclaimed constitutional authorities, state nullification of federal law is not on the radar scope.”
Still, other states have passed gun laws that challenge federal power; a recent wave began with a Firearms Freedom Act in Montana that exempts from federal regulations guns manufactured there that have not left the state.
Gary Marbut, a gun rights advocate in Montana who wrote the Firearms Freedom Act, said that such laws were “a vehicle to challenge commerce clause power,” the constitutional provision that has historically granted broad authority to Washington to regulate activities that have an impact on interstate commerce. His measure has served as a model that is spreading to other states. Recently, the United States Court of Appeals for the Ninth Circuit struck down Montana’s law, calling it “pre-empted and invalid.”
A law passed this year in Kansas has also been compared to the Missouri law. But Kris W. Kobach, the Kansas secretary of state, disagreed, saying it had been drafted “very carefully to ensure that there would be no situation where a state official would be trying to arrest a federal official.”
In Missouri, State Representative Jacob Hummel, a St. Louis Democrat and the minority floor leader, said that he was working to get Democrats who voted for the bill to vote against overriding the veto. “I think some cooler heads will prevail in the end,” he said, “but we will see.”
Taking up legislative time to vote for unconstitutional bills that are destined to end up failing in the courts is “a waste of taxpayers’ money,” Mr. Hummel said, adding that more and more, the legislature passes largely symbolic resolutions directed at Congress.
“We’re elected to serve the citizens of the state of Missouri, at the state level,” he said. “We were not elected to tell the federal government what to do — that’s why we have Congressional elections.”
The lone Republican opponent of the bill in the House, State Representative Jay Barnes, said, “Our Constitution is not some cheap Chinese buffet where we get to pick the parts we like and ignore the rest.” He added, “Two centuries of constitutional jurisprudence shows that this bill is plainly unconstitutional, and I’m not going to violate my oath of office.”
Mr. Funderburk, the bill’s author, clearly disagrees. And, he said, Missouri is only the beginning. “I’ve got five different states that want a copy” of the bill, he said.
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While I am glad to know of Lopez and that SOME sort of limits remain on the Interstate Commerce clause, Doug's question seems to me quite fair.
Remember all the time you spent on this, http://www.breitbart.com/Big-Government/2012/07/03/did-justice-roberts-invalidate-obamacare, Doug?
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I wonder if this man would think Lopez goes far enough , , ,
"The power of the people pervading the proposed system, together with the strong confederation of the states, will form an adequate security against every danger that has been apprehended."
–John Dickinson, Letters of Fabius, 1788
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http://www.nationalreview.com/corner/357102/whos-got-power-use-force-john-yoo
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While I am glad to know of Lopez and that SOME sort of limits remain on the Interstate Commerce clause, Doug's question seems to me quite fair.
Remember all the time you spent on this, http://www.breitbart.com/Big-Government/2012/07/03/did-justice-roberts-invalidate-obamacare, Doug?
Bigdog, The link makes two points (if I am reading it correctly). 1) Roberts is getting some kind of revenge on Obama (intentional or otherwise) by siding with the conservatives as they scale back the application of the commerce clause, and 2) he is affirming and invalidating Obamacare all in one stroke by declaring it a tax while knowing the bill originated in the Senate not the House and therefore will be struck down - null and void.
Since then,
a) Obamacare implementation is going forward. Origination case was dismissed in District Court, see below.* It is the "law of the land" - because of Chief Justice John Roberts. What am I missing here?
b) No government program, department, agency, regulation or significant federal regulatory authority (to my knowledge) has been rolled back by the Supreme Court or by anyone else since or because of the ruling. New federal regulations issued just since the Roberts decision approaching 2000 pages/week, costing $2 trillion/yr. http://dailycaller.com/2012/09/11/more-than-1600-pages-of-regulations-added-to-federal-register-last-week-cost-now-1-8-trillion-per-year/
http://cnsnews.com/news/article/under-obama-11327-pages-federal-regulations-added
c) All future congresses now have the 'Roberts Roadmap' to get around constitutional constraints on unlimited authority. Declare mandates a tax.
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* Matthew Sissel v. Dept HHS The origination case was dismissed by US District Court Washington DC. The House had passed a shell bill, not a tax, and then went back and inserted Obamacare into it. 'Inelegant', but legal.(Not in my view.) http://blog.pacificlegal.org/wordpress/wp-content/uploads/2013/07/SisselDismissal.pdf
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Talk about switch and bait. From a shyster in the liberal media (white house propaganda). Only could he turn Obama's self made mess in Syria into a "history -defying" decision. I guess Shapiro was Rip Van Winkle during the Bush one and two years.
****Obama's history-defying decision to seek Congressional approval on Syria
US President Barack Obama speaks about Syria outside the White House in Washington, DC on August 31, 2013
Walter Shapiro
Walter Shapiro 23 hours ago
President Barack Obama, according to background briefings by his aides, reached a fateful decision late Friday afternoon as he strolled along the White House lawn with his chief of staff Denis McDonough. Contrary to every expectation by his national security team, Obama concluded that he should ask Congress for authorization to bomb Syria.
The full reasoning behind the president’s turnabout remains murky. He may have wanted to share responsibility for a risky strategy to punish the barbarous regime of Syrian strongman Bashir al-Assad for using chemical weapons against his own people. Obama may have recognized the political dangers of attacking another Middle Eastern country without popular support at home.
And the president, a former part-time constitutional law professor, may have also belatedly recalled the wording of Article One, Section Eight of the Constitution that grants Congress the sole power “to declare war.”
But whatever Obama’s underlying motivations and however the Syrian vote plays out on Capitol Hill, the president’s decision to go to Congress represents an historic turning point. It may well be the most important presidential act on the Constitution and war-making powers since Harry Truman decided to sidestep Congress and not seek their backing to launch the Korean war.
Just a few days ago, before Obama’s decision was known, legal scholars from both the right and the left were in agreement that waging war over Syria – no matter how briefly – without congressional approval would bend the Constitution beyond recognition.
Jack Goldsmith, a Harvard law professor who served as a Bush administration lawyer during the run-up to the 2003 Iraq war, wrote in the legal blog Lawfare, “The planned use of military force in Syria is a constitutional stretch that will push presidential war unilateralism beyond where it has gone before.” And liberal constitutional scholar Garrett Epps, writing for the Atlantic , concluded, “It’s pretty clear that an American attack would violate the Constitution.”
Virtually no one in politics, the press or the academic community expected Obama to go to Congress for approval. That isn’t the way the presidential power works in the modern era. It is a sad truth that whomever occupies the Oval Office invariably expands rather than trims back the Imperial Presidency. Obama himself has reflected this pattern with his aggressive enhancement of the National Security Agency’s efforts to monitor electronic communications.
For more than six decades, the war-making powers of Congress have been eviscerated by presidents of both parties.
Which brings us back to Truman, who in 1950 balked at asking a Congress weary after World War Two for approval to militarily respond to the Communist attack on South Korea. Dean Acheson, Truman’s secretary of state, claimed in his memoirs that a congressional debate over the Korean War “would hardly be calculated to support the shaken morale of the troops or the unity that, for the moment, prevailed at home.”
Acheson may not have remembered that military morale and national unity are not mentioned in the Constitution. But the war-marking powers of Congress are at the heart of the nation’s founding document. It was as if the sign on Truman’s desk read, “The Buck Stops Here – And This is Also Where the Constitution Is Twisted.”
..View gallery."
Syria - History of politics and conflict from 1920 …
March 8, 2005 - A Syrian soldier riding on top of a tank gestures after leaving his position, in Dah …
The plain-spoken Truman resorted to weaselly words to claim that Korea was a United Nations-sponsored “police action” rather than a war. No other American “police action” has ever led to 54,246 wartime deaths.
Truman’s assertion of vast executive power as Commander in Chief set a template for future presidents. Even when presidents have gone to Congress for approval of major military engagements, these blank-check authorizations have often been based on deceptive arguments.
Lyndon Johnson premised the entire Vietnam war on the 1964 Gulf of Tonkin Resolution, which was designed to permit a limited response to two minor and maybe mythical naval skirmishes with North Vietnam. Similarly hyperbolic were George W. Bush’s claims about Saddam Hussein’s non-existent arsenal of weapons of mass destruction.
Even more legally dubious were all the times a president sent troops and planes into combat without anything more than desultory briefings of the congressional leadership.
Ronald Reagan dispatched the Marines into Grenada in 1983 under the preposterous rationale that he was only protecting endangered American medial students. Bill Clinton skirted congressional approval for the 1999 airborne attacks to halt Serbia’s ethnic cleansing of Kosovo on the shaky grounds that this was a NATO operation. And Obama himself was even on flimsier footing when he justified America’s participation in the 2011 bombing campaign over Libya based on a United Nations resolution.
But Syria did not provide Obama with any of these fig-leaf justifications.
No American lives are in danger and the national security threat is hard to identify. Not only is NATO not participating, but also neither are the Brits, the United State’s closest diplomatic ally. With Russia serving as Assad’s enabler, there will be no Security Council resolution or UN mandate.
Every time a president employs questionable legal arguments to wage war, it becomes a valuable tool for the next Commander in Chief impatient with the constitutional requirement to work through Congress. That’s why it would have been so dangerous for Obama to go forward in Syria without a congressional vote or the support of the UN or NATO. It is as much of a slippery slope argument as the contention that Iran, say, would be emboldened with its nuclear program if America did not punish Assad’s chemical attacks.
Assuming Obama wins congressional approval, America’s coming attack on Syria is designed to set a lasting precedent: No government can ever again use chemical, biological – let alone nuclear – weapons without facing devastating consequences. As Obama asked rhetorically in his Saturday Rose Garden statement, “What message will we send if a dictator can gas hundreds of children to death in plain sight and pay no price?”
But Obama’s decision to seek congressional approval may prove to be an even more important precedent. Future presidents – as they consider unilateral military action without American security hanging in the balance – will have to answer, “Why didn’t you go to Congress like Obama did over Syria?”
Confronted with a series of wrenching choices over Syria, Obama chose the course that best reflects fidelity to the Constitution as written. Hopefully, in the days ahead, taking that less traveled road by presidents will make all the difference.****
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While I am glad to know of Lopez and that SOME sort of limits remain on the Interstate Commerce clause, Doug's question seems to me quite fair.
Remember all the time you spent on this, http://www.breitbart.com/Big-Government/2012/07/03/did-justice-roberts-invalidate-obamacare, Doug?
a) Obamacare implementation is going forward. Origination case was dismissed in District Court, see below.* It is the "law of the land" - because of Chief Justice John Roberts. What am I missing here?
The consistent SC move away from the from the Commerce Clause cases that you and GM cite.
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But in that the holding was that Obamacare is a tax and the bill that was passed originated in the Senate, isn't there a new basis for challenging its consitutionality? I am under the impression that such suits have been brought , , ,
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But in that the holding was that Obamacare is a tax and the bill that was passed originated in the Senate, isn't there a new basis for challenging its consitutionality? I am under the impression that such suits have been brought , , ,
I would think so. And I think I've said so here (as in, somewhere on the forum). But, man, we've come a far way from the original basis of this current discussion. Oversight.
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That's been known to happen around here :lol:
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"What am I missing?"
"The consistent SC move away from the from the Commerce Clause cases that you and GM cite."
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Point well taken. I know Roberts made a point about the commerce clause but I don't see how that translated into any new limit or pullback on any federal government power. The movement is most certainly in the other direction.
Rather than regulating commerce, the movement in government (ACA for example) is toward coercive paternalism, which was not a founding principle.
BD, I hope the new school year is starting out well for you.
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There is a lot of very poor logic hear but some food for thought:
National Journal
Michael Hirsh September 2, 2013 PoliticsBarack Obama Syria
World War II began 74 years ago Sunday when German troops invaded Poland. The invasion conclusively discredited the concept of "appeasement" as a foreign policy for, well, the next 74 years. But if the U.S. Congress opposes authorization of the military mission to Syria that President Obama has now handed off to it, and if Obama uses that as an excuse to back further away from enforcement of his "red line," the "A" word will likely come to dominate the international debate once again.
And Barack Obama, who in his first term was known as the vanquisher of Osama bin Laden, could come out of his second looking more like Neville Chamberlain.
I don't want to overstate things. Bashar al-Assad, a tinpot dictator who is fighting only for his own survival, is no Hitler. He's not set to overrun an entire continent. And the "lessons of Munich" and the dangers of appeasement are generally overdrawn. But, after all, it was Secretary of State John Kerry who lumped Assad with the Fuehrer on the talk shows Sunday, saying that he "now joins the list of Adolf Hitler and Saddam Hussein [who] have used these weapons in time of war." (Technically, Hitler's only use of gas was not on the battlefield but to kill millions in extermination camps.)
These are also the clear implications of the president's own words. Already the United Nations, NATO, and Great Britain have failed to enforce his red line against chemical weapons use. Only the United States, with the possible help of France, stands in the way of allowing Assad to grin triumphantly atop the WMD massacre he authorized, to do it again and again, and thus make it more acceptable internationally. As Obama said in his Rose Garden statement Saturday: "If we won't enforce accountability in the face of this heinous act, what does it say about our resolve to stand up to others who flout fundamental international rules? To governments who would choose to build nuclear arms? To terrorists who would spread biological weapons? To armies who carry out genocide?"
So the stakes look very high indeed. All of which makes Obama's other announcement on Saturday so unsettling. Obama said 1) Military force against Syria is justified; 2) that he has decided to use it; and 3) that he believes he has the authority to do so right now. But then he declared that he's going to ask Congress for approval that, by his own account, he doesn't need. Thus, a president who for the last four years has had no compunction about unilaterally deciding whom to launch drone strikes against or whom to spy on has effectively surrendered a chunk of constitutional authority to a fractious, unreliable and politically motivated Congress over the issue of redressing the perilous precedent set by Assad.
It may well be that this is "the right thing to do for our democracy," as Obama said. But previous presidents, both Democrat and Republican, have said otherwise. They have declared even the War Powers Act (which gives Obama the authority to attack Syria for 60 days before asking for congressional approval) to be an unconstitutional infringement of presidential power.
The risk of Obama's handover to Congress is that, as Susan Page wrote in USA Today, "he has weakened his own presidency—what happens if he doesn't want to seek congressional authorization the next time?—and even the presidency itself. That argument is part of the reason that Ronald Reagan didn't seek congressional authorization before ordering the invasion of Grenada, why George H.W. Bush didn't seek authorization before launching military action in Panama, why Bill Clinton didn't seek authorization before ordering the bombing of Kosovo."
Obama is feeling lonely at the top because he doesn't have the U.N., NATO, or even the British behind him this time. Still, it is more than a little odd that he is turning for companionship to the Congress that has made a mockery of his every initiative until now. And Obama has not been consistent in this policy. "If from the beginning he said something to the effect of, 'I'm a constitutional scholar. I think the Constitution intends for the use of military force to be justified, and Congress has to approve. So I will use my presidency to make that a precedent,' then fine, no one would be seeing it as an abdication," says one scholar of the ethics and legality of war. "Instead, it came across as 'I need top cover because our closest allies ever won't follow us on this one.'"
What also smacks sadly of the appeasement era of the 1930s is all the talk about "war weariness," from Obama and others. "I know well we are weary of war," the president said Saturday. "But we are the United States of America, and we cannot and must not turn a blind eye to what happened in Damascus. Out of the ashes of world war, we built an international order and enforced the rules that gave it meaning."
Yet that international order is what is now in some danger, 74 years later. After all, it was just this kind of war weariness that created Neville Chamberlain, and his foreign policy of "positive appeasement" as he called it, in the years after the terrible bloodletting of World War I. If one becomes unwilling to strike dictators and mass murderers, all that remains is to appease them.
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US v. Lopez (1995), US v. Morrison (2000) came up earlier as limiting the over-reach of the commerce clause. But Gonzalez v. Reich 2005 seemed to me to do the opposite. (?) Federal law has supremacy - when growing a plant for personal consumption, legal under state law, never to cross state lines. Sounds like WIckard-Filburn was affir
From today's WSJ:
"California argued a decade ago that its medical marijuana law let individuals grow their own for personal use, but the Supreme Court ruled in Gonzales v. Raich in 2005 that federal law had supremacy. Defenders of ObamaCare even used the Raich precedent to claim that the feds could force all Americans to buy health insurance."
http://online.wsj.com/article/SB10001424127887323324904579044771286022400.html?mod=WSJ_Opinion_AboveLEFTTop
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Justice Stevens delivering the opinion of the Court in Gonzales v. Raich, 2005: Well-settled law controls our answer. ... Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce. See, e.g., Perez, 402 U.S., at 151; Wickard v. Filburn, 317 U.S. 111, 128—129 (1942). As we stated in Wickard, “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”
http://www.law.cornell.edu/supct/html/03-1454.ZO.html
It certainly reads (to the layman) that after Lopez, 1995 and Morrison, 2000, (although before the Roberts' opinion in NFIB v. Sebelius), that the central and controversial point of Wickard v. Filburn, federal jurisdiction of a purely local activity, was still the 'law of the land' in Gonzales, 2005.
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There was dissent in majority from Scalia, who agreed on the outcome, not its reasoning. And, as I noted elsewhere, there has been a consistent (though not necessarily constant) pushback on the Commerce Clause since the mid-1990's.
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There was dissent in majority from Scalia, who agreed on the outcome, not its reasoning. And, as I noted elsewhere, there has been a consistent (though not necessarily constant) pushback on the Commerce Clause since the mid-1990's.
I see your point in Court opinions. I don't know why we don't see a resulting federal rollback of jurisdiction over anything in those 18 years. Instead the federal government marches forward, uses other rationale, even some they deny - like that Obamacare is a tax - that originated in the House.
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To Crafty, from a previous post, I think you missed this:
Matthew Sissel v. Dept HHS The [Obamacare] origination case was dismissed by US District Court Washington DC. The House had passed a shell bill, not a tax, and then went back and inserted Obamacare into it. 'Inelegant', but legal.(Not in my view.) http://blog.pacificlegal.org/wordpress/wp-content/uploads/2013/07/SisselDismissal.pdf
http://dogbrothers.com/phpBB2/index.php?topic=1850.msg75155#msg75155
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I see your point in Court opinions. I don't know why we don't see a resulting federal rollback of jurisdiction over anything in those 18 years. Instead the federal government marches forward, uses other rationale, even some they deny - like that Obamacare is a tax - that originated in the House.
The Court lacks an enforcement mechanism. In the words of Hamilton (Federalist 78), the lacks the purse (of Congress) and the sword (of the president). In other words, it is difficult for the judicial branch to make change.
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Doug:
I did miss that, thank you for bringing it to my attention again.
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Judicial ethics and Supreme Court exceptionalism
National Constitution Center
Amanda Frost August 15, 2013 10:00 AM Politics
Editor’s note: The following is an excerpt selected by Professor Frost from her full 49-page research paper. The paper is available at the Social Science Research Network (registration is required) at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2304287.
In his mild-mannered way, Chief Justice John Roberts has set the stage for a constitutional conflict between Congress and the Supreme Court. Roberts’ 2011 Year-End Report on the Federal Judiciary focused on judicial ethics, a subject that has been much in the news lately.
In the course of that year, several of the Justices were publicly criticized for their alleged involvement in political fundraisers; acceptance of gifts and travel expenses paid for by groups with political viewpoints; failure to report a spouse’s employment; and, most controversially, refusal to recuse themselves from the constitutional challenges to the health care reform legislation despite alleged conflicts of interest.
Existing laws already cover some of this claimed misconduct, and the spate of negative publicity inspired the introduction of new federal legislation that would further regulate the Justices’ behavior.
Roberts’ Year-End Report acknowledged these accusations of impropriety, as well as the legal framework that governs in this area. Then, in a shot across Congress’s bow, he stated that the Court had “never addressed” Congress’s constitutional authority to prescribe ethics rules for the Supreme Court—which many took to be a broad hint that, at least in the Chief Justice’s view, Congress lacks that authority.
To be sure, the Chief Justice was careful to note that his “judicial responsibilities preclude [him] from commenting on any ongoing debates about particular issues or the constitutionality of any enacted legislation or pending proposals.”
But he went on to say that the “Court has never addressed whether Congress may impose [ethical] requirements on the Supreme Court,” and noted that the constitutionality of the recusal statute in particular has “never been tested.” With those words, Roberts put the nation on notice that Congress’s authority to regulate the Justices’ ethical conduct is an open question.
The Chief Justice’s Report raises serious questions about the constitutional status of existing ethics legislation, as well as the Supreme Court Justices’ willingness to abide by laws that at least some of them may consider to be invalid, and thus non-binding.
Currently, federal legislation requires that the Justices recuse themselves from cases in which they have a conflict of interest, mandates that they file annual reports in which they publicly disclose many aspects of their finances, and bars them from accepting money for most outside employment.
Although the Justices appear to follow these laws, the Chief Justice’s Report suggested that he is not sure they have to.
His comments also cast doubt on the constitutionality of the Supreme Court Ethics Act of 2013, which was recently introduced by Representative Louise Slaughter and Senators Chris Murphy, Richard Blumenthal, and Sheldon Whitehouse. Although the Chief Justice’s Report has provoked vociferous responses from those on either side of the issue, thus far there has been little academic analysis of the constitutional issues involved.
Although the Constitution requires that there be a Supreme Court, it did not make that institution self-executing, nor did it give the Court the power to control its internal operating rules, as it does for the House and Senate.
Thus, Congress is authorized—perhaps even required—to enact legislation implementing the judicial power under its Article I authority to “make all Laws which shall be necessary and proper for carrying into Execution . . . all other powers vested by this Constitution in the Government of the United States.”
For example, vital matters such as the Court’s size, the dates of its sessions, and quorum requirements are absent from the Constitution, and thus have always been controlled by federal legislation.
Indeed, a federal statute requires that each newly confirmed Justice “solemnly swear” that she will “administer justice without respect to persons, and do equal right to the poor and to the rich” before taking her place on the Court.
Ethics statutes, which promote the effective and legitimate exercise of the “judicial power,” thus must be understood as part and parcel of Congress’s broader power to establish the federal courts and control judicial administration.
That said, Congress’s power to regulate the Supreme Court’s ethical conduct is limited by separation of powers concerns and the need to preserve judicial independence.
Federal legislation, whether it concerns ethics or other aspects of judicial administration, cannot seek to control the outcome of pending cases.
Congress would obviously be well outside its constitutional authority, for example, if it enacted a law providing that all Justices appointed by a Republican president must recuse themselves from cases challenging the constitutionality of federal legislation.
In short, ethics legislation cannot be used to control the content of judicial decisions, or to penalize the Justices for their decisions in previous matters.
Finally, Congress must take care to preserve the Supreme Court’s constitutional status as the head of the judicial branch.
The Supreme Court is the only constitutionally required court, and the Constitution specifies that the lower courts are “inferior to” the Supreme Court.
Thus, it is constitutionally questionable whether Congress could, by statute, alter the judicial hierarchy by giving lower court judges the power to force a Justice to recuse him or herself, or penalize a Justice for an ethical violation.
However, none of the existing ethics statutes give the lower courts any such authority over the Supreme Court, or otherwise threaten its role at the head of the federal judiciary.
Furthermore, the Supreme Court’s special constitutional status does not insulate the Justices from regulation of their ethical behavior—after all, Congress has enacted similar statutes affecting the President and Vice-President of the United States without causing any constitutional crisis.
In sum, Congress has considerable leeway to regulate the Justices’ ethical conduct, just as it has exercised authority to decide other vital administrative matters for the Court, as long as it does not interfere with the Court’s decisional independence or the Court’s role as the head of the third branch of government.
Constitutional questions are frequently raised by opponents of legislation seeking to regulate the Justices’ ethical conduct, distracting from the policy questions that are also worthy of debate.
Hopefully, the above discussion (and the full essay at SSRN) will help to clear away the obstacles that have too often prevented a full and frank discussion of whether the benefits of such legislation outweigh the costs.
Amanda Frost is a professor of law at American University’s Washington College of Law. She writes and teaches in the fields of federal courts, civil procedure, statutory interpretation, judicial ethics, and transparency in government.
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Found it:
Here is an update: http://www.stltoday.com/news/local/govt-and-politics/missouri-legislature-fails-to-override-vetoes-of-tax-cut-gun/article_9e4aedb4-71de-5df7-b407-e80179a71a54.html
In a word, the veto override failed.
I don't see how this passes C'l muster, but I admit to a certain admittedly immature glee nonetheless , , ,
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Gun Bill in Missouri Would Test Limits in Nullifying U.S. Law
By JOHN SCHWARTZ
Published: August 28, 2013
JEFFERSON CITY, Mo. — Unless a handful of wavering Democrats change their minds, the Republican-controlled Missouri legislature is expected to enact a statute next month nullifying all federal gun laws in the state and making it a crime for federal agents to enforce them here. A Missourian arrested under federal firearm statutes would even be able to sue the arresting officer.
Lawmakers are considering whether to override a veto of a gun bill by Gov. Jay Nixon of Missouri, who considered the bill unconstitutional.
The law amounts to the most far-reaching states’ rights endeavor in the country, the far edge of a growing movement known as “nullification” in which a state defies federal power.
The Missouri Republican Party thinks linking guns to nullification works well, said Matt Wills, the party’s director of communications, thanks in part to the push by President Obama for tougher gun laws. “It’s probably one of the best states’ rights issues that the country’s got going right now,” he said.
The measure was vetoed last month by Gov. Jay Nixon, a Democrat, as unconstitutional. But when the legislature gathers again on Sept. 11, it will seek to override his veto, even though most experts say the courts will strike down the measure. Nearly every Republican and a dozen Democrats appear likely to vote for the override.
Richard G. Callahan, the United States attorney for the Eastern District of Missouri, is concerned. He cited a recent joint operation of federal, state and local law enforcement officials that led to 159 arrests and the seizing of 267 weapons, and noted that the measure “would have outlawed such operations, and would have made criminals out of the law enforcement officers.”
In a letter explaining his veto, Mr. Nixon said the federal government’s supremacy over the states’ “is as logically sound as it is legally well established.” He said that another provision of the measure, which makes it a crime to publish the name of any gun owner, violates the First Amendment and could make a crime out of local newspapers’ traditional publication of “photos of proud young Missourians who harvest their first turkey or deer.”
But the votes for the measure were overwhelming. In the House, all but one of the 109 Republicans voted for the bill, joined by 11 Democrats. In the Senate, all 24 Republicans supported it, along with 2 Democrats. Overriding the governor’s veto would require 23 votes in the Senate and 109 in the House, where at least one Democrat would have to come on board.
The National Rifle Association, which has praised Mr. Nixon in the past for signing pro-gun legislation, has been silent about the new bill. Repeated calls to the organization were not returned.
Historically used by civil rights opponents, nullification has bloomed in recent years around a host of other issues, broadly including medical marijuana by liberals and the new health care law by conservatives.
State Representative T. J. McKenna, a Democrat from Festus, voted for the bill despite saying it was unconstitutional and raised a firestorm of protest against himself. “If you just Google my name, it’s all over the place about what a big coward I am,” he said with consternation, and “how big of a ‘craven’ I was. I had to look that up.”
The voters in his largely rural district have voiced overwhelming support for the bill, he said. “I can’t be Mr. Liberal, St. Louis wannabe,” he said. “What am I supposed to do? Just go against all my constituents?”
As for the veto override vote, he said, “I don’t know how I’m going to vote yet.”
State Representative Doug Funderburk, a Republican from St. Peters and the author of the bill, said he expected to have more than enough votes when the veto override came up for consideration.
Adam Winkler, a professor of law at the University of California, Los Angeles, who follows nullification efforts nationally, said that nearly two dozen states had passed medical marijuana laws in defiance of federal restrictions. Richard Cauchi, who tracks such health legislation for the National Conference of State Legislatures, said: “Since January 2011, at least 23 states have considered bills seeking to nullify the health care law; as of mid-2013 only one state, North Dakota, had a signed law. Its language states, however, that the nullification provisions ‘likely are not authorized by the United States Constitution.’ ”
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What distinguishes the Missouri gun measure from the marijuana initiatives is its attempt to actually block federal enforcement by setting criminal penalties for federal agents, and prohibiting state officials from cooperating with federal efforts. That crosses the constitutional line, said Robert A. Levy, chairman of the libertarian Cato Institute’s board of directors — a state cannot frustrate the federal government’s attempts to enforce its laws.
Mr. Levy, whose organization has taken a leading role in fighting for gun rights, said, “With the exception of a few really radical self-proclaimed constitutional authorities, state nullification of federal law is not on the radar scope.”
Still, other states have passed gun laws that challenge federal power; a recent wave began with a Firearms Freedom Act in Montana that exempts from federal regulations guns manufactured there that have not left the state.
Gary Marbut, a gun rights advocate in Montana who wrote the Firearms Freedom Act, said that such laws were “a vehicle to challenge commerce clause power,” the constitutional provision that has historically granted broad authority to Washington to regulate activities that have an impact on interstate commerce. His measure has served as a model that is spreading to other states. Recently, the United States Court of Appeals for the Ninth Circuit struck down Montana’s law, calling it “pre-empted and invalid.”
A law passed this year in Kansas has also been compared to the Missouri law. But Kris W. Kobach, the Kansas secretary of state, disagreed, saying it had been drafted “very carefully to ensure that there would be no situation where a state official would be trying to arrest a federal official.”
In Missouri, State Representative Jacob Hummel, a St. Louis Democrat and the minority floor leader, said that he was working to get Democrats who voted for the bill to vote against overriding the veto. “I think some cooler heads will prevail in the end,” he said, “but we will see.”
Taking up legislative time to vote for unconstitutional bills that are destined to end up failing in the courts is “a waste of taxpayers’ money,” Mr. Hummel said, adding that more and more, the legislature passes largely symbolic resolutions directed at Congress.
“We’re elected to serve the citizens of the state of Missouri, at the state level,” he said. “We were not elected to tell the federal government what to do — that’s why we have Congressional elections.”
The lone Republican opponent of the bill in the House, State Representative Jay Barnes, said, “Our Constitution is not some cheap Chinese buffet where we get to pick the parts we like and ignore the rest.” He added, “Two centuries of constitutional jurisprudence shows that this bill is plainly unconstitutional, and I’m not going to violate my oath of office.”
Mr. Funderburk, the bill’s author, clearly disagrees. And, he said, Missouri is only the beginning. “I’ve got five different states that want a copy” of the bill, he said.
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Reminding Our Elected Representatives to Exercise Their Power
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Happy Constitution Day! In celebration of that monumental day in September 1787, let’s reflect upon the genius of the Constitution and perhaps take time to help our elected representatives remember its genius as well.
Today’s Washington is wrought with politicians who continually overstep their constitutional limitations and then when asked to correct their acts of usurpation, hide behind constitutional limits that don’t actually exist. The President claims to have no control over executive departments, i.e. IRS, and congress claims to be unable to act because of “mandatory spending.” It is time that we remind our elected representatives what powers and responsibilities they do have.
Delegated Powers
The fundamental premise of the Constitution is found in the Declaration of Independence. “That, to secure…rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” We the People have a right to establish a government with restraints, or limits, for the sole purpose of protecting our fundamental rights, “laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” The government cannot go beyond the bounds in which we have given it and we cannot delegate powers to the government that we ourselves do not have.
The Separation of Powers
From the philosophies of Polybius and Montesquieu, the Constitution separates the delegated powers between the Legislative, Executive, and Judicial branches and between the federal government and the states.
“The way to have good and safe government is not to trust it all to one, but to divide it among the many…It is by dividing and subdividing…that all will be done for the best.” –Thomas Jefferson
Each branch of our federal government is given very specific authority over writing the law, executing the law, and interpreting the law. While there is some overlap in powers in the form of checks and balances, none of the branches have been delegated the authority to delegate their powers to any other entity or branch. Nor are they given the authority to ignore such powers.
The President is Hiding Behind…Himself?
“The executive power shall be vested in a President of the United States of America.” –Article 2, Section 1, Clause 1
The executive branch consists of one individual, the President. He is the entire executive branch. In the Constitutional Convention the founders had actually considered having up to three presidents. They concluded that a single executive is best. All other individuals, departments, etc. are an appendage to the President. While the President cannot legally issue an executive order that regulates and taxes the people or the states, he can extend an executive order to all or part of the executive branch. He is all powerful within the executive branch.
When the President claims that the IRS or the NSA are beyond his control, he is referring to powers that simply do not exist. He has the authority to execute laws. He has all power over executive departments. If he is hiding behind these executive departments, he is only hiding behind himself.
Congress Claims to have Usurped Themselves
“All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” –Article 1, Section 1, Clause 1
“All,” not part, not some, “All legislative powers shall be vested…” A careful study of the entire Constitution will not only reveal that congress has sole legislative authority, but they have not been given the authority to delegate even the smallest part to any other branch or governing body.
Many tea party activists have recently been told by congressional staffers that Congress cannot defund Obamacare because of “mandatory spending provisions.” Who made the spending mandatory? Congress. So, let’s get this straight, Congress has all legislative authority so they write a law that binds them to not make a law? Have they usurped themselves?
Do not let congressional staffers, your Congressmen, or your Senators tell you they cannot change or defund a law. They can. “All legislative powers” are theirs. They are hiding behind constitutional limits that simply do not exist. The only laws they cannot alter or abolish without a constitutional amendment is the Constitution and existing amendments.
Remind Washington to Exercise Their Powers
We have continually attempted to remind Washington to stay within their constitutional limits. They continue to usurp our rights, encroach on each other’s powers, and trample the states. It is time that we encourage them to actually exercise their powers. We must remind the president that he has the power to stop the IRS and NSA targeting of tea party groups and individual citizens. It is time to remind congress that they have the power to alter or abolish any federal law, especially those that violate the 20 legislative powers given in the Constitution.
Remind Washington to stop hiding behind themselves or limits that do not exist, to stop usurping the powers and rights of others, and to start exercising the powers that have been delegated to them.
And in your frustrations, remember to have a Happy Constitution Day!
In liberty,
Tea Party Patriots National Support Team
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Levin to the Rescue
Brent Bozell's column is released twice a week.
Brent Bozell III
L. Brent Bozell August 14, 2013 3:00 AM
Only those happily trampling on the last vestiges of freedom will deny that our federal government as a constitutional republic has ceased to function. The president can no longer control (nor does this one want to control) the enormous and ever-expanding bureaucracy functioning as a government by fiat. The legislative branch, so corrupted, so drunk by the allure of power, so disdainful of its constituents, is unable to stop its bankrupting ways. The judiciary is perhaps the worst. The Supreme Court is openly rejecting the authority of the Constitution itself.
If the federal government refuses to adhere to the enumerated powers of the Constitution, what can the citizenry do about it? The events of the past five years (more, actually) prove this. It has become virtually impossible to stop the agenda of a radical Chief Executive who brazenly uses the federal government as his personal political machine. It is almost impossible to defeat an incumbent member of Congress with all the advantages it has awarded itself. For all intents it is impossible to replace a member of the Supreme Court.
The left is content with this terrible turn of events. By "transformation" they meant the transfer of power to the state.
Conservatives are loath to declare American exceptionalism dead, yet are powerless to stop the statist steamroller. With every cycle, the situation worsens. At some point the unthinkable — tyranny — is upon us. We are running out of time. Only radical surgery will save the patient now.
Enter Dr. Mark Levin with his new book, "The Liberty Amendments: Restoring the American Republic". Levin is a Constitutional scholar — and he shines. He argues passionately that the federal government can be brought under control only if new limitations are thrust upon it by its citizenry. He proposes a Constitutional convention, not one called by Congress but one impaneled by two-thirds of state legislatures, and which would require a three-fourths margin to pass any new amendments. It is the lesser known of the two options provided by Article V of the Constitution.
What should a Constitutional convention tackle? Levin offers eleven amendments for consideration, with appropriate subdivisions, each carefully researched and each designed to reduce the power of the state.
Term limits for Congress is the first liberty amendment Levin offers. It is my view also the most important. Only when there are limits (12 years of service) will Congress be populated by men and women driven only by the call to service, not the siren song of power. The millions delivered by special interests for the re-election of incumbents who, in turn, reward said interests with billions in grants, contracts, tax shelters and the like — will cease.
Levin calls for other limitations on Congress. He proposes an amendment to limit federal spending and another to limit taxation, the combination, which will restore fiscal sanity while devolving power from the state. He offers an amendment to repeal the 17th Amendment, returning to the Article 1 mandate that Senators be chosen by their state legislators.
What about the Supreme Court? "(S)hould five individuals be making political and public policy decisions and imposing them on every corner of the nation ... as they pursue even newer and more novel paths around the Constitution in exercising judicial review?" Levin points to the obvious: Sometimes mistakes are made (Roberts, anyone?) and America shouldn't be punished for the rest of that jurist's life. He proposes 12-year term limits for them, as well.
What can be done to control, even reduce the size and scope of the bureaucracy? All federal departments and agencies must be re-authorized by Congress every three years or be terminated — that's what.
There's a liberty amendment to protect and promote free enterprise, now under vicious assault. One to protect private property given the ability of the federal government suddenly to steal it. Amendments to increase the power of the States, and finally, an amendment to protect the voting process.
Who would have thought any such amendments would ever be needed? And that's the point. Such is the nature of the crisis.
Levin quotes Tocqueville reflecting on the Constitutional Convention of 1776: "(I)t is new in history of society to see a great people turn a calm and scrutinizing eye upon itself when apprised by the legislature that the wheels of its government are stopped."
It is time for our legislatures once more to issue the clarion call
Levin hopes "The Liberty Amendments" will launch a national discussion, and it will. Levin is a consequential man, and this is a consequential book. Some critics will dismiss the concept out of hand. It is they who should be dismissed — unless they have bold new alternatives to propose. Nothing else is working, and nothing else will do. We have reached the tipping point.
L. Brent Bozell III is the president of the Media Research Center. To find out more about Brent Bozell III, and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.
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http://www.youtube.com/watch?v=RwN-uFCtXPs
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In his closing of upholding Obamacare as a tax, Chief Justice Roberts wrote: "...the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people." He did not elaborate on exactly how the people might prevent its implementation in the face of divided elections and divided government.
I contend that under the principle of consent of the governed, one congress cannot bind subsequent congresses to spend future monies. In fact, the entire budget process is a farce, is it not, if both chambers of Congress are required to reaffirm all programs of their predecessors, regardless of available funds, a changed electorate or changed circumstances.
President Obama and Majority Leader Reid are saying that the law passed and signed two congresses ago requires the House today to fully fund this program and all previously passed programs.
Can someone point to something in the constitution that resolves this dispute?
http://www.usconstitution.net/const.html
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If we are not a country of the rule of law, what are we? Since when are laws not binding?
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If we are not a country of the rule of law, what are we? Since when are laws not binding?
Is this a trick question? What laws bind Buraq Hussein Obama ?
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The meaning of your question is not clear to me either BD.
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Doug is wondering why a law would require an action. Until a law is repealed or superceded, it is binding, is it not?
If we are not a country of the rule of law, what are we? Since when are laws not binding?
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Doug is wondering why a law would require an action. Until a law is repealed or superceded, it is binding, is it not?
Thanks for the response. I agree that a valid law regulating or prohibiting or an activity is still in force until repealed, but is it lawful for one congress to require future congresses to spend future monies? I think not. The 111th Congress should not / cannot determine the spending priorities of the 113th Congress. That has no semblance of consent of the governed IMHO. The electorate changes and in this case so did control of one body of Congress. If the outcome is pre-determined, why is a vote on re-authorization required? And when a CR or budget is not passed, why does spending stop instead of continue based on un-repealed law?
[/quote]"If we are not a country of the rule of law, what are we? Since when are laws not binding?"[/quote]
Law that may not be binding:
1. Immigration laws strictly control entry, length and purpose of visit, etc. Now we have sanctuary cities, states, even a whole nation not subject to immigration laws, http://www.sanctuarycities.info/, and a President granting amnesty and citizenship without a bill from congress. http://blog.heritage.org/2013/08/30/obama-grants-amnesty-to-illegal-immigrants-without-congress/
2. Border Protection, Anti-terrorism and Illegal Immigration Control Act of 2005 required 700 miles of fence to be built. How is that going? http://www.washingtontimes.com/news/2013/jun/18/senate-rejects-border-fence/
3. The War Powers Resolution of 1973 is a federal law restricting the president's power to commit the United States to an armed conflict . Was this followed consistently, in Kosovo? Belgrade? Libya?
4. Congress shall make no law...abridging the freedom of speech? Yet campaign finance laws are loaded with abridgement. http://www.fec.gov/law/feca/feca.shtml
5. ... the right of the people to keep and bear Arms, shall not be infringed. http://www.atf.gov/content/firearms
6. Federal Marijuana Laws. Possession Any amount (first offense) misdemeanor, 1 year $1,000 max fine... http://www.cnn.com/2013/08/29/politics/holder-marijuana-laws/index.html No federal challenge to pot legalization in two states.
7. Congressional Budget and Impoundment Control Act of 1974 requires the Senate to pass its first budget by May 15. http://www.house.gov/legcoun/Comps/BUDGET.pdf Is that Sen. Reid in the orange jump suit??
8. The Affordable Care Act calls for the employer mandate to go into effect Jan 1 2014. The President unilaterally changed a passed law.
9. Griswold v. Connecticut and Roe v. Wade decisions recognize the Right of Privacy as the law of the land. ACA tromps all over personal privacy.
10. Eric Holder was held in Contempt of Congress? http://www.cnn.com/2012/06/28/politics/holder-contempt/index.html No arrest, no penalty.
Are we a nation of laws? It depends on which side is asking.
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An impressive list, Doug. Sincerely. Yet, with some of the list, we know that there are limits no matter what the wording of the Constitution.
You discuss free speech, but I don't think that you really want unlimited free speech, no matter what the exact wording of the Constitution may be. Libel? Slander? Child pornography? I'll take the limitations.
On the War Powers Act, one rather large difference between it and the ACA is only one of these two laws has been taken to the SCOTUS. And when that law was taken there, the court upheld most of the provisions.
I think you know how I feel about the second amendment and privacy, so I won't address those again, here at least.
As for the rest of the list, am I to understand that your primary argument is that since other laws are ignored/not enforced, the nation as a whole should be become scofflaws? If I understand this argument correctly, I rephrase my question: should we not be a nation of law?
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I don't think that you really want unlimited free speech, no matter what the exact wording of the Constitution may be. Libel? Slander? Child pornography? I'll take the limitations.
I'll take those limitations too. But do I want political speech? Yes, as long as I don't have to listen to it all.
...am I to understand that your primary argument is that since other laws are ignored/not enforced, the nation as a whole should be become scofflaws?
No, and I see it appears that way. My primary argument is what I stated first, rephrased here, is that the jurisdiction of the 111th Congress when it comes to appropriations should be to pass laws about how money will be spent during their time in temporary, limited, constitutional power, not attempting as they did to bind future congresses to their priorities.
I think they confuse their laws with constitutional provisions and amendments. If the 1974 Budget Act that requires the first Senate budget for Oct. 1 to be passed by May 15 was to be binding on Harry Reid in 2009-2013 for example, then it should have been passed as a constitutional amendment under a wholly different process.
I rephrase my question: should we not be a nation of law?
We are a nation strangling in laws. If you asked me if we should be a nation of far fewer laws, where all of them conform with a careful reading of the letter and spirit of our constitutional limits on federal powers, then I would wholeheartedly agree. Back to ACA and the idea that a one-time, simple and temporary majority shall forever control its citizens with forced appropriations and over 27,000 pages of law detailing the most personal and minute aspects of our lives, shall we be a nation of tyranny? I say No.
Congress has the power of appropriations and that power is checked and renewed with every election, IMHO.
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"But do I want political speech?" Defined as speech or "speech"? The phrase "money talks" is not literal. If money is speech, why all the concern over George Soros's "speech"? Or is it, like you suggest, in effect that laws are in the eyes of the beholder?
Future congress's are not bound by the 1974 Budget Act or the ACA. But I repeat: Until a law is repealed or superceded, it is binding, is it not?
"We are a nation strangling in laws. If you asked me if we should be a nation of far fewer laws, where all of them conform with a careful reading of the letter and spirit of our constitutional limits...". I don't think we disagree here. In fact, as you might recall, I've posted several times about the hopes that Congress would meet its constitutional requirements rather than delegating power to the president (whomever that may be... is this where we differ?).
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Bigdog asks,
"I rephrase my question: should we not be a nation of law?"
Of course.
But I would add and emphasize for Republicans,
We should also be a nation of laws AND strive to apply those laws *equally to all*.
Not simply expand the number of laws into complexity akin to billions of iterations of DNA.
When we now have Democrats even admitting at the Federal level to passing laws they don't, can't read then we don't have order, we have confusion, ignorance, politicization, corruption, and a country that is mired in gobbly goop.
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Democrats are not solely responsible for the politicalization, confusion, and ignorance of the process.
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"Democrats are not solely responsible for the politicization, confusion, and ignorance of the process"
No but they certainly bare more responsibility for it.
As for Republicans who seem to believe in social engineering (as Newt put it), it is time for them to be held accountable.
That is what the Tea Party is all about.
Time for them to stop the phony talk and time to start the walk.
If Republicans can address the insane proliferation of laws and their complexity and strive to have them streamlined with the goal of applying them equally to everyone they might actually pick up a few more votes.
Democrats won't address this. They wouldn't even admit to it.
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http://www.washingtonpost.com/lifestyle/magazine/the-question-facing-ruth-bader-ginsburg-stay-or-go/2013/10/04/4d789e28-1574-11e3-a2ec-b47e45e6f8ef_story.html?tid=pm_lifestyle_pop
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In Bush v. Gore she emphasized deference to the FL court. First time I ever knew her to care about states rights, but there are plenty of times she emphasized federal power over the states. We argued in class about National League of Cities v. Usery.
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http://nationalreview.com/article/360228/origins-origination-clause-andrew-c-mccarthy
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"But do I want political speech?" Defined as speech or "speech"? The phrase "money talks" is not literal. If money is speech, why all the concern over George Soros's "speech"? Or is it, like you suggest, in effect that laws are in the eyes of the beholder?
Future congress's are not bound by the 1974 Budget Act or the ACA. But I repeat: Until a law is repealed or superceded, it is binding, is it not?
"We are a nation strangling in laws. If you asked me if we should be a nation of far fewer laws, where all of them conform with a careful reading of the letter and spirit of our constitutional limits...". I don't think we disagree here. In fact, as you might recall, I've posted several times about the hopes that Congress would meet its constitutional requirements rather than delegating power to the president (whomever that may be... is this where we differ?).
Bigdog, good stuff. I was out vacationing on the shores of mighty Lake Superior, seeing peak colors of autumn and other of nature's magnificent wonders.
Where I wrote 'political speech' I meant 'unlimited political speech' which I think you correctly interpreted to mean I was questioning or favoring unlimited money in political speech at least in the case of legitimate players, citizens and their associations and representatives. I have to look into the point about George Soros. What I see is that he is an American citizen since 1961 which means I think he is a legitimate political player with all recognized rights. Just misguided.
Money is speech in this sense: If you look backward over the last quarter century or more, I'm sure every serious US Senate candidate in every state would tell that the additional political speech that can make a difference in their election is measured in dollars needed to buy enough television time to get out their message out to their potential voters. Talking to yourself or in an unpublicized, unreported event doesn't do it. I sense you disagree so this is a big topic of its own, perhaps for another day.
BD: "Future congress's are not bound by the 1974 Budget Act or the ACA. But I repeat: Until a law is repealed or superceded, it is binding, is it not?"
On the first part, I think you are confirming my original point. And what I am asking is, what can we point to in the constitution to show that this congress is not bound by those acts of previous congresses?
On the second part of that point, I'm not sure what you mean. It is still a law; the 1974 Budget Act wasn't repealed or superceded, but it was ignored. I think we are both saying that the 93rd and 111th Congresses cannot bind the actions and spending of 113th Congress.
Relating to fewer laws with closer observance to constitutional limits, BD wrote: "I don't think we disagree here. In fact, as you might recall, I've posted several times about the hopes that Congress would meet its constitutional requirements rather than delegating power to the president (whomever that may be... is this where we differ?)."
No, I think we agree there as well. The IRS is writing tax laws, EPA is writing environmental laws, the ACA is giving "Secretary" all this discretionary, law making power. These are all congressional powers and constitutional responsibilities and it is wrong that they are given to or taken by these agencies of the executive branch. The question of how to end those wrongful practices is one of the great challenges we face.
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Doug: I hope you enjoyed the vacation and it is good to have you back. This is an insane week for me, so I won't be able to do your post justice, and I am unsure when/if I'll be able to get back to it.
Saying that, we do disagree on the money. Something that leads to speech isn't speech. Driving to a convention isn't speech... but driving, as many like to say is a privilege not a right, even if the act means you will be at a place where thousands can hear your voice. The right to speech is not the same as having a right to be heard.
I am glad to see your concluding thoughts. As always, I appreciate your thoughts.
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So, if you are interested in small government your message can be ignored/distorted/vilified by the MSM while they act as an official part of your political opponent's information operation.
Just suck it up and hope your tax audits come out ok, right?
Free speech!
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Bigdog has made the point from time to time that conservatives too like to bend the constitution to meet their needs. Obviously money is not speech in the precise words of the framers. Nor is your ability to travel to your speech.
But if those are not enumerated rights, wouldn't they most certainly be unenumerated rights? The government does not owe you a car, a driver's license, a podium, microphone or an hour of television time to accommodate your speech, but certainly they can not curtail your mobility for the sole reason that your travel is related to political speech. If you have the right and the ability to spend unlimited money on television time to sell laundry soap, certainly you have the right to do the same for political speech.
Speaking of laws unenforced, what law prevents IRS targeting, the official act of bureaucrats and political conspiracies choosing which political speech to limit in order to swing political elections? I would argue is banned in the equal protection clauses. And whose constitutional responsibility is it to enforce these protections? I would argue it is the executive branch, most likely in the duties of the Attorney General of the United States. What are the consequence of the executive branch not enforcing our laws? None. In fact, if you attack them they will spend unlimited amounts of their money and also public resources to come and destroy you. And you cannot spend unlimited amounts of money fighting back. Tyranny, and it all started with the people and their representatives ignoring the words and spirit of our founding documents.
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"The right to speech is not the same as having a right to be heard."
Of course, however to say this is not to say that the government can BLOCK you from being heard i.e. denying you raising money so you can be heard.
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second post:
Here's another case focused on whether taking/denying people money matters:
How Prosecutors Rig Trials by Freezing Assets
Is it fair to seize all a defendant owns without showing its criminal source? The Supreme Court will rule.
By
HARVEY SILVERGLATE
On Oct. 16, the Supreme Court will hear oral arguments on a claim brought by husband and wife Brian and Kerri Kaley. The Kaleys are asking the high court to answer a serious and hotly contested question in the federal criminal justice system: Does the Constitution allow federal prosecutors to seize or freeze a defendant's assets before the prosecution has shown at a pretrial hearing that those assets were illegally obtained?
Such asset freezes often prevent a defendant from hiring the trial counsel of his choice to mount a vigorous defense, thus increasing the likelihood of the government extracting a guilty plea or verdict. Because asset forfeiture almost automatically follows conviction, a pretrial freeze ultimately enables the Justice Department to grab the frozen assets for use by executive-branch law enforcement agencies. It is a neat, vicious circle.
What crimes are the Kaleys charged with? Kerri Kaley was a sales representative for a subsidiary of Johnson & Johnson JNJ -0.70% . Beginning in 2005, the fedsin Florida investigated her, her husband Brian, and other sales reps for reselling medical devices given to them by hospitals. The hospitals had previously bought and stocked the devices but no longer needed or wanted the overstock since the company was offering new products. Knowing that the J&J subsidiary had already been paid for the now-obsolete products and was focused instead on selling new models, the sales reps resold the old devices and kept the proceeds.
The feds had various theories for why this "gray market" activity was a crime, even though prosecutors could not agree on who owned the overstocked devices and, by extension, who were the supposed victims of the Kaleys' alleged thefts. The J&J subsidiary never claimed to be a victim.
The Kaleys were confident that they would prevail at trial if they could retain their preferred lawyers. A third defendant did go to trial with her counsel of choice and was acquitted. But the Justice Department made it impossible for the Kaleys to pay their chosen lawyers for trial.
The government insisted that as long as the Kaleys' assets—including bank accounts and their home—could be traced to the sale of the medical devices, all of those assets could be frozen. The Kaleys were not allowed to go a step further and show that their activities were in no way criminal, since this would be determined by a trial. But the Kaleys insisted that if the government wanted to freeze their funds, the court had to hold a pretrial hearing on the question of the legality of how the funds were earned.
The Kaleys complained that the asset freeze effectively deprived them of their Sixth Amendment right to the counsel of their choice—the couple couldn't afford to hire the defense that they wanted. Prosecutors and the trial judge responded that the Kaleys could proceed with a public defender. This wouldn't have been an encouraging prospect for them, for while public counsel is often quite skilled, such legal aid wouldn't meet the requirements the Kaleys believed they needed for this complex defense. Choice of counsel in a free society, one would think, lies with the defendant, not with the prosecutor or the judge. (The Kaleys' chosen trial lawyers have agreed to stick with the case during the pretrial tussling over the asset-freeze question, but trying the case before a jury would be much more expensive and would require the frozen funds.)
Federal asset-forfeiture statutes like the one the Kaleys are fighting are actually a relatively recent invention. Before 1970, when Congress adopted the first provisions seeking to strip organized-crime figures of ill-gotten racketeering gains, there were no such laws (with the exception of the Civil War-era Confiscation Acts providing for the forfeiture of property of Confederate soldiers).
Since 1970, however, such federal statutes have expanded to cover a breathtaking number of crimes, from the sale of fraudulent passports and contraband cigarettes right up to murder and drug trafficking. An authoritative treatise, the 4th edition of the encyclopedia "Federal Practice & Procedure," asserts that federal forfeiture is now available "for almost every crime." In January, the New York Times quoted Manhattan U.S. Attorney Preet Bharara as saying that asset forfeiture is "an important part of the culture" and "an example of the government being efficient and bringing home the bacon." In 2012 alone, federal prosecutors seized more than $4 billion in assets. The Justice Department is allowed by law to put that bacon to use however prosecutors wish—to pay informants, provide snazzy cars to cooperating witnesses, whatever.
The Kaleys are hardly alone. The recently completed prosecution of Conrad Black indicates starkly how such seizures can torpedo a defendant's chance of getting a fair trial. In his 2007 high-profile case, Mr. Black, a former newspaper publisher indicted for alleged fraud and related crimes in the sale of Hollinger International, endured a federal freeze of his major unencumbered asset, the cash proceeds from the sale of his New York City apartment. That freeze prevented him from being able to retain the legal counsel upon whom he had relied before the asset freeze.
Mr. Black ultimately was convicted on two counts, winning on all the others in a shifting array of counts that numbered more than a dozen. Last year, having served his 42-month prison sentence, he filed a petition in federal court seeking to vacate his convictions on the ground that the government's asset-forfeiture tactics had deprived him of his counsel of choice. That effort foundered when the judge concluded that Mr. Black's trial counsel—not his counsel of choice, it must be noted, but rather the counsel he could afford after the asset freeze—had failed to properly raise and hence preserve the issue for later appellate review.
The Supreme Court has now threatened to upset the game that is so lucrative for the government and disabling for defendants. On March 18, the court agreed to consider the Kaleys' claim that the asset freeze without a hearing on the merits of the underlying criminal charge violated their constitutional rights. At oral argument in mid-October, the broader question will be whether, after four decades of federal asset seizures, the high court will put a freeze on the Justice Department.
Mr. Silverglate, a Boston criminal defense and civil liberties lawyer, is the author, most recently, of "Three Felonies a Day: How the Feds Target the Innocent" (Encounter Books, updated second edition 2011).
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How Internet Censorship Actually Works in China
Studies show that the government permits some dissent online—but strikes down hard on calls for collective action.
http://www.theatlantic.com/china/archive/2013/10/how-internet-censorship-actually-works-in-china/280188/
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WSJ excerpted: On Tuesday, the Justices agreed to review how far the agency can go in regulating greenhouse gases under the Clean Air Act.
In Utility Air Regulatory Group v. EPA, the Court consolidated six cert petitions and will consider a single legal question: Does the EPA's authority under the Clean Air Act to regulate greenhouse gas emissions from "mobile sources" like cars also apply to emissions from "stationary sources" like power plants?
...
Regulatory agencies don't have the power to rewrite laws on their own without the authority granted by Congress. (more at: http://online.wsj.com/news/articles/SB10001424052702304106704579137431281832884?mod=WSJ_Opinion_AboveLEFTTop)
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Unlike the Obamacare decision, this is not a question of federal government power, it is a question about federal agency power beyond congressional authorization.
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Dershowitz throws the Constitution, figuratively, at Ted Cruz
National Constitution Center
By NCC Staff 7 minutes ago
Harvard law professor Alan Dershowitz, a noted liberal, threw the Constitution figuratively at GOP Senator Ted Cruz on Tuesday night, as tensions flared in the debt-ceiling debate.
Ted Cruz
As of Wednesday morning, Democrats and Republicans were still trying to make a deal before a Thursday deadline set by the Treasury Department as a milestone for when the federal government lacked the ability to borrow money.
The so-called “debt ceiling” might, in turn, cause the government to partially default on its public debt, since the Treasury Department won’t have enough cash to pay all its bills.
The nonpartisan Bipartisan Policy Council has set a date range between October 22 and November 1 for the default, if a debt-ceiling deal can’t be reached.
Alan Dershowitz appeared with Bill Richardson, the former New Mexico governor, with CNN host Piers Morgan to discuss what negotiation tactics could be used in Congress.
Instead, Dershowitz had harsh words for Cruz, his former law student at Harvard, whom he had praised this spring.
Cruz had led the fight for the GOP’s conservative wing to scale back or repeal the Affordable Care Act, or Obamacare, and to cut back government spending in general. He is also blamed or praised, by some, for helping facilitate the federal government shutdown as a protest against Obamacare and for his leadership role in seeking concessions from Democrats in any debt-ceiling deal.
After praising Cruz as a student, as he had done earlier this year, Dershowitz leveled some harsh claims against him.
“He has to qualify among the brightest of the students,” Dershowitz said, who added that Cruz is deeply principled.
But when it came to the shutdown and debt-ceiling fight, Dershowitz made his case.
“I think it raises very serious constitutional questions of the kind that Ted Cruz should be interested in. Could you imagine Hamilton and Madison sitting around and drafting the Constitution and the Federalist Papers. They’re talking about how the government has to pay its debts, how it has to secure the credit of the United States, how the House of Representatives to originate bills on revenue. Nobody in a million years would have contemplated the power of Congress to shut down the government, to create doubts about our creditworthiness,” he said.
“I think you can make a very strong argument that what Ted Cruz is doing is deeply unconstitutional. Whether a court would accept that or say it’s a political question is another issue, but Cruz is a principled man. He ought to look at the Constitution and look into his heart and ask himself, ‘What would Alexander Hamilton have done,’” Dershowitz said.
The comments quickly found their way to the Internet and got an equally quick response from author and radio show host Mark Levin.
“Dershowitz is dead wrong. We don’t have to imagine anything,” he told the Newsbusters website. “Congress and only Congress can authorize borrowing under Article I. The president must first pay interest on the debt under the 14th Amendment. The federal government collects 10 times as much revenue each month as it needs to cover those payments. As long as the president complies with the Constitution there can be no default. This is basic stuff. Even a Harvard law professor like Dershowitz should comprehend it.”
Cruz has emerged as the most talked-about figure in the Washington budget battle, and he might be at the center of another constitutional test, as any final bill that goes through the Senate will need to survive a cloture vote, with at least 60 senators agreeing to overcome a filibuster to bring a bill up for a vote.
As of Wednesday morning, there were reports that a deal was struck with John Boehner, the House’s speaker, to have the proposed Senate compromise voted on first by the House, which would limit potential efforts by Cruz, Mike Lee, and other conservatives to extend debate time in the Senate.
Cruz hasn’t publicly indicated if he would try to block or slow down the bill in the Senate. But there are estimates that delays in the Senate could push the bill’s passage closer to this weekend, and several days past the Thursday deadline for borrowing.
Recent Constitution Daily Stories
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http://www.newyorker.com/online/blogs/comment/2013/10/will-the-supreme-court-help-shut-down-dc.html
From the article:
But the issue is enormously important, and the National Labor Relations Board shows why. Republicans have always loathed the N.L.R.B., but, before Obama, a Democratic President’s nominees were almost always either confirmed or rejected. Not anymore. Wielding the filibuster, Republican minority in the Senate refused to allow the confirmation votes on Obama’s nominees to the N.L.R.B. The President responded with recess appointments. As has been customary in recent years, some of those recesses were between congressional sessions and some were brief recesses during sessions. The Noel Canning company argued that the Constitution did not recognize intra-session recesses but, rather, only inter-session recesses.
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http://www.lawfareblog.com/2013/10/the-data-on-fisa-warrants/
From the article:
Now we know: the Foreign Intelligence Surveillance Court bounces a quarter of the government’s applications for surveillance orders. This according to statistics released this week by the court’s chief judge, Reggie Walton, in a letter to Senator Patrick Leahy, Chairman of the Senate Judiciary Committee. It also turns out the FISA Court is tougher on the government’s applications for orders designed to get foreign intelligence sitting on U.S. circuits than are the federal courts with respect to government applications for traditional wiretap warrants, which are mostly directed against U.S. citizens and permanent residents. But you wouldn’t know that from the media, because the media haven’t reported it.
Here’s the story.
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Ummm , , , could that be because the data hasn't been reported until just now?
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Ummm , , , could that be because the data hasn't been reported until just now?
No. Later in the article I posted: "You can find that comparison in Judge Walton’s letter—it’s in footnote 6—and the information has always been available through the Administrative Office of the United States Courts for any journalist who isn’t afraid of numbers. "
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Well then, that things are not as bad as feared is a good thing.
That the media is lazy is not a new thing.
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http://www.scotusblog.com/2013/10/appeals-court-limits-gps-tracking/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+scotusblog%2FpFXs+%28SCOTUSblog%29
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http://patriotpost.us/articles/21444
Judicial Benchmarks: Federalism at the High Court
Nov. 5, 2013
A big constitutional law battle is about to reach its climax – a battle between the Supremacy Clause of the Constitution and the Tenth Amendment. The Supremacy Clause (Article VI, Clause 2) states, “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” The Tenth Amendment reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The Tenth Amendment was intended to assure ratifying States that the powers of the federal government were limited and would not displace powers and areas of law traditionally belonging to the States. However, with an ever-expanding federal government, there have been increasing clashes of federal and state law. For example, real property and land use laws traditionally are within the bailiwick of the States. However, state control of this area is increasing displaced by federal environmental laws and regulations through the process of preemption.
Preemption has its roots in the Supremacy clause and has been interpreted to mean where the federal and state governments are attempting to regulate the same conduct, state law will be given deference unless Congress has demonstrated a clear and manifest purpose to displace state law.
The place of treaties in the Supremacy Clause has been open to debate. Are they at the same level as the Constitution? Are they separate and apart from the Constitution? If they are, could the United States, under treaty law, be required to perform an unconstitutional act? For example, the Second Amendment recognizes the citizens' right to bear arms. Nevertheless, this September, Secretary of State John Kerry signed the UN Arms Trade Treaty, which seeks to control the international transfer of firearms, parts and ammunition.
Soon, we may receive some enlightenment in this muddy area. This week, the Supreme Court heard arguments in Bond v. U.S., a case involving Pennsylvania resident Carol Bond, who spread a toxic chemical on the car and mailbox of a friend who had an affair with her husband. The chemical did minimal harm despite her clear intent to do so. This should have been a problem handled by Pennsylvania law, but the Feds charged Bond with violating the chemical-weapons convention that the Senate ratified in 1997. Unbelievably, she was convicted of waging chemical warfare. (Too bad Vladimir Putin didn't intervene to protect Bond as he did Syria's Bashar al-Assad.)
This is Bond's second trip to see the Supremes. Two years ago, they ruled 9-0 that Bond could challenge her conviction under the Tenth Amendment. However, on remand, the lower courts still upheld her conviction.
Limited federal powers were of paramount importance to the Framers of the Constitution. Before ratification of the Constitution, each State was considered a separate state, a nation under international law, joined in a confederation. They jealously guarded these rights by limiting the powers of the new federal government while retaining those powers not ceded to the federal government to themselves through the Tenth Amendment. The Framers surely didn't intend that treaties would be used to end-run constitutional restraints under guise of the Supremacy Clause. Yet Bond may have an upstream fight. Among those filing friend of the court briefs in favor of the government's position are Professors of International Law and Legal History and Former State Department Legal Advisers. Let's hope the view of the Framers is upheld by the Supreme Court.
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This might go here: http://www.lawfareblog.com/wiki/the-lawfare-wiki-document-library/war-powers/
I'm not sure there is a "perfect" thread for this.
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Constitution Check: Is devotion to the Constitution destroying democracy?
National Constitution Center
By Lyle Denniston 2 hours ago
Lyle Denniston looks at a claim that interpreting an old document, like the U.S. Constitution, is a doomed attempt to apply outdated legal principles.
theconstitutionTHE STATEMENT AT ISSUE:
“Professor Neuborne describes this dysfunctional democracy very well, but he does not give the real reason for that dysfunction – the reverence for the United States Constitution. Each of the Supreme Court’s iniquities he lists is based on the interpretation by five of nine high priests of increasingly irrelevant documents written by wealthy white men in an unimaginably different and distant world.”
– Michael Gorman of Chicago, a native of Great Britain, as quoted in The New York Times on November 10. He was one of several writers engaging in a dialogue with New York University law professor Burt Neuborne over the professor’s complaint about harm done to American democracy by a series of modern Supreme Court rulings. The full exchange can be read here.
http://www.nytimes.com/2013/11/06/opinion/invitation-to-a-dialogue-democracy-gone-awry.html?_r=0&adxnnl=1&adxnnlx=1384171630-7yEFDKkFT5rO5TOK1yVMsA
WE CHECKED THE CONSTITUTION, AND…
One of the fundamental issues that deeply divides the nine Justices now serving on the Supreme Court is the proper way to interpret the Constitution’s meaning for today’s world. Some of the Justices believe that the key is the “original meaning” of the document – that is, as it was understood in 1787. Others believe that the document is a “living Constitution” that is adaptable to changing times and thus acquires new meaning from time to time.
No one expects that disagreement ever to be finally resolved. At the same time, all of the Justices agree that the Constitution embodies enduring principles, and that it is the duty of judges in this country to apply them. Even a sincere devotion to those principles, though, is bound to produce disagreements about their contemporary meaning.
What is often misunderstood about the process of constitutional reasoning is that the Constitution itself does not provide all of the necessary answers to any legal problem that turns on enduring principles. No document, and certainly no legal document, can always be understood by its literal meaning. Words are means of expressing ideas, and the same words can mean different things to different judges.
Take, for example, the words of the First Amendment, declaring that “Congress shall make no law….”, etc. Does that mean that the Amendment only restricts Congress in the use of its powers? The Supreme Court interpreted it that way – until 1925. In the decision that year in Gitlow v. New York, the Court began applying the idea that at least some parts of the Bill of Rights restricted the powers of state governments, too. (Some scholars say that this process actually got its start in 1897.)
That process has continued, off and on, since then. Most recently, in 2010, the Supreme Court ruled for the first time that the Second Amendment “right to keep and bear arms,” when understood as a personal right to have a gun, applied to state and local gun control laws, too.
What’s the explanation for that process? The Court interpreted the 14th Amendment’s guarantee of “due process” – two words that are inherently indefinite – to embrace certain fundamental rights, so that the states and local governments, as well as Congress, had to respect and enforce them.
At a more basic level, this process also reflects the very nature of law. Law is the means by which a society keeps order, and a society would be in constant anarchy if the people could not count on the law being relatively stable. If law is developed in a sound way, that stability reflects how a well-ordered society should be run, by more or less common agreement.
But stability does not mean that legal principles are frozen in time. There was a time, for example, when petty theft could bring a death sentence. As more civilized ways of resolving property disputes developed, and as community policing brought more civic order, such punishment was seen as too harsh. In American constitutional history, this kind of changing perception is reflected in the way that the Eighth Amendment’s ban on “cruel and unusual punishment” has evolved over time. As one example, it is now unconstitutional to execute a minor even for murder.
As the British native Michael Gorman suggests, in his comment quoted above, some critics of American constitutionalism seem to believe that interpreting the old document means a doomed attempt to apply outdated legal principles.
But even in his own native land, there is such a thing as the “British constitution,” embodying fundamental legal norms, even though it is not written down in the same way as the U.S. Constitution is. Law in Britain is the accumulation of the “common law,” as it has been developed by judges over time, supplemented by parliamentary legislation. British courts still respect some parts of the Magna Carta, even though it dates from 1215.
And, for the past four years, Britain has been imitating – to a degree – the U.S. model of a Supreme Court. The United Kingdom Supreme Court was created by an act of “constitutional reform” in 2005, and began work four years later. Its power to overturn laws is not as extensive as that of the American court, but it does have significant power to determine law for Britain.
The very idea of a supreme court, of course, is that, somewhere in government, the power to interpret basic legal commitments and promises must be lodged. The American experiment, now more than two centuries old, shows that this power of interpretation should not be left to the elected political branches.
Perhaps one can attempt to dismiss devotion to the constitutional idea of judicial review as sentimental “reverence,” but it is more properly understood as a good faith belief in abiding principles of justice and equality. Perhaps more importantly, it has shown that judicial power can be exercised along with democratic government.
Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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Interesting hypothetical, but I haven't seen any signs of devotion to the constitution, nor do we live in a Democracy.
The consitution IS living and breathing in the sense that it includes an amendment process.
I went to City Hall a few years ago to ask them to up hold their own laws and found out that the city was not governed by City Code, but the precedent of all the variances already granted by the council, allowing people to get around the laws as written instead of changing the law.
That same process was on display in the Supreme Court as they rationalize the basis for the Obamacare decision. This type of governance was UNTHINKABLE at the time of the framing and things have not changed so much that we now need Orwellian governance, while giving lip service to upholding a constitution with specific limits on federal government power.
Too bad that so many critics of the constitution happen to be Justices on the Supreme Court.
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I thought someone (BD?) posted to the effect that this cause of action had been accounted for, but from the looks of this , , , maybe not:
http://www.tpnn.com/house-members-file-brief-backing-origination-clause-court-challenge-to-obamacare/
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I think it was Doug. It appears to be in a different circuit (DC this time; 2nd (I think) in the first case).
I thought someone (BD?) posted to the effect that this cause of action had been accounted for, but from the looks of this , , , maybe not:
http://www.tpnn.com/house-members-file-brief-backing-origination-clause-court-challenge-to-obamacare/
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http://dogbrothers.com/phpBB2/index.php?topic=1850.msg75155#msg75155
http://dogbrothers.com/phpBB2/index.php?topic=1850.1100
Origination case was dismissed in DC District Court:
Matthew Sissel v. Dept HHS The origination case was dismissed by US District Court Washington DC. The House had passed a shell bill, not a tax, and then went back and inserted Obamacare into it. 'Inelegant', but legal. (Not in my view.) http://blog.pacificlegal.org/wordpress/wp-content/uploads/2013/07/SisselDismissal.pdf
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It certainly did NOT originate in the House, but likely falls under the Roberts Doctrine:
If you can find a way, no matter how irrational or contorted, to uphold an action of the legislative branch creating new government powers not authorized by the framers and stomping on individual liberties, then you, the Chief Justice and swing vote of the United States Supreme Court, must do so.
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[youtube]http://www.youtube.com/watch?v=ZbsPmaKYmtc[/youtube]
From last week.
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http://www.c-span.org/Events/Supreme-Court-Justice-Speaks-at-American-Constitution-Society-Conference/10737431611/
From last year.
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Man... you guys are going to "love" this:
http://www.scotusblog.com/2013/11/scotus-for-law-students-sponsored-by-bloomberg-law-gambling-on-personal-jurisdiction/
From the article:
But personal jurisdiction is exactly what the Supreme Court will consider on Monday, when it hears oral arguments in Walden v. Fiore. At issue in the case is whether Fiore and Gipson can sue a Georgia police officer working as a Drug Enforcement Administration (DEA) agent in federal district court in Nevada for seizing their funds without probable cause and holding the money for more than six months before it was returned to them.
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How would you assess this case BD?
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As the officer in question was doing the work of the DEA, it seems to me that the original 9th circuit panel got it right. That said, I am going to ask a friend who has a practice in this (approximate) area who I hope to have a discussion with.
GM, do you have any thoughts on this?
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How would you assess this case BD?
Had the talk with the lawyer friend. His assessment is that because the GA officer was personally named the case is "crap." Had the two kept to named the DEA, for example, then the case has merit. He also noted his great interest in the amici filed (seen here: http://www.scotusblog.com/case-files/cases/walden-v-fiore/), in particular the one offered by the Federal Law Enforcement Officers Association.
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Just skipped through the amicus from FLEOA. It makes sense that allowing for what would be an open door for venue shopping would be chaos.
I'm not sure why suing the officer in question ruins the civil action, if indeed the officer acted in bad faith. I don't think the DEA would have much liability unless it could be shown he was told to write bad faith affidavits by them.
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How would the Supreme Court play in Peoria? And would some of the justices need a map to find it?
The good people of the city of 115,000 in central Illinois — remember that, for later — might be a bit puzzled as to how they ended up in the middle of the court’s consideration Wednesday of the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
Justice Sonia Sotomayor started it all, and those who criticize the justices as too similar in geographic background and too East Coast-centric might find fodder in the oral arguments in Lozano v. Alvarez. It concerned the treaty’s mandates about a parent who abducts a child and conceals the whereabouts from the other parent.
“My gosh, all it takes is moving to Peoria?” Sotomayor said, seeming to pluck the city out of the air. She paused as she considered whether that came out wrong.
“I mean, I don’t mean to denigrate Peoria, but all it takes is moving to a place that has no connection to . . .”
Justice Antonin Scalia cut in before she could finish to enlighten the lawyer at the podium.
“Justice Sotomayor is from New York,” said Scalia, who was raised in Queens.
“Yes, obviously,” said Sotomayor, who grew up in the Bronx. “Obviously.”
There was laughter in the courtroom, and then Chief Justice John G. Roberts Jr. broke in.
“Those of us from the Midwest think it’s actually easier to hide a child in New York,” said Roberts, who spent most of his childhood in Indiana.
Justices Ruth Bader Ginsburg (Brooklyn) and Elena Kagan (Upper West Side of Manhattan) held their peace.
That might have been the end of it, except for Justice Stephen G. Breyer.
Breyer grew up in San Francisco and came to the Supreme Court via the appeals court in Boston. In fact, all but one of the former judges now on the court served on one of the “Acela circuits”: Boston, New York, Philadelphia and Washington.
Breyer picked up Sotomayor’s hypothetical — and perhaps made matters worse.
In his embellished version, the mother and child “live in a grain elevator, a nicely refurbished grain elevator, in Peoria for a year.”
After that time, he speculated, a family judge might find that “the child is settled here now in Iowa.”
Members of the courtroom audience looked at one another, and Roberts seemed to shoot Breyer a warning glance. It was not received.
Later, Breyer hypothesized about the father finding the child “in Iowa” and a judge making a custody decision “under Iowa law.”
The actual case before the court involves a Colombian couple who met in London. The mother took her child from the United Kingdom and settled in the United States.
In New York.
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Peoria, Iowa. It is one thing to not know where a famous American city of 115,000 is. But he didn't not know; he knew wrongly. Makes one wonder what else Justice Breyer falsely believes is true.
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Florida Law on Drug Tests for Welfare Is Struck Down
By FRANCES ROBLES
Published: December 31, 2013
KEY WEST, Fla. — A federal judge on Tuesday struck down as unconstitutional a Florida law that required welfare applicants to undergo mandatory drug testing, setting the stage for a legal battle that could affect similar efforts nationwide.
Judge Mary S. Scriven of the United States District Court in Orlando held that the testing requirement, the signature legislation of Gov. Rick Scott, a Republican who campaigned on the issue, violated the protection against unreasonable searches.
“The court finds there is no set of circumstances under which the warrantless, suspicionless drug testing at issue in this case could be constitutionally applied,” she wrote. The ruling made permanent an earlier, temporary ban by the judge.
Mr. Scott, who had argued that the drug testing was necessary to protect children and ensure that tax money was not going to illegal drugs, said that the state would appeal the ruling.
“Any illegal drug use in a family is harmful and even abusive to a child,” he said in a statement. “We should have a zero-tolerance policy for illegal drug use in families — especially those families who struggle to make ends meet and need welfare assistance to provide for their children.”
Florida passed the measure in 2011, and the case was being closely watched by several other states, including Georgia, which passed similar legislation in 2013 but found it dogged by legal challenges. State data in Florida also showed that the measure produced few results. Only 108 out of 4,086 people tested — 2.6 percent — were found to have been using narcotics. State records showed that the requirement cost more money to carry out than it saved.
But as the country emerged from the recession, numerous states, powered by the strength of Republicans in many legislatures, sought to make welfare or unemployment checks contingent on drug testing. That is despite a 2003 federal court ruling in Michigan that struck down drug testing for welfare recipients because it amounted to an illegal search.
“In Michigan a number of years ago there was a court decision that had a chilling effect on these kinds of proposals,” said Grant Smith, policy manager of the Drug Policy Alliance, an organization that advocates more liberal drug-use laws. “This new ruling should give pause. We have seen a number of proposals continue to be put forward across the country, but the writing is on the wall that requiring people to submit to drug testing for no reason other than being poor and in need of assistance is not going to pass constitutional muster. It’s not fair, it’s not cost effective, and it’s unreasonable.”
Arizona passed a drug-testing requirement in 2009. Nine more states, including Florida, have passed such laws since 2011. At least 29 states debated such measures in 2013, but only two of the bills passed.
In Georgia, the law’s rollout was delayed pending the outcome of the Florida legal challenge. In North Carolina, Gov. Pat McCrory, a Republican, vetoed such a law. Although the Republican-controlled legislature overrode the veto, the governor has continued to object to the requirement, which he called costly and ineffective.
Tarren Bragdon, chief executive of the Foundation for Government Accountability, a conservative group in Naples, Fla., that focuses on health care and welfare policy, said the judge’s decision would most likely result in states around the country adjusting their laws so they could meet constitutional muster.
“I think what we are seeing is Florida pursuing a strategy of protecting kids by testing all applicants,” Mr. Bragdon said. “You’re going to see a shift in strategy of how to best protect kids in a constitutional way.”
For example, some states are now screening applicants and require drug tests only of those who appear to be drug users. “The decision is not that you can’t drug test applicants,” Mr. Bragdon said. “It’s that you can’t blanket drug test all of them.”
Tuesday’s decision stemmed from a 2011 suit filed by the American Civil Liberties Union of Florida and the Florida Justice Institute on behalf of a Central Florida resident, Luis W. Lebron, a Navy veteran and full-time student who had filed for public assistance. Mr. Lebron, who provided care for his disabled mother and was raising a young child as a single father, argued that it was unfair to require drug testing when no suspicion of drug abuse existed.
Judge Scriven agreed.
Howard Simon, executive director of the A.C.L.U. of Florida, said that “the courts are now signaling to politicians that they are not going to treat poor people as if they were exempt from constitutional rights.”
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I gotta right to your money!
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I gotta right to your money!
Also the other way around, we have no right to place strings on how our money is used. Is there not a right to turn down the money if the rules are too invasive? As suggested, we don't have a right to the money we earn, but when we don't earn enough we have an unfettered right to money of others.
More important than the merits is the question of who decides. One judge knows better than the sausage factory of self government - the people of Florida making mistakes and trying to correct them. Elected government is unfair and inefficient compared to proclamation by the elite.
What did Chief Justice John Roberts say, find a way to uphold legislative acts? Only when it supports larger government.
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http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/01/13/is-recess-over/
From the article:
There is much for the Supreme Court to ponder here, as Carl Cecere points out in a useful essay at Scotusblog. His post suggests that “original intent” is not so self-evident and that the history provides fodder for both sides. More recent opinion is split too: In 2004 the 11th Circuit Court of Appeals (responding to a Democratic challenge to a recess appointment made by Bush) upheld the appointment. The circumstances were different, since the Senate was indubitably in recess, but nor was it between sessions; that decision held explicitly that “the text of the Constitution does not differentiate expressly between inter- and intrasession recesses for the Recess Appointments Clause” (p. 8). On the other hand, in May 2013, the 3rd Circuit upheld the distinction, following the DC Circuit’s reasoning. So the question is certainly ripe for the Supreme Grammarians.
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http://www.bizpacreview.com/2014/02/05/justice-scalia-on-wartime-internment-camps-youre-kidding-yourself-if-you-think-it-wont-happen-again-98893
From the article:
U.S. Supreme Court Justice Antonin Scalia warned law students Monday evening that the high court could again authorize wartime internment camps like those seen in the U.S. during World War II.
While answering a question at the law school at the University of Hawaii about the 1944 Supreme Court case Korematsu v. United States – which upheld the use of Japanese-American internment camps – Scalia said that though the court’s decision was wrong, “[Y]ou are kidding yourself if you think the same thing will not happen again.”
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http://www.nationalreview.com/article/370441/nine-years-after-kelo-seized-land-empty-alec-torres
From the article:
Nine years after the Supreme Court’s Kelo decision gutted the right of American property owners to resist eminent-domain seizures, the neighborhood at the center of the case remains a wasteland.
Fort Trumbull in New London, Conn., was bulldozed to fulfill the vision of politicians and developers eager to create a New Urbanist mixed-use “hub” for upscale living in the depressed town near the mouth of Long Island Sound.
But after nearly a decade, the land is nothing but vacant urban prairie. After homeowners were forced off their property for the sake of “economic development,” the city’s original development deal fell apart, and the urban-renewal corporation that ordered the destruction has not found a developer to use the land.
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http://www.nationalreview.com/article/370441/nine-years-after-kelo-seized-land-empty-alec-torres
From the article:
Nine years after the Supreme Court’s Kelo decision gutted the right of American property owners to resist eminent-domain seizures, the neighborhood at the center of the case remains a wasteland.
Fort Trumbull in New London, Conn., was bulldozed to fulfill the vision of politicians and developers eager to create a New Urbanist mixed-use “hub” for upscale living in the depressed town near the mouth of Long Island Sound.
But after nearly a decade, the land is nothing but vacant urban prairie. After homeowners were forced off their property for the sake of “economic development,” the city’s original development deal fell apart, and the urban-renewal corporation that ordered the destruction has not found a developer to use the land.
Thank you for the update on this. This was a travesty before the planned development crashed. Five U.S. Supreme Court Justices should have been impeached and removed for this.
(http://www.ij.org/localmedia/images/clients/private_property/susette-kelo-22.jpg) (https://encrypted-tbn3.gstatic.com/images?q=tbn:ANd9GcTVIcNnJMAoyxvapSzLg93A4HgSi9qhONQ-diyMXuE8Z6WokOTY9g)
http://www.ij.org/kelo-v-new-london Susette Kelo house
(http://c3.nrostatic.com/sites/default/files/NewLondonEast.JPG)
(From BD's link above)
Pfizer to Leave City That Won Land-Use Case
http://www.nytimes.com/2009/11/13/nyregion/13pfizer.html
"Had I known all of what you just told us, I would have voted differently." - Connecticut Justice Richard N. Palmer
http://articles.courant.com/2011-09-18/news/hc-op-justice-palmer-apology-20110918_1_epilogue-justice-palmer-s-susette-kelo
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Robert A. Levy, Chairman of Cato, wrote last year on the limits of nullification:
http://www.cato.org/publications/commentary/yes-states-can-nullify-some-federal-laws-not-all
http://www.nytimes.com/2013/09/04/opinion/the-limits-of-nullification.html?_r=0
Are states required to enforce federal laws and enact regulatory programs that Congress mandates? The answer on both counts is “No.”
...
Since[Madison-Marbury], nullification attempts have failed on three occasions: In 1828, South Carolina tried to nullify two national tariffs. President Andrew Jackson proclaimed nullification to be treason; Congress authorized Jackson to send troops, and the state backed down. In 1859, the Supreme Court rejected nullification in Ableman v. Booth.
If a state deems a federal law to be unconstitutional... The remedy is a lawsuit challenging the constitutionality of the suspect federal regulation or statute.
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"With his decision declaring ObamaCare constitutional, Chief Justice John Roberts turned what F.A. Hayek called "The Road to Serfdom" into a super highway. The government all but owns us now, and can order us to do pretty much whatever it wants us to do." - Thomas Sowell
http://townhall.com/columnists/thomassowell/2014/02/11/random-thoughts-n1792776/page/full
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http://www.washingtonpost.com/politics/supreme-court-rules-in-favor-of-police-in-home-searches-without-objector-present/2014/02/25/7bc1bb6a-9e5a-11e3-b8d8-94577ff66b28_story.html
From the article:
“An occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason,” Justice Samuel A. Alito Jr. wrote for the majority.
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http://reason.com/blog/2014/02/27/supreme-court-expands-police-power-to-se
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http://www.powerlineblog.com/archives/2014/04/cass-sunsteins-april-fools-joke.php
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Stevens' Amendments
Retired Supreme Court Justice John Paul Stevens has a new book titled, "Six Amendments: How and Why We Should Change the Constitution." Naturally, coming from a leftist jurisprude like Stevens, the recommendations are a bit out of line with our Founders' vision. For example, Stevens' Second Amendment would be amended to read, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed." That, of course, would gut the real meaning of the right to keep and bear arms. He has other changes, including virtually dispatching with federalism. All in all, we're glad he's no longer on the bench, even if his replacement Elena Kagen also leaves much to be desired.
Marc: Apparently Justice Stevens is unaware of Title 10 Ssection 313 (hope I am remembering this correctly) about the unorganized militia.
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Constitutional right to flash your head lights gains momentum
National Constitution Center
By Scott Bomboy 14 hours ago
Should a driver have the legal ability to flash their head lights as an alert to a police presence on the road? That knotty legal question is gaining momentum after a legal decision in Missouri, an Oregon ruling, and a new effort in New Jersey.
New Jersey Assemblyman Ronald S. Dancer introduced a bill in March that would make the use of flashing high-beams at motorists legal under state law.
Proponents of the measure are citing a legal victory for the pro-high beam crowd in a federal court in Missouri from February, which was reaffirmed last week.
U.S. District Judge Henry E. Autrey had issued a preliminary injunction in February prohibiting the town of Ellisville from prosecuting drivers who allegedly flashed their vehicles’ head lights to warn of radar and speed traps. The city didn’t appeal the decision.
Last week, Judge Autrey expanded that decision to a permanent injunction.
The American Civil Liberties Union championed the case of Elli v. Ellisville. Last April, the ACLU of Missouri sued on behalf of Michael Elli, who was pulled over in 2012 by a police officer and issued a citation for flashing lights to warn of radar use ahead. Elli faced a $1,000 fine for flashing the lights.
“Expressive conduct is protected whenever a particular message is present and the likelihood is great that the message would be understood by those who viewed it,” said Tony Rothert, legal director of the ACLU of Missouri in a statement issued about the case. “Even new drivers understand that an oncoming car with flashing headlights means they should either slow down, turn on their headlights, or otherwise use caution.”
The Asbury Park Press reported on the New Jersey story on Tuesday and it interviewed attorneys familiar with the proposal. They seemed to agree on the constitutional point but were skeptical if a New Jersey motorist would mount a constitutional challenge to protest a $54 fine.
But it did bring up a case from the 1990s where a motorist went to court and won a verdict that threw out a fine for illegal headlight flashing. However, that court’s decision wasn’t binding or applicable to other cases.
And there have been other instances where head light flashers have won in court.
Last week, an Oregon man, Chris Hill, fought a $260 ticket for improperly using his head lights while driving a truck full of logs. Hill won his legal fight, and Hill acted as his own attorney in the proceeding.
“The citation was clearly given to punish the Defendant for that expression,” the judge said in the case. “The government certainly can and should enforce the traffic laws for the safety of all drivers on the road. However, the government cannot enforce the traffic laws, or any other laws, to punish drivers for their expressive conduct.”
In May 2012, Ryan Kintner from Lake Mary, Florida, successfully fought a citation for violating a state traffic law by using head lights as a warning signal. The judge said the flashing was protected under the First Amendment.
“I felt an injustice was being done. … I have nothing against officers … keeping speeding down, but when you cross a line and get into free speech, I feel it’s gone too far,” Kintner told the Orlando Sentinel during the lawsuit.
Back in New Jersey, the Newark Star-Ledger’s editorial board has endorsed Dancer’s measure, in opposition to the New Jersey Police Chiefs Association.
“At its core, this is a free speech issue,” the board said. “Police can’t prevent you from stopping at every gas station to sound the alarm about a speed radar, or starting your own blog about the locations of hidden cruisers. Look — it exists already on Twitter. They shouldn’t be able to prevent an altruistic citizen from flicking headlights, either.”
The importance of the free speech issue isn’t likely to go way, as people facing relatively small fines are willing to take their cases to court.
As we profiled last month, a Pennsylvania man spent thousands of dollars in legal costs to protest a $150 fine for evading questions asked to him by a game warden. He won a legal victory over his Fifth Amendment rights, which apparently conflicted with a Pennsylvania deer hunting statute.
Scott Bomboy is the editor in chief of the National Constitution Center.
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Out in my neck of the woods, people commonly flash headlights to warn of deer in the roadway.
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Guro, I think you will appreciate this:
http://www.washingtonpost.com/opinions/george-will-progressives-are-wrong-about-the-essence-of-the-constitution/2014/04/16/7c05aa00-c4ac-11e3-bcec-b71ee10e9bc3_story.html
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You are right, excellent read!-- Though I would quibble about the point at the end about judicial activism/imperialism-- which properly defined is when judges substitute their personal politics (usually progressive) for the law.
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Didn't he vote against OBAMA CARE. How come THAT is not mentioned. Only the darn liberal issues are even mentioned:
*****Justice Stevens: Make 6 changes to Constitution
Associated Press
By MARK SHERMAN 10 hours ago
FILE - In this May 30, 2012, file photo, former U.S. Supreme Court Justice John Paul Stevens speaks at a lecture presented by the Clinton School of Public Service in Little Rock, Ark. In the aftermath of the Connecticut school shootings that left 20 first-graders and six educators dead, retired Supreme Court Justice John Paul Stevens began thinking about ways to prevent a repeat. The result is Stevens' new book, his second since retiring from the court at age 90, in which he calls for no fewer than six changes to the Constitution, of which two are directly related to guns. (AP Photo/Danny Johnston, File)
In this May 30, 2012, file photo, former U.S. Supreme Court Justice John Paul Stevens speaks at a lecture presented by the Clinton School of Public Service in Little Rock, Ark. In the aftermath of the Connecticut school shootings that left 20 first-graders and six educators dead, retired Supreme Court Justice John Paul Stevens began thinking about ways to prevent a repeat. The result is Stevens' new book, his second since retiring from the court at age 90, in which he calls for no fewer than six changes to the Constitution, of which two are directly related to guns. (AP Photo/Danny Johnston, File)
WASHINGTON (AP) — In the aftermath of the Connecticut school shootings that left 20 first-graders and six educators dead, retired Supreme Court Justice John Paul Stevens began thinking about ways to prevent a repeat.
The result is Stevens' new book — his second since retiring from the court at age 90 — in which he calls for no fewer than six changes to the Constitution, of which two are directly related to guns. Others would abolish the death penalty, make it easier to limit spending on elections and rein in partisan drawing of electoral districts.
His proposed amendments generally would overrule major Supreme Court decisions with which he disagrees, including ones on guns and campaign finance in which he dissented.
The book, "Six Amendments: How and Why We Should Change the Constitution," is being published Tuesday by Little, Brown and Co., two days after Stevens' 94th birthday.
Stevens said in an interview with The Associated Press that the Newtown, Conn., shootings in December 2012 made him think about doing "whatever we could to prevent such a thing from happening again."
He said he was bothered by press reports about gaps in the federal government database for checking the background of prospective gun buyers. Those gaps exist because the Supreme Court ruled in 1997 that states could not be forced to participate in the background check system. Stevens dissented from the court's 5-4 ruling in Printz v. United States.
One amendment would allow Congress to force state participation in gun checks, while a second would change the Second Amendment to permit gun control. Stevens was on the losing end of another 5-4 decision in 2008 in District of Columbia v. Heller, in which the court declared for the first time that Americans have a right to own a gun for self-defense.
He acknowledged that his proposed change would allow Congress to do something unthinkable in today's environment: ban gun ownership altogether.
"I'd think the chance of changing the Second Amendment is pretty remote," Stevens said. "The purpose is to cause further reflection over a period of time because it seems to me with ample time and ample reflection, people in the United States would come to the same conclusion that people in other countries have."
Justices often say that their dissenting opinions are written with the hope that today's dissent might attract a majority on some future court.
But Stevens has gone a step beyond by proposing the constitutional changes. Asked whether the book could in part be seen as "sour grapes," he readily agreed.
"To a certain extent, it's no doubt true, because I do think the court made some serious mistakes, as I did point out in my dissents," he said. "But I've been criticized for making speeches since I retired. Writing the book is not much different from continuing to speak about things I find interesting."
A recent example is the court's decision, again by a 5-4 vote, to strike down limits in federal law on the total contributions wealthy individuals can make to candidates for Congress and president, political parties and political action committees. Stevens said the decision follows from the 2010 ruling in Citizens United that lifted limits on political spending by corporations and labor unions. Again, he was in the dissent in another 5-4 ruling.
Those cases, he said, talk about the importance of public participation in the electoral process. But this month's decision on the overall limits is "not about electing your representative," Stevens said. "It's about financing the election of representatives of other people. It's about the influence of out-of-state voters on the election in your district. It sort of exposes a basic flaw in the recent cases."
Stevens marked his 94th birthday Sunday, still in excellent health, but lately feeling his age. Speaking to AP a few days before his birthday, he said, "It's going to come and pass. I'm not sure it's something to celebrate."*****
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http://www.nationalreview.com/article/376340/half-win-racial-discrimination-editors
equal protection under the law violates equal protection under the law
non-discrimination is discrimination
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http://www.nationalreview.com/article/376340/half-win-racial-discrimination-editors
equal protection under the law violates equal protection under the law
non-discrimination is discrimination
It's not racial discrimination as long as the correct group to be discriminated against is being discriminated against.
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http://thehill.com/blogs/blog-briefing-room/news/204497-tipping-the-scales
From the article:
"... while the first and second branches of the federal government have fallen into quiescence, it’s springtime at the third branch and its justices are delivering decisions on big, controversial issues such as campaign finance and affirmative action. By the end of June, the justices will rule on the constitutionality of Obama- Care’s birth-control mandate."
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http://online.wsj.com/news/articles/SB10001424052702303678404579536072435307790?mod=WSJ_hp_EditorsPicks&mg=reno64-wsj
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http://talkingpointsmemo.com/dc/antonin-scalia-blunder-unprecedented-epa
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Probably written by a clerk.
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http://talkingpointsmemo.com/dc/antonin-scalia-blunder-unprecedented-epa
Luckily none of us have ever mis-remembered anything - or posted without fact checking. :wink:
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http://schultzstake.blogspot.com/2014/05/the-lessons-of-town-of-greece-v.html
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http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/05/19/waiting-for-ruth-bader-ginsburg-to-retire-keep-waiting/
From the article:
The U.S. Supreme Court provides one of the more ironic dynamics in politics: people calling for the retirement of justices with whom they agree. Pressure to retire has been directed at Ruth Bader Ginsburg and Stephen Breyer by some who fear that the 81- and 75-year-old justices will not survive a potential Republican presidency that begins in 2017. Some want Ginsburg and Breyer to retire before the end of Barack Obama’s second term, or possibly even sooner, in case Democrats lose control of the Senate in the midterm election. But the behavior of past justices indicates that this pressure may be for naught. Justices rarely hasten their retirement.
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The New Republic article recently suggested it is already to late to confirm a Ginsburg replacement. http://www.newrepublic.com/article/117677/ruth-bader-ginsburg-retirement-could-dems-confirm-replacement
I think the Wash Post author has it right; I doubt any Justice will hasten retirement unless their are personal considerations that we don't know.
When Democrats had 60 Senators, the talk was that this majority would be permanent and increasing. Now they wonder how to use their remaining power before it ends - this year.
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The Barron Fight
Rand Paul is opposing the judicial nominee for the wrong reasons.
May 20, 2014 7:20 p.m. ET
Senator Rand Paul plans a filibuster Wednesday against judicial nominee David Barron for writing secret memos supporting the legality of using a drone to kill terrorist Anwar al-Awlaki. That's a reason to support Mr. Barron in our view, though there are other reasons to defeat his nomination.
As head of the Justice Department's Office of Legal Counsel, Mr. Barron wrote at least two memos that provided the legal basis for the 2011 killing of Awlaki, who was a U.S. citizen. Mr. Paul first demanded to see the classified memos, which he now has, but he and Democrat Mark Udall still want to filibuster until those memos are released publicly.
It's tempting to hoist Mr. Barron and President Obama on their own spears here. In a 2006 interview on National Public Radio, Mr. Barron roundly denounced the secret memos written by Bush Administration lawyer John Yoo in support of aggressive interrogation of terrorists. He said lawyers like Mr. Yoo would "have to expect that they're going to be raising questions about whether they are authorizing war crimes." Now Mr. Paul is giving him the same business.
But it's a bad business. Using drones in wartime against enemy combatants who have declared war against America, no matter their citizenship, is legal under the Constitution's executive war powers. Congress has reinforced that power by passing the Authorization for Use of Military Force and other national defense acts after 9/11 that expressly sanction the use of deadly force against al Qaeda and "associated forces."
As for releasing the memos, we think the executive has a right to keep them confidential. But Attorney General Eric Holder was only too happy in 2009 to declassify the Yoo memos when he could score political points against his predecessors. Now Mr. Holder favors secrecy, though a news report late Tuesday said he may release a redacted version.
The real problem with Mr. Barron is his liberal judicial philosophy. In 2001 Mr. Barron wrote an article for the Duke Law Journal criticizing the "new federalism" because central authority can make better decisions for localities than the locals can. The revival of federalism is dangerous, he wrote, because it prevents us from "thinking creatively about ways central governments can promote local power."
In 2006 Mr. Barron wrote "What's Wrong With Conservative Constitutionalism" for the Harvard Law and Policy Review, laying out a theory of "progressive constitutionalism" and judicial activism that would make Sonia Sotomayor blush.
He called on liberal jurists to use the courts to achieve progressive political goals. He cited the example of gay civil unions, which he said "have generally held up against political efforts to overturn them," and that "there is little doubt that state legislatures would not have responded as quickly without judicial intervention. It was courts acting in advance of political will that made the difference." Ah, the judicial vanguard leading the benighted public.
As Mr. Barron sees it, the courts are a political battleground that requires cunning and long-term strategy. To defeat conservative constitutionalism, he writes, the judicial left must be wary of "becoming overly invested in judicial deference as a progressive constitutional position."
Sounds to us like Mr. Barron ought to run for Congress because as a judge he's going to be one more liberal politician. Mr. Paul is opposing Mr. Barron for the wrong reasons, but it would be a service to the country and the Constitution if Mr. Barron never makes it to the First Circuit Court of Appeals.
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http://www.nytimes.com/2014/05/25/us/final-word-on-us-law-isnt-supreme-court-keeps-editing.html?_r=1
From the article:
Unannounced changes have not reversed decisions outright, but they have withdrawn conclusions on significant points of law. They have also retreated from descriptions of common ground with other justices, as Justice Sandra Day O’Connor did in a major gay rights case.
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http://www.montpelier.org/james-and-dolley-madison/james-madison/james-madison-reading-list 8-) 8-) 8-) 8-)
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Senate 9, President 0
Obama pitches a shutout at the Supreme Court on recess appointments.
June 26, 2014 7:27 p.m. ET
The Supreme Court handed President Obama his 13th unanimous loss in two years on Thursday, and this one may be the most consequential. All nine Justices voted to overturn Mr. Obama's non-recess recess appointments as an unconstitutional abuse of power.
Over nearly 238 years of American history, the Supreme Court has never had to review the President's authority to temporarily fill vacant executive offices when Congress is adjourned. Mr. Obama's 2012 maneuver to void the Senate's advice and consent role triggered a judicial intercession, and defeats at the High Court are seldom as total as this one.
Two years ago Mr. Obama packed the National Labor Relations Board with three new members and made Richard Cordray the chief of the new Consumer Financial Protection Bureau. Other Presidents have made such appointments and we've long supported that authority—as long as they are made when Congress is genuinely in recess.
But in this case the Senate was conducting pro forma proceedings (gavel in, gavel out, every three days) because neither chamber can adjourn without the other's permission under Article I, Section 5. The House refused to consent to prevent Mr. Obama from making recess appointments, so he simply assumed the power to define on his own when a coequal branch of government is at work.
On this invention, the President could presumably make recess appointments overnight or during a lunch break, but Mr. Obama's provocation was deliberate. "I refuse to take no for an answer," he justified his behavior at a campaign event the day after the appointments. Democrats ran the Senate then and run it now. Mr. Obama merely thought the normal confirmation checks and balances too frustrating and preferred to install his union appointees without a debate.
He should have read the Recess Appointments Clause before Justice Stephen Breyer did it for him. In Noel Canning v. NLRB, a Washington state soda bottler challenged a board decision on grounds that the recess appointments were null and thus the board lacked the three-member quorum to do business. Because the Constitution delegates power to each branch to independently make their own rules, writes Justice Breyer, "the Senate is in session when it says it is."
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AFP/Getty Images
Justice Breyer surveys the legal theories and evolution over time of recesses and recess appointments since the Federalist Papers. This exception to advice and consent was necessary because Members of the early Congresses were out of town for months at a time, while the executive branch was so small that a few job openings could shut down the government. In the 20th century, recess appointments became more common even as their original purpose disappeared.
Deferring to this historical practice, Justice Breyer arrives at a pragmatic test: The President may fill vacancies when the Senate has not transacted business for 10 days or more, whether within or between Congress's two year-long formal sessions.
The Constitution lacks any such 10-day clause, and it is troubling that Justice Breyer seems to have invented it on his own. But still his invention narrows the recess power. And had Justice Anthony Kennedy flipped and joined the four conservatives, recess appointments would have been diminished even more.
In a concurrence with the judgment only, Justice Antonin Scalia makes a stricter reading of the Constitution's language about "vacancies that may happen during the recess." His interpretation would limit recess appointments to only the break between formal sessions and only for positions that open during that window. Justice Breyer "casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best," he writes.
We admire Justice Scalia's originalism, but the clause is ambiguous; Thomas Jefferson puzzled over its meaning as early as 1802. But Justice Scalia's reasoning shows why Mr. Obama's gambit was so reckless. "Friction between the branches is an inevitable consequence of our constitutional structure," Justice Breyer instructs, and the legislature and executive are supposed to work things out along the way. By violating these norms, Mr. Obama invited the judiciary to mediate and jeopardized the recess power for all future Presidents.
The Framers did not vest the executive with the unilateral appointment authority that Mr. Obama thinks he is entitled to. They wanted to diffuse power across the federal government to protect individual liberty. Wilfully bypassing advice and consent also subverts political accountability, which a former constitutional law professor ought to know.
Mr. Obama has thus strengthened the Senate, now armed with a judicial guide to preventing recess appointments: Presidents must take no for an answer. The ruling also opens to challenge some 436 decisions that the NRLB issued while the imposter members were seated.
But the true import of Noel Canning is that even liberal Justices are alarmed that Mr. Obama's executive law-making is visiting real damage on the Constitution. This will not be the last legal torpedo aimed at the hull of his increasingly willful Presidency.
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Supreme Court sides with employers over birth control mandate
http://www.washingtonpost.com/blogs/wonkblog/wp/2014/06/30/supreme-court-sides-with-employers-over-birth-control-mandate/
The 5-4 ruling, in one of its most contentious cases of the year, recognizes for the first time the religious rights of (closely held) corporations.
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If I am not mistaken, the actual question presented was an ACA regulation vs. the Religious Freedom law.
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Technically it is not a C'l law case, but because so many people think it is, I post this WSJ piece here:
For-profit corporations, at least if they are "closely held," can raise conscientious objections to government policies under the Religious Freedom Restoration Act of 1993. So the Supreme Court held today, by a vote of 5-2, in the much-anticipated case now styled Burwell v. Hobby Lobby.
The vote in Hobby Lobby's favor was actually 5-4, along familiar lines, but as we shall explain, two dissenting justices declined to address the question whether RFRA's protections can apply to for-profit companies. The majority, in a decision by Justice Samuel Alito held that Hobby Lobby and two other companies need not comply with the ObamaCare birth-control mandate, to which their owners object on religious grounds.
The plaintiffs in these cases did not claim their First Amendment rights had been violated; such a claim, as we noted in March, would almost certainly have been precluded by the 1990 case of Employment Division v. Smith. But Congress responded to that case by enacting RFRA, which mandates the courts apply "strict scrutiny" to government policies as enforced against litigants who object on religious grounds.
In order to meet strict scrutiny, the government must show both that the policy is justified by a "compelling" interest and that it is the "least restrictive means" of furthering that interest. At least five justices seemed to agree that the interest in assuring cost-free access to the abortifacient contraceptives in question is "compelling": the four dissenters and Justice Anthony Kennedy, who in a concurring opinion wrote: "It is important to confirm that a premise of the Court's opinion is its assumption that the HHS regulation at issue here furthers a legitimate and compelling interest in the health of female employees."
That's true, but the premise was stipulated--"we assume," wrote Justice Alito--not decided. For the plaintiffs to prevail, it would be sufficient for the government to fail either test, and as Justice Alito argues, it clearly failed the least-restrictive-means test:
In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.
Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government's aims while providing greater respect for religious liberty.
Some religious nonprofits have argued that the HHS accommodation is too restrictive and violates their First Amendment rights; this case does not address that question--or, indeed, whether "an approach of this type complies with RFRA," in Alito's words. The majority cite another less-restrictive alternative: a government program providing contraceptives directly.
Justice Ruth Bader Ginsburg filed a hyperbolic dissent (citation omitted):
In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt-outs impose on others, hold no sway, the Court decides, at least when there is a "less restrictive alternative."
As Kennedy gently observes in response, "the Court's opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent." Ginsburg suggests the decision would open up the possibility of religious exemptions from statutes prohibiting race discrimination, a claim Alito and the majority flatly reject: "The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal."
Ginsburg's claim that "the court decides" religious opt-outs should be available when a "less restrictive alternative" is available is misleading. Here the court did not, as it frequently does by necessity, apply a standard of its own invention in interpreting broadly written constitutional language. The "less restrictive alternative" language is in the RFRA statute; it was Congress, not the court, that made that decision.
The dissent's response is to argue that no less restrictive means is in fact available, because the court left for another day the question of whether the opt-out HHS has made available to nonprofits is RFRA-compliant, and because Congress has not in fact enacted a free-contraceptive program that would cover Hobby Lobby's employees. But RFRA's protections would be meaningless if they permitted government to use any means but the least restrictive under current law.
Ginsburg also argues that for-profit corporations have no rights under RFRA, but that portion of her dissent is joined only by Justice Sonia Sotomayor. Justices Stephen Breyer and Elena Kagan, dissenting separately, write: "We need not and do not decide whether either for-profit corporations or their owners may bring claims under the Religious Freedom Restoration Act of 1993." Hence the 5-2 vote noted above.
The majority opinion, meanwhile, is limited in its application to "closely held" corporations. But Justice Alito observes for the majority: "No known understanding of the term 'person' includes some but not all corporations." He's rebutting the argument that nonprofits can be distinguished from for-profits, but the principle would seem to apply equally to a distinction between closely held and publicly traded ones. On the other hand, the more diffuse the ownership, the less likely this type of claim—a conscientious religious objection—is to come up.
The decision, and the left's predictably overwrought response to it, underscore a contradiction in the contemporary liberal worldview. "Corporate power is too big," fumed Sally Kohn on CNN this morning. "The Supreme Court is doing the bidding of big business."
But Hobby Lobby brought this lawsuit in the name of conscience, not profit. And isn't it usually liberals who fault corporations for being insufficiently conscientious?
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...“The idea,” Rivkin tells me, “is to create the perfect combination of all relevant factors to create the perfectly configured legislative-standing case.”
The first plus-factor criterion is to demonstrate the lack of a private plaintiff. In Foley’s and Rivkin’s characterization, the president’s actions are “benevolent” suspensions of law — that is, they are specially intended to assist particular groups (young immigrants or small businesses, for example). Because assisting certain people was the president’s aim, no individuals have suffered sufficient injury to have standing to sue. “No one can challenge benevolent suspensions in court except Congress, because they constitute an institutional injury to Congress qua Congress,” Foley explains. The offense is not against private citizens; it is against the powers that the Constitution guarantees to Congress as a body.
Along with demonstrating the impossibility of a private plaintiff, the House should explicitly authorize the lawsuit, they say, through either a formal resolution or the use of the Bipartisan Legal Advisory Group (BLAG), a standing group of House members that is authorized by House rules to represent that chamber in the courts. This would count as a plus factor because institutional-standing cases do not require formal authorization from the institution. The House members could therefore file on behalf of the House without getting the body’s formal approval, but such approval would probably help the case.
The House should also show that no political remedy (“self-help”) for the situation is available. This third element is a point of contention among legal theorists on the right. Opponents of the House lawsuit contend that the Constitution provides the House with two obvious remedies, neither of which it has exercised: the power of the purse and the power of impeachment. Foley and Rivkin counter that these are not “proportionate remedies” to the problem at hand. With regard to impeachment, Foley asks: “What do you do when the president’s own party controls one of the chambers of Congress?” Moreover, “impeachment is overkill for this particular transgression,” she says. “All Congress wants is for the president to faithfully execute the law. This does not mean that they think he should be kicked out of office.” The second option, cutting funds, “creates major distortions in political accountability, which is the genesis, the heart, of the notion of the separation of powers.” Congress, says Foley, should not be blamed for the president’s misdeeds — but that is just what will happen if the House has no recourse but to penalize innocent organizations as a means of punishing the president. Political self-help is important, Foley observes, “but only when proportionate and related to the transgression.”
If the House can establish standing by fulfilling these four criteria — the establishment of injury-in-fact, as required by the Constitution, and the three “plus” factors — they will have the opportunity to make their case to the courts that the president has flouted his constitutional mandate. While they believe there are a number of transgressions to choose from, Foley and Rivkin plan to present only the strongest infraction in court. ...
more at link:
http://www.nationalreview.com/article/382021/lawyers-behind-lawsuit-against-obama-ian-tuttle
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The Case for Suing the President
Rewriting ObamaCare laws on the fly is a violation of the constitutionally mandated separation of powers.
by David B. Rivkin Jr. and Elizabeth Price Foley
July 30, 2014 7:06 p.m. ET
'So sue me" is President Obama's message to Congress. And on Wednesday the House of Representatives took up his taunt, authorizing a lawsuit to challenge the president's failure to faithfully execute provisions of the Affordable Care Act as passed by Congress. The House lawsuit is no "stunt," as Mr. Obama has characterized it. The lawsuit is necessary to protect the Constitution's separation of powers, a core means of protecting individual liberty. Without a judicial check on unbounded executive power to suspend the law, this president and all who follow him will have a powerful new weapon to destroy political accountability and democracy itself.
Article I of the Constitution vests all legislative power in Congress. Article II imposes a duty on the president to "take care that the laws be faithfully executed." When a law is unambiguous, the president cannot rewrite it to suit his own preferences. "The power of executing the laws," as the Supreme Court emphasized in June in Utility Air Regulatory Group v. EPA, "does not include a power to revise clear statutory terms that turn out not to work in practice." If a law has defects, fixing them is Congress's business.
These barriers between the branches are not formalities—they were designed to prevent the accumulation of excessive power in one branch. As the Supreme Court explained in New York v. United States (1992), the "Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day."
The barriers also reflect the Framers' belief that some powers are better suited for a particular branch of government because of its institutional characteristics.
Congress has the exclusive authority to make law because lawmaking requires pluralism, debate and compromise, the essence of representative government. If Congress cannot achieve consensus, that doesn't mean Congress is "broken." A divided Congress reflects a divided people. Until there is a compromise acceptable to the majority, the status quo is the only correct path. An impasse emphatically does not warrant a president's bypassing Congress with a pen and phone, as Mr. Obama claimed the power to do early this year.
The separation of powers also guarantees political accountability. When Congress makes a law and the president executes it as written, citizens will know whom to reward or punish at the next election.
A president who unilaterally rewrites a bad or unworkable law, however, prevents the American people from knowing whether Congress should be praised or condemned for passing it. Such unconstitutional actions can be used to avert electoral pain for the president and his allies.
If Mr. Obama can get away with this, his successors will be tempted to follow suit. A Republican president, for example, might unilaterally get the Internal Revenue Service to waive collection of the capital-gains tax. Congress will be bypassed, rendering it increasingly irrelevant, and disfranchising the American people.
Over time, the Supreme Court has come to recognize that preserving the constitutional separation of powers between the branches of government at the federal level, and between the states and the federal government, is among the judiciary's highest duties.
In Garcia v. San Antonio Metropolitan Transit Authority(1985), the court was asked whether the wage and hour provisions of federal labor law could be imposed on states as employers. The justices refused to examine the substance of the states' claim, declaring that the so-called vertical separation of powers—federalism—was "more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power." Because members of Congress are elected on a state-by-state basis, the court thought the national political process itself was the more proper way to protect states' rights against federal encroachment. It was a mistake the court would quickly regret.
Seven years later, in New York v. United States (1992), the Supreme Court did an about-face, acknowledging that the political-remedies process alone could not safeguard the separation of powers, and invalidated a federal law that forced states to "take title" to low-levelradioactive waste. The court abandoned the "hands off" position of Garcia because if it did not do so, the federal government could coerce states to do the federal government's bidding—a power that could have severely undermined the federalist structure of the Constitution, and hence, political accountability.
Litigation in federal court is an indispensable way to protect all branches of government against encroachment on their authority. States have successfully sued to stop federal intrusions into their constitutionally reserved powers. State legislators have also successfully sued to protect their institutional authority when state executives nullified their legislative power.
The executive branch is no different. President Obama has repeatedly resorted to litigation to vindicate the executive branch's constitutional prerogatives. His administration has routinely sued states for violating federal laws, in cases such as Arizona v. United States (2012), involving the constitutionality of a state law dealing with illegal immigration.
And the Supreme Court has declared unconstitutional portions of congressional statutes that encroached on the federal judiciary's power. In Northern Pipeline Construction Company v. Marathon Pipe Line Company (1982), the court invalidated a transfer of judicial power to "judges" in bankruptcy cases who were not part of the regular federal judiciary and were exercising powers conferred by Congress, rather than by the Constitution.
Congress is not an institutional orphan. Like the president and the states, it can rightfully expect courts to enforce its institutional authority. Any other result would establish an anomalous loophole preventing Congress, and Congress alone, from vindicating its constitutional prerogatives. Courts would not countenance such a lapse in the constitutional architecture, with the potential to inflict enormous damage to the separation of powers, political accountability and individual liberty.
The problem will be cured once the judiciary declares unconstitutional the president's unilateral suspension of Affordable Care Act provisions and vacates the executive branch measures through which these suspensions were effected.
Mr. Rivkin, a partner at the firm Baker Hostetler LLP, served in the Justice Department and the White House Counsel's Office in the Reagan and George H.W. Bush administrations. Ms. Foley is a constitutional law professor at Florida International University College of Law.
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This makes the legal argument for the case.
I am not sure about the practical or political wisdom of this.
To me it seems more a ploy to try to appease Conservatives (aka Boehner using this to show case that he IS standing up to the self Chosen one). Would this not take more than a year or longer. By then we will have several million more illegals in the US (actually now that I think of it immigration is not even in the law suit - oh my God - what a mea culpa!).
Levin doesn't think it will work. Not that he is always right and many would argue not politically strategically helpful but he understands these things a ton more than me.
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From ccp:
"Do you have any thoughts as to the merits legally, politically, strategically, or practically on the GOP lawsuit against Obama?
Thanks in advance."
Yes sir:
http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/07/03/looking-to-a-lawsuit-signing-statements-and-the-supreme-court/
http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/08/01/chadhas-lessons-for-the-house-lawsuit/
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Bigdog,
Thank you.
The author of both those articles does not paint a positive outlook to say the least.
Just tends to bolster the belief that Boehner is in way over his head as speaker.
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Question BD:
a) Obama refused to enforce certain provision of Obamacare because to have done so would have revealed the flaws of the law right before the elections. What remedy?
b) Obama "rewrote" various (24 I have heard) provisions of the law. What remedy?
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SOMETHING rather dangerous is happening in American politics right now, all the more so for being taken for granted by many of the people watching it unfold.
I do not mean the confusion of House Republicans, or the general gridlock in Congress, which are impeding legislative action on the child migrant crisis (among other matters). Incompetence and gridlock are significant problems, indeed severe ones, but they’re happening within the context of a constitutional system that allows for — and can survive — congressional inaction.
What is different — more cynical and more destructive — is the course President Obama is pursuing in response.
Over the last month, the Obama political apparatus — a close aide to the president, the Democratic Congressional Campaign Committee and the “independent” voices at MSNBC — has been talking nonstop about an alleged Republican plan to impeach the president. John Boehner’s symbolic lawsuit against the White House has been dubbed “impeachment lite,” Sarah Palin’s pleas for attention have been creatively reinterpreted as G.O.P. marching orders, and an entire apocalyptic fund-raising campaign has been built around the specter of a House impeachment vote.
Anyone paying attention knows that no such impeachment plan is currently afoot. So taken on its own, the impeachment chatter would simply be an unseemly, un-presidential attempt to raise money and get out the 2014 vote.
But it isn’t happening in a vacuum, because even as his team plays the impeachment card with gusto, the president is contemplating — indeed, all but promising — an extraordinary abuse of office: the granting of temporary legal status, by executive fiat, to up to half the country’s population of illegal immigrants.
Such an action would come equipped with legal justifications, of course. Past presidents have suspended immigration enforcement for select groups, and Obama himself did the same for certain younger immigrants in 2012. A creative White House lawyer — a John Yoo of the left — could rely on those precedents to build a case for the legality of a more sweeping move.
But the precedents would not actually justify the policy, because the scope would be radically different. Beyond a certain point, as the president himself has conceded in the past, selective enforcement of our laws amounts to a de facto repeal of their provisions. And in this case the de facto repeal would aim to effectively settle — not shift, but settle — a major domestic policy controversy on the terms favored by the White House.
This simply does not happen in our politics. Presidents are granted broad powers over foreign policy, and they tend to push the envelope substantially in wartime. But domestic power grabs are usually modest in scope, and executive orders usually work around the margins of hotly contested issues.
In defense of going much, much further, the White House would doubtless cite the need to address the current migrant surge, the House Republicans’ resistance to comprehensive immigration reform and public opinion’s inclination in its favor.
Continue reading the main story Continue reading the main story
But all three points are spurious. A further amnesty would, if anything, probably incentivize further migration, just as Obama’s previous grant of legal status may well have done. The public’s views on immigration are vaguely pro-legalization — but they’re also malleable, complicated and, amid the border crisis, trending rightward. And in any case we are a republic of laws, in which a House majority that defies public opinion is supposed to be turned out of office, not simply overruled by the executive.
What’s more, given that the Democrats controlled Congress just four years ago and conspicuously failed to pass immigration reform, it’s especially hard to see how Republican intransigence now somehow justifies domestic Caesarism.
But in political terms, there is a sordid sort of genius to the Obama strategy. The threat of a unilateral amnesty contributes to internal G.O.P. chaos on immigration strategy, chaos which can then be invoked (as the president did in a Friday news conference) to justify unilateral action. The impeachment predictions, meanwhile, help box Republicans in: If they howl — justifiably! — at executive overreach, the White House gets to say “look at the crazies — we told you they were out for blood.”
It’s only genius, however, if the nonconservative media — honorable liberals and evenhanded moderates alike — continue to accept the claim that immigration reform by fiat would just be politics as usual, and to analyze the idea strictly in terms of its political effects (on Latino turnout, Democratic fund-raising, G.O.P. internal strife).
This is the tone of the media coverage right now: The president may get the occasional rebuke for impeachment-baiting, but what the White House wants to do on immigration is assumed to be reasonable, legitimate, within normal political bounds.
It is not: It would be lawless, reckless, a leap into the antidemocratic dark.
And an American political class that lets this Rubicon be crossed without demurral will deserve to live with the consequences for the republic, in what remains of this presidency and in presidencies yet to come.
http://www.nytimes.com/2014/08/03/opinion/sunday/ross-douthat-obamas-impeachment-game.html?emc=edit_th_20140803&nl=todaysheadlines&nlid=49641193
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He will grant amnesty. My guess after the 2014 election. And no one can stop him. Period.
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Not suing. I made that pretty clear, I thought. Additional example of why not: legally, part of having standing to sue is to show actual injury. When the House has voted to end ACA what, 40 time (50?), to argue that the president's actions "injure" Congress is odd. (Note, also, that I have argued on these boards that presidential power has exceeded constitutional grants, so I am not against Congress acting.)
Boehner argued "legislative branch has an obligation to defend the rights and responsibilities of the American people, and America's constitutional balance of powers." And to do this, he goes to the judiciary?!? The article you posted suggested that conservatives/Republicans aren't talking impeachment. Why not? If he believes that "the President's flippant dismissal of the Constitution we are both sworn to defend" is true, it seems to me that there is a constitutional remedy.
Three days before the House vote, Boehner opined in the USA Today that "President Obama has overstepped his constitutional authority — and it is the responsibility of the House of Representatives to defend the Constitution." Why the HOUSE????? Might it be that it is the chamber that begins impeachment proceedings? If Boehner truly believes that I "the president's actions in a number of areas... exceed his constitutional authority," is there not a constitutional remedy?
Question BD:
a) Obama refused to enforce certain provision of Obamacare because to have done so would have revealed the flaws of the law right before the elections. What remedy?
b) Obama "rewrote" various (24 I have heard) provisions of the law. What remedy?
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http://www.amazon.com/dp/0674724895/?tag=denprager-20
BTW, I see this thread has hit 100,000 reads! Well done gentlemen!
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http://www.dailymail.co.uk/news/article-2736287/Final-ruling-issued-against-polygamy-ban.html
Anything left?
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Is It Time to Propose More Constitutional Amendments?
In the U.S. Constitution, America's Founding Fathers crafted the world's preeminent governing document securing Liberty. Yet they also understood their work wasn't perfect, and thus they created an avenue for amending it. Unfortunately, for most of the last century, the Left discarded the amendment process in favor of adopting what they call the "living constitution" -- a malleable document that means whatever they want it to mean at the time they want to mean it.
Outgoing Sen. Tom Cole (R-OK) says the time has come to rectify some of the wrongs done by calling for an Article V convention to propose amendments to the Constitution. That is different from a constitutional convention in which a new document would be written.
Article V of the document lays out the process for amendments: "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress."
All 17 amendments enacted after the Bill of Rights were accomplished through the first of the two constitutional methods prescribed -- two-thirds of both houses passing an amendment. There has never been a convention held upon application by the states.
But Coburn is aiming high. "I think [George] Mason was prophetic that we would devolve to where the federal government became too powerful, too big and too unwieldy," he said. "That’s why he put Article V in." There are specific things Coburn wants, too. "I think we ought to have a balanced budget amendment," he asserted. "I think we ought to have term limits. I think we ought to put a chokehold on regulation and re-establish the powers of the Congress."
The last item is of utmost concern given the imperial presidency of the last six years. As The Hill notes, "President Obama’s use of executive action to pursue an array of policy goals related to climate change, immigration and healthcare reform has precipitated what many conservatives are calling a constitutional crisis."
It's not just conservatives. Liberal law professor Jonathan Turley of George Washington University, a long-time Obama supporter, warned recently, “We are seeing the emergence of a different model of government, a model long-ago rejected by the framers.” Turley added that we have "a system that is in crisis." In fact, he argued, "The president’s pledge to effectively govern alone is alarming, and what is most alarming is his ability to fulfill that pledge. When a president can govern alone, he can become a government unto himself, which is precisely the danger the framers sought to avoid.”
Coburn knows a convention would never succeed if it becomes only a way to push for partisan changes. Lawrence Lessig, a liberal professor at Harvard Law School, supports a convention, though he agrees with Coburn that politicizing it would guarantee failure. Lessig says, “The legitimate constitutional questions that are being put on the table are questions about the balanced budget, the size of government ... as well as the integrity of the electoral process. That’s the stuff the people on the left are talking about."
All conservatives see a federal government that has completely disregarded the Constitution and Rule of Law, yet many see problems with calling an Article V convention. Amending the Constitution assumes, first of all, that the federal government would abide by those amendments when it has clearly not remained within current bounds. A convention also opens the door to undesirable changes (Democrat efforts to stifle free speech, for example) -- but then again, so did starting a revolution. That said, any proposed amendments would still have to clear three-fourths of the states.
(As an alternative to Coburn's proposal, Mark Alexander has suggested a Constitutional Confederation.)
In the words of George Washington, “The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution, which at any time exists, ‘till changed by an explicit and authentic act of the whole People, is sacredly obligatory upon all."
Coburn's idea has its merits, but our primary hope in restoring that truth is educating the American people about Essential Liberty and in electing representatives, including at the state level, who will honor their oath to "support and defend" the Constitution, and then to hold those government officials accountable.
As was the case at the dawn of American Liberty, we are but a small band of American Patriots facing an empire of statists, but we remain steadfast in our sacred oath to support and defend the Constitution.
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Constitutional Convention? Caveat Emptor
The Law of Unintended Consequences
By Mark Alexander • October 15, 2014
"The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution, which at any time exists, ‘till changed by an explicit and authentic act of the whole People, is sacredly obligatory upon all." --George Washington (1796)
The "law of unintended consequences" is an idiomatic admonition regarding the manipulation of complex systems. The notion of unintentional consequence has its origin with 18th-century political economist Adam Smith and the Scottish Enlightenment.
In the present, it is used more in rebuttal to the hubristic notion that humans are so brilliant and possess sufficient discernment about complex systems that we can predict outcomes with great accuracy. It is similar to Murphy's Law -- "Anything that can go wrong will go wrong" -- except it is not asserting the absolute.
20th-century sociologist Robert Merton noted three primary factors contributing to unanticipated consequences: First, incomplete analysis because it is impossible to anticipate all variables; second, errors in analysis of what is known about the problem; third, immediate interests overriding long-term interests.
Our nation is besieged by unintended consequences. Most notably, the 2008 election of a charismatic "community organizer" peddling a "hope and change" mantra. It is now painfully clear, after the re-election of Barack Obama, that his mantra has resulted in a plague of pessimism and an atrocious fundamental transformation of America.
But not all unanticipated consequences are bad.
Shortly after Obama's first election, a grassroots groundswell of concern over our government's abject disregard for the Constitution emerged. That concern galvanized in the Tea Party Movement, a broad coalition of Americans from all walks of life with a common goal of restoring Constitutional Rule of Law and the Essential Liberty enshrined therein.
Fortunately, this movement is more ideological than political. While the media labels some constitutional constructionists as "Tea Party candidates," the underlying movement defies traditional political party labels -- and this constitutional coalition is alive and well.
Beyond efforts to restore the plain language authority of our Constitution by way of the ballot box, several compelling arguments for constitutional amendments have emerged in an effort to circumvent restoration by way of the bullet box.
There are two proscriptions for amending our Constitution. These are specified in Article V as ratified.
"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."
In other words, to amend our Constitution, two-thirds of the House and Senate must adopt an amendment or two-thirds of state legislatures (34) must request Congress convene an Article V Convention to consider an amendment. Then, that amendment must be affirmed by either three-fourths (38) of state legislatures or state conventions.
Since our Constitution was ratified and became operational on March 4, 1789, there have been approximately 11,600 amendment proposals, of which 33 were adopted by Congress and sent to the states for ratification. Of those, 26 amendments were ratified by state legislatures and one, the 21st Amendment, which repealed the 18th Amendment (prohibition on alcohol), was ratified by state conventions.
The most significant call on Congress to convene an Article V Convention in recent history was Ronald Reagan's proposal for a Balanced Budget Amendment (as currently required by every state constitution but Vermont). On March 26, 2014, Michigan's legislature became the 22nd applying to Congress for an Article V convention seeking a Balanced Budget Amendment.
What makes the Michigan request notable is that there already are 12 applications from other states for conventions to consider a Balanced Budget Amendment. All were rescinded -- most because it was thought that the Gramm-Rudman-Hollings Act negated the need for a Balanced Budget Amendment. Of course, Congress created as many bypasses around Gramm-Rudman as they have around the Constitution.
But there is a debate as to whether a state may rescind its Article V application. Rep. Duncan Hunter (R-CA) has called on Speaker John Boehner (R-OH) to seek a legal opinion on whether that threshold has been met: "With the decision by Michigan lawmakers, it is important that the House -- and those of us who support a Balanced Budget Amendment -- determine whether the necessary number of states have acted and what the appropriate role of Congress should be in this case."
Indeed, that answer is being sought by quite a few constitutional scholars who are advocates of Article V Conventions, including Lawrence Lessig, Sanford Levinson, Larry Sabato, Jonathan Turley and Mark Levin.
Levin, who distributes our Essential Liberty Guides at conservative conferences, has generated substantial interest and support for 11 amendments he outlined in his book, "The Liberty Amendments: Restoring the American Republic." He is calling for a national dialogue on these amendments, with the ultimate objective of stopping unmitigated and unlawful violations of our Constitution by the central government.
Conservative political analyst George Will is an advocate of another measure, The Compact for America, a Goldwater Institute initiative which, according to Will, "would use the Constitution’s Article V to move the nation back toward the limited government the Constitution’s Framers thought their document guaranteed."
The Compact is a renewed federal budget containment measure, and as Will concludes, "In the 85th and final of the Federalist Papers written to persuade Americans wary of centralized power to ratify the Constitution, Alexander Hamilton said: 'We may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority.' States would be the prime movers of, and would be substantially empowered by, the institute’s amendment-by-compact plan."
While we await a legal determination from Boehner on the question of whether the 34-state threshold for an Article V Convention has been met, there are two important considerations about which approach should be taken to enact amendments.
First, it is not clear whether the scope of amendments to be considered by a convention, once convened, can be limited. Could those advocating statist tyranny commandeer a convention?
Recall, if you will, that on February 21, 1787, when the Congress of the Confederation endorsed a measure to revise the Articles of Confederation, it summoned state delegates "for the sole and express purpose of revising the Articles of Confederation" in ways that, when approved by Congress and the states, would "render the federal constitution adequate to the exigencies of government and the preservation of the Union." Indeed, Article 13 of the Articles of Confederation set forth that it was "perpetual" until any alteration was "agreed to in a Congress of the United States, and afterwards confirmed by the legislatures of every State."
But the delegates to the original Constitutional Convention determined that the Articles were not workable and proposed an entirely new Constitution, in effect discarding the Articles of Confederation without objection from the states. Fortunately, our Framers' objective was to codify Liberty as "endowed by our creator," and as specified in our Declaration of Independence.
They believed that all who followed in the executive, legislative and judicial branches of government, and those duly authorized thereunder, would abide by their sacred oaths to Support and Defend" our Constitution.
According to Alexander Hamilton, "[T]he present Constitution is the standard to which we are to cling. Under its banners, bona fide must we combat our political foes -- rejecting all changes but through the channel itself provides for amendments."
If that legal and moral obligation had been compliantly observed, this column would not even be necessary.
So what is the risk that such lawlessness would hijack an Article V Convention, especially since, as James Madison questioned in his notes on Article V ambiguities, "How was a Convention to be formed? By what rule decide? What the force of its acts?" None of those questions are answered in the Constitution.
Federalist Society constitutional expert Michael Stokes Paulsen, Distinguished University Chair and Professor at St. Thomas School of Law, argues that such a convention would have the "power to propose anything it sees fit."
My colleague, Heritage Foundation constitutional scholar Matt Spaulding, notes, "The largest question is whether an amendments convention can be limited to specific amendments or even topics. The pro-convention argument assumes that the power to limit the convention is inherent in the power to call the convention in the first place. I’m not so sure that follows: The text says that upon application of the states Congress 'shall call a Convention for proposing Amendments,' not for confirming a particular amendment already written, approved, and proposed by state legislatures (which would effectively turn the convention for proposing amendments into a ratifying convention). Indeed, it is not at all clear as a matter of constitutional construction (and doubtful in principle) that the power of two-thirds of the states to issue applications for a convention restricts, supersedes, or overrides the power of all the states assembled in that convention to propose amendments to the Constitution."
Thus, given the persuasive power of the Leftmedia and Democratic Party conglomerate, their ability to advance populist measures for amendment consideration could spell the end of what remains of our Constitution.
But the second consideration about which of the two approaches should be taken to enact amendments is the overarching question of whether either approach will matter in the end. For as John Adams noted, "We have no government armed with power capable of contending with human passions unbridled by morality and religion... Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."
If the executive, legislative and judicial branches of the central government do not abide by existing constitutional constraints, why would anyone believe they would abide by additional constraints in the future?
In either case, caveat emptor.
(Note: In an upcoming column, I will reintroduce a third measure, the establishment of a Constitutional Confederation of the States, to restore constitutional integrity, which affirms the Constitution as ratified, rather than seeks to amend it further.)
Pro Deo et Constitutione -- Libertas aut Mors
Semper Fortis Vigilate Paratus et Fidelis
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From Wikipedia:
****Political views[edit]
Cooper was a staunch supporter of the Republican Party. He voted for Calvin Coolidge in 1924, and for Herbert Hoover in 1928 and 1932. He campaigned for Wendell Willkie in 1940.[46] In 1944 he attended a 93,000-large Republican rally in the Los Angeles Coliseum in support of the Dewey-Bricker ticket.[47][48] While filming Good Sam in October 1947, he testified before the House Committee on Un-American Activities where he was asked if he had observed "communistic influence in Hollywood".[49] Cooper named no one in particular but said he had "turned down quite a few scripts because I thought they were tinged with communistic ideas".[49] He also testified that he had heard statements such as, "Don't you think the Constitution of the United States is about 150 years out of date" and, "Perhaps this would be a more efficient government without a Congress"—statements he characterized as "very un-American".[49]****
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The crucial actor here is Sen. Robert Menendez , the tough-minded New Jersey Democrat and Foreign Relations Committee chairman. Sen. Menendez’s position is vital because Majority Leader Harry Reid will give the president a pass, as he has for six years. Sen. Reid’s genuflection to the White House raises serious issues because it fundamentally undermines James Madison ’s vision of how the Constitution limits overweening government power.
The problem, as the Founders saw it, is to prevent the president or Congress from acquiring unchecked power, as they will inevitably try to do. The solution was to divide powers between the executive and the legislature and hope that they would be constrained by countervailing institutional interests. But Harry Reid is a “party man,” not a “Senate man.” The question is whether Sen. Menendez and perhaps other senior Democrats with strong foreign-policy credentials, such as New York Sen. Charles Schumer and California Sen. Dianne Feinstein, chairwoman of the Select Committee on Intelligence, will break ranks with Sen. Reid and the White House.
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Is Jerusalem in Israel? Ask the Supreme Court
The State Department says no, Congress says yes. Now the justices will decide a case involving a boy’s passport.
By
Akiva Shapiro
Oct. 31, 2014 6:35 p.m. ET
28 COMMENTS
Menachem Binyamim Zivotofsky is soon to become a bar mitzvah, but his place of birth is still in dispute.
This much is clear: He was born on Oct. 17, 2002, in Shaare Zedek Hospital, in western Jerusalem. His parents, Ari and Naomi, are U.S. citizens, which makes him a U.S. citizen as well. But when his mother visited the U.S. Embassy in Tel Aviv to apply for a passport and birth documentation for her newborn son, and listed his “place of birth” on both applications as Israel, consular officials balked.
Since 1948, successive U.S. presidents have taken the position that Jerusalem is a city without a country, pending the conclusion of Israeli-Palestinian peace talks. Under State Department policy, personal-status documents of Jerusalem-born U.S. citizens such as Mr. Zivotofsky list only the city “Jerusalem” as the passport holder’s place of birth, and not Israel. That Jerusalem has, as a matter of fact, been the seat of Israel’s government for almost seven decades is of no relevance to the State Department.
In 2002 Congress stepped in and passed a law that directs the Secretary of State to permit U.S. citizens born in Jerusalem to choose to list “Israel” as their place of birth. The purpose of the law was to provide citizens like Mr. Zivotofsky the opportunity to self-identify as being born in Israel. But Presidents Bush and Obama have refused to implement the statute, citing what they called the president’s “exclusive” powers to direct the nation’s foreign affairs and to recognize the boundaries of foreign powers. His parents filed a lawsuit on behalf of their child, then a year old.
Fast-forward a decade. Mr. Zivotofsky is now at the center of a skirmish between the president and Congress with profound implications for our system of checks and balances. The U.S. Supreme Court is set to hear arguments next week in Zivotofsky v. Kerry.
The conventional wisdom is that this is a case the plaintiff cannot win. Why should the Supreme Court honor the request of a 12-year-old boy to effectively override long-standing U.S. foreign policy on a hot-button issue—the status of Jerusalem—of international importance?
The city of Jerusalem ENLARGE
The city of Jerusalem Corbis
The answer is that it’s not a lost cause—because Congress is on Mr. Zivotofsky’s side. The law giving him the right to list “Israel” as his place of birth passed almost unanimously in both houses of Congress. The entire Senate, as well as a number of individual U.S. representatives, have submitted friend-of-the-court briefs urging the Supreme Court to enforce the law.
The right question to ask, then, is whether the executive branch is free to ignore Congress’s directives whenever legislation touches on foreign affairs. Successive presidents have taken the position that it is, yet there are two major problems with this position.
First, you can search the Constitution from beginning to end for an exclusive commitment of foreign-affairs authority to the president. You won’t find it. To the contrary, the Constitution equips Congress with many foreign-affairs powers, including commerce with other nations, the ratification of treaties, immigration regulations and control over declarations of war. As the constitutional scholar Edwin Corwin long ago noted in his book “The President: Office and Powers, 1787-1984,” the Constitution is “an invitation to struggle for the privilege of directing American foreign policy.” Since the nation’s founding, Congress and the president have been engaged in that fruitful and dynamic struggle. Our tripartite system does not end at our borders.
Second, the Supreme Court has repeatedly pushed back against broad assertions of exclusive executive power that, as the president urges in Zivotofsky, purport to negate reasonable legislation by Congress. For instance, in 1977 the court rebuffed President Nixon ’s challenge to a post-Watergate act of Congress that placed Nixon’s papers in federal custody—to thwart their destruction. In 1988 the court rejected President Reagan’s contention that restrictions Congress imposed on the removal of an independent counsel by a presidential appointee impermissibly interfered with the president’s “appointments clause” powers.
The Constitution permits—and even encourages—certain kinds of intermingling between the branches of government, so long as Congress does not prevent the executive branch from “accomplishing its constitutionally assigned functions,” as the Supreme Court wrote in the Nixon case. The Jerusalem passport statute Congress passed merely provides a U.S. citizen with the opportunity to self-identify as being born in Israel in that citizen’s travel and personal status documents. It does not try to alter the president’s position of official neutrality with respect to the status of Jerusalem. Allowing the president to wield an “absolute negative on the legislature” even where Congress has acted so modestly would, as James Madison warned in Federalist No. 51, open the door for executive powers to be “perfidiously abused.”
With these principles in mind, the Supreme Court should once again reject the president’s assertion of unbridled executive power and uphold the law on narrow grounds, preserving Congress’s rightful role in foreign affairs. That way, guests at Mr. Zivotofsky’s bar mitzvah can raise a glass not only to finally settling this young man’s place of birth—but also to the outsize role he has played in preserving our system of checks and balances.
Mr. Shapiro is a constitutional litigator at Gibson, Dunn, & Crutcher in New York, and counsel to amici curiae members of Congress in Zivotofsky v. Kerry.
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Civil Forfeiture is still with us , , ,
http://www.nytimes.com/2014/11/10/us/police-use-department-wish-list-when-deciding-which-assets-to-seize.html?emc=edit_th_20141110&nl=todaysheadlines&nlid=49641193
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Here's today's WSJ:
The Next Attorney General
One area to question Loretta Lynch is civil asset forfeiture.
Loretta Lynch, U.S. attorney in Brooklyn, New York, speaks after being nominated by U.S. President Barack Obama. ENLARGE
Loretta Lynch, U.S. attorney in Brooklyn, New York, speaks after being nominated by U.S. President Barack Obama. European Pressphoto Agency
Nov. 9, 2014 7:00 p.m. ET
64 COMMENTS
The early reporting on President Obama ’s choice to be the next Attorney General is that few in Washington know much about her. That may be one of the reasons Mr. Obama picked Loretta Lynch after last week’s election rout. Barring some future revelations, the U.S. Attorney for the Eastern District of New York isn’t likely to stir a partisan brawl with the new Republican Senate.
This does not mean that she shouldn’t receive a thorough vetting. She has been a member of Eric Holder’s Advisory Committee of U.S. Attorneys, and as such should be questioned about his policies. These include his use of race as a political cudgel—especially in law enforcement. Mr. Holder has used “disparate impact” theory to coerce settlements from banks and other businesses based on statistics but no proof of discrimination. A federal judge recently threw out the Administration’s disparate-impact rule in housing, and the Supreme Court is hearing a separate legal challenge.
As a prosecutor Ms. Lynch has also been aggressive in pursuing civil asset forfeiture, which has become a form of policing for profit. She recently announced that her office had collected more than $904 million in criminal and civil actions in fiscal 2013, according to the Brooklyn Daily Eagle. Liberals and conservatives have begun to question forfeiture as an abuse of due process that can punish the innocent.
On the other hand, Ms. Lynch doesn’t appear to be the grandstander that many other U.S. Attorneys are, and perhaps she will show a political independent streak. She is certainly a better choice than Labor Secretary Tom Perez, who would have warranted a confirmation fight. Republicans have enough high priorities in the next Congress that the bar should be high for challenging non-judicial nominees who seem to be qualified and honest.
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http://www.constitution.org/mil/lmr/lmr.htm
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Of course the leftist Atlantic will distort this to a gay bashing issue and compare it to efforts by Slave states 150 years ago. I wanted to email this to Mark Levin who would tear this argument to shreds in minutes but I don't see a link on his website. I neither get on FB or twitter:
Nullification, Now Coming to the Supreme Court?The Atlantic By David A. Graham
Nullification, Now Coming to the Supreme Court?When the Tea Party wave arrived in 2010, it swept away much of the Republican Party's existing structure, and instituted a more populist approach. But as waves tend to do, it left some even older debris in its wake. "Nullification," the theory that states can invalidate federal laws that they deem unconstitutional, had its heyday in the slavery debate that preceded the Civil War, but it has found new currency since 2010.
Supreme Court Will Decide Gay Marriage This Term CBS Dallas Fort Worth (RSS) Supreme Court sets stage for historic gay rights ruling Associated Press Supreme Court to consider same-sex marriage CBS News US Supreme Court turns away an appeal of same-sex marriage ban AFP Idaho gay marriage fight appealed to Supreme Court Associated Press The theory has never been validated by a federal court, yet some Republican officeholders have suggested states can nullify laws, including Senator Joni Ernst, who gave the GOP rebuttal to the State of the Union. Missouri legislators passed a bill that would have nullified all federal gun laws and prohibited their enforcement. My colleague James Fallows has described efforts by Republicans in Congress to block duly passed laws—refusing to confirm any director of an agency established by an act of Congress, for example—as a new form of nullification.
Now Mike Huckabee seems to be opening up a new front. The Supreme Court last week agreed to hear a case on whether same-sex-marriage bans are unconstitutional. There's no such thing as a sure bet with the Court, but many watchers on both sides of the issue believe the justices will strike down the bans. Some conservatives seem resigned to the fact that the fight is lost; not Huckabee. Here's what he told radio host Hugh Hewitt Tuesday:
One thing I am angry about, though, Hugh, is this notion of judicial supremacy, where if the courts make a decision, I hear governors and even some aspirants to the presidency say well, that’s settled, and it’s the law of the land. No, it isn’t the law of the land. Constitutionally, the courts cannot make a law. They can interpret one. And then the legislature has to create enabling legislation, and the executive has to sign it, and has to enforce it.
Hewitt seemed a little taken aback: Was Huckabee counseling that county clerks simply ignore Supreme Court rulings and refuse to issue marriage licenses to same-sex couples?
Well, the point is states would be in a position that their legislatures would have to go into session. They would have to create legislation that the governor would sign. If they don’t, then there is not same sex marriage in that state. Now if the federal courts say well, you’re going to have to do it, well, then you have a confrontation. At that point, somebody has to decide is the Court right? If it is, then the legislation will be passed. It’s not unlike we’ve seen other legislation.
That's not an entirely novel idea, as Huckabee, a former governor of Arkansas, should know. In 1957, the state believed it could block the Little Rock School Board from adhering to the Supreme Court's ruling in Brown v. Board of Education.* President Eisenhower disagreed, and dispatched troops to show Governor Orval Faubus how wrong he was. Faubus is not an historical model most contemporary politicians would be willing to follow.
Huckabee's legal analysis seems off, too. What happens when a court rules against such a marriage law is that a specific provision—a clause that defines marriage as involving one man and one woman, for instance—is defined as unconstitutional. That doesn't invalidate the entirety of a state's marriage laws, so the rest stand and there's no need for the legislature or governor to act. By analogy, Loving v. Virginia didn't invalidate all of the Commonwealth of Virginia's marriage laws; it just meant interracial unions were no longer prohibited. Presumably, a state could avoid having to sanction gay marriages by simply eliminating civil marriage altogether. That's been suggested in Oklahoma, for example, but no state has actually done so. (Thanks to my colleague Garrett Epps for discussing these questions with me.)
Loving v. Virginia didn't invalidate all of the Commonwealth of Virginia's marriage laws; it just meant interracial unions were no longer prohibited.
What unites all of these threads—nullifying Supreme Court rulings, Congress self-nullifying, and Nullification Classic, at the state level—is a remarkable backlash against the federal government, not on specific issues but per se: as a unified body with national governing authority. As Americans become more geographically sorted along ideological lines, states seem to be drifting apart in many ways. More states have single-party control than any time in recent memory, and that means increasingly divergent state laws. Red states pass more stringent abortion regulations, blue states pass more stringent gun controls, greener states pass less stringent marijuana laws. That makes (at least a bare majority of) the people in those states happy.
The idea that state governments or for that matter the Congress can go their own way by ignoring duly passed laws and duly decided Court rulings seems like a less salubrious development. In fact, it's one of those slippery slopes so feared by gay-marriage opponents. Huckabee wants conservative states that oppose gay marriage to be able to keep opposing it, but he isn't suggesting dissolving the federal government wholesale. He still wants states to generally be bound by national laws.
But if some states can pick and choose laws, others will surely do the same—and in such a polarized national landscape, they'll start picking and choosing increasingly contradictory options. Liberals states will start refusing to enforce laws they don't like. (This happened with the Fugitive Slave Act, in fact; Wisconsin ruled the law unconstitutional; southerners who otherwise championed states' rights objected; and the Supreme Court overruled it.) It's a ticket to dissolving the union, all in the name of preventing same-sex unions.
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We all know that the question of whether States can leave the Union was settled by force of arms, but what I did NOT know until I read this is that Lincoln's position is Constitutionally compelled by the following--- follow the logic closely-- I see no answer to this as possible:
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And there is the history lesson for those who like to rely on prior documents, in this case the DOI in discussing the Constitution. If one relies on another prior document, the Articles of Confederation, one sees these words which gave the Union its "authority" to prevent secession:
Quote:
"And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State."
End Quote
Of course there will be some who will claim "well the Constitution replaced the Articles of Confederation." The preamble to the Constitution dispels that myth:
Quote:
"We the people of the United States, in order to form a more perfect union,...."
In order to form a more perfect union, implies the existence already of a
union that is being enhanced (not replaced) by this Constitution.
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In a closely related vein an internet friend writes:
"If I might add something to it Madison laid out the exact reasons for the constitutional convention in his notes of 1840. These were the notes he wrote during the CC. In section 59 He specified that if adopted the Federal Constitution was the supreme law of the land. Therefore succession was to be considered revolution."
MADISON WROTE
"Since the Constitu- Amend- tion was adopted in its entirety by the people of each of the several States, it was not only the supreme law, but it could only be amended, and the relations between the Union and the States changed, by the legislatures or conventions of three-fourths of the States, in accordance with the Fifth Article. There is here, therefore, no room for withdrawal, for the people of a State could only change its relations to the Union by the vote of three-fourths of the States. It Seces- is difficult to see how the people of a State could withdraw from their own Constitution, which they themselves and in conjunction with the other States had made their supreme law. Secession could only be revolution. "
http://archive.org/.../jamesmadisonsnot00scot_djvu.txt
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http://www.bizpacreview.com/2015/02/13/brit-hume-blasts-amazing-impropriety-of-ruth-bader-ginsburg-she-belongs-on-the-view-not-scotus-179309
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https://www.law.cornell.edu/supct/pdf/08-205P.ZX
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http://www.theatlantic.com/politics/archive/2015/04/the-dangerous-doctrine-of-dignity/391796/
The Dangers of a Constitutional 'Right to Dignity'
It may provide support for same-sex marriage, but it also empowers judges to decide whose 'dignity' they wish to prioritize.
Plaintiffs in Obergefell v. Hodges wave to supporters after arguments about gay marriage at the Supreme Court. Joshua Roberts / Reuters
Jeffrey Rosen
Apr 29, 2015
If the Supreme Court strikes down same-sex marriage bans, it may well do so on the grounds that they violate the dignity of gay couples. And although proponents of marriage equality may cheer a decision along these lines when it is delivered, the expansion of the constitutional right to dignity may produce far-reaching consequences that they will later have cause to regret.
The oral arguments at the Supreme Court on Tuesday made clear that Justice Anthony Kennedy’s biggest contribution to the gay-marriage debate is his expansion of constitutional protections for the right to dignity. Justice Kennedy invoked the word “dignity” five times in the oral arguments; and other lawyers invoked it 16 times. It was central to the opening statements of Solicitor General Don Verrilli. “The opportunity to marry is integral to human dignity,” he began. “Excluding gay and lesbian couples from marriage demeans the dignity of these couples.” It was also one of the first words uttered by the plaintiff’s lawyer, Mary L. Bonuato. “If a legal commitment, responsibility and protection that is marriage is off limits to gay people as a class,” she said, “the stain of unworthiness that follows on individuals and families contravenes the basic constitutional commitment to equal dignity.”
Although the word dignity has appeared in more than 900 Supreme Court opinions, Justice Kennedy, as Kenji Yoshino of NYU has noted, has been especially drawn to it. He has referred to “dignity” in cases ranging from partial-birth abortions to prisons. As Yoshino puts it, “When Justice Kennedy ascribes dignity to an entity, that entity generally prevails.” Kennedy’s recognition of the dignity interests of LGBT couples has been influential in persuading lower court judges to strike down bans on same-sex marriage. But although Kennedy’s description of the dignitary interests of LGBT couples is inspiring, and it accurately describes their social experience, the roots of the right to dignity in constitutional text, history, and tradition are harder to discern.
Kennedy first drew a clear connection between “personal dignity and autonomy” and laws regulating personal relationships such as marriage in the 1992 Casey decision, which upheld the core of Roe v. Wade:
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education … These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
When Justice Kennedy later invoked this idea of dignity to overturn laws banning same-sex intimacy in the 2003 Lawrence case, Justice Scalia ridiculed his opinion in Casey as the “famed sweet-mystery-of-life passage.” Despite Scalia’s mocking tone, he was correct to note that Kennedy’s constitutionalizing of a right to dignity expanded the already amorphous right to privacy recognized in Roe v. Wade, which itself had tenuous constitutional roots. By rooting the right to dignity in a synthesis of the textually enumerated rights of equality and liberty, Kennedy laid the groundwork for judges to review laws that inflicted dignitary harm with skepticism, regardless of proof of intentional animus and regardless of whether the victim of discrimination was considered a “suspect class.”
A range of liberal scholars recognized the sweeping implications of Kennedy’s new synthesis of dignity with liberty and equality, from Robert Post (who observed that in Lawrence, the Court relied on “themes of respect and stigma ... traditionally associated with equal protection”) to Laurence H. Tribe (who described a “Substantive Due Process-Equal Protection synthesis,” and the relationship between the two as a “double helix”) to William N. Eskridge (who called the connection between liberty and equality a “jurisprudence of tolerance”). But in discussing the dignitary interest that emerges from the equality and liberty clauses, all of these scholars relied on the same highly abstract penumbral reasoning that had proven so controversial in the cases leading up to Roe v. Wade. In other words, the kind of liberties that the Framers had in mind when they framed the Fourth Amendment (the liberty of the home) were very different, and far more specific, than the broad right to be free to define your own identity without being demeaned by the state or by fellow citizens that Kennedy recognized in Lawrence.
Kennedy made another crucial move in Lawrence, concluding that an individual’s interest in dignity trumps the majority’s interest in preserving traditional moral values. “The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,” Kennedy held.
“This effectively decrees the end of all morals legislation,” Justice Scalia fulminated, and he predicted the demise of “state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.” In fact, Scalia’s prediction may prove to be correct. His question about why the state’s police power to protect public morals—taken for granted from the founding era until the Lawrence case—was suddenly a violation of the Constitution remains valid and unanswered. In Lawrence, Scalia also predicted that the new dignitary right would lead inevitably to the recognition of same-sex marriage, despite Kennedy’s protestations to the contrary (“Do not believe it,” Scalia wrote). As Scalia understood, without moral disapproval as a permissible state interest, the other interests the state offered to ban same-sex unions were hard to credit. Here is Scalia’s prescient observation:
If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution?”
“Surely not the encouragement of procreation,” Scalia concluded, “since the sterile and the elderly are allowed to marry.”
In other words, despite Ohio’s attempt to resurrect the encouragement of procreation as a justification for same-sex marriage bans in the recent arguments—a justification dismantled by Justices Kagan and Sotomayor—Scalia beat them to the punch by more than a decade.
In addition to sincere moral disapproval of homosexuality by some religious people, there is one other main reason that voters have passed same-sex marriage bans in the past few years: a desire to preserve tradition. But the Supreme Court ruled that reason out of bounds in United States v. Virginia in 1996, when it held that a desire to preserve tradition for its own sake was a “notably circular argument” that could not survive constitutional scrutiny.
Since these two arguments—moral disapproval or preserving tradition—are the real reasons most voters have for supporting gay marriage bans, opponents of gay marriage were forced to offer implausible reasons—such as promoting “responsible procreation” by straight people—which, as Justice Kagan’s questioning suggested, are hard to credit because they are essentially made up for the purposes of litigation.
* * *
Justice Kennedy’s broad constitutionalizing of a right to dignity has boxed in gay marriage opponents with its scope and breadth. Chief Justice Roberts tried to narrow the implications of the Lawrence decision in the oral arguments yesterday by suggesting that in that case, “the whole argument is the State cannot intrude on that personal relationship. This, it seems to me, is different in that what the argument is [today] is the State must sanction. It must approve the relationship. They’re two different questions.” But Solicitor General Verrilli resisted the attempt to narrow the dignitary implications of Lawrence. “Lawrence catalyzed for our society,” he replied. “It put gay and lesbian couples, gay and lesbian people, in a position for the first time in our history to be able to lay claim to the abiding promise of the Fourteenth Amendment in a way that was just impossible when they were marginalized and ostracized.”
Verrilli’s insight that denial of marriage benefits to gays and lesbians could demean and ostracize them, and violate their dignity, was confirmed by Justice Kennedy’s opinion the Windsor case from 2013, striking down the federal Defense of Marriage Act. According to Kennedy, DOMA’s history of enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages was “the essence” of its effects on gay people.
I won’t rehearse here the objections to reading the text and history of the Constitution at such a high level of generality; with this approach, the connections to the specific concerns that animated the framers is hard to discern. Suffice it to say that Justice Louis Brandeis, the greatest defender of the right to privacy in U.S. history, originally tried to persuade courts to recognize a new right to dignity, after confessing that American law, unlike Roman and European law, had not, traditionally protected offenses against honor and dignity.
But, as Neal Richards demonstrates in Intellectual Privacy, Brandeis changed his mind about the wisdom of constitutionalizing a right to dignity—defined as the right to restrain the press from publishing truthful but embarrassing information about celebrities—after concluding that it clashed with the First Amendment guarantees of free press and free expression. Instead, Brandeis came to embrace a more carefully defined notion of intellectual privacy and freedom of thought and belief, more closely rooted in the text of the First Amendment itself.
There is no doubt that Justice Kennedy accurately and movingly describes the indignity and stigma that bans on same sex marriage impose on the right of LGBT citizens to define their own identities and to claim the benefits of equal citizenship. But constitutionalizing that injury with broad abstractions like dignity may lead to results in the future that liberals come to regret. Already, the European Court of Justice’s recognition of a sweeping “Right to be Forgotten” on the Internet has lead to the most dramatic clash between European traditions of protecting dignity and American traditions of protecting free speech in a generation.
And down the line, the right to dignity—now celebrated by liberals for what it means to gay rights—could ultimately produce other decisions in unrelated cases that they would not be so quick to celebrate. In the McDonald case, striking down gun possession laws under the Second Amendment, Justice Scalia recognized a dignitary interest attached to the right to bear arms. “[T]he conceptual core of the liberty clause ... pertains to ... [an individual’s] elf-determination, ... dignity [or] respect,” he wrote.
The word dignity eludes narrow definition, or for that matter, any generally agreed upon definition. The Court itself has not provided a clear definition of dignity. One scholar, William A. Parent, declares, “[D]ignity is to possess the right not to be arbitrarily and therefore unjustly disparaged as a person.” In another article on “the Jurisprudence of Dignity,” Leslie Meltzer Henry writes that there is no single definition, but that dignity includes various conceptions including institutional status, equality, liberty, individual integrity, and collective virtue. She concludes, “dignity’s conceptions and functions are dynamic and context-driven.”
If dignity is defined so elastically, then conservatives judges might invoke it to strike down not only gun-control laws, but also other progressive legislation. Libertarian groups invoked the “sweet-mystery-of-life” my language in Casey to argue that the Obamacare healthcare mandate unconstitutionally violated the dignity and autonomy of Americans by forcing them to buy health insurance. In the future, cigarette smokers might argue that anti-smoking bans violate their ability to create an individual identity. And conservative Christian wedding photographers could claim that anti-discrimination laws compelling them to photograph gay weddings violate their dignity and ability to define themselves as conservative Christians. What courts would do when confronted with the clashing dignitary rights of the religious wedding photographer and the gay couple, or the hunter and the victim of gun violence, is anyone’s guess, because dignity is such an abstract concept that its boundaries are difficult to discern.
In suggesting that the expansion of the right to dignity is something that liberals may come to regret, I’m not arguing that same-sex marriage bans can or should easily be upheld in light of the Supreme Court precedents on the books. In the same-sex marriage arguments, the liberal justices seemed drawn to the idea that marriage is a fundamental right that must be expanded to all citizens on equal terms. A decision along those lines—although broader in some respects than a ruling based on dignity—might be easier to confine to cases involving marriage. And given Justice Kennedy’s previous opinions for the Court ruling out of bounds moral disapproval and the preservation of tradition for its own sake, it’s hard to think of any other plausible reasons for upholding the marriage bans that don’t rely on what the Court has defined as animus. Still, if the Court strikes down same-sex marriage bans on the grounds that they violate a right to dignity, liberals may have second thoughts about empowering judges to decide whose dignity trumps when the interests of citizens with very different conceptions of dignity clash.
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•
• Jeffrey Rosen
• Apr 29, 2015
If the Supreme Court strikes down same-sex marriage bans, it may well do so on the grounds that they violate the dignity of gay couples. And although proponents of marriage equality may cheer a decision along these lines when it is delivered, the expansion of the constitutional right to dignity may produce far-reaching consequences that they will later have cause to regret.
The oral arguments at the Supreme Court on Tuesday made clear that Justice Anthony Kennedy’s biggest contribution to the gay-marriage debate is his expansion of constitutional protections for the right to dignity. Justice Kennedy invoked the word “dignity” five times in the oral arguments; and other lawyers invoked it 16 times. It was central to the opening statements of Solicitor General Don Verrilli. “The opportunity to marry is integral to human dignity,” he began. “Excluding gay and lesbian couples from marriage demeans the dignity of these couples.” It was also one of the first words uttered by the plaintiff’s lawyer, Mary L. Bonuato. “If a legal commitment, responsibility and protection that is marriage is off limits to gay people as a class,” she said, “the stain of unworthiness that follows on individuals and families contravenes the basic constitutional commitment to equal dignity.”
Although the word dignity has appeared in more than 900 Supreme Court opinions, Justice Kennedy, as Kenji Yoshino of NYU has noted, has been especially drawn to it. He has referred to “dignity” in cases ranging from partial-birth abortions to prisons. As Yoshino puts it, “When Justice Kennedy ascribes dignity to an entity, that entity generally prevails.” Kennedy’s recognition of the dignity interests of LGBT couples has been influential in persuading lower court judges to strike down bans on same-sex marriage. But although Kennedy’s description of the dignitary interests of LGBT couples is inspiring, and it accurately describes their social experience, the roots of the right to dignity in constitutional text, history, and tradition are harder to discern.
Kennedy first drew a clear connection between “personal dignity and autonomy” and laws regulating personal relationships such as marriage in the 1992 Casey decision, which upheld the core of Roe v. Wade:
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education … These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
When Justice Kennedy later invoked this idea of dignity to overturn laws banning same-sex intimacy in the 2003 Lawrence case, Justice Scalia ridiculed his opinion in Casey as the “famed sweet-mystery-of-life passage.” Despite Scalia’s mocking tone, he was correct to note that Kennedy’s constitutionalizing of a right to dignity expanded the already amorphous right to privacy recognized in Roe v. Wade, which itself had tenuous constitutional roots. By rooting the right to dignity in a synthesis of the textually enumerated rights of equality and liberty, Kennedy laid the groundwork for judges to review laws that inflicted dignitary harm with skepticism, regardless of proof of intentional animus and regardless of whether the victim of discrimination was considered a “suspect class.”
A range of liberal scholars recognized the sweeping implications of Kennedy’s new synthesis of dignity with liberty and equality, from Robert Post (who observed that in Lawrence, the Court relied on “themes of respect and stigma ... traditionally associated with equal protection”) to Laurence H. Tribe (who described a “Substantive Due Process-Equal Protection synthesis,” and the relationship between the two as a “double helix”) to William N. Eskridge (who called the connection between liberty and equality a “jurisprudence of tolerance”). But in discussing the dignitary interest that emerges from the equality and liberty clauses, all of these scholars relied on the same highly abstract penumbral reasoning that had proven so controversial in the cases leading up to Roe v. Wade. In other words, the kind of liberties that the Framers had in mind when they framed the Fourth Amendment (the liberty of the home) were very different, and far more specific, than the broad right to be free to define your own identity without being demeaned by the state or by fellow citizens that Kennedy recognized in Lawrence.
Kennedy made another crucial move in Lawrence, concluding that an individual’s interest in dignity trumps the majority’s interest in preserving traditional moral values. “The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,” Kennedy held.
“This effectively decrees the end of all morals legislation,” Justice Scalia fulminated, and he predicted the demise of “state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.” In fact, Scalia’s prediction may prove to be correct. His question about why the state’s police power to protect public morals—taken for granted from the founding era until the Lawrence case—was suddenly a violation of the Constitution remains valid and unanswered. In Lawrence, Scalia also predicted that the new dignitary right would lead inevitably to the recognition of same-sex marriage, despite Kennedy’s protestations to the contrary (“Do not believe it,” Scalia wrote). As Scalia understood, without moral disapproval as a permissible state interest, the other interests the state offered to ban same-sex unions were hard to credit. Here is Scalia’s prescient observation:
If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution?”
“Surely not the encouragement of procreation,” Scalia concluded, “since the sterile and the elderly are allowed to marry.”
In other words, despite Ohio’s attempt to resurrect the encouragement of procreation as a justification for same-sex marriage bans in the recent arguments—a justification dismantled by Justices Kagan and Sotomayor—Scalia beat them to the punch by more than a decade.
In addition to sincere moral disapproval of homosexuality by some religious people, there is one other main reason that voters have passed same-sex marriage bans in the past few years: a desire to preserve tradition. But the Supreme Court ruled that reason out of bounds in United States v. Virginia in 1996, when it held that a desire to preserve tradition for its own sake was a “notably circular argument” that could not survive constitutional scrutiny.
Since these two arguments—moral disapproval or preserving tradition—are the real reasons most voters have for supporting gay marriage bans, opponents of gay marriage were forced to offer implausible reasons—such as promoting “responsible procreation” by straight people—which, as Justice Kagan’s questioning suggested, are hard to credit because they are essentially made up for the purposes of litigation.
* * *
Justice Kennedy’s broad constitutionalizing of a right to dignity has boxed in gay marriage opponents with its scope and breadth. Chief Justice Roberts tried to narrow the implications of the Lawrence decision in the oral arguments yesterday by suggesting that in that case, “the whole argument is the State cannot intrude on that personal relationship. This, it seems to me, is different in that what the argument is [today] is the State must sanction. It must approve the relationship. They’re two different questions.” But Solicitor General Verrilli resisted the attempt to narrow the dignitary implications of Lawrence. “Lawrence catalyzed for our society,” he replied. “It put gay and lesbian couples, gay and lesbian people, in a position for the first time in our history to be able to lay claim to the abiding promise of the Fourteenth Amendment in a way that was just impossible when they were marginalized and ostracized.”
Verrilli’s insight that denial of marriage benefits to gays and lesbians could demean and ostracize them, and violate their dignity, was confirmed by Justice Kennedy’s opinion the Windsor case from 2013, striking down the federal Defense of Marriage Act. According to Kennedy, DOMA’s history of enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages was “the essence” of its effects on gay people.
I won’t rehearse here the objections to reading the text and history of the Constitution at such a high level of generality; with this approach, the connections to the specific concerns that animated the framers is hard to discern. Suffice it to say that Justice Louis Brandeis, the greatest defender of the right to privacy in U.S. history, originally tried to persuade courts to recognize a new right to dignity, after confessing that American law, unlike Roman and European law, had not, traditionally protected offenses against honor and dignity.
But, as Neal Richards demonstrates in Intellectual Privacy, Brandeis changed his mind about the wisdom of constitutionalizing a right to dignity—defined as the right to restrain the press from publishing truthful but embarrassing information about celebrities—after concluding that it clashed with the First Amendment guarantees of free press and free expression. Instead, Brandeis came to embrace a more carefully defined notion of intellectual privacy and freedom of thought and belief, more closely rooted in the text of the First Amendment itself.
There is no doubt that Justice Kennedy accurately and movingly describes the indignity and stigma that bans on same sex marriage impose on the right of LGBT citizens to define their own identities and to claim the benefits of equal citizenship. But constitutionalizing that injury with broad abstractions like dignity may lead to results in the future that liberals come to regret. Already, the European Court of Justice’s recognition of a sweeping “Right to be Forgotten” on the Internet has lead to the most dramatic clash between European traditions of protecting dignity and American traditions of protecting free speech in a generation.
And down the line, the right to dignity—now celebrated by liberals for what it means to gay rights—could ultimately produce other decisions in unrelated cases that they would not be so quick to celebrate. In the McDonald case, striking down gun possession laws under the Second Amendment, Justice Scalia recognized a dignitary interest attached to the right to bear arms. “[T]he conceptual core of the liberty clause ... pertains to ... [an individual’s] elf-determination, ... dignity [or] respect,” he wrote.
The word dignity eludes narrow definition, or for that matter, any generally agreed upon definition. The Court itself has not provided a clear definition of dignity. One scholar, William A. Parent, declares, “[D]ignity is to possess the right not to be arbitrarily and therefore unjustly disparaged as a person.” In another article on “the Jurisprudence of Dignity,” Leslie Meltzer Henry writes that there is no single definition, but that dignity includes various conceptions including institutional status, equality, liberty, individual integrity, and collective virtue. She concludes, “dignity’s conceptions and functions are dynamic and context-driven.”
If dignity is defined so elastically, then conservatives judges might invoke it to strike down not only gun-control laws, but also other progressive legislation. Libertarian groups invoked the “sweet-mystery-of-life” my language in Casey to argue that the Obamacare healthcare mandate unconstitutionally violated the dignity and autonomy of Americans by forcing them to buy health insurance. In the future, cigarette smokers might argue that anti-smoking bans violate their ability to create an individual identity. And conservative Christian wedding photographers could claim that anti-discrimination laws compelling them to photograph gay weddings violate their dignity and ability to define themselves as conservative Christians. What courts would do when confronted with the clashing dignitary rights of the religious wedding photographer and the gay couple, or the hunter and the victim of gun violence, is anyone’s guess, because dignity is such an abstract concept that its boundaries are difficult to discern.
In suggesting that the expansion of the right to dignity is something that liberals may come to regret, I’m not arguing that same-sex marriage bans can or should easily be upheld in light of the Supreme Court precedents on the books. In the same-sex marriage arguments, the liberal justices seemed drawn to the idea that marriage is a fundamental right that must be expanded to all citizens on equal terms. A decision along those lines—although broader in some respects than a ruling based on dignity—might be easier to confine to cases involving marriage. And given Justice Kennedy’s previous opinions for the Court ruling out of bounds moral disapproval and the preservation of tradition for its own sake, it’s hard to think of any other plausible reasons for upholding the marriage bans that don’t rely on what the Court has defined as animus. Still, if the Court strikes down same-sex marriage bans on the grounds that they violate a right to dignity, liberals may have second thoughts about empowering judges to decide whose dignity trumps when the interests of citizens with very different conceptions of dignity clash.
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http://www.theblaze.com/contributions/constitution-revolution-how-one-amendment-is-actually-unraveling-the-constitution/?utm_source=Sailthru&utm_medium=email&utm_term=Firewire&utm_campaign=Firewire%20-%20HORIZON%205-23-15%20FINAL
The point made here seems very interesting to me and to be one worthy of remembrance.
https://www.youtube.com/watch?v=h6Jrb-8ER0g
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5 Supreme Court Cases to Watch in June
(I would like to discuss these with Bigdog.)
http://reason.com/archives/2015/05/31/5-supreme-court-cases-to-watch-in-june
The High Court prepares to rule on Obamacare, gay marriage, death penalty drugs, and more.
Damon Root | May 31, 2015
The Supreme Court's 2014-2015 term will soon reach its finale. By the end of June, when the justices depart for their summer break, the Court is expected to issue a series of blockbuster decisions, including rulings on gay marriage, death penalty drugs, and Obamacare. Here are five cases to watch as another momentous SCOTUS term reaches its peak.
Elonis v. United States
Anthony Elonis claims that he's "just an aspiring rapper" who likes to post violent lyrics and graphic first-person murder fantasies to Facebook. But after numerous Facebook postings in which Elonis wrote about killing his estranged wife, killing his boss, and killing others, including the FBI agent sent to investigate him, a federal jury found him guilty of transmitting "in interstate or foreign commerce any communications containing any threat to kidnap any person or any threat to injure the person of another." He was sentenced to 44 months in prison.
In Elonis v. United States the Supreme Court will decide whether those Facebook posts constituted a "true threat" of violence or whether they count as constitutionally protected speech under the First Amendment.
Glossip v. Gross
The state of Oklahoma employs a three-drug protocol when carrying out the death penalty via lethal injection. The first drug is supposed to render the prisoner totally unconscious and insensate. The second drug is a paralytic. The third drug does the killing. But what if there is a lack of medical consensus about whether or not the first drug actually renders the prisoner unconscious and insensate? What if paralyzed prisoners sometimes suffer excruciating pain in the final minutes before death? (A concern not afforded to the innocent in late term abortions.) Would that lack of medical certainty about the drug's effects violate the Eighth Amendment's prohibition against imposing cruel and unusual punishments (of serial killers)? Italics comments added.
Glossip v. Gross centers on such concerns. At issue is Oklahoma's use of the drug midazolam to render prisoners unconscious during execution. According to the petitioners, midazolam "is not approved or used as a standalone anesthetic during painful surgeries, because it is inherently incapable of reliably inducing and maintaining deep, comalike unconsciousness." The Supreme Court is tasked with determining whether or not the lower court got it wrong when it allowed Oklahoma to continue using this potentially unreliable drug.
Horne v. United States Department of Agriculture
The Takings Clause of the Fifth Amendment requires the government to pay just compensation when it takes private property for a public use. Yet according to a federal regulation designed to "stabilize" the raisin market, raisin farmers such as Marvin and Laura Horne are required to physically surrender a portion of their crop to federal officials each year without receiving just compensation in return. For example, in 2002-2003, the USDA demanded 30 percent of the annual raisin crop, which amounted to 89,000 tons. In return, the federal government paid nothing back to raisin farmers.
Do the USDA's actions violate the Takings Clause of the Fifth Amendment? The Supreme Court will decide in Horne v. USDA.
Obergefell v. Hodges
Do state legislatures have the lawful power to prohibit gay marriage? Or do state bans on gay marriage violate the 14th Amendment, which forbids the states from denying the equal protection of the laws to any person within their respective jurisdictions? In Obergefell v. Hodges, the Supreme Court confronts the possibility of legalizing gay marriage nationwide.
King v. Burwell
The question before the Supreme Court in King v. Burwell is whether the Obama administration illegally implemented the Patient Protection and Affordable Care Act (ACA) when the IRS allowed tax credits to issue to certain persons who bought health insurance on federally established health care exchanges. According to the text of the ACA, such tax credits should only issue in connection with purchases made via an "Exchange established by the State." According to the Obama administration, however, the phrase "established by the State" is actually a "term of art" that encompasses exchanges established by both the states and by the federal government. The legal challengers, by contrast, maintain that the statutory text is clear and that the health care law means what it says. Depending on how the Court sees it, the long-term survival of Obamacare could be at risk.
Damon Root is a senior editor of Reason magazine and the author of Overruled: The Long War for Control of the U.S. Supreme Court (Palgrave Macmillan).
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Supreme Court Backs White House on Jerusalem Passport Dispute
In an important separation-of-powers decision, the Supreme Court on Monday ruled that Congress may not require the State Department to indicate in passports that Jerusalem is part of Israel.
The vote was 6 to 3, with Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel A. Alito Jr. dissenting.
Justice Anthony M. Kennedy, writing for five justices, said the question of the status of Jerusalem is “a delicate subject.” But he said the Constitution conferred exclusive authority on the president to recognize foreign governments.
READ MORE »
http://www.nytimes.com/2015/06/09/us/politics/supreme-court-backs-white-house-on-jerusalem-passport-dispute.html?emc=edit_na_20150608
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The 14th Amendment is no mandate for same-sex marriage
BY HERBERT W. TITUS and WILLIAM J. OLSON
comment | print |
Within the month, the nation will receive the opinion of the US Supreme Court as to whether the US Constitution requires all of the states to jettison their domestic laws and sanction same-sex marriage. Numerous federal judges have so ruled, and most states have simply yielded to those federal court decisions. In a few cases, beginning with Vermont and Massachusetts, state courts ruled for same sex marriage, and state officials have accepted passively those decisions as well.
Generally, courts have ruled for same-sex marriage using either the “due process clause” or the “equal protection clause” of the Fourteenth Amendment, or both. That raises a simple question: is it really possible that when the Fourteenth Amendment was ratified in 1868 the framers intended that it sanction same-sex marriage?
Of course not.
The US Constitution says nothing about same-sex marriage. Then, how could the Constitution be manipulated to support a decision in favor of same-sex marriage? Well, it has not been easy. The constitutional case for same-sex marriage is pathetically weak — unless you adopt the notion of an “evolving” Constitution — which is, of course, the polar opposite of the notion of our “written” Constitution.
There are actually four cases, all from the US Court of Appeals for the Sixth Circuit, which have been consolidated for decision in the US Supreme Court — Obergefell, DeBoer, Tanco, and Bourke.
(If you would like to know more about how this case developed, a great deal of information, and links to all documents, is available on SCOTUS blog. The amicus curiae brief which we filed in the Sixth Circuit in support of traditional marriage is available, as is the amicus curiae brief which we filed in the US Supreme Court.)
The opinion by Judge Sutton of the US Court of Appeals for the Sixth Circuit — upholding traditional marriage against five challenges in four states — begins with a remarkable observation that should have resolved the case in that once sentence, but did not. Judge Sutton points out that “[n]obody in this case ... argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.” DeBoer v. Snyder, 772 F.3d 388, 403 (6th Cir. 2014) (emphasis added).
Laymen logically deduce that if the Fourteenth Amendment as written had nothing to do with same-sex marriage, that’s the end of the matter. After all, Justice Douglas succinctly described the Amendment in his autobiography: “The Fourteenth Amendment was passed to give blacks first-class citizenship.”
But for those lawyers who want unelected judges to set the public policy of our nation, it simply doesn’t matter what the Framers intended. And neither does it matter to many judges who are all too willing to give effect to their own political views. Discovering the “authorial intent” of the Framers is only a small part of their concern — a step they sometimes skip over entirely.
Recently, Justice Alito observed that “ame-sex marriage presents a highly emotional ... question ... but not a difficult question of constitutional law.” [United States v. Windsor, 570 US, 133 S.Ct. 2675, 2714 (2013) (Alito, J., dissenting)]:
The Constitution does not guarantee the right to enter into a same-sex marriage. Indeed, no provision of the Constitution speaks to the issue. It is beyond dispute that the right to same-sex marriage is not deeply rooted in this Nation’s history and tradition. [Id. at 2714-15.]
Therefore, Justice Alito explained that challengers to traditional marriage:
seek ... not the protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges. [Id. at 2715.]
If we are now considering a new right, one could legitimately ask when and where did this new right come from. Indeed, during oral argument in the case of Hollingsworth v. Perry, Justice Scalia asked this very question to same-sex marriage champion lawyer Ted Olson:
Justice Scalia: "When did it become unconstitutional to prohibit gays from marrying?... Was it always unconstitutional?"
Ted Olson: "It was [un]constitutional when we -- as a culture determined that sexual orientation is a characteristic of individuals that they cannot control..."
Justice Scalia: "I see. When did that happen?..."
Ted Olson: "There's no specific date in time. This is an evolutionary cycle."
Of course, a written constitution that is subject to evolutionary change is no longer a written constitution. A constitution that is always evolving provides no fixed guarantees for the rights of the people. If the “Due Process Clause” of the Fourteenth Amendment can morph into a mandate for homosexual marriage, then the “right to keep and bear arms” can become a right to call the police when attacked. Once we abandon the author’s meaning of a text, we are left treating the US Constitution as poetry, asking “what does the Constitution mean to me?”
Unable to ground their challenge in the Fourteenth Amendment as written, the advocates of same-sex marriage have used an assemblage of fabrications, purportedly derived from this Court’s precedents, but without any support in fact or law.
One of the briefs in the Supreme Court asserted that the High Court has already established that “[t]he right to marry the person of one’s choice is a fundamental freedom.” The claim is patently false.
To the contrary, the Supreme Court has always assumed that marriage law was originally governed by the common law which required consummation between one male and one female. [See Maynard v. Hill, 125 US 190, 213 (1888). See also 1 William Blackstone, Commentaries on the Laws of England, 424 (Univ. Of Chi. Facsimile ed.: 1765).]
The Court in Maynard explained: “though formed by contract ... the relation of husband and wife, deriv[ed] both its rights and duties from a source higher than any contract of which the parties are capable, and, as to these, uncontrollable by any contract which they can make.” And “[w]hen formed,” the Court continued, the relation between husband and wife was “no more a contract than ‘fatherhood’ or ‘sonship’ is a contract.” Instead, marriage “partakes more of the character of an institution regulated and controlled by public authority, upon principles of public policy, for the benefit of the community.” Thus, it is just pretense to claim that the Supreme Court previously established the right “to marry the person of one’s choice.”
Any such claim is a total fabrication designed to hide the fact that at the time the nation was founded not only was same-sex marriage not legally sanctioned, but sexual relations between men constituted, as Sir William Blackstone declared, “the infamous crime against nature[,] a disgrace to human nature,” and punishable by death. [4 Blackstone’s Commentaries at 215-16.]
In addition to this condemnation of “unnatural” sexual coupling, the English common law of marriage exclusively adopted the Biblical matrimonial order. First, the common law limited the relationship to one between “husband and wife,” that is, “baron and feme.” [I Blackstone’s Commentaries at 421.] And second, the common law made “voidable” any union between a man and a woman under the “canonical disabilities” of “consanguinity, or relation by blood; and affinity, or relation by marriage.” [Id. at 422.] Thus, it is wildly false for Petitioners to presume, as they have, that there is a well-established right to marry any person of one’s choice.
The same-sex marriage proponents now ask the Supreme Court to take the nation one step further away from our written constitution, by fundamentally changing the meaning of its text based on the will of a bare majority of five lawyers serving on this Court, rather than complying with the exclusive process for amending the Constitution, as set out in its Article V. Freed from textual constraint, Professor Lino Graglia has observed that:
- ver the past half-century the justices have chosen to make themselves the final lawmakers on most basic issues of domestic social policy in American society. These include issues literally of life and death ... and issues of public morality.... In essence, the Court now performs in the American system of government a role similar to that performed by the Grand Council of Ayatollahs in the Iranian system.... (2)
Nearly two decades ago, Justice Scalia warned:
[t]his Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that “animosity” toward homosexuality ... is evil. [Romer v. Evans, 517 US 620, 636 (1996) (Scalia, J., dissenting).]
And, exactly as Justice Scalia predicted in Romer, the American people have seen a flurry of judicial opinions with “no foundation in American constitutional law” overturning laws which were “designed to prevent piecemeal deterioration of the sexual morality” desired by the People. These court opinions together constitute what he described as “acts, not of judicial judgment, but of political will.” [Id. at 653.]
As such, they are not just “bad law,” but as Blackstone stated, they are “not law” at all.
Herbert W. Titus taught Constitutional Law for 26 years, and concluded his academic career as the Founding Dean of Regent Law School. William J. Olson served in three positions in the Reagan Administration. Together they have filed over 80 briefs in the US Supreme Court, and dozens more in lower courts, addressing important public policy issues. They now practice law together at William J. Olson, P.C. They can be reached at traditionalmarriage@lawandfreedom.com or twitter.com/Olsonlaw. This article is part of a series on “Building Resistance to Same-Sex Marriage.”
Notes
(1) William O. Douglas, The Court Years, p. 154 (Random House: 1980).
(2) L. Graglia, “Constitutional Law Without the Constitution: The Supreme Court’s Remaking of America,” in “A Country I Do Not Recognize” (R. Bork ed., Hoover Press 2005).
- See more at: http://www.mercatornet.com/conjugality/view/the-14th-amendment-is-no-mandate-for-same-sex-marriage2/16314#sthash.hZoj3jGz.dpuf
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http://www.theday.com/local/20150621/for-lead-plaintiff-what-they-did-was-wrong-then-and-its-still-wrong-today
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http://www.theday.com/local/20150621/for-lead-plaintiff-what-they-did-was-wrong-then-and-its-still-wrong-today
Yes, still wrong. Another good article on the same topic below. Worst Supreme Court decision since Dred Scott or Roe v. Wade? It is salt in the ironic wounds that the liberals sided with Big Pharma and then the company left the city when the preferential tax subsidies ran out. What have we learned? For most, NOTHING. Along with no respect for the sanctity of life or right of privacy (see healthcare), we don't respect property rights anymore. The Court upheld the action of a City with acted with openly preferential treatment in favor of the largest company in town and took the pink house by the water from a woman who did nothing wrong for no reason other than financial gain, and it is symbolic of nearly all that is wrong with our country and government today. A woman's house was not her castle. I would ask, where are the women's rights advocates when you take their income, take their home or take their right to be left alone and not have to hire lawyers to oppose the government on its every power grabbing whim? Nowhere to be seen.
Kelo v. City of New London Ten Years... by RICHARD EPSTEIN There has been some progress, but much is left to do. Ten years ago, on June 23, 2005, the United States Supreme Court dropped a judicial thunderbolt in Kelo v. City of New London. By a narrow five-to-four margin it rejected a spirited challenge that Susette Kelo and her neighboring landowners had raised against the ambitious land-use development plan put forward by the City of New London, Ct. The formulaic account of the holding is that a local government does not violate the “public use” component of the Constitution’s takings clause — “nor shall private property be taken for public use, without just compensation” — when it condemns property that will be turned over to a private developer for private development. Under the logic of Justice John Paul Stevens, so long as there is an indirect promised public benefit from the development process, the public-use inquiry is at an end, and Ms. Kelo can be driven out of her pink house by the water.
Ten years later, my reaction is the same as it was at the time: truly horrible. Justice Stevens and the Supreme Court were tone-deaf as to what moves people in dealing with property. Of all the cases decided since the year 2000, Kelo may not be the most important; ironically, it certainly was not the most controversial. But hands down, it was the decision that got more people indignant than any other. The bipartisan coalition in opposition was, and is, easy to identify. On the right, there are folks who think that a person’s home is his castle, and thus resent any forced displacement of individuals for the benefit of some supposed social good. And that anger doubles because of the crackpot and visionary nature of the particular plan at issue in Kelo. The communitarians on the left were upset that Pfizer, the company that was going to use the seized land for a research facility, should flex its muscles in ways that prey on individual people.
Anyone who wants to get a sense of the process would be well-advised to real Ilya Somin’s new book, The Grasping Hand, which offers a painful blow-by-blow account of how good intentions for redevelopment were so badly misdirected that ten years later the seized property remains empty. Perhaps the only nice feature about the case is that Ms. Kelo’s pink house was whisked away to another site, so that the newly vacant land can be used to collect debris that washes up on the shore. Yes, the grandiose development plans for the Fort Trumbull neighborhood never got to first base. As it turned out, New London was too slow off the mark, other communities built the ancillary facilities that Pfizer wanted, and the company pulled out of New London once the tax subsidies ran out.
Truth be told, however, this bipartisan form of indignation cut too broadly for its own good. The same fierce objections could also be used to attack the destruction of homes to make way for a public hospital or public road. The public-use clause looks only at the purpose for which property is taken, but ordinary people also look at the other side of the equation and ask about the purpose that is deprived. Indeed, the fierce reaction to Kelo prompted lots of people to reexamine the use of eminent domain even in cases where the government’s public use, narrowly conceived, was incontrovertible. And they are right. The Constitution should not be the only restriction on the use of the takings power. It is one thing to knock someone out of a home, and quite another to tell a landlord that he is duty-bound to transfer his interest to his tenant in possession in an exchange that the state will enforce only after the tenant ponies up the cash to the state to work the condemnation. Yet this blatant violation of the public-use clause received its judicial blessing in Hawaiian Housing Authority v. Midkiff, a muddy 1984 decision in which Justice Sandra Day O’Connor concocted an indirect benefit that justified the coerced transfer — the need to eliminate supposed “oligarchy” in the Hawaiian housing market, which could have been done quite easily by opening up more restricted agricultural land to urban development. Doctrinally Midkiff was no better or no worse than Kelo, and to her credit, Justice O’Connor backed away from Midkiff in her Kelo dissent.
Yet back in 1984 the public yawned. Taking land from the Bishop Estate, a charitable trust, was, for many populists at least, a delicious prospect. The Left/Right coalition that formed in Kelo could not coalesce around the earlier case, which did not resonate with the public at large. So what should have been done in Kelo? Here the deep irony is that Justice Stevens did not have to tempt the devil. In general, my own view is that master plans are often too ambitious for their own good, much like those vaunted Soviet-style five-year plans. But often the ingredients are there. Such was evident in Kelo, where the introduction of a major $73 million subsidy from the state to the city had to be spent lest it be lost. So the impulse is to move first and think later, which is what the city did when it condemned the entire 90-acre Fort Trumbull development site before any concrete plans were in place. Remove the subsidy and perhaps New London would have been content to plan today and condemn tomorrow, when matters got closer to realization.
On the facts of that case, a possible halfway house would have been to condemn the land at the center of the development site immediately and leave the peripheral takings until later. Judicially, that is what the Connecticut trial judge decided when he spared Ms. Kelo’s plot because it was not in the path of any planned development. But hubris is in far greater supply as one moves through the court system, so that the Connecticut Supreme Court had such confidence in the city’s planners that it thought maximum flexibility was needed for effective planning. Had that court simply affirmed the decision below, Kelo would never have reached the U.S. Supreme Court and the entire incident would have faded away. Some state courts, and some state legislatures, have tried to clip the wings of the decision, but even that has been a hard battle. Yet, once it was decided, the outrage did not subside. Since that time, the Supreme Court has ducked the issue, even though some local governments have done things just as foolish and unnecessary as what the city of New London did. Some state courts, and some state legislatures, have tried to clip the wings of the decision, but even that has been a hard battle. It is difficult to get anyone to attack general planning for economic development, because sometimes in blighted communities it actually works. But “blight” can easily become a term of art, so that weeds in the garden may trigger a government takeover.
All this is not to deny that Kelo has had its effect, for surely it has, but chiefly through the medium of public opinion, which has tended to make it politically more costly for governments to condemn the property of their own citizens. It is so much easier politically to get local governments to rally support to zone out people they don’t want in their communities. Kelo was a big deal, and it will remain in the consciousness of the American public for years to come. Zoning is a bigger deal, and the same misguided progressive impulses that led to the rise of central planning on steroids are still dominant in an area that needs its own Kelo-like fiasco to get the public attention that it so richly deserves.
— Richard Epstein is the Laurence A. Tisch Professor of Law at New York University School of Law, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, and the James Parker Hall Distinguished Service Professor of Law Emeritus and Senior Lecturer at the University of Chicago.
http://www.nationalreview.com/article/420144/kelo-eminent-domain-richard-epstein
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Big Supreme Court decisions coming very shortly, King v Burwell and the right of states to define marriage. Predictions anyone?
I am hopeful on Burwell that the Court goes beyond merely reading the statute and strikes down all subsidies that aren't available equally to all Americans. Is that too much to ask?
Roberts will write the Obamacare subsidy decision. Kennedy will write the gay marriage decision.
http://www.realclearpolitics.com/articles/2015/06/22/supreme_court_bingo_how_it_might_rule.html
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I am sickened by Chief Justice John Roberts hypocrisy on his Obamacare rulings and by my own inability to recognize poor character before it becomes so blatantly obvious.
In the previous case, Sebelius vs America, he wrote essentially that the defects of the law could be corrected by the legislative process and therefore didn't need interference from the judicial branch. In King v. Burwell he saw specific writing that could easily be changed by the legislative branch if they were so inclined and instead he 'fixed' it for them - making the law pretend to say what it in fact doesn't.
Roberts' drivel from his confirmation that impressed me so much at the time:
"If the Constitution says that the little guy should win, the little guy's going to win in court before me," Roberts said. "But if the Constitution says that the big guy should win, well, then the big guy's going to win, because my obligation is to the Constitution. That's the oath."
What a weasel.
Justice Scala isn't impressed either:
"We should start calling this law SCOTUScare.
The Court interprets §36B to award tax credits on both federal and state Exchanges. It accepts that the “most natural sense” of the phrase “Exchange established by the State” is an Exchange established by a State. Ante, at 11. (Understatement, thy name is an opinion on the Affordable Care Act!).
Yet the opinion continues, with no semblance of shame, that “it is also possible that the phrase refers to all Exchanges—both State and Federal.” Ante, at 13. (Impossible possibility, thy name is an opinion on the Affordable Care Act!).
I wholeheartedly agree with the Court that sound interpretation requires paying attention to the whole law, not homing in on isolated words or even isolated sections. Context always matters. Let us not forget, however, why context matters: It is a tool for understanding the terms of the law, not an excuse for rewriting them.
One begins to get the sense that the Court’s insistence on reading things in context applies to “established by the State,” but to nothing else.
On the other side of the ledger, the Court has come up with nothing more than a general provision that turns out to be controlled by a specific one, a handful of clauses that are consistent with either understanding of establishment by the State, and a resemblance between the tax-credit provision and the rest of the Tax Code. If that is all it takes to make something ambiguous, everything is ambiguous.
Perhaps sensing the dismal failure of its efforts to show that “established by the State” means “established by the State or the Federal Government,” the Court tries to palm off the pertinent statutory phrase as “inartful drafting.” Ante, at 14. This Court, however, has no free-floating power “to rescue Congress from its drafting errors.” Lamie v. United States Trustee, 540 U. S. 526, 542 (2004).
Only when it is patently obvious to a reasonable reader that a drafting mistake has occurred may a court correct the mistake. The occurrence of a misprint may be apparent from the face of the law, as it is where the Affordable Care Act “creates three separate Section 1563s.” Ante, at 14. But the Court does not pretend that there is any such indication of a drafting error on the face of §36B.
The occurrence of a misprint may also be apparent because a provision decrees an absurd result—a consequence “so monstrous, that all mankind would, without hesitation, unite in rejecting the application.” Sturges, 4 Wheat., at 203. But §36B does not come remotely close to satisfying that demanding standard. It is entirely plausible that tax credits were restricted to state Exchanges deliberately—for example, in order to encourage States to establish their own Exchanges. We therefore have no authority to dismiss the terms of the law as a drafting fumble.
Let us not forget that the term “Exchange established by the State” appears twice in §36B and five more times in other parts of the Act that mention tax credits. What are the odds, do you think, that the same slip of the pen occurred in seven separate places?
If there was a mistake here, context suggests it was a substantive mistake in designing this part of the law, not a technical mistake in transcribing it.
The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people’s decision to give Congress “[a]ll legislative Powers” enumerated in the Constitution. Art. I, §1. They made Congress, not this Court, responsible for both making laws and mending them.
This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. We must always remember, therefore, that “- ur task is to apply the text, not to improve upon it.” Pavelic & LeFlore v. Marvel Entertainment Group, Div. of Cadence Industries Corp., 493 U. S. 120, 126 (1989).
Even less defensible, if possible, is the Court’s claim that its interpretive approach is justified because this Act “does not reflect the type of care and deliberation that one might expect of such significant legislation.” [Citation omitted] It is not our place to judge the quality of the care and deliberation that went into this or any other law. A laenacted by voice vote with no deliberation whatever is fully as binding upon us as one enacted after years of study, months of committee hearings, and weeks of debate.
Much less is it our place to make everything come out right when Congress does not do its job properly. It is up to Congress to design its laws with care, and it is up to the people to hold them to account if they fail to carry out that responsibility.
[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.” Lynch v. Alworth-Stephens Co., 267 U. S. 364, 370 (1925).
Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.
Words no longer have meaning if an Exchange that is not established by a State is “established by the State.”
Today’s interpretation is not merely unnatural; it is unheard of.
[T]his Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence.
And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites."
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I do believe they should start putting affordable housing in the Hamptons, LI, Santa Monica, Ca, Lenox Hill, NYC, Palm Springs, Ca. and Palm Beach, Fl. and across the street from the White House, DC, and Georgetown, DC .
http://www.wsj.com/video/opinion-journal-is-housing-ruling-constitutional/B176E1A5-FEEF-4487-B735-6578DF528036.html
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y Ian Hanchett27 Jun 2015506
CNN Senior Legal Analyst Jeffrey Toobin said that it wasn’t legal “to talk about gay people the way Justice Scalia used to talk about gay people” while recounting Scalia’s prior dissent in Lawrence v. Texas on Friday’s “CNN Newsroom.”
Toobin said Scalia’s dissent was “very different. And I think, if you want illustrations of how much the country has changed in the past decade or so, you need only look at Justice Scalia. Because in 2003, in the case of Lawrence v. Texas, he also dissented, another Anthony Kennedy opinion. And that was the case that said gay people could not be criminally prosecuted for having sex. And listen to this, what Justice Scalia wrote in 2003. He said,
‘Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.’
(MARC: What about this point?)
I mean, really, just outward bigotry against gay people. Now, today Justice Scalia begins his dissenting opinion by saying this issue is of no particular importance to me, and the only real issue here is the democratic process, who makes the decisions, should it be the courts? Or should it be the people? Even Justice Scalia, who is the biggest social conservative on the court, he cannot talk the way he used to talk about gay people because culturally, politically, even legally, it’s simply not appropriate, and even legal in many — in ways to talk about gay people the way Justice Scalia used to talk about gay people.”
Later, during the afternoon broadcast, he stated of Scalia, “Well, you know, he has become the ‘get off my lawn’ justice. He is so angry all the time, you would think he lost every case when, in fact, the conservatives on the court, of whom he is a senior member, usually win most cases. But the healthcare case yesterday and the marriage case today have really set him off, and today, it was not so much the rhetoric about the issue, but it was the attacks on Justice Kennedy personally…was really a kind of breach of decorum that, even in the spirited dissenting opinions that the justices are known to write, was really kind of over the top.
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e 29, 2015 6:49 p.m. ET
159 COMMENTS
A miserable Supreme Court term got worse on Monday when another 5-4 majority decided to rewrite the Constitution’s Elections Clause to limit legislative redistricting. We’ve deplored legislative gerrymanders as much as anyone, but that doesn’t mean our policy preference should trump the Constitution.
In 2000 Arizona voters approved a ballot measure to amend the state constitution and give a five-member commission the power to draw the map for Congressional districts. The idea was to take redistricting away from politicians who invariably use it for partisan advantage.
Good intention, but the Elections Clause says the “times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” And the legislature didn’t sanction the referendum.
Justice Ruth Bader Ginsburg nonetheless writes for the liberals and Anthony Kennedy that when the Framers wrote the word “legislature” they didn’t mean “legislature.” They meant it loosely because “the people themselves are the originating source of all the powers of government.”
The Founders weren’t perfect but they were more precise wordsmiths than the average Supreme Court Justice. For example, when they meant “the people,” they wrote “the people.” So when they wrote “the legislature,” confidence is high that they meant “the legislature.”
The majority’s ruling has “no basis in the text, structure, or history of the Constitution, and it contradicts precedents from both Congress and this Court,” Chief Justice John Roberts writes in withering dissent. The Constitution, he notes, uses the word legislature in 17 instances where it cannot possibly be interpreted to mean “the people,” and Supreme Court precedents have specified that in the Elections Clause the word legislature means “the representative body which ma[kes] the laws of the people.”
When the Constitution was written, state legislatures were given the power to choose the Senators the states sent to Washington, D.C. It took decades, and the Seventeenth Amendment, to give that power directly to voters. “What chumps!” Chief Justice Roberts writes, “Didn’t they realize that all they had to do was interpret the constitutional term ‘the Legislature’ to mean ‘the people’?”
The position of the four liberal Justices isn’t all that surprising because taking redistricting away from legislatures has become fashionable on the left now that Republicans hold the House. But Justice Kennedy’s vote rankles in particular because he has shown good judgment on election law in previous cases including 2008’s Crawford v. Marion County (upholding Indiana’s voter ID requirement), 2013’s Shelby County v. Holder (striking down the Voting Rights Act’s preclearance requirement) and 2010’s Citizens United v. FEC (invalidating a ban on corporate and union independent expenditures).
Partisan gerrymanders deserve criticism, but Justice Ginsburg’s opinion is an act of judicial invention. Like so many other rulings this term, it subordinates the Constitution’s plain language and the Court’s own precedents to a policy agenda. That does more damage to constitutional democracy than any redistricting can.
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"Chumps" is putting it nicely.
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http://www.jewishworldreview.com/cols/will071115.php3
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Justice Alito: Judicial Restraint Amidst The Court's 'Postmodern' Activism
8:04 AM, Jul 20, 2015 • By ADAM J. WHITE
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The liberals on the Supreme Court could not be any more obviously political than this. Just like the DNC they share talking points and come out in synchrony:
****Justice Ruth Bader Ginsburg made news recently, when she said—bragged, it seemed—that she and her fellow liberals on the Court were going out of their way to stifle their individual voices in high-profile cases. When the liberals find themselves on the losing side of a case, she explained, they strive to sign a single dissenting opinion instead of each justice writing his or her own.
"If you want to make sure you're read, you do it together, and you do it short," she told NPR's Nina Totenberg, a longtime friend. When Totenberg asked Ginsburg why the Court's conservatives don't take a single approach, Ginsburg quipped, "next term I think you'll see some of my colleagues will be more disciplined."
Maybe the conservative justices would score more political points with such an approach. But our country would be all the worse off for it. For as things currently stand, the Court's conservative or libertarian justices are writing in such distinct voices—with such distinct principles, presumptions, and prudential judgments—that our nation's constitutional debates hardly suffer from hearing each of the conservative and libertarian justices speaking for themselves as much as possible. We all benefit from them. ****
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I posted this on immigration issues also as it is a very important question right now. Please read and comment. Does the constitution require amending, or was the Supreme Court wrong, or do we want non-citizens dropping babies in to anchor the new citizenship rights away from our otherwise legal, immigration process.
I don't like to hear that the WSJ Editorialists got this wrong. Or is John Eastman wrong here? I don't think so. This is the interpretation that makes sense to me.
http://www.nationalreview.com/article/422960/birthright-citizenship-reform-it-without-repealing-14th-amendment
We Can Apply the 14th Amendment While Also Reforming Birthright Citizenship
by JOHN C. EASTMAN August 24, 2015 4:00 AM
Birthright citizenship has exploded into the national discourse. The issue is generating a lot of heat on the Republican side of the aisle in particular, because it threatens to expose the long-standing rift between the party’s base and its pro-crony-capitalism establishment.
Unfortunately, in arguing that the 14th Amendment requires citizenship for the children of illegal immigrants, some of the more prominent interlocutors are promoting an incorrect understanding of history. The Wall Street Journal’s recent editorial on the matter is a case in point, and my good friend John Yoo’s NR essay repeats one of the same basic flaws.
The first clause of the 14th Amendment provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The Journal thinks the meaning is “straightforward”: “Subject to the jurisdiction” covers everyone born on U.S. soil (except the children of diplomats and invading armies), because “‘jurisdiction’ defines the territory where the force of law applies and to whom — and this principle is well settled to include almost everyone within U.S. borders, regardless of their home country or the circumstances of their birth.” It then states: “By the circular restrictionist logic, illegal immigrants could not be prosecuted for committing crimes because they are not U.S. citizens.”
Professor Yoo makes the same claim (absent the ad hominem word “restrictionist”): “Almost all aliens in the United States, even citizens of other nations, still fall within our jurisdiction while they are in our territory: Otherwise they could commit crimes of all sorts without fear of punishment.”
This claim plays off a widespread ignorance about the meaning of the word “jurisdiction.” It fails to recognize that the same word covers two distinctly different ideas: 1) complete, political jurisdiction; and 2) partial, territorial jurisdiction.
Think of it this way. When a British tourist visits the United States, he subjects himself to our laws as long as he remains within our borders. He must drive on the right side of the road, for example. He is subject to our partial, territorial jurisdiction, but he does not thereby subject himself to our complete, political jurisdiction. He does not get to vote, or serve on a jury; he cannot be drafted into our armed forces; and he cannot be prosecuted for treason if he takes up arms against us, because he owes us no allegiance. He is merely a “temporary sojourner,” to use the language employed by those who wrote the 14th Amendment, and not “subject to the jurisdiction” of the United States in the full and complete sense intended by that language in the 14th Amendment.
The same is true for those who are in this country illegally. They are subject to our laws by their presence within our borders, but they are not subject to the more complete jurisdiction envisioned by the 14th Amendment as a precondition for automatic citizenship. It is just silliness to contend, as the Journal does, that this is “circular restrictionist logic” that would prevent illegal immigrants from being “prosecuted for committing crimes because they are not U.S. citizens.”
Moreover, contrary to Professor Yoo’s contention, the text elsewhere in the 14th Amendment supports this distinction. Unlike the Citizenship Clause, which uses the phrase “subject to the jurisdiction,” the Equal Protection Clause bars a state from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” (Emphasis added.) The phrase “within its jurisdiction” is territorial, whereas the phrase “subject to the jurisdiction” is political.
There were no restrictions on immigration in 1868 when the 14th Amendment was being drafted and ratified, so there was no debate on whether the Citizenship Clause confers automatic citizenship on the children of illegal immigrants. But we do have debate on the analogous circumstance of Native Americans who continued to owe allegiance to their tribes. One senator — exhibiting the same confusion today exhibited by the Journal — asked Senator Lyman Trumbull, a key figure in the drafting and adoption of the 14th Amendment, whether Indians living on reservations would be covered by the clause, since they were “most clearly subject to our jurisdiction, both civil and military.”
Trumbull responded that “subject to the jurisdiction” of the United States meant subject to its “complete” jurisdiction, “not owing allegiance to anybody else.” And Senator Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean “a full and complete jurisdiction,” “the same jurisdiction in extent and quality as applies to every citizen of the United States now” — that is, under the 1866 Civil Rights Act, which the 14th Amendment was intended to codify. That act made the point even more clearly: “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” (Emphasis added.) As the debate over the 14th Amendment makes clear, the shift in language from the 1866 Civil Rights Act to what became the Citizenship Clause of the 14th Amendment was not intended to provide citizenship to the children of illegal immigrants, but rather to shift away from the “not subject to any foreign power” language out of recognition that the Indian tribes were not foreign powers but domestic (albeit dependent) powers. As Senator Howard explained, the Citizenship Clause excludes not only Indians but “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”
The leading treatise writer of the day, Thomas Cooley, confirmed this was the understanding of the 14th Amendment. As he wrote in his treatise, The General Principles of Constitutional Law in America, “subject to the jurisdiction” of the United States “meant full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.”
When the Supreme Court first addressed the Citizenship Clause in the 1873 Slaughterhouse Cases, both the majority and dissenting opinions recognized this same understanding. The majority in that case correctly noted that the “main purpose” of the clause “was to establish the citizenship of the negro” and that “the phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” (Emphasis added).
That language in Slaughterhouse was dicta (a comment not strictly relevant to the decision), but it became holding a decade later in the 1884 case of Elk v. Wilkins. The Supreme Court held in that case that the claimant — a Native American born on a tribal reservation — was not a citizen because he was not “subject to the jurisdiction” of the United States at birth, which required that he be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” Elk did not meet the jurisdictional test because, as a member of an Indian tribe at his birth, he “owed immediate allegiance to” his tribe and not to the United States. Although “Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states,” “they were alien nations, distinct political communities,” according to the Court, thereby making clear that its holding was about allegiance and not the reservation’s geographic territory. Then, drawing explicitly on the language of the 1866 Civil Rights Act from which the 14th Amendment was drawn, the Court continued: “Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more ‘born in the United States and subject to the jurisdiction thereof,’ within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.”
Professor Yoo is therefore simply mistaken in his claim that “the Supreme Court has consistently read Section One as granting birthright citizenship to the children of aliens on U.S. territory.” In fact, it has never held that the children born on U.S. soil to parents who are in this country illegally are citizens. In the 1898 case of Wong Kim Ark, the Court simply held that a child born of Chinese immigrants who were lawfully and permanently in the United States — “domiciled” here, to use the Court’s phrase — was a citizen. Language in the opinion that can be read as suggesting that birth on U.S. soil alone, no matter what the circumstances, confers automatic citizenship is pure dicta, because no claim was at issue in the case other than whether the child of lawful, permanent residents was a citizen.
Professor Yoo’s contention to the contrary overlooks the Court’s use of the word “domiciled” in describing the nature of Wong Kim Ark’s relationship to the United States. “Domicile” is a legal term of art; it means “a person’s legal home,” according to Black’s law dictionary, and is often used synonymously with “citizenship.” Wong Kim Ark’s parents were not allowed to become citizens because the U.S. had entered into a nefarious treaty with the Emperor of China that refused to recognize their natural right to emigrate, but they were “domiciled” in the United States, which is to say, lawfully present in the United States. The holding of the case, as opposed to its broader dicta, does not mandate citizenship for children born to those who are unlawfully present in the United States, and it does not even mandate citizenship for those who are visiting the United States temporarily but lawfully. In both cases, the children, through their parents, retain allegiance to their parents’ home country — to a “foreign power,” to return to the language of the 1866 Civil Rights Act. They are therefore not “subject to the jurisdiction” of the United States in the way intended by the 14th Amendment, and therefore not automatic citizens.
As I said, no Supreme Court case has held otherwise. Wong Kim Ark did not so hold. Neither did Plyler v. Doe in 1982, contrary to the Journal’s assertion; the relevant language in that case is simply a footnote for comparison with the Equal Protection Clause, and pure dicta.
Professor Yoo’s description of the debate between Senators Cowan and Conness likewise misses the point. Cowan asked whether the Citizenship Clause would confer citizenship upon the children of Chinese parents who were living in California, or the children of Gypsies living in Pennsylvania. “Have they any more rights than a sojourner in the United States?” he asked. He was attempting to draw a distinction based on race or ethnic background, not on lawful versus unlawful presence in the United States, or even on permanent versus temporary presence. It was for that reason that Conness began his reply by stating that he failed to see what relation Cowan’s question had to do with the Citizenship Clause. The 14th Amendment did not do away with sovereignty.
Conness then responded that automatic citizenship would be available to the “children begotten of Chinese parents in California” just as existed under existing law — that is, the 1866 Civil Rights Act, which extended citizenship to “all persons born in the United States, and not subject to any foreign power.” That guarantee was available no matter the ethnic background of the parents — we were not extending citizenship only to the descendants of white Europeans — but his response did not suggest that the children of those who were not lawfully present in the United States, or who were mere temporary visitors, would be automatic citizens. Indeed, Cowan’s own question — “Have [the children of Chinese or Gypsies domiciled in the United States] any more rights than a sojourner?” — demonstrates that he was also aware of the distinction between territorial and political jurisdiction. For the debate to support Professor Yoo’s position, Conness would have had to respond that even the children of sojourners would be entitled to automatic citizenship. There is not a hint in his response to suggest such an answer, nor in any other part of the entire debate.
So, truth be told, the 14th Amendment does not need to be repealed in order to fix the problem of birthright citizenship for the children of illegal immigrants. It just needs to be understood and applied correctly. The Journal’s contention that conservatives who insist upon this understanding of the law “are promising a GOP version of President Obama’s ‘illegal amnesty order’” could therefore not be further from the truth. Constitutional originalism requires that we give effect to the public meaning of the words actually used, even if the Wall Street Journal would wish the meaning were otherwise. And the Journal’s further contention that anyone who wishes to see the 14th Amendment faithfully applied is claiming “that some people are not real Americans and have no right to be,” is simply another ad hominem attack and mischaracterization not worthy of an otherwise great newspaper.
Finally, let me close with some agreement with Professor Yoo’s soaring rhetoric at the end of his piece, much of which is entirely true. Yes, “rather than being a misguided act of generosity, the 14th Amendment marks one of the great achievements of the Republican party.” And yes, “It was the Republican party that opposed Dred Scott.” And yes, “It was the Republican Party that fought and won the Civil War.” And definitely yes, “it was the Republican party that drafted and ratified the 13th, 14th, and 15th Amendments, which did away with slavery and any distinction between Americans based on race.”
But the 14th Amendment did not do away with sovereignty. It did not do away with the importance of citizenship, or with the idea, rooted in the Declaration of Independence, that legitimate governments are grounded on the consent of the governed. Birthright citizenship, as currently practiced, allows those who continue to owe allegiance to a foreign power to demand American citizenship for their children, unilaterally and as a result of their illegal conduct. Those who oppose such an abuse do not support Dred Scott. They are drawing distinctions based not on race, but on the rule of law. Professor Yoo need not worry, therefore, that applying the 14th Amendment faithfully would “discard one of the greatest attributes of American exceptionalism.” The welcome mat to American citizenship is open to anyone in the world regardless of race or ethnic background, as long as they adhere to the legal rules set out by Congress for immigration to this country.
— John C. Eastman is the Henry Salvatori Professor of Law & Community Service and former dean at Chapman University School of Law. He also serves as the director of the Claremont Institute’s Center for Constitutional Jurisprudence.
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A very good discussion.
I am quite busy with the sort of things that go with having been on the road for seven days, but this thread is the right place for the discussion of this issue. May I ask that some one paste here my post of this morning on this matter (on the Immigration thread?)?
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A very good discussion.
I am quite busy with the sort of things that go with having been on the road for seven days, but this thread is the right place for the discussion of this issue. May I ask that some one paste here my post of this morning on this matter (on the Immigration thread?)?
Trump's critics are wrong about birthright citizenship
« Reply #929 on: Today at 11:54:53 AM »
Reply with quote
http://www.nationalreview.com/birthright-citizenship-not-mandated-by-constitution?utm_source=Sailthru&utm_medium=email&utm_campaign=Saturday%20Best%20of%208/22&utm_term=VDHM%20Reader
by Edward J. Erler August 19, 2015 4:00 AM Donald Trump continues to bewilder political experts. He unabashedly wades into politically dangerous territory and yet continues to be rewarded by favorable poll results. He has clearly tapped into a reserve of public resentment for inside-the-Beltway politics. How far this resentment will carry him is anyone’s guess, but the Republican establishment is worried. His latest proposal to end birthright citizenship has set off alarm bells in the Republican party. The leadership worries that Trump will derail the party’s plans to appeal to the Latino vote. Establishment Republicans believe that the future of the party depends on being able to capture a larger share of this rapidly expanding electorate. Trump’s plan, however, may appeal to the most rapidly expanding electorate, senior citizens, and may have an even greater appeal to the millions of Republicans who stayed away from the polls in 2012 as well as the ethnic and blue-collar Democrats who crossed party lines to vote Republican in the congressional elections of 2014. All of these voters outnumber any increase in the Latino vote that Republicans could possibly hope to gain from a population that has consistently voted Democratic by a two-thirds majority and shows little inclination to change. RELATED: Not Hard to Read the 14th Amendment As Not Requiring Birthright Citizenship — And Nothing Odd About Supporting Such a Reading Critics say that Trump’s plan is unrealistic, that it would require a constitutional amendment because the 14th Amendment mandates birthright citizenship and that the Supreme Court has upheld this requirement ever since its passage in 1868. The critics are wrong. A correct understanding of the intent of the framers of the 14th Amendment and legislation passed by Congress in the late 19th century and in 1923 extending citizenship to American Indians provide ample proof that Congress has constitutional power to define who is within the “jurisdiction of the United States” and therefore eligible for citizenship. Simple legislation passed by Congress and signed by the president would be constitutional under the 14th Amendment. Birthright citizenship is the policy whereby the children of illegal aliens born within the geographical limits of the U.S. are entitled to American citizenship — and, as Trump says, it is a great magnet for illegal immigration. Many of Trump’s critics believe that this policy is an explicit command of the Constitution, consistent with the British common-law system. This is simply not true. Congress has constitutional power to define who is within the “jurisdiction of the United States” and therefore eligible for citizenship. Although the Constitution of 1787 mentioned citizens, it did not define citizenship. It was in 1868 that a definition of citizenship entered the Constitution with the ratification of the 14th Amendment. Here is the familiar language: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Thus there are two components to American citizenship: birth or naturalization in the U.S. and being subject to the jurisdiction of the U.S. Today, we somehow have come to believe that anyone born within the geographical limits of the U.S. is automatically subject to its jurisdiction; but this renders the jurisdiction clause utterly superfluous. If this had been the intention of the framers of the 14th Amendment, presumably they would have said simply that all persons born or naturalized in the U.S. are thereby citizens. Indeed, during debate over the amendment, Senator Jacob Howard, the author of the citizenship clause, attempted to assure skeptical colleagues that the language was not intended to make Indians citizens of the United States. Indians, Howard conceded, were born within the nation’s geographical limits, but he steadfastly maintained that they were not subject to its jurisdiction because they owed allegiance to their tribes and not to the U.S. Senator Lyman Trumbull, chairman of the Senate Judiciary Committee, supported this view, arguing that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States.” RELATED: End Birthright Citizenship Now: Barack Obama Makes the Case Jurisdiction understood as allegiance, Senator Howard explained, excludes not only Indians but “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.” Thus, “subject to the jurisdiction” does not simply mean, as is commonly thought today, subject to American laws or courts. It means owing exclusive political allegiance to the U.S. Furthermore, there has never been an explicit holding by the Supreme Court that the children of illegal aliens are automatically accorded birthright citizenship. In the case of Wong Kim Ark (1898) the Court ruled that a child born in the U.S. of legal aliens was entitled to “birthright citizenship” under the 14th Amendment. This was a 5–4 opinion which provoked the dissent of Chief Justice Melville Fuller, who argued that, contrary to the reasoning of the majority’s holding, the 14th Amendment did not in fact adopt the common-law understanding of birthright citizenship. Get Free Exclusive NR Content
Read more at: http://www.nationalreview.com/birthright-citizenship-not-mandated-by-constitution?utm_source=Sailthru&utm_medium=email&utm_campaign=Saturday%20Best%20of%208/22&utm_term=VDHM%20Reader
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https://www.facebook.com/mikehuckabee/videos/10153243237022869/
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second post
http://www.theblaze.com/stories/2015/09/08/princeton-prof-common-misunderstanding-of-constitution-has-led-to-serious-erosion-of-freedom/?utm_source=Sailthru&utm_medium=email&utm_campaign=Firewire%20-%20HORIZON%209-9-15%20Build-WED&utm_term=Firewire
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in a separation of powers case.
US President Barack Obama speaks at Macomb Community College in Warren, Michigan on September 9, 2015. ENLARGE
US President Barack Obama speaks at Macomb Community College in Warren, Michigan on September 9, 2015. Photo: mandel ngan/Agence France-Presse/Getty Images
Sept. 9, 2015 7:02 p.m. ET
142 COMMENTS
Remember all the mockery, from the media and White House, when House Republicans sued President Obama for rewriting ObamaCare without proper legislative authority? Well, what do you know, a federal judge ruled Wednesday that the House has legal standing to sue and pursue the case on the merits.
The Administration had sought to dismiss the lawsuit on grounds that this was a classic political debate between the elected branches. But Judge Rosemary Collyer ruled that the House claim that Mr. Obama had spent subsidy dollars without a clear appropriation may have created an injury that deserves a hearing. “When the appropriations process is itself circumvented, Congress finds itself deprived of its constitutional role,” the judge wrote.
This has implications well beyond ObamaCare. More than any President in decades or longer, Mr. Obama has sought to rewrite legislation that guts Congress’s Article I spending power under the Constitution. If Judge Collyer rules for the House on the merits, expect the case to go all the way to the Supreme Court in what could be a historic ruling on the separation of powers.
Congratulations to our contributor David Rivkin, who came up with the legal argument, and to Speaker John Boehner for resisting sneers from the talk-radio judiciary for going ahead. A working Constitution requires that the branches defend their own powers, and that is especially true with this lawless President.
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JOHN CASSIDY
JOHN CASSIDY 26 minutes ago
We need a political party that loves the country more than it hates the opposition.
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Daryl Reece
Daryl Reece 40 minutes ago
This is a joke. Obama will be gone when this matter is finally adjudicated. The ruling will become a note in a law textbook that has and will do nothing to actually help. More pretending to do something.
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Kevin Generous
Kevin Generous 27 minutes ago
@Daryl Reece Not so ... if not overturned, this establishes a legal precedent for future scenarios where presidents will try to unilaterally re-write legislation passed by Congress.
Leaving aside the way the original Obamacare bill was passed (another travesty of procedural democracy), once a statute is passed, presidents are supposed to make sure it is "faithfully executed." This president has taken great liberties in execution, liberties for which Congress had grounds to sue him. Successfully.
The judge's decision upholds the rule of law, the foundation of our government system. So this is a big deal, and yet another legal smack-down of a lawless president.
One lawsuit does not turn around all the damage this man has caused. But it is a small, important step to reestablish political equilibrium between the branches on the spending power, which is the most powerful tool Congress has.
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Kendall W. Sterling
Kendall W. Sterling 27 minutes ago
@Daryl Reece Not a joke. Even if Obama is gone, it will serve to limit future presidents in their quest for ever-more power.
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JOHN CASSIDY
JOHN CASSIDY 25 minutes ago
@Daryl Reece
Can you accept the fact that Obama does not care about you or the law?
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Phil Katauskas
Phil Katauskas 8 minutes ago
@Daryl Reece It's clearly not a joke, and I'm not so sure Obama leaving office will render it moot. There is an exception to the mootness doctrine for issues that may be replicated and would otherwise escape judicial review. This sounds like just such an issue.
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WILLIAM VANLEAR
WILLIAM VANLEAR 47 minutes ago
If the democrats were open to impeaching this tyrant, these problems would all be solved. Just like the law-breaking Clintons, Obama can be sure that democrats will NEVER impeach one of their own, hence court action is all that is possible.
Just be glad that there are still a few judges left that support the Constitution.
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James J Mensching
James J Mensching 35 minutes ago
@WILLIAM VANLEAR The question remains - are there any on the Supreme Court other than Alito, Thomas and Scalia?
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JOHN CASSIDY
JOHN CASSIDY 21 minutes ago
@WILLIAM VANLEAR
We have immigration laws that Obama refuses to enforce.
Instead, he goes after anyone who tries to enforce them.
He then blames republicans and calls them "haters" like he is some Justin Beiber wanna-be.
And his flock eats this stuff up.
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THE Civil War began over a simple question: Did the Constitution of the United States recognize slavery — property in humans — in national law? Southern slaveholders, inspired by Senator John C. Calhoun of South Carolina, charged that it did and that the Constitution was proslavery; Northern Republicans, led by Abraham Lincoln, and joined by abolitionists including Frederick Douglass, resolutely denied it. After Lincoln’s election to the presidency, 11 Southern states seceded to protect what the South Carolina secessionists called their constitutional “right of property in slaves.”
The war settled this central question on the side of Lincoln and Douglass. Yet the myth that the United States was founded on racial slavery persists, notably among scholars and activists on the left who are rightly angry at America’s racist past. The myth, ironically, has led advocates for social justice to reject Lincoln’s and Douglass’s view of the Constitution in favor of Calhoun’s. And now the myth threatens to poison the current presidential campaign. The United States, Bernie Sanders has charged, “in many ways was created, and I’m sorry to have to say this, from way back, on racist principles, that’s a fact.”
Every weekday, get thought-provoking commentary from Op-Ed columnists, The Times editorial board and contributing writers from around the world.
But as far as the nation’s founding is concerned, it is not a fact, as Lincoln and Douglass explained. It is one of the most destructive falsehoods in all of American history.
Yes, slavery was a powerful institution in 1787. Yes, most white Americans presumed African inferiority. And in 1787, proslavery delegates to the Constitutional Convention in Philadelphia fought to inscribe the principle of property in humans in the Constitution. But on this matter the slaveholders were crushed.
James Madison (himself a slaveholder) opposed the ardent proslavery delegates and stated that it would be “wrong to admit in the Constitution the idea that there could be property in men.” The Constitutional Convention not only deliberately excluded the word “slavery,” but it also quashed the proslavery effort to make slavery a national institution, and so prevented enshrining the racism that justified slavery.
The property question was the key controversy. The delegates could never have created a federal union if they had given power to the national government to meddle in the property laws of the slave states. Slavery would have to be tolerated as a local institution. This hard fact, though, did not sanction slavery in national law, as a national institution, as so many critics presume. This sanction was precisely what the proslavery delegates sought with their failed machinations to ensure, as Madison wrote, that “some provision should be included in favor of property in slaves.” Most of the framers expected slavery to gradually wither away. They would do nothing to obstruct slavery’s demise.
The South did win some concessions at the convention, but they were largely consolation prizes. The notorious three-fifths clause tied slaveholding to political power, but proslavery delegates, led by South Carolinians, repeatedly pressed for slaves to be counted as full persons, which Charles Pinckney professed was “nothing more than justice.” They finally conceded to the three-fifths compromise. Over time, the congressional bulwark of the slave power became the Senate, where the three-fifths rule did not apply.
The proslavery delegates desperately wanted the Constitution to bar the national government from regulating the Atlantic slave trade, believing it would be an enormous blow against slavery. The first draft of the Constitution acceded to their bluster. But antislavery Northerners erupted in protest and proposed that the new government have the power not only to regulate the trade but also to abolish it after 1800. The proslavery men, over Madison’s furious objection, got the date extended to 1808, but it was a salvage operation.
In the convention’s waning days, proslavery delegates won a clause for the return of runaway slaves from free states. Yet the clause was a measure of slavery’s defensiveness, prompted by then landmark Northern gradual emancipation laws, and was so passively worded that enforcement was left to nobody, certainly not the federal government. Antislavery Northerners further refined the wording to ensure it did not recognize slaves as property.
As slavery was abolished throughout the North and as Southern slavery became an internal empire, proslavery advocates tried to reverse the framers’ work, claiming that, with the fugitive servant clause, the Constitution actually established slaves as property in national law. “[H]ave we not a right, under the Constitution, to our property in our slaves?” Senator Calhoun declared in 1840. This became the foundation for proslavery arguments about the expansion of slavery into the national territories that divided the nation in the 1850s.
Antislavery leaders answered with chapter and verse that the framers had refused to extend a constitutional right to property in slaves, and that therefore Congress was empowered to halt slavery’s expansion, putting slavery, in Lincoln’s phrase, on “the course of ultimate extinction.” Douglass broke with those abolitionists who, he said, “hold the Constitution to be a slaveholding instrument.” Running for president in 1860, Lincoln asserted that the framers had operated “on purpose to exclude from the Constitution the idea that there could be property in man.” He added that “[t]o show all this is easy and certain.” It was so well understood in 1860 that it provoked the Civil War.
Far from a proslavery compact of “racist principles,” the Constitution was based on a repudiation of the idea of a nation dedicated to the proposition of property in humans. Without that antislavery outcome in 1787, slavery would not have reached “ultimate extinction” in 1865.
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Ah, but despite the image they attempt to cultivate, they do not defend the constitutional rights of everyone, just those that fit their leftist agenda.
Lefties like Limbaugh and Nazis.
The Nationalsozialistische Deutsche Arbeiterpartei aka National Socialist German Workers' Party aka the Nazi party was pretty darn socialist and was praised by the American Communists that the ACLU sprang from until the Soviet-Nazi alliance fell apart.
The ACLU defending Limbaugh was a pretty clever gambit, was it not? Or do you think it was motivated by something other than a desire to cultivate the facade that the ACLU is a non-partisan defender of civil rights?
http://hotair.com/archives/2015/12/09/aclu-hey-sure-lets-strip-constitutional-rights-without-due-process/
ACLU: Hey, sure, let’s strip constitutional rights without due process!
POSTED AT 2:01 PM ON DECEMBER 9, 2015 BY ED MORRISSEY
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Defenders of the ACLU argue that all Americans should support the group’s efforts to defend civil liberties and protect the Constitution. Critics respond that the ACLU spends its time defending the parts of the Constitution it likes, but otherwise it’s not terribly interested and sometimes outright hostile. That’s especially true for the right to bear arms — and perhaps for the 6th and 7th Amendments, too:
The American Civil Liberties Union sees no constitutional problem with preventing people on the watch list from buying guns, for example. But the means by which they are placed on the list, and their options for clearing their names, must be more transparent.
Congress recently voted down legislation to prohibit those on terrorism watch lists from buying firearms. President Barack Obama backed the effort in an Oval Office speech on Sunday night.
The legislative fight prompted contretemps from some leading voices of the intellectual left that had, until recently, warned of terrorism watch lists’ fundamental constitutional problems.
“There is no constitutional bar to reasonable regulation of guns, and the No Fly List could serve as one tool for it, but only with major reform,” said Hina Shamsi, director of ACLU’s National Security Project, in an emailed statement.
Er, what? The issue here isn’t whether government can legislate “reasonable regulation of guns,” but whether the government can suspend constitutional rights without abiding by the Bill of Rights.
The no-fly list is by its nature merely a collection of people whom the government suspects of criminal activity. The only major reform possible would be to actually charge these suspects and prove their case in court, which would make any “list” irrelevant. When it comes to suspending a right explicitly provided in the Constitution — not just access to airlines — the government should have to comply with the due-process restrictions in the Constitution as well. That includes the 6th and 7th Amendments protections of a trial by jury and the right to see all of the evidence and confront all of the witnesses the government uses to propose denying those rights.
Let’s put this in a different context. The ACLU likes to point out that it defends unpopular positions by reminding people of their defense of the National Socialist Party of America’s (NSPA, a neo-Nazi group) right to peaceably assemble in Skokie, Illinois and march with swastikas in an attempt to humiliate the significant Jewish community there. Would the ACLU have switched sides if the government had argued that their secret list of potential domestic-terrorism threats included the NSPA’s leadership and/or several members who would be expected to participate (certainly a possibility), and therefore they had to be restrained from peaceable assemblies as guaranteed by the First Amendment? If not, how is this position any different? Part of the city’s argument in that case was that violence would be likely to occur, so it was also a question of public safety — and yet the ACLU correctly stood on the side of the Constitution.
Or, let’s use an example closer to today. France shut down three mosques last week (Jazz will have more on this later today), based on “a pattern of radicalization.” Will the ACLU cheer that action in the US if the government claims that the leaders and/or the followers in a mosque are on the no-fly list but never charge anyone in relation to that? What kind of “major reform” of the no-fly list would make them support its use in closing down mosques … or synagogues … or churches? For “public safety” and/or “national security”? If none short of a public trial that again would make a “list” irrelevant anyway, then why would they support its use for denying other constitutional rights?
When it comes to the Second Amendment, not only can’t the ACLU be bothered to defend it (and due process guarantees of the 6th and 7th Amendments), they’re willing to torpedo the right to bear arms. It’s that kind of hypocrisy that generates animosity toward the ACLU, and reveals them to be not civil-liberties champions but an activist group for progressive causes.
Basically, the ACLU is endorsing a Precrime Division in federal law enforcement, for those who saw the film Minority Report. In my column today for The Week, I reference the film in arguing that not only is this approach an affront to the Constitution and due process, it’s also a complete non-sequitur when it comes to public safety:
Nothing requires the federal government to actually charge people on this list. Nor are there requirements to remove people even if they have been acquitted of charges relating to terrorism, as The Intercept discovered when they acquired the procedure manual for the no-fly list. “The rulebook justifies this by noting that conviction in U.S. courts requires evidence beyond a reasonable doubt, whereas watchlisting requires only a reasonable suspicion,” Jeremy Scahill and Ryan Devereaux reported. “Once suspicion is raised, even a jury’s verdict cannot erase it.”
The courts have stepped in to stop this process. In June 2014, a federal judge ruled the process unconstitutional, a violation of the Fifth Amendment rights. Now Obama and his fellow Democrats want to use this unconstitutional process to deny Second Amendment rights too, and apply it to people who have never been charged or even perhaps questioned about the risk they supposedly represent.
And for what purpose? Which of the terrorist attacks cited by Obama in his speech — which included two he had never before acknowledged as such, the Fort Hood shooting and the Chattanooga attack on a military recruiting office — would a no-fly gun ban have prevented? None of them. None of the suspects were on the no-fly list. Farook and Malik flew last year with no problems, and Fort Hood terrorist Nidal Hasan was still in the Army. In fact, even after Russia warned the FBI about Boston Marathon bomber Tamerlan Tsarnaev in 2011, the U.S. allowed him to fly to Russia and back in 2012.
In other words, the no-fly list is not just unconstitutional, it’s also a red herring. Democrats want to change the subject from the failure of this administration to prevent these attacks. When government feels the need to strip Americans of their constitutional rights — including the right to bear arms — they should prove their case in court while allowing for full due process. That is precisely why our founders wrote the Constitution in the first place: to protect a free people against the whimsy of tyrants. And it doesn’t take a soggy precog to predict that the threat won’t stop with the Second Amendment, either.
It doesn’t take a soggy precog to predict the ACLU’s position on this, either.
Update: My good friend and guest blogger Gabriel Malor asks a fair question:
The ACLU argued that they want due process protections added too, but that gets things backward. A no-fly list, even with opportunities to challenge one’s status and gain removal, still operates as a guilty-until-proven innocent mechanism. Furthermore, even assuming one gets to challenge this and cross-examine witnesses (which doesn’t seem likely), it would still be a citizen suing to regain his constitutional right that was taken from him without a government conviction. And what would be the evidentiary level needed to restore one’s rights? Preponderance? Reasonable doubt? In which direction?
The only legitimate method for denying an explicit and foundational constitutional right is for the government to go to court and establish the facts beyond a reasonable doubt first, allowing the accused all of the protections that the Bill of Rights and precedent allow in prosecutions. And once you have that, what purpose does a no-fly list serve at that point? The no-fly list wouldn’t be the basis on which to deny any rights at all; a court decision would be that basis. And that should be the only basis on which to deny those rights.
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Not a Constitutional case here, but it is about civil forfeiture, a subject of proper interest to this thread:
WSJ
Dec. 28, 2015 6:41 p.m. ET
37 COMMENTS
There’s plenty not to like in Washington’s recent budget bill, but there’s also encouraging news on property rights and the rule of law. Thanks to a reallocation of funds in the federal budget, the Department of Justice has been forced to stop rewarding state and local cops for seizing the assets of private citizens. In a December 21 letter to law enforcement agencies, Kendall Day of the Criminal Division wrote that the Department is going to defer all “equitable sharing payments.”
This isn’t about seizing ill-gotten gains. The disturbing trend among law enforcers has been to seize assets from people who have never been found guilty. We’ve written about the Institute for Justice’s campaign to help people caught in the net of federal “structuring” laws. Small deposits are taken as proof by the IRS that a business owner is keeping each one under $10,000 to avoid bank reporting requirements. But often the depositors aren’t criminals; they simply don’t want to hold cash. So the government seizes it until they can hire attorneys to prove their innocence.
The feds have also been sharing the seized assets with state and local law enforcers for helping to separate citizens from their property. Even if an activity wasn’t illegal under local law, the locals could still get a cut under the federal “equitable sharing” program. Yes, this is bad for seizure victims. But also for setting enforcement priorities. Local police are supposed to serve their communities, not chase federal payouts to pad their budgets.
Mr. Day also noted that the government “remains committed to the Program” and will look to restart it. Congress should make sure that never happens.
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second post:
https://www.washingtonpost.com/news/the-watch/wp/2014/07/25/rand-paul-introduces-bill-to-reform-civil-asset-forfeiture/
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Hat tip to BBG
http://reason.com/archives/2016/01/24/revisiting-the-us-constitution
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http://www.jewishworldreview.com/cols/will012316.php3
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Excellent find, a serious article well worth the time.
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Taking the Profit Out of Police Work
Abolishing civil-asset forfeiture strengthens the authority of prosecutors and protects innocent property owners.
WSJ
By Brad Cates
Feb. 10, 2016 6:50 p.m. ET
48 COMMENTS
New Mexico has become a leader in criminal-justice reform by passing a state law that abolishes civil-asset forfeiture and strengthens the authority of prosecutors to seize assets from convicted criminals. Now Virginia, Oklahoma, New Hampshire and other states are considering similar legislation to protect private citizens from the pitfalls of “policing for profit.”
Signed by Gov. Susana Martinez in April 2015, New Mexico’s law also requires that all assets seized from convicted criminals be deposited into the state treasury rather than kept by the state or local law-enforcement agency that seized the assets. Ms. Martinez, an attorney and former prosecutor, explained that the law would “improve the transparency and accountability of the forfeiture process and provide further protections to innocent property owners.” Such reforms are important because they remove the profit motive for law enforcement. Many agencies are able to spend the funds they seize directly or in conjunction with federal officials.
During the Reagan administration I helped establish these programs because I believed they would quickly channel seized criminals’ profits into the fight against organized crime and drug cartels. Yet over time we have created a new bad incentive: policing for profit, out of the reach of the proper legislative budget process.
The amount of money at stake has exploded. In 1986 the Justice Department’s Assets Forfeiture Fund took in $93.7 million. By 2014 it was $4.5 billion, according to an extensive study published by the Institute for Justice. Moreover, the study concluded that most jurisdictions “force innocent property owners to prove their innocence in order to recover property.”
In the early 1980s, the Justice Department exacerbated the problem of policing for profit when it launched its “equitable sharing” program directing portions of its seized assets back to state and local law enforcement, giving them an incentive to assist with seizures and bypassing many state-level efforts to rein in these direct funding streams.
In January 2015, the Justice Department temporarily suspended the “sharing” program. But nationwide these seizures continue. In Oklahoma, for example, the average amount of cash seized by police is $1,200, while the average cost of hiring an attorney to reclaim that money is $5,000, according to an investigative report by Oklahoma Watch.
Defenders of civil-asset forfeiture programs argue that it’s an effective crime-fighting technique, especially when dealing with drug trafficking. But that doesn’t make up for the fact that, according to the Institute for Justice study, just 13% of Justice Department forfeitures from 1997-2013 were criminal forfeitures, while 87% were civil forfeitures.
Federal civil-forfeiture law has a 200-year history of use to seize vessels and assets owned by foreign or unknown entities located outside of the U.S. In this age of international terrorism and drug trafficking, such federal use is still justified. But states taking assets from untried individuals who are easily summoned before the courts is unconscionable.
Considering the intertwined financial incentives, reform must happen at both the state and federal level. States and the federal government can look to what New Mexico had done as a template for broad-based action. Three decades ago I helped create our civil-asset forfeiture system; now it is time to end it.
Mr. Cates, an attorney in New Mexico, was the director of the Justice Department’s Asset Forfeiture Office (1985-89).
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Well we will find out if the majority in the Senate has the backbone to stop any appointment of another liberal.
If not we well be screwed by Bamster et al.
RIP Justice Scalia
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No, we are screwed. Elections have consequences and we have screwed up too many of them, especially the big ones. Obama gets to appoint and he isn't going to suddenly appoint someone with a Founders' view. Senators can vote down his worst choices and they better do that. Then what? Obama gets the issue to take forward for his successor and in the Senate races.
We got Anthony Kennedy because he was Reagan's third choice. How long did THAT process take?
I am sad and appreciative of Scalia's service to this country; I will leave that for another day and a more thoughtful post. He was perhaps the greatest American of my lifetime. Only a couple of other people come close.
Right now I am just angry that we let it come to this. The Senate's most liberal member became the nation's worst President; he got reelected and still has nearly break even approval ratings. He is in the habit of winning everytime he takes on Congress. We were hoping and praying for the nation's sake that we could make it much deeper into this election cycle or through it before anything like this happened. But we didn't make it and we aren't on a course to have fixed things anyway. The next Justice is either Obama's choice or else the Democrats issue to carry through the election, a lose-lose proposition.
FYI, Chris Christie who supported Sotomayor, suddenly being a Senator means something more than giving speeches.
Our leading Presidential candidate has barely uttered two words about what he would look for in a Justice, and what he has said (private takings) is dead wrong. And yet we take him seriously. He will appoint great Justices, GREAT justices [quoting him, adding sarcasm). Good f*cking grief. Can we someday get focused on fixing this mess? Now the answer (as G M has been saying) is no. It's too late. The people wanting free sh*t and unlimited government powers over the individuals in this country have won.
Wickard-Filburn was decided in 1942, that a man couldn't grow his own wheat on his own property to feed his own animals. Instead of overturning that in the nearly 3/4 of a century that followed, we've just headed further and further and further down that path. Obamacare, Kelo, and Chief Justice Roberts turning his role upside down saying that he should turn constitutional principles upside down to find a way to uphold bad laws, laws that stomp all over our recognized rights.
I'm not sure if I care about the young people in America anymore. As a group they are blaming people who aren't to blame and voting for themselves more free sh*t, like no one will ever have to pay. They follow in the footsteps of their arch-liberal teachers. Our generation at least thought to question authority.
This isn't (just) a sad day, it is a bad day for America. Our pathetic, political chickens have come home to roost.
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Well so far even rhinos McConnell and Graham have been coming right and telling us Obama ain't gonna get what he wants. The Senate may not be able to take a break this year. Lets see if they have enough backbone for that!
the Dems never give one micron. Its time for our side to stop playing nice.
Debbie the Schultz already saying Scalia would have wanted to be replace immediately.
Zero shame as always. Just no class. None.
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I expect the pubs to fold with only the most minimal claims of resistance to some Bill Ayers in a black robe.
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Common commentary point is that Scalia's passing puts the 2nd amendment rights in jeopardy. http://www.realclearpolitics.com/video/2016/02/13/scarborough_scalias_passing_puts_second_amendment_up_in_the_air.html Think about how bad that sounds. Hopefully we still teach children that the constitution is amended only through the amendment process and yet rights within the Bill of Rights can effectively be repealed by a swing vote of one person, who most certainly won't admit anything of the such during confirmation hearings. The amendment process involves, among other things, support of the legislatures in 3/4ths of the states, which means taking the issue to the people in every state legislative district across the country. Overturning constitutional rights like property rights in Kelo (or Heller decided differently) require only having one Justice like Kennedy wake up feeling like he will side with the liberals in this case. And suddenly the new decision is the law of the land. How's that for an amendment process! Nikita Khrushchev would have envied that kind of power.
How about we ask any new Justices to reverse wrongly decided previous decisions instead of to repeal enumerated rights?
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Ted Cruz was correct in correcting John Dickerson's false 'correction' of whether or not the Senate has confirmed appointments made this late in an election year in the last 80 years. Kennedy was Reagan's 3rd choice to replace Justice Powell who retired at the end of June 1987. Kennedy's confirmation process was complete by this time in 1988, not just starting while the Senate and Presidential campaign are in full swing.
In that process, the Democrat Senate formed a wall to stop Reagan from getting a conservative to change the balance of power on the Court. First they took a perfectly qualified constitutional scholar who promised to uphold the constitution and made him into a monster. https://en.wikipedia.org/wiki/Robert_Bork_Supreme_Court_nomination
https://en.wikipedia.org/wiki/Anthony_Kennedy
(One note of a changing nation, in 1987 Calif had one R Senator and Minn had two R Senators voting for Bork.)
The Republican Senate of 2016 had better handle this well of they won't be a Republican Senate in 2017 and won't get any conservative appointments made if they somehow win the Presidency. At this moment of a crucial public relations test, we have Mitch McConnell to put forward with our message. Three branches of government are at stake in this election!
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Sri Srinivasan. And you think Marco Rubio looks young?! He has spent a career in ... . No, he could have only spent the beginning of his career in ... .
Perhaps Ben Carson is right to take another look at the lifetime appointment provision in the constitution made with the assumption people would choose the oldest and wisest back when (male) life expectancy was under 50. (?)
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Still waiting to hear the Antonin Scalia cause of death. Meanwhile I just saw Clarence Thomas advertise for a food tester.
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Ted Cruz was correct in correcting John Dickerson's false 'correction' of whether or not the Senate has confirmed appointments made this late in an election year in the last 80 years."
Yes. He was on George Stefanapadouche this AM correcting him the same way to the sucker question. He did great
Breitbart also reminds us that Biden was the prick who "wrote the playbook" on how to stop a nomination when he did it to Bork. I don't remember Biden much but I remember what the Dems did to Bork.
They tried to do the same to Thomas.
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6 previous justices born outside US.
http://www.supremecourt.gov/faq_justices.aspx#faqjustice10
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Scalia's death most likely was natural. How one can call it heart attack is a bit of a stretch. Unless he was known to have significant heart disease but that does not sound likely.
First I read he didn't feel well and went to bed early
Then I hear he had no complaints. The lodge owner certainly sounds like he is covering his ass with jerk off comments like "it was his time", absolutely no complaints etc. After he went out hunting for 3 hrs after he knew the Justice didn't answer the call to join him and then returns to find him dead. I know it is always easy in retrospect but certainly he may not have been dead 3 hrs earlier.
Pillow on head is by itself not clearly foul play but is a bit weird.
I have done many death certificates in my day. I don't feel in the average situation this is that unusual but this is not the average situation. This ain't just anybody.
Half the country is probably celebrating this. Frankly there is NO doubt in my mind an autopsy should have been ordered. Period.
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http://www.breitbart.com/big-government/2016/02/14/sen-schumer-senate-can-block-scotus-nominees-for-18-months/
http://blogs.abcnews.com/politicalpunch/2009/05/first-president-in-us-history-to-have-voted-to-filibuster-a-supreme-court-nominee-now-hopes-for-clea.html
http://www.nationalreview.com/corner/381296/supreme-court-rules-unanimously-against-obama-12th-and-13th-time-2012-john-fund
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http://www.aish.com/jw/s/Justice-Anton-Scalia-and-the-Jews.html?mobile=yes
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Justices Breyer is 77 and Ruth Ginsberg 82.
Estimating longevity as avery crude rule of thumb - for someone who lives to 65 average span is 17 yrs
75 is 12 yrs
85 is 7 yrs
Or at least is was 30 yrs ago. :-D Maybe more now. And we know women usually live longer than men.
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http://www.vox.com/mischiefs-of-faction/2016/2/15/11003116/antonin-scalia-landmark-cases
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http://www.brookings.edu/blogs/fixgov/posts/2016/02/15-scalia-supreme-court-nominee-game-theory-lempert
https://www.washingtonpost.com/news/monkey-cage/wp/2016/02/15/who-will-obama-nominate-to-replace-scalia-heres-how-to-think-about-it/
Our Big Dog theorizes that the crafty play is for Obama to have Hillary promise to nominate him if she is elected , , ,
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http://www.newsmax.com/Health/Health-News/Antonin-Scalia-heart-attack/2016/02/16/id/714587/
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http://www.nytimes.com/2016/02/17/opinion/arguing-before-justice-scalia.html?emc=edit_ty_20160217&nl=opinion&nlid=72417918&_r=0
Arguing Before Justice Scalia
By PAUL CLEMENTFEB. 17, 2016
A few years back, during oral argument, Justice Antonin Scalia asked me when I thought “the bad old days” — when the Supreme Court routinely looked beyond the text of statutes — had ended?
I said, “The bad old days ended when you got on the court, Mr. Justice Scalia.” I liked giving him that answer. Not only was it substantively responsive, but it was also a good day indeed when Justice Scalia joined the court.
It would be easy to dismiss this as flattery from a former law clerk who, as solicitor general, was trying to get the justice’s vote. But Justice John Paul Stevens made the same point in a different oral argument. In Arlington Central School District Board of Education v. Murphy, the court was interpreting a statute enacted in 1986. When a school board lawyer tried to dismiss some unfavorable legislative history and focus instead on the plain text of the statute, Justice Stevens objected that “the rule that you cannot look at the legislative history didn’t really get any emphasis till after 1987.”
That year is, of course, when Justice Scalia started writing opinions for the court emphasizing the importance of statutory text and the unreliability of legislative history, and that made all the difference.
Justice Scalia’s influence extended to fundamental questions of how to interpret the Constitution. He advocated a focus on the original public meaning of the constitutional text. The ascendancy of his view was most obvious in the 2008 gun-control case District of Columbia v. Heller, not just because four justices agreed with him that the original public meaning of the Second Amendment protected an individual right, but also because all nine justices focused on text and history. The entire debate took place on Justice Scalia’s terms.
Justice Scalia fundamentally changed oral argument before the Supreme Court. In the 1970s and early 1980s, it was common for Supreme Court advocates to be asked only a handful of questions while presenting their cases. When Justice Scalia joined the court, he started asking questions in his first argument and never stopped. Other justices followed suit, and things have never been the same.
Argument before the Supreme Court is now the art of answering questions. And Justice Scalia’s questions were pointed and inimitable. He came to each argument fully prepared to engage with counsel. To paraphrase the justice, when it was time for oral argument, “this wolf came as a wolf.”
Every lawyer had fair warning that they should be meticulously prepared — and tread carefully when relying on legislative history. But even as Justice Scalia made oral argument an intellectual affair, he made clear it need not be dour. He injected humor into his exchanges with counsel and asked many questions with a twinkle in his eye. He was routinely ranked the court’s funniest justice as judged by the court reporter’s need to note “(laughter)” in the oral argument transcript.
In a 2007 argument on taxpayer standing, the justice badgered me mercilessly on why I did not follow my argument to its logical end and fully embrace the position — that taxpayers didn’t have standing — he had long championed. We went back and forth, at times tensely. Justice Samuel Alito then jumped in, and I clarified that I was only reconciling the court’s discordant cases. Justice Scalia said: “Why didn’t you say so? I’ve been trying to make sense out of what you’re saying.” Followed, of course, by “(laughter).”
His influence extended well beyond the court. An entire generation of law students learned the law, in large part, by reading Scalia opinions. And given the clarity of his memorable prose style, his opinions have a disproportionate impact. I have had scores of law students, across the ideological spectrum, confess that they always read the Scalia opinion first — whether majority, dissent or concurrence. And it is hard to blame them. Who would rather read about some dry, multipronged doctrinal test than about 60,000 naked Hoosiers (in his nude-dancing opinion) or even just nine people selected at random from the Kansas City phone book (addressing the relative competence of the nine justices to decide right-to-die issues)? And his colorful prose could have serious consequences — I am not sure the Lemon test on religion and the First Amendment ever recovered from Justice Scalia comparing it to a B-movie ghoul.
The justice had a profound personal effect on every one of his hapless law clerks, myself included. One of the great joys of the clerkship was that so much of the interaction with the justice was through conversation. I suppose that was partly by necessity. He certainly did not need law clerks to help him with his opinions. Indeed, I often suspected that the only reason he bothered asking us for drafts was that he did not know how to format a WordPerfect document.
But he always engaged his clerks in a vigorous discussion of the cases, which resembled nothing so much as an oral argument before the court. I remember, just a few years after my clerkship, rather recklessly telling a prominent general counsel that he was wrong on a legal matter and offering an alternative theory on the issue. As I walked out after the encounter, I wondered where I summoned the courage to confront such an important client. The only explanation that occurred to me is the one that must occur to every Scalia clerk and every lawyer who has argued before the justice — once you have tangled with Justice Scalia on a legal question, nothing else in the law can be truly intimidating.
Paul Clement was solicitor general of the United States from 2005 to 2008 and a law clerk for Justice Antonin Scalia in 1992-93
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http://www.chicagotribune.com/news/sns-wp-blm-scalia-comment-bg-5713e110-d401-11e5-a65b-587e721fb231-20160215-story.html
When Stephen Breyer, President Bill Clinton's second appointment to the Supreme Court, was sworn in as an associate justice at a White House ceremony in 1994, Justice Antonin Scalia came up to me, put his arm around my shoulder, and said with a bright, mischievous smile, "First Ruth, and now Steve? Cass, it's ALMOST enough to make me vote Democrat."
Antonin Scalia was witty, warm, funny, and full of life. He was not only one of the most important justices in the nation's history; he was also among the greatest. With Oliver Wendell Holmes and Robert Jackson, he counts as one of the court's three best writers. Who else would say, in a complex case involving the meaning of a statute, that Congress does not "hide elephants in mouseholes"?
But his greatness does not lie solely in his way with words. Nor does it have anything to do with conventional divisions between liberals and conservatives (or abortion, or same-sex marriage). Instead it lies in his abiding commitment to one ideal above any other: the rule of law.
Scalia gave this title to a vigorous essay in 1989, a kind of cri de coeur: "The Rule of Law As a Law of Rules." His central claim is that the Supreme Court should attempt to constrain itself by setting out clear, binding rules rather than flexible standards. In his view, predictability is important, for "those subject to the law must have the means of knowing what it prescribes."
Firm rules also have the advantage of inhibiting courts, reducing their discretion and the risk that they will indulge their own political views. When rules are in place, "I will be unable to indulge [my policy] preferences; I have committed myself to the governing principle."
Equally important, firm rules can embolden courts as well. There's always a risk that "frail men and women" will fail to "stand up to their unpleasant duty" of protecting unpopular causes, including the rights of criminal defendants. The chances that they will fulfill that duty "are greatly increased if they can stand behind the solid shield of a firm, clear principle enunciated in earlier cases."
Much of Scalia's work reflects his passionate commitment to the rule of law. In interpreting statutes, he was a "textualist," in part because he thought that if judges followed the text, the legal system would become less unpredictable. He believed in adhering to the original meaning of the Constitution in large part because he sought to reduce the risk that judges would make up the law as they went along.
Under both Republican and Democratic presidents, he vigorously defended the controversial principle that administrative agencies, not courts, should be authorized to interpret ambiguous statutes (so long as their interpretations are reasonable). He insisted that this principle sets out a clear rule for everyone to see - and thus promotes predictability while also constraining the federal judiciary.
He was also a fierce defender of the "rule of lenity," which means that where Congress has not spoken clearly, criminal defendants get the benefit of the doubt. Many liberals have been puzzled by Scalia's willingness to embrace this principle. They shouldn't be. For him, the rule of law comes first. People shouldn't go to jail unless Congress has given them fair notice.
Volumes can and will be written about Scalia's approach to the law. Even those of us who disagreed with him (as I often did, sometimes intensely) owe him an immense debt, because the clarity and power of his arguments forced us to do better.
But most of all, I mourn his loss as a person. During my first year at the University of Chicago Law School, where he was then a well-known professor, he treated me with immense kindness -- sending me his rough drafts for comments, asking me to write for Regulation (the magazine he edited) and encouraging my primitive academic efforts even as he disagreed with them.
When he left Chicago to join the court of appeals in Washington, he asked me to come to his office. He said, with a paternal air and considerable shyness, that he knew I would be teaching some of his courses, and I was the one he'd like to have his files -- filled with illuminating nuggets about the law, which he had accumulated over a period of many years. To a kid law professor, that was an act of extraordinary generosity, carried out quietly and with grace.
He was a great man, and a deeply good one.
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Sunstein, a Bloomberg View columnist, is director of the Harvard Law School's program on behavioral economics and public policy.
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https://www.washingtonpost.com/posteverything/wp/2016/02/17/im-a-liberal-lawyer-clerking-for-scalia-taught-me-how-to-think-about-the-law/
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Not likely, but we will never know for sure. This is why an autopsy should have been done on a person of this magnitude:
****Scalia could have been poisoned: forensics pathologist
New York Post Thu, Feb 18 12:26 AM PST
Lethal poisoning could have left Supreme Court Justice Antonin Scalia’s body in virtually the same condition in which it was found, a top forensic pathologist told The Post Wednesday. “It would look like he’s asleep. It doesn’t show anything on the body,” said Dr. Michael Baden, who spent 25 years in the city’s chief Medical Examiner’s Office. Still, Baden stressed that natural causes was a plausible explanation. ...
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http://townhall.com/tipsheet/christinerousselle/2016/02/25/utah-senate-votes-to-repeal-17th-amendment-n2124613
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http://townhall.com/tipsheet/christinerousselle/2016/02/25/utah-senate-votes-to-repeal-17th-amendment-n2124613
"The 17th Amendment allows for the direct election of senators. The bill's sponsor...argued that the 17th Amendment was not what the founders of the country had intended and changed the meaning of the role of the senators."
Very interesting. I trust the Founders on this more than I do the politicians of 1913.
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Very interesting. I never realized this.
1913 the year of the income tax :cry:
1913 the J P Morgan died
1913 the year my Dad was born :-)
It would certainly increase public interest in State Legislature politics. At this time I don't anyone in State Legislature.
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"1913 the year of the income tax "
Also: http://www.investopedia.com/terms/f/1913-federal-reserve-act.asp
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https://www.washingtonpost.com/opinions/how-biden-killed-john-robertss-nomination-in-92/2016/02/25/c17841be-dbdf-11e5-81ae-7491b9b9e7df_story.html?postshare=3631456434039221&tid=ss_fb
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It's been quiet on the SCOTUS nomination front. Suddenly that will change with an Obama appointment. Probably tomorrow morning, but you know he will do it soon. I am surprised at how unready they were for this (makes you think maybe they didn't kill Scalia after all). The delay just feeds into the Republican argument that there isn't time left to do this.
NY Times (and others) reported recently on this contender:
http://www.nytimes.com/2016/03/03/us/politics/white-house-vetting-jane-kelly-judge-supreme-court.html?smid=fb-nytimes&smtyp=cur&_r=0
In a Senate floor speech in 2013, Mr. Grassley effusively praised Judge Kelly, a longtime public defender, just before she won unanimous confirmation to her current position on the United States Court of Appeals for the Eighth Circuit.
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Is that the best we can do for a lifetime appointment with more power than all the voters combined, a 51 year old with 2 years experience as an appellate judge?
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Will a Supreme Court without a single Protestant justice rule that an "under-representation" of any group is evidence of discrimination?
https://www.creators.com/read/thomas-sowell/03/16/random-thoughts-b2798
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(Do we have a thread for the political side of this?)
http://hosted.ap.org/dynamic/stories/U/US_OBAMA_SUPREME_COURT?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2016-03-16-10-05-51
OBAMA NOMINATES GARLAND TO HIGH COURT
Garland, 63, is the chief judge for the United States Court of Appeals for the District of Columbia Circuit, a court whose influence over federal policy and national security matters has made it a proving ground for potential Supreme Court justices.
What should the GOP Senate do?
1) I have no idea. I haven't reviewed his horrible record yet, and politically, this is going to get worse.
2) My instinct is - do your job (if you are the GOP Senate). Schedule and hold hearings, in regular order, not rushed, and hold them around campaign events that already started before this came up. Put the judge and that whole, anti-constitutional side of it on trial, if time permits. Vote him down if the facts indicate he won't uphold the constitution. None of the other liberals have.
3) I like that he is 63 instead of 40-something.
4) Accuse the Democrats of race and gender discrimination. Do we really need another white male on the Court? (Half-joking on that one.)
5) This is a losing battle. Elections have consequences.
The Chief Judge of the DC Court of Appeals should be the most qualified person in the land. Now we see if this one is...
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But we on the the right know how that has worked out in the past:
http://www.bustle.com/articles/148207-is-merrick-garland-a-liberal-the-supreme-court-prospects-political-leanings-could-make-him-a-safe
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Big government becomes even more ravenous as the economy sputters and will do what it needs to do to fill it's coffers.
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From Breitbart on Supreme nominee - it sound like we really don't know how he stands on the issues:
What are the odds that someone from Harvard votes Democrat . What are the odds that someone who is Jewish votes for Democrats? What are the odds Obama would nominate someone he interviewed and determined he is to the right of the center. I know. Just because he may vote for Democrats does not mean he would be partisan on the SCOTUS. Just thinking out loud:
5 Facts You Need to Know About Merrick Garland
Merrick B. GarlandThe Associated Press
by JOEL B. POLLAK16 Mar 20163,925
On Wednesday, President Barack Obama nominated Judge Merrick Garland to replace the late Justice Antonin Scalia on the Supreme Court. Here are five quick facts you need to know about Garland.
1. Garland is considered anti-Second Amendment. As the National Review noted last week: “Back in 2007, Judge Garland voted to undo a D.C. Circuit court decision striking down one of the most restrictive gun laws in the nation” and voted “to uphold an illegal Clinton-era regulation that created an improvised gun registration requirement.” Obama will use his pick to pursue a gun control agenda.
2. Garland has favored environmental regulations. As SCOTUSblog noted in 2010: “On environmental law, Judge Garland has in a number of cases favored contested EPA regulations and actions when challenged by industry, and in other cases he has accepted challenges brought by environmental groups.” That could be very important, with Obama’s Clean Power Plan in the balance.
3. Garland’s positions on abortion and social issues are murky. Some liberals are worried that Garland may not be unambiguously pro-choice. Richard Wolf of USA Today writes: “During 19 years at the D.C. Circuit, Garland has managed to keep a low profile. The court’s largely administrative docket has left him without known positions on issues such as abortion or the death penalty.”
4. Garland would maintain the Court’s demographic profile. He is the second Chicagoan Obama has nominated. He is no “wise Latina,” and is the first man Obama has chosen. But Garland, like Scalia, is a graduate of Harvard Law, keeping the number of Crimson justices at five. If confirmed, he would also be the fourth Jew on the Court, preserving the odd exclusion of evangelical Protestants.
5. Republicans have supported Garland in the past. Sen. Orrin Hatch (R-UT)41%
in particular has been outspoken in his support for Garland as the best Republicans could expect from the Clinton administration. More recently, he suggested he would welcome Garland’s nomination but predicted that Obama would make a more ideological pick. That makes Garland harder for the GOP to oppose.
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From Levin's Conservative Review. Apparently Merrick said:
"If you believe in the limits of federal power, then you will be in the minority"
Conclusion => this is all we need to know. The guy is a liberal!
https://www.conservativereview.com/commentary/2016/03/what-conservatives-need-to-know-about-merrick-garland
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From Levin's Conservative Review. Apparently Merrick said:
"If you believe in the limits of federal power, then you will be in the minority"
Conclusion => this is all we need to know. The guy is a liberal!
https://www.conservativereview.com/commentary/2016/03/what-conservatives-need-to-know-about-merrick-garland
leftist, not liberal.
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From Levin's Conservative Review. Apparently Merrick said:
"If you believe in the limits of federal power, then you will be in the minority"
Conclusion => this is all we need to know. The guy is a liberal!
https://www.conservativereview.com/commentary/2016/03/what-conservatives-need-to-know-about-merrick-garland
leftist, not liberal.
I thought the two were the same. What's the difference? I ask in earnest.
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[Leftist, Liberal] "I thought the two were the same. What's the difference? I ask in earnest."
My understanding follows; G M can add to this or correct it.
Liberal is a mis-used term taken by the left for its softer sound.
Liberal, open to new behavior or opinions, synonyms, wide-ranging, broad-based.
Leftism is the orthodoxy of statism that people, especially in certain demographic groups aren't allowed to stray from.
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[Leftist, Liberal] "I thought the two were the same. What's the difference? I ask in earnest."
My understanding follows; G M can add to this or correct it.
Liberal is a mis-used term taken by the left for its softer sound.
Liberal, open to new behavior or opinions, synonyms, wide-ranging, broad-based.
Leftism is the orthodoxy of statism that people, especially in certain demographic groups aren't allowed to stray from.
Exactly.
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http://mediamatters.org/research/2016/03/17/supreme-court-reporters-debunk-judicial-crisis/209359
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Second post
http://www.nytimes.com/interactive/2016/02/18/upshot/potential-for-the-most-liberal-supreme-court-in-decades.html?_r=0
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Comments and questions regarding Merrick Garland:
1) He is bad on the Second Amendment. How bad? I would like to read his opinions.
2) He is moderate on other things compared to others Pres. O. might have chosen. How moderate?
3) He has largely hidden his views in hopes of someday getting to this stage. Yet Obama trusts him to be liberal-left. What are his views?
4) Republicans could 'slow-walk' this, but then there becomes public pressure to vote and confirm as the guy comes across as smart and qualified.
5) What are the odds that Republicans win the Presidency and the Senate? (Less than 50-50.)
6) And if they won both, or the Pres but not the Senate, what nominee could they get through an angry Democratic Senate that currently needs 60 votes to take a vote?
7) If Hillary wins, will she keep Garland or start over and go younger and further left?
8 ) If Republicans fail to take any action, will that hurt them? How much?
9) If Republicans who promised no action on this nomination, then act on it, will that hurt them?
10) My sense is this election is going down the tubes and the Senate being too busy to take up a Supreme Court nomination is an excuse only makes it worse.
11) The other possibility is to take this up, run through the whole process, run out the clock, take a vote, have every Senator vote their own conscience, not give the President the benefit of the doubt on his nominees as you might for a cabinet position. The standard he should be held to has a name, Antonin Scalia.
12) What the hell is a "moderate" or "centrist" on the question of whether or not to rip up the words and original meanings of the constitution that you have taken an oath to uphold and replace them with the personal views of a 9 person politburo? In my view, you are either an originalist/textualist or you are a traitor/saboteur/communist revolutionary. That he is an ivy league educated, white male who speaks well, is considered centrist and wears business suits doesn't preclude the latter.
The living breathing portion of the constitution is called the amendment process. Yes, times change, so change the text of the constitution by way of 2/3rds of both chambers of congress 3/4 of the state legislatures, not by selecting five willing elites.
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IMHO Reps need to stand firm, even against this politically shrewd choice by Obama and BE HONEST about it, none of this "Let the people decide" crap.
Especially when a nominee would change the balance of the court (as versus a lib replacing a lib or a conservative a conservative) and the country is in the middle of an election, well then wait until the lame duck session.
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IMHO Reps need to stand firm, even against this politically shrewd choice by Obama and BE HONEST about it, none of this "Let the people decide" crap.
Especially when a nominee would change the balance of the court (as versus a lib replacing a lib or a conservative a conservative) and the country is in the middle of an election, well then wait until the lame duck session.
Well put! We are hearing 'let the people decide' without hearing what our side is of what is at stake. Where you say, be honest, I would add, be specific and be persuasive. I have written about Ted Cruz reaching out in this campaign only to the people who already agree with him (or us) on various things. This is the time to step up and be a national leader, be a historic leader, not a niche candidate in a crowded field. Someone needs to make the case for what we are talking about out loud. He has hundreds of millions to spend on a message, why not make it a positive and important/crucial one. He should give a national address on this. This is an opportunity, not a problem. And this is where you fly by DT if he can't keep up, stuck on the wrong side of limits and liberties, see Kelo for example. It is also where you hold this stand even if you lose the Presidency and majority of the Senate. This isn't a continuing resolution or a zoning variance; this is the definition of our country we are fighting to preserve. "A Republic, if you can keep it".
Merrick Garland is among the top judges in the country serving in a time where Judicial rulings have shrunk the constitutional limits on government and allowed its expansion of power over our lives and liberties which keep getting smaller and smaller. The Honorable Judge Garland would be a perfect pick if continuing down this path of national destruction was acceptable. But it isn't.
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http://www.nytimes.com/2016/03/18/us/politics/obama-campaign-veterans-court-nominee-stephanie-cutter.html?_r=0
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BHO's newfound respect for Supreme Court decorum contains a little irony:
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/03/19/obama-irony-alert-the-supreme-court-should-be-above-politics/
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https://www.washingtonpost.com/news/wonk/wp/2016/03/28/the-feds-have-resumed-a-controversial-program-that-lets-cops-take-stuff-and-keep-it/
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http://www.wsj.com/articles/george-mason-university-to-rename-law-school-after-justice-antonin-scalia-1459452145
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By Juan Williams
April 1, 2016 6:41 p.m. ET
298 COMMENTS
As Republicans and Democrats wrangle over Judge Merrick Garland’s Supreme Court nomination to replace the late Antonin Scalia and whether or not to hold confirmation hearings, attention has been distracted from a fight of far more historical consequence.
Over the past half century, regardless of whether a liberal or a conservative resides in the White House, the critical issue facing any Supreme Court nominee is where he or she stands on the political contest of wills over how to read the Constitution.
In general the conservatives in this fight favor an “originalist” or “plain text” reading of the Constitution to limit the role of the courts to interpreting what the document and the Framers meant. Liberals regard the Constitution as a “living document” that lends itself to modern interpretations by judges, who may extend rights to groups not mentioned or considered in the Constitution or its amendments.
The first time I heard the originalist argument from conservatives was at a 1981 San Francisco conference organized by Edwin Meese, President Reagan’s then-White House counselor for policy and the future attorney general. While covering the Reagan White House, I saw Mr. Meese seek judges for the federal bench who abided by a strict reading of the Constitution, hoping to counter years of subjective interpretation—also known as legislating from the bench—by liberals such as justices William Brennan and Thurgood Marshall.
Beginning during Reagan’s time as California’s governor, Mr. Meese—a former prosecutor who served the governor in a variety of roles, including legal-affairs secretary and chief of staff—sought judges for state courts who stuck to the law as written by the legislator. That boiled down to selecting judges willing to apply strict sentencing guidelines to get tough with disruptive protests on college campuses, far-left radicals and criminals.
After becoming attorney general in early 1985, Mr. Meese told the American Bar Association in a July address that it was time for federal judges to get back to basics: “A Constitution that is viewed as only what the judges say it is—is no longer a Constitution in the true sense,” he said. “Those who framed the Constitution chose their words carefully, they debated at great length the minutest points . . . It is incumbent on the Court to determine what that meaning was.”
To that end Mr. Meese advised the president, after Chief Justice Warren Burger decided to retire in 1986, to elevate conservative Justice William Rehnquist to chief justice and to nominate Judge Scalia for the open seat on the court. When Lewis Powell retired the following year, Mr. Meese recommended as his replacement Judge Robert Bork, a staunch Constitutional originalist.
The elevation of Justice Rehnquist and appointment of Judge Scalia were confirmed, but Judge Bork’s nomination was famously defeated by a Democratic Senate in an episode remarkable for its vitriol. ( Anthony Kennedy was eventually confirmed instead.)
The Reagan administration was a judicial watershed in other ways: The careers of Justice Clarence Thomas and Chief Justice John Roberts trace to that period, and other federal judges appointed during the Reagan administration remain in place today, including Laurence Silberman, Edith Jones and Frank Easterbrook.
When Reagan nominated Judge Scalia for the Supreme Court, Mr. Meese told reporters that he was chosen for “his commitment to the interpretation of the law rather than being a lawmaker.”
For three decades Scalia championed the originalist approach to the Constitution. In his scathing dissent last year from the 5-4 decision legalizing same-sex marriage, Judge Scalia noted that the justices had discovered, in the 14th Amendment’s equal-protection provision, a constitutional right “overlooked by every person alive at the time of ratification, and almost everyone else in the time since.”
Scalia lost that fight but won others as he forced his colleagues to think hard about the Constitution and Bill of Rights in making their decisions. A major win came in 2008 with District of Columbia v. Heller upholding what he saw as the original intent of the Second Amendment to protect a citizen’s right to own a gun.
In today’s debate regarding Merrick Garland’s nomination to the court, much of the discussion concerns whether or not he is a “centrist.” But the real question, for both sides, is how he regards the Constitution. On that point it is clear from his record that Judge Garland is firmly in the “living document” camp. The push-pull over the Constitution and the Supreme Court is a battle without end, and in the current phase with the eight-person bench likely to divide 4-4 on important cases, the contrast between the court with Scalia on it and the court with Judge Garland or any other Democratic nominee couldn’t be greater.
Mr. Williams, a political analyst for Fox News and columnist for the Hill, is the author of “We the People: The Modern-Day Figures Who Have Reshaped and Affirmed the Founding Fathers’ Vision of America,” out April 5 from Crown.
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http://reason.com/blog/2016/04/01/florida-governor-signs-bill-requiring-ac
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http://reason.com/blog/2016/04/01/florida-governor-signs-bill-requiring-ac
An obvious reform in the pursuit of property rights, liberty, due process and fighting the abuse of government, hard to believe this isn't already the law, but it is an important ray of hope nonetheless.
Shouldn't a conviction rather than a charge be required to keep any property permanently?
From previous posts, the total value of government seizures now exceeds all private theft in this country.
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I guess this could go under liberalism progressivism which in my view is regressivism.
What does one's background race religion or sex have to do with interpreting the Constitution?: Do we need Hindus Buddhists, Muslims on the SCOTUS? 3 babes is not enough?
We have too many Jews? Not enough who also speak Spanish? We need some from California? I doubt very much she is implying we need more strong female or Latino conservatives on the bench but would this placate Sotomayor? Truth is it ain't about that is it.
http://www.newsmax.com/Newsfront/US-Supreme-Court-Sotomayor/2016/04/09/id/723045/?ns_mail_uid=95994711&ns_mail_job=1663134_04092016&s=al&dkt_nbr=yrbevgkw
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A point I have been making via my expressions of Ninth Amendment theory.
http://tenthamendmentcenter.com/2016/05/03/the-right-to-keep-and-bear-arms-is-a-natural-right-not-a-constitutional-right/
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A point I have been making via my expressions of Ninth Amendment theory.
http://tenthamendmentcenter.com/2016/05/03/the-right-to-keep-and-bear-arms-is-a-natural-right-not-a-constitutional-right/
If I might say so, this is quite a valid and profound point.
Maybe more obvious to more people, freedom of speech is a fundamental right whether it had been put to words and given and amendment number or not. The right to have a plan in place to protect you and your family is perhaps a higher right than speech, whether enumerated or not.
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http://www.yalelawjournal.org/pdf/427_pa9skxwv.pdf
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https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/07/11/the-notorious-rbg-gives-a-potentially-notorious-interview-with-the-new-york-times/?utm_medium=twitter&utm_source=twitterfeed
The Notorious RBG gives a potentially notorious interview with the New York Times – UPDATED
By Jonathan H. Adler July 11 at 10:08 AM
Supreme Court Justice Ruth Bader Ginsburg. (AP Photo/Jacquelyn Martin, File)
Last week, I noted comments Justice Ruth Bader Ginsburg gave to Mark Sherman of the Associated Press about the pending election and its potential influence on the Court. The broader interview was unusually candid for a sitting Supreme Court justice, but it was just a hint of what was to come.
Yesterday, the New York Times published another interview with Justice Ginsburg. The article, by Supreme Court correspondent Adam Liptak, is nothing short of astounding.
In the Liptak interview, Justice Ginsburg reiterates and magnifies her concerns about a Trump presidency, and makes several other comments about cases and issues that are quite uncharacteristic of a sitting Supreme Court justice.
On Trump:
“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”
It reminded her of something her husband, Martin D. Ginsburg, a prominent tax lawyer who died in 2010, would have said.
“‘Now it’s time for us to move to New Zealand,’” Justice Ginsburg said, smiling ruefully.
For the record, I share many of her concerns about Trump, and will not support him for President under any circumstances, but these comments seem quite inappropriate for a sitting member of the federal judiciary.
I clerked on a federal appellate court in an election year, and the judge for which I clerked would not even attend a post-election party due to the appearance such conduct would give (despite having been active in partisan politics before joining the bench). In the unlikely (and horrifying) event of Bush-v.-Gore-like election litigation, I do not see how Justice Ginsburg could refuse to recuse after these sorts of comments.
Justice Ginsburg’s comments on the election were striking, but they were not the only thing remarkable about the interview. She held forth on many issues, including some faced by federal courts.
On U.S. v. Texas, in which the Court deadlocked on the lawfulness of the Obama Administration’s immigration reforms, she said:
“Think what would have happened had Justice Scalia remained with us,” she said. Instead of a single sentence announcing the tie, she suggested, a five-justice majority would have issued a precedent-setting decision dealing a lasting setback to Mr. Obama and the immigrants he had tried to protect.
Justice Ginsburg noted that the case was in an early stage and could return to the Supreme Court. “By the time it gets back here, there will be nine justices,” she said.
She also assessed whether the court might have considered a narrow ruling rejecting the suit, brought by Texas and 25 other states, on the ground that they had not suffered the sort of direct and concrete injury that gave them standing to sue. Some of the chief justice’s writingssuggested that he might have found the argument attractive.
“That would have been hard for me,” Justice Ginsburg said, “because I’ve been less rigid than some of my colleagues on questions of standing. There was a good argument to be made, but I would not have bought that argument because of the damage it could do” in other cases.
Justice Ginsburg also identified Citizens United as the one case she’d like to see overturned. She also said Heller was a “very bad decision.” As originally posted, the story reported that Justice Ginsburg added “that a chance to reconsider it could arise whenever the court considers a challenge to a gun control law.” For whatever reason, that line was removed and no longer appears in the online version of the article. [UPDATE: The missing language on Heller has now been restored to the article.]
UPDATE: It appears that this is the second time within the past week that comments from an interview with Justice Ginsburg as originally published were later removed. The other example, caught by Rick Hasen, is here.
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We wouldn't want rule by the elites even if they were smarter and wiser than us, and they aren't! We are down to two supreme court justices you still want to uphold the Constitution. The moderates and the liberals on the court are nothing more than partisan political hacks. Ginsberg is no wiser than Charles Blow and no more impartial than Chuck Schumer.
If not for her and this Court the next president would have to face checks and balances on his or her power, as designed and intended.
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"Re: My Constitutional Law Prof at it again"
CD,
You had a class with her?
I read she was at Columbia. Weren't you at G town?
She seems like a nice lady if one can get past the liberal ideology.
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I was at Columbia. She was my Constitutional Law prof. We did not like each other very much.
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I was at Columbia. She was my Constitutional Law prof. We did not like each other very much.
A badge of honor! Weren't you more liberal back then?
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No. This was 1980. I had thought I was Left because of my opposition to the Vietnam War and to my being sent there during the '60-70s but with my study of economics beginning in 1975 at U. of PA I realized that it was the Right that was about freedom.
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So what was RGB like? You are a vet and was in VN?
I asked my nephew who went to Harvard Law if he met Dershowitz. He would only say he didn't like him and Dersh was full of himself.
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Wisdom before law school? A rare case of it!
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"You are a vet and was in VN? "
:?
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http://www.breitbart.com/big-government/2016/07/22/terry-mcauliffe-felon-voting-rights-virginia-supreme-court/
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Already too late:
https://www.conservativereview.com/commentary/2016/08/12-reasons-why-federal-judiciary-is-irremediably-broken
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The courage to make some solid points in there.
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http://www.lpbr.net/2016/07/relic-how-our-constituion-undermines.html
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What we need is an even MORE powerful Executive Branch?!? Seriously?!?
How about this: The Executive is already too fg powerful-- in great part due to the creation of a fourth branch of government, the Administrative Agencies, which are a subset of the Executive. They are beyond the control of the voters, and exercise both legislative and judicial powers.
How about this: Inaction by Congress is the correct response when there is not sufficient agreement and compromise. Plenty got done in the 80s and 90s but now that the Progressives want to "fundamentally transform" America and aren't getting their way fast enough they want to change our Constitution so they can get their way right away.
NO, NO, and NO.
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I don't know if others here get Hillsdale Colleges publication. This issues piece on the importance of who is the next Supreme Court Justice is succinctly explained here.
The liberal judges nearly always vote "in bloc" and in partisan fashion. 90% of the time they vote in sinc.
One more liberal judge and the country will almost surely not be able to turn back especially as long as immigrants keep flooding the country with less than traditional conservative views with regard to role of government.
https://imprimis.hillsdale.edu/next-supreme-court-justice/
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https://www.conservativereview.com/commentary/2016/08/muslim-flight-attendant-controversy-reveals-the-lefts-ignorance-of-religious-liberty
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Interesting piece. Please post it on the First Amendment thread as well.
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On September 17, 1787 the Framers of the Constitution met for a last time to sign the document they had created. Every year we celebrate September 17 as Constitution Day. Please take time to consider the magnificence of our Constitution. Consider the wisdom and prescience of the Framers. Share your knowledge of and reverence for the Constitution with your children and grandchildren. They may not hear it elsewhere.
We know the first ten Amendments to the Constitution as the Bill of Rights. But did you know there were seventeen proposed Amendments to start with? Many are aware that twelve Amendments were proposed by Congress and ten of those were subsequently ratified by the States. One of the other two was ratified in 1992 and became the 27th Amendment. The other one has never been ratified.
But James Madison’s original draft of proposed amendments had seventeen Articles (proposed amendments). The House approved all of those, but the Senate modified and combined them into twelve Amendments, and those were then proposed by Congress.
Except for one.
Madison’s original Article 16 was simply dropped in the 2nd draft. It read;
“Art. 16. The powers delegated by the constitution to the government of the United States, shall be exercised as therein appropriated, so that the legislative shall never exercise the powers vested in the executive or judicial; nor the executive the powers vested in the legislative or judicial; nor the judicial the powers vested in the legislative or executive.”
It shouldn’t have been dropped. Today there is a clear and ongoing violation of the separation of powers idea envisioned by the Founders. It’s likely that Congress simply thought there was no need to include something in the Bill of Rights which had been made so obvious in the body of the Constitution. But then, they didn’t know today’s federal government. They couldn’t have imagined the bloated, wasteful, intrusive leviathan we have allowed the federal government to become.
But we have a remedy!
The Framers were wise and humble enough to know there would need to be a way to adjust and amend the Constitution from time to time. They also knew the federal government was certain to exceed its lawful power and would need to be reined in. And they knew the federal government would never propose amendments to reduce its own power. So they gave us Article V as the way for the States to reclaim their sovereignty. We can straighten out that separation of powers problem. We can restore the limits on federal power intended by the Founders. We can return power to the States and to “we the people”.
By the way; did you know the push for the Bill of Rights was the first time there was an application for an Article V Convention? James Madison had promised a group of Baptists in Virginia that he would push the Bill of Rights through Congress. But just in case he forgot his promise, Virginia filed the very first Article V application. Madison, being an honorable man, kept his promise and the need for a convention never materialized. But the tool was there and was ready to be used if needed.
Don’t you think it’s about time we used it? Isn’t it time for the States to stand up against the over reach of an out of control federal government? How bad do things have to get before we act?
Go to our website at www.conventionofstates.com. Sign our petition. Tell your friends and family about us. Check out our opportunities to volunteer. Be a part of history - join our movement today! Future generations are counting on us to preserve their liberty. We can’t let them down.
Thanks and kudos to Brent Smith, aka “The Common Constitutionalist” for giving me something new to research.
For Liberty,
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I support Madison's original article 16 but I don't support the convention of the states. Open to further persuasion.
"Art. 16. The powers delegated by the constitution to the government of the United States, shall be exercised as therein appropriated, so that the legislative shall never exercise the powers vested in the executive or judicial; nor the executive the powers vested in the legislative or judicial; nor the judicial the powers vested in the legislative or executive.”
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"but I don't support the convention of the states"
AGREED!
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https://www.cotton.senate.gov/?p=press_release&id=522
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https://www.conservativereview.com/commentary/2016/10/the-gop-aint-gonna-block-hillarys-scotus-picks
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Serious matters to consider in this , , ,
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https://www.washingtonpost.com/news/wonk/wp/2016/02/13/why-its-time-to-get-serious-about-supreme-court-term-limits/
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http://www.politico.com/magazine/story/2016/11/donald-trump-wins-supreme-court-214449
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A comment on process and participants in the process, Mitch McConnell single-handedly made this Trump pick possible. He single-handedly kept the balance from shifting from 5-4 conservative to 5-4 liberal, in the terms that most observers score it. Trump Supporters should be careful criticizing people who helped set the table for him.
Merrick Garland was a reasonable choice within the context that it was an Obama pick. They had plenty of time to hold hearings had that been their priority, as the constitution suggests it is. I was thinking it was wrong of them to refuse to address this, but then re-reading the clause, "advice and consent", refusal certainly was a form of advice and consent, especially since that decision would be judged by the voters shortly.
As it turns out, pushing this Supreme Court pick into the election is what won the election for both Trump and the Senate Republicans IMHO. What else does this thrice married, trash talking, rich guy, show host turned statesman have in common with the Christian evangelical vote that he kept winning? What else did he have in common with these Republican Senators, where they were keeping their distance but winning most of their same voters?
Whether you look at Roe v Wade, gay marriage or the Obamacare case, when the Court becomes no more than a political body, we lost our republic.
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"comment on process and participants in the process, Mitch McConnell single-handedly made this Trump pick possible. He single-handedly kept the balance from shifting from 5-4 conservative to 5-4 liberal, in the terms that most observers score it. Trump Supporters should be careful criticizing people who helped set the table for him. "
Doug,
How did he do this "single handedly?"
He does not strike me as having stood up the LEftist rebel (yes rebels - they are - not us) onslaught.
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http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-boxer-files-longshot-bill-to-scrap-the-1479234745-htmlstory.html
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http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-boxer-files-longshot-bill-to-scrap-the-1479234745-htmlstory.html
Just more evidence the LEFT is intent on giving the country away to the world.
Just keep letting people flood over here, especially in states like California, offer them benefits, and ram their vision down the throats of the rest of us who pay the bills and we should just shut up or we are a bunch of "ists" or "phobes".
Boxer must be especially pissed Hillary didn't win. Her daughter is married to Hillary's brother.
The Clinton Mob. It is like in breeding.
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The list:
1. Keith Blackwell
2. Charles Canady
3. Steven Colloton
4. Allison Eid
5. Neil Gorsuch
6. Raymond Gruender
7. Thomas Hardiman
8. Raymond Kethledge
9. Joan Larsen
10. Mike Lee
11. Thomas Lee
12. Edward Mansfield
13. Federico Moreno
14. William Pryor
15. Margaret A. Ryan
16. Amul Thapar
17. Timothy Tymkovich
18. David Stras
19. Diane Sykes
20. Don Willett
21. Robert Young
The Promise:
"This list is definitive and I will choose only from it in picking future justices of the Supreme Court."
Note the plural on justices, applies also to future picks.
Some details:
Keith Blackwell is a justice of the Supreme Court of Georgia. He was appointed to the position in 2012. He had previously served on the Court of Appeals of Georgia. Before serving on the bench, Justice Blackwell was a Deputy Special Attorney General of the State of Georgia, an Assistant District Attorney in Cobb County, and a commercial litigator in private practice. Justice Blackwell is a graduate of the University of Georgia School of Law.
Charles Canady is a justice of the Supreme Court of Florida. He has served in that role since 2008, and he served as the court's chief justice from 2010 to 2012. Prior to his appointment, Justice Canady served as a judge of the Florida Second District Court of Appeal and as a member of the United States House of Representatives for four terms. Justice Canady is a graduate of Yale Law School.
Neil Gorsuch is a judge of the United States Court of Appeals for the Tenth Circuit. He was appointed to the position in 2006. Judge Gorsuch previously served in the Justice Department as a Deputy Assistant Attorney General. Judge Gorsuch was a Marshall Scholar and received his law degree from Harvard. He clerked for Justices Byron White and Anthony Kennedy.
Mike Lee is the Junior U.S. Senator from Utah and currently serves on the Senate Judiciary Committee. He has previously served as an Assistant U.S. Attorney in Utah and as a Supreme Court Clerk for Justice Alito.
Edward Mansfield is a justice of the Iowa Supreme Court. He was appointed to the court in 2011 and retained by voters in 2012. Justice Mansfield previously served as a judge of the Iowa Court of Appeals. He also teaches law at Drake University as an adjunct professor. Justice Mansfield is a graduate of Yale Law School.
Federico Moreno is a judge of the United States District Court for the Southern District of Florida and a member of the Judicial Conference of the United States. He previously served as a state and county court judge in Florida. Judge Moreno is a graduate of the University of Miami School of Law.
Margaret A. Ryan has been a judge of the U.S. Court of Appeals for the Armed Forces since 2006. Judge Ryan served in the Marine Corps through deployments in the Philippines and the Gulf War. She then attended Notre Dame Law School through a military scholarship and served as a JAG officer for four years. Judge Ryan clerked for Judge J. Michael Luttig of the Fourth Circuit and Justice Clarence Thomas.
Amul Thapar is a judge of the U.S. District Court for the Eastern District of Kentucky, serving since his appointment in 2007, when he became the first South Asian Article III judge. He has taught law students at the University of Cincinnati and Georgetown. Judge Thapar has served as an Assistant U.S. Attorney in Washington, D.C. and the Southern District of Ohio. Immediately prior to his judicial appointment, Judge Thapar was the U.S. Attorney for the Eastern District of Kentucky. Judge Thapar received his law degree from the University of California, Berkeley.
Timothy Tymkovich is the chief judge of the United States Court of Appeals for the Tenth Circuit. Judge Tymkovich was appointed to the bench in 2003. He previously served as Colorado Solicitor General. Judge Tymkovich is a graduate of the University of Colorado College of Law.
Robert Young is the chief justice of the Supreme Court of Michigan. He was appointed to the court in 1999, and became part of a majority of justices who embraced originalism and led what one scholar described as a "textualism revolution." Justice Young previously served as a judge on the Michigan Court of Appeals. Chief Justice Young is a graduate of Harvard Law School.
Favorites?
William Pryor, 11th Circuit Court of Appeals, Atlanta, "titanium spine"
Joan Larsen, Michigan Supreme Court, former Scalia clerk
http://www.nytimes.com/2016/11/15/us/politics/trump-supreme-court-justices.html?_r=0
https://www.donaldjtrump.com/press-releases/donald-j.-trump-adds-to-list-of-potential-supreme-court-justice-picks
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"Doug,
How did he do this "single handedly?"
He does not strike me as having stood up the LEftist rebel (yes rebels - they are - not us) onslaught."
Of course every Senate republican who stood with him also had a hand in it and the public who never screamed in outrage that the vacancy wasn't being filled promptly. This one-year delay was led by Mitch McConnell, not Trump, Paul Ryan, Rush Limbaugh or anyone else. He spoke up early, was decisive, took an enormous risk and never wavered.
Same Senate Republicans who never defunded Obamacare did something heroic here, placed a bet that jeopardized their own power and required exactly this outcome, and they won. Now Trump, all conservatives and presumably the American people are the beneficiaries.
To have done otherwise was to take an even bigger risk, what some of us thought was the irreversible end of the country as we knew it.
Sean Hannity was ripping Mitch McConnell today in advance of the Trump inauguration for things he hasn't done wrong yet. Mark Levin too, I imagine. Maybe they should check their facts and give credit where credit is due. This was a BIG deal. MHO.
http://www.cnn.com/2016/02/23/politics/joe-biden-supreme-court-senate-republicans/
http://thehill.com/blogs/blog-briefing-room/news/273230-mcconnell-no-hearing-for-garland
http://www.theatlantic.com/politics/archive/2016/02/mcconnell-plays-his-best-card/470817/
http://www.nytimes.com/live/obama-supreme-court-nomination/mcconnell-tells-garland/
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I support Madison's original article 16 but I don't support the convention of the states. Open to further persuasion.
I would like to revise and extend my remarks...
The typical way of passing a new amendment, if I understand this correctly, is for 2/3rds of the House and 2/3rds of the Senate to pass a proposed amendment to send to the states where it must be ratified by 3/4ths of the state legislatures.
In this second way, the convention of the states can be called by 2/3rds of the states. Then what comes out of that convention still needs to be ratified by 3/4ths of the state legislatures.
The fear is that some great sounding liberal thing will come out of this and all but the strongest of conservatives will be guilted into supporting it. A right to (free) healthcare would be an example.
What has changed is that Republicans control more state legislatures than ever before. If there was something urgent and ready to go that would really fix things, now might be the time. Term limits for House and Senate would be potential examples.
I am still undecided on the term limits amendment and skeptical about starting about this process. I still worry it will later be used against us. The Founders were smarter than us and not that much has changed that hasn't already been amended, slavery ended and women voting for examples.
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Another good explanation for civilians like me on the Court situation. While preserving Scalia's spot will certainly prevent a disaster we still need Kennedy and Ginsberg to retire and be replaced by the Right to really gain any traction:
https://www.conservativereview.com/commentary/2016/11/battle-for-the-courts-part-1
Doug writes [of McConell] "Maybe they (Levin Hannity and me ) should check their facts and give credit where credit is due. This was a BIG deal. MHO.
Agreed, but it is about time. :-)
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CCP....couldn't agree more with your response.
Doug.... thanks for the list. I want to pick it apart and look for prior connections to Trump or sitting politicians.
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Who just happens to be a woman. That might help shut the LEFT up:
http://www.nationalreview.com/article/442220/trump-supreme-court-picks-should-start-woman
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Two Questions for Donald Trump’s Supreme Court Nominees
Will they reconsider bad precedent? Or put the court’s ‘legitimacy’ first?
By Randy E. Barnett
Nov. 16, 2016 7:27 p.m. ET
22 COMMENTS
When the Federalist Society opens its three-day National Lawyers Convention on Thursday, the official topic of conversation will be “the jurisprudence and legacy of Justice Scalia.”
Even before his arrival at the Supreme Court in 1986, Antonin Scalia was known for his commitment to “originalism.” As a federal circuit court judge, he rejected the approach of divining the “Framers’ intention,” as Raoul Berger and Robert Bork had advocated. Instead, Scalia insisted that judges seek the public meaning of the text at the time it was enacted.
I’m pleased to see that President-elect Trump is echoing Scalia. Last week Mr. Trump’s transition team affirmed that he will nominate judges “who are committed to interpreting the Constitution and laws according to their original public meaning.” During the campaign Mr. Trump released a list of 21 potential candidates for Scalia’s seat. Those on the list with whom I am familiar would be sympathetic to originalism.
The bigger unknown is where they stand on stare decisis—Latin for “let it stand.” This is the idea that precedents of previous Supreme Courts should be followed, even when they conflict with the original text of the Constitution. Here is where Scalia’s friend and colleague, Justice Clarence Thomas, comes to the fore.
Justice Thomas has been more willing to reject stare decisis and reverse precedents. Consider the New Deal-era case Wickard v. Filburn. In 1942 the Supreme Court held that Congress’s power to regulate interstate commerce extended to a farmer growing wheat to feed his own livestock. Sixty-three years later, that expansive reading of the Constitution’s Commerce Clause continues to hold.
Take the 2005 case Gonzales v. Raich, in which I represented Angel Raich. A 6-3 majority of the court relied on Wickard to rule that Congress could stop Ms. Raich from possessing homegrown marijuana for medical use, as authorized by the law of her state. Justice Thomas dissented and would have reconsidered Wickard.
Stare decisis has the unfortunate effect of grandfathering in hundreds of judicial decisions, like Wickard, that have interpreted federal powers well beyond what can be supported by the Constitution’s original meaning.
With Washington’s power now extended over Americans’ everyday lives—rather than allowing for 50 state solutions to economic and social problems—every divisive issue is elevated to the national government. This has resulted in a Hobbesian political war to control the levers of federal power, with each side trying to avoid living under policies with which it fundamentally disagrees. As a result, every presidential campaign is now “the most important election of our lives.”
Moreover, post-New Deal courts authorized Congress to delegate its lawmaking powers to the administrative state. Today, most federal “law” is made, interpreted and enforced by faceless, unaccountable executive-branch bureaucrats. This is what has allowed Washington to regulate nearly every aspect of citizens’ lives. The 535 members of Congress simply wouldn’t have the time to do it on their own.
Rejecting dubious precedents does not necessarily require overturning specific government programs that were previously upheld or entitlements on which citizens have come to rely. But it does mean declining to use these past decisions to justify new unconstitutional exercises of power. The Agricultural Adjustment Act of 1938, upheld in Wickard, might continue to operate. But future congressional schemes to regulate wholly intrastate activity could be struck down. Such an approach would gradually return the U.S. to a federal government of limited, enumerated and separated powers.
Which leads to the two questions that the Trump administration should be asking of potential judicial nominees. First: Will they elevate precedent over the original meaning of the Constitution, thereby locking in a highly distorted reading of federal power? Or will they insist on interpreting America’s founding document and its amendments as they were written?
Second: Do they, like Justice Scalia, have the courage of their convictions—the intestinal fortitude to stand against the public’s demand for this or that outcome, and to do what they believe to be right? Or will they bend with the political wind to protect the “legitimacy” of the court?
This isn’t a matter of seeking judges who will reach conservative results versus liberal ones. It’s about adhering to the text of the Constitution, while letting the political chips fall where they may. (Justice Thomas would have reached a “liberal” result in Raich.)
Thanks to the results of last week’s election—including Republicans’ retaining control of the Senate—there has never been a better opportunity in my lifetime to restore what Donald Trump, in the final presidential debate, quite eloquently referred to as “the Constitution as it was meant to be.”
Mr. Barnett, a professor of law and the director of the Georgetown Center for the Constitution, is the author of “Our Republican Constitution: Securing the Liberty and Sovereignty of We the People” (HarperCollins, 2016).
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https://pjmedia.com/trending/2016/11/19/cast-of-broadways-hamilton-makes-pence-early-frontrunner-for-2024/
Good point here. The irony that Hamilton in # 68 of the Federalist papers listed advantages of the electoral college.
Also ionic is the spokesperson for the cast is Brandon Victor Dixon who plays Aaron Burr.
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http://www.forbes.com/sites/instituteforjustice/2016/04/20/nebraska-just-abolished-civil-forfeiture-now-requires-a-criminal-conviction-to-take-property/#52d8d6b2159e
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http://www.dickmorris.com/conservative-supreme-court-possible-filibuster-killed-dick-morris-tv-lunch-alert/?utm_source=dmreports&utm_medium=dmreports&utm_campaign=dmreports
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https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/19/now-playing-at-the-supreme-court-the-deplorables/?utm_term=.7e445ace703b
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http://www.wsj.com/articles/five-ways-to-restore-the-separation-of-powers-1482192048
By David B. Rivkin Jr. and
Elizabeth Price Foley
Updated Dec. 19, 2016 7:09 p.m. ET
279 COMMENTS
The worst legacy of the Obama administration may be disdain for the Constitution’s separation of powers. President Obama’s actions have created dangerous stress fractures in our constitutional architecture, making it imperative that the Trump administration and Republican Congress commence immediate repairs.
The Constitution separates power in two ways: among the three branches of the federal government and between the federal government and states. As James Madison wrote in the Federalist Papers, separation creates “a double security” for liberty because “different governments will control each other, at the same time that each will be controlled by itself.”
The Obama administration has spurned this core constitutional principle, aggrandizing executive power at the expense of Congress and states. It has rewritten laws, disregarding its constitutional duty to faithfully execute them.
ObamaCare’s implementation provides multiple examples: delaying statutory deadlines, extending tax credits to groups Congress never included, exempting unions from fees, expanding hardship waivers beyond recognition and granting “transition relief” for preferred employers.
Mr. Obama even usurped Congress’s power of the purse, spending billions for “cost-sharing subsidies” that pay ObamaCare insurers for subsidizing deductibles and copays. Congress never appropriated money for these subsidies, so the administration shifted money appropriated for other purposes. The House sued to defend its constitutional prerogative, and in May a federal court ruled against the administration, which has appealed.
Mr. Obama also exempted five million illegal immigrants from deportation, though Congress had unambiguously declared them deportable. He waived the mandatory work requirement of the 1996 welfare reform. He redefined sexual discrimination under Title IX, forcing schools to allow transgender students to use bathrooms of their non-biological gender, and threatening to withdraw funds if colleges refuse to reduce due process protections for individuals accused of sexual assault.
The president has exhibited particular antipathy toward the Senate’s advice-and-consent duty. In Noel Canning v. NLRB (2014), the Supreme Court unanimously ruled that the administration violated separation of powers by making unilateral appointments to the National Labor Relations Board while the Senate was in session. And the president unilaterally committed the nation to an unpopular nuclear deal with Iran, bypassing the Senate’s treaty ratification power.
Mr. Obama’s actions have also shattered federalism. The administration rewrote the 1970 Clean Air Act, commanding states to revamp their electricity generation and distribution infrastructure. It rewrote the 1972 Clean Water Act, claiming vast new power to regulate ditches and streams under the risible notion that they are “navigable waters.” It has refused to enforce existing federal drug laws, emboldening states to legalize marijuana.
The media and academy enabled the administration’s unconstitutional behavior because they support its policy agenda. But the Framers expected members of Congress to jealously defend congressional power against executive encroachment—even from a president of the same political party. As Madison observed, “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”
This principle disappeared during the past eight years. In his 2014 State of the Union address, the president vowed to implement his agenda “wherever and whenever I can” without congressional involvement—to thunderous applause by Democrats. In November 2014, Democratic Senators urged the president to vastly expand his unilateral amnesty for illegal immigrants.
The Trump administration and GOP Congress should resist the temptation to follow this Constitution-be-damned playbook. The greatest gift Republicans could give Americans is a restored separation of powers. But this cannot be accomplished by merely rescinding the Obama administration’s unconstitutional executive orders. While this is a necessary step, Congress should enact additional reforms.
First, Congress can amend the 1996 Congressional Review Act to require affirmative approval of major executive-branch regulations. The law now allows regulations to go into effect automatically if Congress does not disapprove them. The act has been used only once to overturn a regulation because it requires passage of a joint resolution of disapproval—which must be signed by the president. This requirement should be inverted: If Congress does not affirmatively approve a regulation, it never goes into effect.
Second, Congress could prohibit “ Chevron deference,” in which federal courts defer to executive branch interpretations of ambiguous statutes. Chevron deference is a judge-made doctrine that has aggrandized executive power, ostensibly to implement Congress’s intent. If Congress denounces such deference, it can simultaneously reduce executive power and encourage itself to legislate with greater specificity.
Third, Congress can augment its institutional authority by expanding its contempt power. The criminal contempt statute should require the U.S. attorney to convene a grand jury upon referral by the House or Senate without exercising prosecutorial discretion. Congress should also extend the civil contempt statute to the House, not merely the Senate, and enact a new law specifying a process for using Congress’s longstanding (but rarely invoked) inherent contempt authority.
Fourth, Congress can require that all major international commitments be ratified by treaty. A statute defining the proper dividing line between treaties and executive agreements would reassert the Senate’s constitutional role, provide clarification to the judiciary, and encourage communication and negotiation between Congress and the president.
Fifth, Congress can enact a law further restricting its ability to coerce states into adopting federal policies or commanding state officials to carry them out. While the courts have ultimate say on the contours of these federalism doctrines, a law could force greater consensus and debate, provide guidelines on Congress’s use of its powers, and signal to the judiciary a reinvigorated commitment to federalism.
Restoring separation of powers is necessary and possible. It should be the highest priority of the Trump administration and Congress.
Mr. Rivkin and Ms. Foley practice appellate and constitutional law in Washington, D.C. Ms. Foley is also a professor of constitutional law at Florida International University College of Law.
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http://dailysignal.com/2017/01/13/heres-a-look-at-the-potential-short-list-for-trumps-supreme-court-nominees/?utm_source=TDS_Email&utm_medium=email&utm_campaign=MorningBell&mkt_tok=eyJpIjoiWmpJNVpqVmpaVGhsTVdWbSIsInQiOiJNNjFWaERMODU4YlFhblVjMUlKUytSaDFjZFF1VUFuU1wvWFlFMFwvUWw2UlBKOFpZbzVVUFdMYkVJWE5CRUdqMFJ1RXg2ZjdlaXJqaHVZZGpsYnhGTEg5QVZQNStFemhDVkM0VFwvXC9cL291bFNnSWZsNUJQNUdxd1dXN084dHh5Zlk0In0%3D
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http://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=4209&context=nclr
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A very good article for reference -- thank you BD.
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https://www.cato.org/publications/commentary/top-10-ways-obama-violated-constitution-during-presidency
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Buy on rumor sell on the news :-D
https://www.yahoo.com/gma/judge-neil-gorsuch-emerges-leading-contender-supreme-court-131110200--abc-news-topstories.html
Does one have to be a Harvard grad to be on SC?
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Buy on rumor sell on the news :-D
https://www.yahoo.com/gma/judge-neil-gorsuch-emerges-leading-contender-supreme-court-131110200--abc-news-topstories.html
Does one have to be a Harvard grad to be on SC?
Clearly not. There is a great deal of diversity on the SCOTUS. Harvard AND Yale... and Columbia, who started at Harvard.
GWB nominated Miers, and SMU grad, but the GOP didn't want any of that.
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http://www.huffingtonpost.com/scott-d-gerber/clarence-thomas-should-be_1_b_14445166.html
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http://www.huffingtonpost.com/scott-d-gerber/clarence-thomas-should-be_1_b_14445166.html
I agree with this Huffington Post piece. - I'm not sure which emoticon to put with that. )
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http://m.washingtontimes.com/news/2017/jan/29/a-conservative-jurist-for-the-supreme-court/
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Why Liberals Should Back Neil Gorsuch
By NEAL K. KATYALJAN. 31, 2017
Judge Neil M. Gorsuch, President Trump’s nominee to the Supreme Court. Credit Al Drago/The New York Times
I am hard-pressed to think of one thing President Trump has done right in the last 11 days since his inauguration. Until Tuesday, when he nominated an extraordinary judge and man, Neil Gorsuch, to be a justice on the Supreme Court.
The nomination comes at a fraught moment. The new administration’s executive actions on immigration have led to chaos everywhere from the nation’s airports to the Department of Justice. They have raised justified concern about whether the new administration will follow the law. More than ever, public confidence in our system of government depends on the impartiality and independence of the courts.
There is a very difficult question about whether there should be a vote on President Trump’s nominee at all, given the Republican Senate’s history-breaking record of obstruction on Judge Merrick B. Garland — perhaps the most qualified nominee ever for the high court. But if the Senate is to confirm anyone, Judge Gorsuch, who sits on the United States Court of Appeals for the 10th Circuit in Denver, should be at the top of the list.
I believe this, even though we come from different sides of the political spectrum. I was an acting solicitor general for President Barack Obama; Judge Gorsuch has strong conservative bona fides and was appointed to the 10th Circuit by President George W. Bush. But I have seen him up close and in action, both in court and on the Federal Appellate Rules Committee (where both of us serve); he brings a sense of fairness and decency to the job, and a temperament that suits the nation’s highest court.
Considerable doubts about the direction of the Supreme Court have emerged among Democrats in recent weeks, particularly given some of the names that have been floated by the administration for possible nomination. With environmental protection, reproductive rights, privacy, executive power and the rights of criminal defendants (including the death penalty) on the court’s docket, the stakes are tremendous. I, for one, wish it were a Democrat choosing the next justice. But since that is not to be, one basic criterion should be paramount: Is the nominee someone who will stand up for the rule of law and say no to a president or Congress that strays beyond the Constitution and laws?
I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law. His years on the bench reveal a commitment to judicial independence — a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him. Judge Gorsuch’s record suggests that he would follow in the tradition of Justice Elena Kagan, who voted against President Obama when she felt a part of the Affordable Care Act went too far. In particular, he has written opinions vigorously defending the paramount duty of the courts to say what the law is, without deferring to the executive branch’s interpretations of federal statutes, including our immigration laws.
In a pair of immigration cases, De Niz Robles v. Lynch and Gutierrez-Brizuela v. Lynch, Judge Gorsuch ruled against attempts by the government to retroactively interpret the law to disfavor immigrants. In a separate opinion in Gutierrez-Brizuela, he criticized the legal doctrine that federal courts must often defer to the executive branch’s interpretations of federal law, warning that such deference threatens the separation of powers designed by the framers. When judges defer to the executive about the law’s meaning, he wrote, they “are not fulfilling their duty to interpret the law.” In strong terms, Judge Gorsuch called that a “problem for the judiciary” and “a problem for the people whose liberties may now be impaired” by “an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.” That reflects a deep conviction about the role of the judiciary in preserving the rule of law.
That conviction will serve the court and the country well. Last week, The Denver Post encouraged the president to nominate Judge Gorsuch in part because “a justice who does his best to interpret the Constitution or statute and apply the law of the land without prejudice could go far to restore faith in the highest court of the land.”
I couldn’t agree more. Right about now, the public could use some reassurance that no matter how chaotic our politics become, the members of the Supreme Court will uphold the oath they must take: to “administer justice without respect to persons, and do equal right to the poor and to the rich.” I am confident Neil Gorsuch will live up to that promise.
Neal K. Katyal, an acting solicitor general in the Obama administration, is a law professor at Georgetown and a partner at Hogan Lovells.
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The Gorsuch pick (and confirmation) will free Kennedy to retire.
http://www.politico.com/story/2017/01/trump-supreme-court-gorsuch-234474
Ginsburg and Breyer, too! :wink:
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Jonathan Turley
President Trump nominated Neil M. Gorsuch as the next Supreme Court justice Tuesday, and Senate Democrats are already lined up to oppose the nomination. Despite the super-heated political rhetoric, the nomination of another conservative jurist to replace Justice Antonin Scalia won’t move the court’s center of gravity. If Trump wants to have a lasting effect on the law, he should be working with the Republican Congress to make changes in — not on — the Supreme Court.
As an institution, the nation’s highest court is anachronistic, dysfunctional and long-overdue for an overhaul. Real change could be accomplished with just three basic reforms.
First, the court is too small. When the first Supreme Court convened in 1790, at the Royal Exchange Building in New York City, only two of the then six-member court showed up. For many years, the size of the court was set by the number of “circuits” — the regional appellate courts in the country. In 1869, that number was nine. While we currently have 13 such circuits, the court remained frozen at nine justices.
We never have had a national debate on the ideal size of this key institution, but we can be certain nine isn’t it.
We never have had a national debate on the ideal size of this key institution, but we can be certain nine isn’t it. That configuration concentrates authority in too small a group. Indeed, it is often in the hands of only one person — the perennial problem of the “swing justice” on a divided court. For years, the court was effectively just Sandra Day O’Connor. Now, Anthony M. Kennedy plays the swing role.
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A better size is 19. The increase could occur slowly with no president filling more than two new positions per term. That would bring the U.S. high court in line with those of other countries, which have purposefully avoided our court’s concentration of power (and swing justice) problems. Germany’s high court has 16 members; Japan’s, 15; the United Kingdom’s, 12; India’s, 31; and Israel’s, 15.
On a 19-member Supreme Court, two justices (rotated by order of seniority) would sit each year on lower courts — a tradition from the early days of the Republic that should be resumed. When “riding circuit” was abandoned, it produced a Supreme Court too easily seen as arrogant and out of touch with real-world issues.
A larger court would also give more presidents more nominees and give the court a greater diversity of views. A larger court might even reduce our continual confirmation spasms whenever one of the few positions becomes vacant. And with more seats to fill, the quality of the jurists might rise.
Although it seems counterintuitive, seats on the court come up so rarely now, and are so contentious, that presidents often pick nominees who are not particularly outstanding or distinctive in their field in order to make confirmation easier. A larger court would decrease each justice’s power, but it would probably increase the high court’s overall expertise.
Next, cameras should be allowed into the Supreme Court. The framers were such great believers in the need for justice to be done in public that they put it into the Constitution. The 6th Amendment guarantees public trials, and yet the justices currently make people wait in line (the wealthy hire line “sitters”) for days to get one of the relatively small number of seats in the courtroom. In an effort to fend off cameras, the court agreed in 1999 to release audio, in addition to transcripts, in some cases. That has simply made the situation more bizarre — it’s as if the court’s communication technology stopped with the advent of radio.
The objection some justices have made to video isn’t that the lawyers will grandstand, but that their fellow justices will. In 2007, Justice Kennedy suggested that if the proceedings were televised it would be “human nature for me to suspect that one of my colleagues is saying something for a soundbite.”
Protecting justices from temptation is hardly a compelling argument for denying the public access to their highest court. Congress should order the cameras to start rolling, and any judges who feel they must retire should be thanked for their service.
Finally, the Supreme Court is not just an island protected from modern technology but also judicial ethics. With self-serving logic, the justices insist that they alone can judge their conduct. They have voluntarily agreed to “refer” to the Code of Judicial Conduct for guidance. Often it appears to be honored primarily in the breach. Justices have given public speeches in which they have discussed pending issues and cases, attended political fundraisers, and ruled in cases where they or their spouses have financial interests.
Congress should require the Supreme Court to adopt a formal code of ethics, including a process by which citizens can file complaints against justices. In the Federalist Papers, James Madison observed that “no man is allowed to be a judge in his own cause.” However, the nine justices on the Supreme Court demand precisely that unilateral power when it comes to their behavior.
Jonathan Turley is a constitutional law professor at George Washington University.
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https://fas.org/sgp/crs/misc/gorsuch.pdf
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https://www.nytimes.com/2017/02/08/us/politics/donald-trump-immigration-ban.html?emc=edit_na_20170208&nl=breaking-news&nlid=49641193&ref=cta
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‘I Worked for the Obama Administration. I Have to Say, I’m 100 Percent Comfortable with Judge Gorsuch.’
This morning, the Judicial Crisis Network launched a national $2 million advertising campaign in support of confirmation of Judge Neil Gorsuch to the Supreme Court. The commercial features Jane Nitze, a former Obama-administration attorney, who clerked for Judge Gorsuch in 2008 and 2009.
“I don’t think folks on the left should be concerned about Judge Gorsuch becoming a Supreme Court Justice,” Nitze says in the ad. “He is extraordinarily fair-minded. He will approach each case the same, regardless of the issue or the parties before him, and he will have a great deal of respect for folks on all sides of the ideological spectrum. I worked for the Obama administration. I have to say, I’m 100 percent comfortable with Judge Gorsuch becoming the next Supreme Court justice.”
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"I Worked for the Obama Administration. I Have to Say, I’m 100 Percent Comfortable with Judge Gorsuch.’
I am now against him if this is a true statement.
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https://www.washingtonpost.com/news/monkey-cage/wp/2017/02/15/neil-gorsuch-could-be-the-most-conservative-justice-on-the-supreme-court/?utm_term=.a10c1b61711a
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8-) 8-) 8-)
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http://www.dcclothesline.com/2017/02/09/supreme-court-justice-ginsburg-favors-decriminalizing-pedophilia-and-child-sex-trafficking/
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http://www.politico.com/magazine/story/2017/02/three-branches-government-separation-powers-executive-legislative-judicial-214812?ref=yfp
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Perception political? Why and how would anyone get that idea?
What are we stupid?
http://www.newsmax.com/Newsfront/Justice-Sotomayor-Perception-Judges-Political/2017/03/10/id/777979/
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http://m.washingtontimes.com/news/2017/jan/29/a-conservative-jurist-for-the-supreme-court/
Speaking of prescient, on the forum we had the pleasure of reading this excellent article a day before the Neil Gorsuch appointment was known.
Today Judge Gorsuch is giving a constitutional law clinic on NPR, CSPAN? or wherever you can get coverage.
Opponents have accused Gorsuch of being an originalist. If you are a leftist, isn't a disciplined "originalist" better than having Trump appoint like the liberals do, someone who agrees with Trump on policy and would read the constitution as a living and breathing document that can be twisted and contorted to support those policies. Glenn Reynolds posed this question a couple of weeks ago:
http://www.usatoday.com/story/opinion/2017/03/02/constitution-neil-gorsuch-supreme-court-originalism-glenn-reynolds-column/98537030/
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The rogue is not the President who was duly elected but this judge:
http://www.breitbart.com/big-government/2017/03/21/impartiality-of-federal-judge-who-blocked-trump-eo-may-be-in-question/
Yet he will get away with it. Put a PI on his tail. Find something.
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http://www.msnbc.com/msnbc/supreme-court-cell-phone-privacy-searches
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http://www.breitbart.com/video/2017/03/23/graham-ill-do-whatever-it-takes-to-get-gorsuch-confirmed-if-dems-filibuster-we-would-have-to-change-the-rules/
I guess the Repubs will have to force a nuclear bomb down Chuck's [Schumer] throat.
It is really terrible the Dems have made it come to this.
But they have.
This keeps getting worse every week. :cry:
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I see in my open tabs, this didn't get posted a couple of days ago when written. I was going to point out today that Mark Steyn was making this same point on the radio yesterday:
"Democrats face a simple choice, how would they like to lose?"
[Leftist commentator, Nina Totenburg was also making this point.]
Steyn says, they can lose fast or lose the slow way, but lose this battle is what is going to happen for them. Schumer says they will filibuster and press for a different nominee. Really? Who is a better nominee for a President like Trump to pick and a Republican majority Senate to confirm? I predict it will be Dems that fold on the filibuster. Better yet, break the log jam via the rules and require the Senate to do it's job, advise and consent on Supreme Court nominations.
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I am embarrassed for my Senators, Democats Amy Klobuchar and Al Franken. [On the good side, they have been nationally exposed for what they are, boring, petty and disingenuous, not 2020 Presidential material as some previously thought.]
Amy [Sen. Klobuchar D-MN] tried to prove the point that originalism is bad by pointing out that the constitution includes multiple references to the President with the pronouns he or him. But the women's right to vote IS part of the constitution, added in the 19th amendment in 1920, and Article 2 defining how we choose the President also refers to the list of possible candidates as "Persons", never using the word man or men. What a reckless idiot. [The next day she opened by denying she was making this false point.] Amy was a County Attorney and should have been able to handle the job as opposition questioner. Instead it was quite obvious that she was only reading questions handed to her by others. One way you know that is that the series of questions doesn't correctly anticipate the nominee's answer to the previous question. It doesn't flow and the questioner keeps getting thrown off track. Example, the next day, after losing an exchange with the judge, she reiterated her off the mark point, didn't give the witness another chance to respond and then just said she needed to move on.
As Hennepin County Attorney (Hennepin County is bigger than 8 states), was she a prosecutor or was she a driveling politician who had prosecutors on staff? Quite obviously the latter.
Enter Al Franken. Besides his lack of humor, he showed his lack of legal knowledge and preparation. First he went after one of Gorsuch's 3000 decisions, Trans Am Trucking. Franken took his speaking time 99-1 over the witness and used his time to demonstrate that he not only didn't understand the pivotal point of the case, but he couldn't pronounce it either, "scrivener's error", and HE'S the one who chose the case to discuss! [Or did the people who wrote his questions pick it?] All his other points failed too, What did Reince Priebus mean by ...? Gorsuch didn't even have to say, it's none of his business what one politician thinks of him.
Democrats face a simple choice, how would they like to lose? They can delay - as Chuck Schumer is proposing. They can filibuster. They can vote no. And they can cause the creation a new, nuclear option precedent and break the filibuster via a rules vote that would then make Trump future appointments pass too.
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http://www.breitbart.com/video/2017/03/26/sanders-certainly-hope-gop-doesnt-change-rules-push-gorsuch/
My response:
"elections have consequences"
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http://www.breitbart.com/video/2017/03/26/sanders-certainly-hope-gop-doesnt-change-rules-push-gorsuch/
My response: "elections have consequences"
Sanders was right there with them when they changed the rule last time:
https://projects.propublica.org/represent/votes/113/senate/1/243
Slime. If they don't want a 'rule change' invoked, don't use the Senate filibuster to cry wolf.
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Sanders the "independent" . Independent my derriere.
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Discussion of the Nuclear Option belongs in the Congress thread.
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http://thehill.com/regulation/court-battles/329981-trump-eyeing-second-supreme-court-seat
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https://www.washingtonpost.com/opinions/trump-must-be-impeached-heres-why/2017/05/13/82ce2ea4-374d-11e7-b4ee-434b6d506b37_story.html?utm_term=.3e4e7dce382e
apparently he is a journolister all along.
apparently this is what one gets by insulting the "elites" of DC and the Left and the Right.
They are going to run Trump out of town no matter what. Wealthy powerful connected people do not like being treaded on. And they are hell bent on destroying him. They make the narrative and the laws and the interpretation of the laws . Kapeesh?!?!?!?!
It is clearly evident that there is a fifth column .
It is like us against the music busin. The whole system is rigged from top to bottom. Good luck trying to fight it.
I still stand with Trump. We really have no one else .
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https://www.washingtonpost.com/opinions/trump-must-be-impeached-heres-why/2017/05/13/82ce2ea4-374d-11e7-b4ee-434b6d506b37_story.html?utm_term=.3e4e7dce382e
apparently he is a journolister all along.
apparently this is what one gets by insulting the "elites" of DC and the Left and the Right.
They are going to run Trump out of town no matter what. Wealthy powerful connected people do not like being treaded on. And they are hell bent on destroying him. They make the narrative and the laws and the interpretation of the laws . Kapeesh?!?!?!?!
It is no more evident that there is a fifth column .
It is like us against the music bus. The whole system is rigged from top to bottom. Good luck trying to fight it.
I still stand with Trump. We really have no one else .
"One of the things Trump has accomplished is to make clear that our best and brightest and most responsible are none of these things." - Glenn Reynolds
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http://www.cnn.com/2017/06/24/politics/anthony-kennedy-retirement-rumors/index.html
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https://www.nytimes.com/2017/06/26/us/politics/supreme-court-wedding-cake-gay-couple-masterpiece-cakeshop.html?emc=edit_na_20170626&nl=breaking-news&nlid=49641193&ref=cta
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https://www.conservativereview.com/articles/justice-kennedys-retirement-could-prove-terrible-for-gop-agenda
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https://www.lawfareblog.com/reading-office-legal-counsel-emoluments-do-super-rich-presidents-get-pass
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https://www.lawfareblog.com/reading-office-legal-counsel-emoluments-do-super-rich-presidents-get-pass
I guess this is the new angle of attack since the whole Russia thing has turned out to be bullshit.
:roll:
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https://www.forbes.com/sites/instituteforjustice/2017/07/11/connecticut-just-banned-civil-forfeiture-without-a-criminal-conviction/#6a83d6f552e7
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There is a political issue in that Minnesota's Senators Amy Klobuchar and Al Franken are blocking Trump's nomination of Minnesota Supreme Court Justice David Stras to the 8th Circuit Court of Appeals, but that begs the question of whether work of this judge who has been smeared, slandered and libeled is out of the constitutional law mainstream.
https://www.minnpost.com/community-voices/2017/06/justice-stras-should-be-confirmed-us-court-appeals
http://www.powerlineblog.com/archives/2017/08/al-franken-thinking-it-over.php
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Just in case I haven't ranted enough about this lately...
Little Pink House - is going to be a movie
https://www.hollywoodreporter.com/news/little-pink-house-movie-tackling-kelo-supreme-court-decision-gets-release-date-1085796
This is one big issue where I strongly opposed Trump in the primaries, private takings. The City of New London took Suzette Kelo's and all her neighbors' houses to make way for big pharma Pfizer, a "preferred" use. The Supreme Court (wrongly) upheld this. Of no legal meaning is that it was never built and sat there empty with prairie grass after kicking everyone out for better use.
http://www.nytimes.com/2009/11/13/nyregion/13pfizer.html?mtrref=www.google.com&gwh=CB770269FD5BCBC170BBFEB6EFA7D830&gwt=pay
http://www.freedomworks.org/content/kelo-v-new-london-central-planning-does-not-work-ruins-lives
Around the same time, Trump 'persuaded' Atlantic City to take a little old lady's house for limo parking at a casino for 'better use' - that went bankrupt. In the debates, instead of just saying he used a law available to him he said he agreed with the 'Kelo" ruling, an outrageous position to constitution conservatives.
http://www.pressofatlanticcity.com/news/breaking/asking-price-drops-on-house-vera-coking-refused-to-sell/article_70e10cfc-6855-5fab-a1fe-f9cdfdba584f.html
This is an issue where my liberal cousin and I agree!
(http://d7.freedomworks.org.s3.amazonaws.com/field/image/susette%20kelo.jpg)
(http://c3.nrostatic.com/sites/default/files/NewLondonEast.JPG)
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http://thehill.com/opinion/civil-rights/376961-civil-asset-forfeiture-reform-is-sweeping-the-nation
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http://thehill.com/opinion/civil-rights/376961-civil-asset-forfeiture-reform-is-sweeping-the-nation
The laws they are beginning to reform are horrific.
"In most states, law enforcement entities can take and keep assets without even charging someone with a crime."
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Thank you Crafty. I would like to copy this into our constitutional thread as well since it applies to all rights, not just gun rights.
Jefferson makes this same point famously in the Declaration of Independence too, but that is not directly a part of constitutional law.
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
Your rights are not granted by your government. They are "unalienable" and they are not limited to the enumerated ones. The purpose of nearly every clause of the constitution is to limit the power of government to take rights away.
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A surprising place to find constitutionally illiterate Americans is in the club of current and foreign Supreme Court members, one of whom, Stevens, suggests repealing the Second Amendment as a way of ending the right to keep and bear arms. But is that so?
In part, the second amendment says:
"...the right of the people to keep and bear Arms,
shall not be infringed."
That right was already there? Is the right of self defense a natural right, including the right to keep and bear arms, the right to fight off an armed attack on your family or to fight back against an oppressive, unconstitutional government? Isn't that a pre-existing right, a right that existed before and without the Bill of Rights?
Hamilton argued against a Bill of Rights: ... bills of rights “are not only unnecessary in the proposed constitution, but would even be dangerous.” In his mind, if the government is prohibited from doing certain things but isn’t prohibited from doing everything it isn’t expressly told it can do, then the danger is in its implications. That is, the government can then do anything it’s not expressly forbidden to do.
http://www.libertyday.org/institute/2015/12/15/is-the-bill-of-rights-dangerous-alexander-hamilton-thought-so/
In this case, if we already had a natural right of self protection and the constitution did not grant the government the power to take that right away, saying that in an amendment is not necessary could be used to misconstrue people about the meaning of the constitution. "Government can then do anything it’s not expressly forbidden to do"? No. Government can do nothing it is not specifically granted constitutional authority to do. This is made clear in the 9th amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." To take away guns after repealing the Second, they would have to repeal this too, but this limit was already true before and without its passage and ratification, so repealing this too would still not empower the federal government to take away your pre-existing right. The country would also need to pass and ratify a new amendment specifically granting Congress the power to "infringe" on "the right of the people to keep and bear Arms", granting the power to deny any or all sales and to take away without warrant all owned weapons. And that STILL wouldn't give them the power to search for those weapons. They would further have to repeal the Fourth Amendment, the right of the people to be secure in their persons, houses, papers, and effects.
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https://www.usatoday.com/story/opinion/2018/04/16/little-pink-house-susette-kelo-pfizer-supreme-court-column/519093002/
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Serious Read: the rule of lenity and the contra proferentem doctrine
https://fedsoc.org/commentary/publications/towards-an-administrative-rule-of-lenity-restoring-the-constitutional-congress-by-reforming-statutory-interpretation
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Speculation from a year ago:
https://www.conservativereview.com/articles/justice-kennedys-retirement-could-prove-terrible-for-gop-agenda
Yesterday: New York Times Editorial Board Begs Justice Kennedy Not to Retire
https://www.newsbusters.org/blogs/nb/pj-gladnick/2018/04/29/new-york-times-editorial-board-begs-justice-kennedy-not-retire
60 votes are no longer needed to confirm a Justice but support of all of the Republicans is. Could the GOP actually get this done between June 30 and the election? If the nominee is good enough, they would get a few of the votes from the Trump state Dem Senators up for reelection. Give them any excuse to vote no and they will, same with McCain if he can still vote, and with Flake.
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Connecticut state Senate passes bill giving electoral votes to presidential candidate who wins popular vote
http://thehill.com/homenews/state-watch/386450-connecticut-lawmakers-vote-to-give-electoral-votes-to-presidential
Without re-reading the constitution or maybe their state constitution, this sounds unconstitutional to me. CT Democrats are saying CT electoral votes go to the Dem in every close election no matter who wins in CT. This violates a principle called consent of the governed. It is a political trick to move toward abolishing the electoral college, but abolishing the electoral college means either amending or abolishing the constitution.
The 38th most liberal state in the union is South Dakota, and it takes consent of 38 states to amend the constitution. You can infringe on the right to bear arms or have a President elected by the will of the people in the large states just as soon as you get South Dakota, Nebraska, Montana, West Virginia, Missouri, Texas, Georgia, Iowa, Indiana, North carolina, Kansas and 27 more states to agree with you. http://news.gallup.com/poll/181505/mississippi-alabama-louisiana-conservative-states.aspx
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The Equal Rights Amendment Is a Feminist Ruse
By Alexandra DeSanctis
June 11, 2018 6:30 AM
Actress Alyssa Milano (center) at a protest against Trump administration policy in Manhattan, July 16, 2017. (Caro Allegri/Reuters)
This is not about whether the Constitution applies to women.
Led by the indomitable actress Alyssa Milano, left-wing feminists are waging their latest self-righteous campaign, this time to ensure that American women will finally be viewed as human beings and granted the same rights as men.
After decades of the Left’s insistence that U.S. culture has made steady moral progress, we’re now told that, in fact, American women are still stuck in 1950. As punishment for our cultural sins, the debate over the Equal Rights Amendment (ERA) is back, courtesy of feminists increasingly embittered by the presidency of Donald Trump.
The would-be amendment passed Congress in the early 1970s, and its first section reads: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” (The other sections give Congress the power to enforce it and state that it goes into effect two years after ratification.)
The activists insist they are just “one state away” from ratification, but in fact they are far from accomplishing their goal. When Congress passed the amendment, it stipulated that if the states didn’t ratify the change by 1979, congressional approval would no longer be in force. When that failed, Congress extended the deadline to 1982, but no more states ratified it. In addition, five of the states that did ratify it later rescinded their endorsements.
To get to “one state away,” ERA supporters are counting all the states that ratified it before the deadline, ignoring states’ attempts to take back their blessings and counting two states that have ratified it since last year, decades after the deadline had passed. At the very least, the pro-ERA movement will face an uphill legal battle. It will need to prove both that Congress can’t set ratification deadlines and that states can’t rescind their ratification votes.
To the average citizen, meanwhile, it might seem that women have come a long way over the last century — since first-wave feminists won women the right to vote, for example. Not to modern feminists. Milano, for example, frames the need for the ERA as a question of whether “women should be protected under the constitution,” as if the rights enshrined therein don’t currently apply to women absent an explicit equal-rights-for-women clause.
“It literally just outlaws discrimination against women,” one of the amendment’s proponents wrote on Twitter. “All this law would do is ensure women are equal to men in the eyes of law,” another claims. Countless others explain the need for the amendment with the rote slogan “Women’s rights are human rights.”
There must be more to their campaign than meets the eye, because the outcomes they demand are already the law. Workplace discrimination on the basis of sex is illegal under federal statute. Sex-discrimination cases have also been successfully litigated under the 14th Amendment, contrary to Milano’s rather uninformed representation of constitutional law — though the 14th Amendment, like the text of the ERA, applies only to discrimination by governments.
What’s their real end game, then? To the extent that their campaign has any grounding in reality, it’s tied to the #MeToo movement, which revealed systemic sexual misconduct against American women in a number of industries. The ERA, though, wouldn’t address this problem in any meaningful way that hasn’t already been attempted through force of law. The horror stories that have emerged stemmed almost entirely from cultural rot and societal dysfunction, not from the fact that the U.S. Constitution has no Equal Rights Amendment.
This unconscionable treatment of women occurred not in the absence of legal protections but in a cultural climate in which powerful men felt entitled to coerce or harass or assault subordinate women. Those men faced no consequences not because there was no law against what they did but because those who knew about the abuse remained silent and turned a blind eye — until now.
The idea that such a culture would necessarily be transformed by a constitutional amendment restating legal rights women already possess places an absurd amount of faith in the notion that cultural problems can be corrected by legal means. If influential men have, until yesterday, gotten away with using their power to prey on women — despite the fact that laws existed to punish them — why would one more legal mechanism condemning unequal treatment change their behavior? It is the cultural view that must change, not the law.
More important, we ought to examine the underlying agenda of those making a renewed push for the ERA. Surely, they’re aware that current law prohibits sex discrimination. Progressives are after neither a legal innovation nor a symbolic victory. They desire, first and foremost, a tool with which to crush their ideological opponents and impose their radical agenda.
A culture in which the Constitution is manipulated to protect sexual liberation as authentic female freedom will never be a culture that defends women.
Undoubtedly, for example, they wish to create some constitutional support for “reproductive rights.” The shaky legal fiction of Roe v. Wade — with no constitutional grounding aside from “emanations” and “penumbras” — has imposed an essentially unlimited abortion-on-demand regime on the entire country for decades. How much more powerful would this constitutional amendment be in accomplishing those aims, especially in the hands of a high court full of justices in the mold of Ruth Bader Ginsburg and Sonia Sotomayor?
In short, liberal feminists are disingenuous when they say they’re simply seeking “equal rights.” They want the U.S. Constitution to offer a clause that can be wielded to protect any right they deem essential to female empowerment. In practice, it would serve not as a recognition of women as equal human beings but as a formal codification of the spirit of the sexual revolution.
Comments
If they get their way, it will no longer be the Department of Health and Human Services forcing employers to subsidize contraceptives and abortifacients; it will be the Equal Rights Amendment. When the giants of the abortion industry insist that Congress use taxpayer dollars to fund abortions, they will come carrying a copy of Madison’s founding document. Every demand for complete sexual libertinism, facilitated by the state, will suddenly have behind it the imprimatur of the U.S. Constitution. That’s what they’re after.
This amendment won’t ensure that women will receive equal opportunity in the workplace or that they will be free from the objectification of advertising companies and the porn industry. It won’t stand between the Harvey Weinsteins of the world and their innocent victims. No amendment can do that. Only a culture can. And a culture in which the Constitution is manipulated to protect sexual liberation as authentic female freedom will never be a culture that defends women.
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In the federal government the terms Parent One and Parent Two already replaced the words Mother and Father.
“It literally just outlaws discrimination against women,” one of the amendment’s proponents wrote...
No. It literally outlaws discrimination in favor of women. We don't have legal discrimination against women.
Implications of an ERA are far and reaching. We have already destroyed almost all gender distinctions, mostly wrongly. Women in combat? Why? Women in the draft? We don't have a draft. But under ERA it would be unconstitutional to construct a draft in a national emergency that didn't include our daughters.
Each flaw under the ERA is only an example of the wrong of ending gender distinction. Can't have separate bathrooms? Can't have a mother, father distinction?
Can't have girls or women's sports. Take US Open tennis for example. The prize money is US$ 50 million exactly equal between men and women. Women play two out of three set matches and men play three out of five set matches, nearly twice as long on the court. It was a 'victory' for feminists to get equal prize money for roughly half the work. Exactly ZERO will go to women if you open up all events to all genders. How can you not? You can't use common sense when the constitution simple says you cannot discriminate on the basis of gender.
Without sports my daughter was not captain of her team in high school and all-conference in college which opened doors for her in business. My Mom was state champion golfer and later top ten in the world in seniors. Without a gender distinction, she would not have qualified to play in any event she entered or won. Ending that benefits whom? If you think the national anthem controversy hurt sports viewing, wait until Olympic pair skating is all men. Olympic everything will be all men, or just the American team?
ERA was a Far Left construct from the 70s I think, perfectly designed to sound reasonable and fair, and barely stopped in the early 80s. Totally predictable that it would re-emerge today in an age where advocating the rights of Trannies in the ladies room draws more of our attention than nuclear war proliferation.
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https://www.forbes.com/sites/nicksibilla/2018/06/19/supreme-court-will-decide-if-civil-forfeiture-is-unconstitutional-violates-the-eighth-amendment/#3c1a9f307165
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http://teachingamericanhistory.org/library/document/the-constitution-of-the-united-states-is-it-pro-slavery-or-anti-slavery/
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Stare decisis, settled law, liberals want to know if all these candidates for the 'Kennedy' seat understand that all previous Supreme Court decisions, meaning Roe v Wade, are settled law and cannot rightfully be overturned. It's always been this way - except for the first 197 years.
Just curious, wasn't marriage being between a man and a woman even longer settled law? Wasn't parents being one mother and one father settled law?
Is Heller settled law, right to bear arms, settled law? Is equal treatment under the law, settled law, see IRS targeting, HRC interview, progressive tax rates, etc.
Was Dred Scott and slavery settled law?
I could go on. Think of some context when you hear the liberal whiners in the committee soon confront with perfect predictability the not yet named nominee on whether they support the concept of stare decisis and settled law.
There is settled law deserving of our respect and then, like Roe, there are wrongly decided cases. The job of the Justice is to recognize the difference.
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Plessey v. Ferguson was settled law for 56 years.
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https://www.nationalreview.com/2018/07/supreme-court-unlikely-to-overturn-roe-v-wade/
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predict nominee will be the woman at 9 pm
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predict nominee will be the woman at 9 pm
I liked the prediction. Ironically, a conservative woman or black is even harder for the liberals to take.
Kavanaugh is a great pick, I think. We run the risk on all of them that they drift later but for all the information we have up front, this is a great pick. The longer and more solid the track record, the lower the risk of straying later.
Besides being a 'constitutionalist' (shouldn't they all be?!), he is an intellectual heavyweight. A Supreme Court Justice has one vote out of nine, sometimes the deciding vote, but sometimes overlooked is that they all have some influence, for better or for worse, on the others.
There will be times constitutionalists rule against conservative policies. But the other side has it worse. The liberal Justices vote for outcomes like Roe v Wade and thus their support for constitutional principles is always suspect.
When a conservative Justice votes against a conservative cause for his own jurisprudent principles, like Roberts not voting to overturn Obamacare, that damage can usually be repaired in the political branches if only your side can win enough votes and seats.
300 opinions to study, Kavanaugh's constitution even has a second amendment in it.
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Glenn Reynolds:
Donald Trump plays it safe with Supreme Court pick Brett Kavanaugh's gold-plated resume
https://www.usatoday.com/story/opinion/2018/07/09/brett-kavanaugh-donald-trump-pick-conservative-justice-supreme-court-column/767923002/
Some conservatives would have preferred someone farther to the right, but realistically Kavanaugh fits Trump’s stated requirements for the court, and Kavanaugh is probably a safe pick, unlikely to pose any surprise problems in the confirmation process. As Republican lawyer/author Kurt Schlichter put it, “We couldn't lose. And with Kavanagh, we haven't.”
Volokh, David Kopel:
No nominee to the U.S. Supreme Court has had such a detailed record on Second Amendment as does Brett Kavanaugh. His 2011 dissenting opinion in the case known as Heller II was consistent with his long-standing adherence to text, history, tradition, and Supreme Court precedent.
http://reason.com/volokh/2018/07/09/judge-kavanaugh-and-the-second-amendment?utm_source=dlvr.it&utm_medium=twitter
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some good points :
https://www.conservativereview.com/news/putting-kavanaugh-in-perspective-the-positives-and-the-concerns/
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"Except for brief stretches under Chief Justice William Rehnquist, most people alive today don’t know what it’s like to have a Supreme Court where the majority consistently believes its job is to interpret the laws, not make them."
https://nypost.com/2018/07/11/why-democrats-are-right-to-worry-about-potential-kavanaugh-appointment/
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Starting this week the nominee will be caught between avoiding comment on cases that will come before the court and being tempted to give the country a civics lesson. I hope to get from him many good quotes of wisdom regarding how issues and cases should be approached and decided.
Sample question from Hugh Hewitt this morning:
Dred Scott on slavery, Plessy Ferguson on segregation and Korematsu on Japanese internment were the three worst decisions in US history, the trifecta of stupidity. What went wrong?
Generally in these cases, you will find the wisdom we needed in the dissent.
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https://www.youtube.com/watch?v=giBRnKRWR6M
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https://www.politico.com/magazine/story/2018/08/27/federalist-society-yale-history-conservative-law-court-219608
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Great minds think alike-- I just posted this a few minutes ago in the "Way Forward for the American Creed" thread! Glad to see it posted here as well.
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https://www.wsj.com/articles/republican-lawmakers-take-aim-at-judges-issuing-nationwide-rulings-1536840002?mod=hp_listc_pos2
Let's keep an eye on this!
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https://www.theatlantic.com/magazine/archive/2018/10/the-threat-of-tribalism/568342/
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https://www.theatlantic.com/magazine/archive/2018/10/the-threat-of-tribalism/568342/
"Several progressive organizations, including the ACLU, remain staunch defenders of the Constitution."
(http://www.happy-career.info/wp-content/uploads/2017/04/eye-roll-meme-5-roll-memes.jpg)
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https://www.newyorker.com/magazine/2018/10/08/ruth-bader-ginsburgs-unlikely-path-to-the-supreme-court?mbid=nl_Daily%20100218&CNDID=50142053&utm_source=Silverpop&utm_medium=email&utm_campaign=Daily%20100218&utm_content=&spMailingID=14357031&spUserID=MjAxODUyNTc2OTUwS0&spJobID=1500145028&spReportId=MTUwMDE0NTAyOAS2
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https://www.senate.gov/pagelayout/reference/nominations/Nominations.htm
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http://prospect.org/article/constitutions-anti-majoritarian-bias
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second post
https://www.nationalreview.com/2018/10/why-the-left-wont-take-up-originalism/
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https://www.foxnews.com/politics/sessions-vows-emergency-supreme-court-battles-amid-outrageous-discovery-rulings-by-federal-judges
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https://www.forbes.com/sites/nicksibilla/2018/06/19/supreme-court-will-decide-if-civil-forfeiture-is-unconstitutional-violates-the-eighth-amendment/#40e39d627165
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https://www.civilwartalk.com/threads/thomas-jefferson-secession-and-states-rights.130704/?fbclid=IwAR3SyKKR78N5ZnfaPqViehX_bPyCyldE7D-ZXuAukY1liAJY9sTVHftMVME
https://mises.org/library/libertarian-principle-secession-0?fbclid=IwAR0o7APxOkz5t6onemsbXnVmme9yjYMik8e39olz45HL3NL8ia67g57vSQM
Is Secession Consitutional?
https://www.youtube.com/watch?v=UQkZp7iCX1w&feature=youtu.be&fbclid=IwAR2-OUbLwzNksiJ5OzfpuOxwbZlpLbyHPyDuno6fiAUA2R-AxyPnkg6VMIY
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My argument is that the opening phrase in our C. "in order to form a more perfect union" incorporates by reference the Union created by the Articles of Confederation:
https://usconstitution.net/articles.html
The Articles of Confederation
Agreed to by Congress November 15, 1777; ratified and in force, March 1, 1781.
Preamble
To all to whom these Presents shall come, we the undersigned Delegates of the States affixed to our Names send greeting.
Whereas the Delegates of the United States of America in Congress assembled did on the fifteenth day of November in the Year of our Lord One Thousand Seven Hundred and Seventy seven, and in the Second Year of the Independence of America, agree to certain articles of Confederation and perpetual Union between the States of New Hampshire, Massachusetts-bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, in the words following, viz:
Articles of Confederation and perpetual Union between the States of New Hampshire, Massachusetts-bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.
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suggests G Will ( shocked he found it within him to write an article without bashing Trump). He must be on xanax):
https://www.nationalreview.com/2018/10/hate-crime-laws-abuse-of-power/
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https://www.nationalreview.com/2018/10/hate-crime-laws-abuse-of-power/?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Monday%20through%20Friday%202018-10-25&utm_term=NR5PM%20Actives
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I fear Kavanaugh could prove to be a real weenie on all sex discrimination issue cases.
https://thehill.com/regulation/court-battles/413420-transgender-fight-could-prove-major-test-for-supreme-court?userid=188403
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https://nationalaffairs.com/publications/detail/the-question-of-birthright-citizenship?fbclid=IwAR0wJnYos7lYVLWnj8RsJcjFrPJIcCBCq1eS0FzMaEruyWa9-vBmNNCaAy8
https://www.conservativereview.com/news/the-originalist-case-against-birthright-citizenship/
https://www.scribd.com/document/36527058/Congressional-Debates-of-the-14th-Amendment?fbclid=IwAR2ZCnHG2jcNq8bm815SOu5xIysqm1-kJMnuGokGkyVeC443UP6Y9XNqsMQ
https://en.wikipedia.org/wiki/Birthright_citizenship_in_the_United_States
Wall Street Journal: "Birthright Citizenship, by the Numbers" August 20, 2015
https://blogs.wsj.com/briefly/2015/08/20/birthright-citizenship-by-the-numbers-the-numbers/
https://www.statista.com/statistics/195908/number-of-births-in-the-united-states-since-1990/
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https://originalismblog.typepad.com/the-originalism-blog/2011/06/originalism-and-birthright-citizenshipmichael-ramsey.html?fbclid=IwAR2br3XK4p-Y7FHLW8ArQFwvNAod0FImRWWE_YizWWB7NNBD6EHzmQesM_E
https://originalismblog.typepad.com/the-originalism-blog/2011/07/originalism-and-birthright-citizenship-part-twomichael-ramsey.html?fbclid=IwAR0v9oFp5YjBCiiQ6XWtjBAX3_-YWfghW8K-p443PPMaHCQ7vvMFjfM_kVU
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pasting CCP's post here: https://www.nationalreview.com/2018/10/birthright-citizenship-arguments-constitutional-requirement/
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Third post
https://www.nbcnews.com/politics/donald-trump/trump-s-birthright-plan-vs-u-s-constitution-here-s-n926501?cid=sm_npd_nn_tw_ma&fbclid=IwAR24M6TRn06Ei-FVkr82Uv4Txc2qigGi72F9fwv6986cTbYQx_qghk1BkbY
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Fourth post:
On Twitter Planned Parenthood expressed outrage at President Trump's efforts to end birthright citizenship.
One response: "What would know about it?"
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more on "birthright" citizenship:
https://www.nationalreview.com/2018/10/birthright-citizenship-arguments-constitutional-requirement/
I get the subject to the jurisdiction bit , but that means subjects to the laws , not entitled to benefits and rights accorded to citizenship.
The representatives will NEVER change this amendment against the will of the people for their own agendas.
How about we make it clear , if you have a baby in this country while just visiting or are not permanent resident( green card ) or illegally here , both parents can NEVER be citizens.
I don't quite understand if "aliens" do not have the birth right then why illegals or those not permanent residents ? NOne of this anchor baby stuff.
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A funny aside is the sudden interest of liberals in the exact text of the constitution as they call Trump a hypocrite and anti-constitutionalist. Maybe they should read the second amendment and a few others a little more closely.
Crafty, what is your view on the constitutional point.
The words seems to leave room for other interpretation but the original meaning and intent does not.
Does 'subject to the jurisdiction' in this context distinguish a US citizen from someone who isn't eligible to vote, to receive a US passport, has loyalties to a foreign power? Could a visitor to the US, non-resident, be drafted into the US military?
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The first 55 results on Google-biased search say otherwise, but here is Rep Steve King from Iowa:
Ending Birthright Citizenship Does Not Require A Constitutional Amendment
Aug 19, 2015
...
The plain meaning of the 14th Amendment means that one must BOTH be born in United States AND be subject to the jurisdiction thereof. Since there are two explicit requirements, they both cannot be met by simply being born on U.S. soil.
The history of the drafting of the 14th Amendment makes clear that the language “subject to the jurisdiction thereof” meant a citizen could not owe allegiance to any other foreign power. This excludes illegal immigrants who are in defiance of U.S. jurisdiction and are citizens of a foreign power.
The Supreme Court has never held that the children of illegal immigrants born in the United States are automatically citizens.
Because the Supreme Court has not interpreted the Constitution to mandate automatic birthright citizenship, the Congress can pass a law to correct the current misguided and incorrect policy of automatically granting citizenship to children of illegal immigrants.
Plain Meaning of the Language of the 14th Amendment:
The Citizenship Clause of the 14th Amendment states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state where they reside.”
By its own terms, the language in the amendment precludes the notion of universal automatic birthright citizenship. It would have been quite simple for the language to exclude “and subject to the jurisdiction thereof” to accomplish the goal of bestowing citizenship on any child born in the United States no matter the status of their parents. The 14th Amendment’s addition of a jurisdictional requirement to the territorial requirement, however, denies any interpretation that birth alone grants citizenship.
Counter to this logic, proponents of universal automatic birthright citizenship claim that those born in the United States necessarily are subject to the jurisdiction of the country. However, this renders the language “subject to the jurisdiction thereof” superfluous. Why would the drafters of the 14th Amendment include this qualifier at all if it was met simply by virtue of being born in the United States? The legislative history outlined below will make clear that the addition of “subject to the jurisdiction thereof” was designed specifically to make sure the people granted citizenship did not have divided political loyalties.
Legislative History of the 14th Amendment:
During Congressional debate of the Citizenship Clause it was made clear that the drafters did not intend automatic birthright citizenship for all persons born in the U.S. Senator Jacob Howard, a drafter of the 14th Amendment, in floor debate said of the Clause:
“This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”[1]
Senator Howard also made clear that simply being born in the U.S. was not enough to be a citizen when he opposed an amendment to specifically exclude Native Americans from the Citizenship Clause. He said, “Indians born within the limits of the United States and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States.”
Notice the reasoning deployed, Native Americans maintain their tribal relations so they are not “subject to the jurisdiction thereof.” Senator Edgar Cowan said, “It is perfectly clear that the mere fact that a man is born in the country has not heretofore entitled him to the right to exercise political power.”[2]
Senator Lyman Trumbull said:
“The provision is, that ‘all persons born in the United States and subject to the jurisdiction thereof, are citizens. That means, “subject to the complete jurisdiction thereof.”[3] (emphasis added)
He further elaborated, “What do we mean by subject to the jurisdiction of the United States? Not owing allegiance to anybody else.”
There was still more discussion of the language by Senator Reverdy Johnson. He said:
“Now, all that this amendment provides is, that all persons born in the United States and not subject to some foreign Power for that, no doubt, is the meaning of the committee who have brought the matter before us, shall be considered as citizens of the United States.”[4]
Supreme Court on Birthright Citizenship for illegal immigrants:
While some have discussed birthright citizenship as if it is settled law that any person born in the U.S. is a citizen, the Supreme Court has never ruled as such. In the famous 2004 Supreme Court case, Hamdi v. Rumsfeld, Taliban fighter Yaser Esam Hamdi was discovered to have been born in the United States to parents that were subjects of the Kingdom of Saudi Arabia. Even though he was born in the United States, the Court never called him a citizen and the Court made no declaration in that case that anyone born on American soil was automatically a citizen.
In the Slaughter-House Cases of 1873, the Supreme Court said, “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
Next, in 1884, the Supreme Court addressed a claim of citizenship in Elk v. Wilkins. The Court held that John Elk did not meet the jurisdiction requirement of the 14th Amendment because he was a member of an Indian tribe at birth. The Court said that even though Elk was born in the U.S. he did not meet the “subject to the jurisdiction thereof” requirement because that required that he “not merely be subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction.”
Proponents of birthright citizenship for illegal immigrants point to the 1898 Wong Kim Ark case. However, that case dealt with a man that was born to parents that were legally and permanently domiciled in the United States at the time of his birth. In that case, there was more expansive language used on birthright citizenship, but it was neither the holding of the case nor does it operate as binding precedent on the Court or as the law of the land.
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Trump has sworn to uphold the constitution, he believes this is constitutional, promised to do this as a candidate and was elected on that basis. Congress could also do this or pass a law in contradiction to Trump. Either way it would most certainly be challenged. A Supreme Court uphold would settle it for now or a strike down would form the guidance and need for a new amendment proposal.
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To Planned Parenthood, each birth is one that got away.
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Not an easy question, but certainly a good case can be made against BC.
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https://www.conservativereview.com/news/levin-and-horowitz-yes-trump-can-end-birthright-citizenship-for-children-of-illegal-immigrants-with-an-executive-order/
Graham 'today' now states that Kavanaugh and the 'caravan ' have galvanized the Republicans !
But Senator G, you are 20 yrs too late.
We now have 22 million illegals , probably more than this number
It is too late. If the cans couldn't do anything for the last 2 yrs
then the issue is lost.
Only Trump who stands alone is actually really doing about this.
We don't need compromise we need enforcement . In any case we can forget about compromise after Nov 6 anyway......... game over.
unless the Republicans pull a hail Mary .
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Speaking to Doug's point in previous post about leftists new found love for a literal interpretation of the Constitution when we speak of citizen birth rights, and not living and breathing when it is convenient for them :
https://www.spartareport.com/2018/10/14th-amendment-constitution-trump/
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https://www.breitbart.com/immigration/2018/11/02/klukowski-how-trump-could-win-on-birthright-citizenship/
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https://www.nationalreview.com/2018/11/birthright-citizenship-14th-amendment-does-not-mandate/?utm_source=Sailthru&utm_medium=email&utm_campaign=WIR%20-%20Sunday%202018-11-04&utm_term=VDHM
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https://www.nationalreview.com/2018/11/supreme-court-second-amendment-rights/?fbclid=IwAR1hRCHO3SrKVntaMBqx3WqXlWP3k92aL8jb3hj9gVt86YBWT0Hkdzeu3F8
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https://www.motherjones.com/politics/2018/11/what-cult-ruth-bader-ginsburg-rbg-got-wrong-obama-trump/
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second post
https://www.law.ua.edu/pubs/lrarticles/Volume%2053/Issue%202/Bryant.pdf?fbclid=IwAR0MOAFg73IlCR6B2RvAB8YI1W0unrXkfLBbN_0q_oewQ2jtl_6QcSRYjps
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https://www.motherjones.com/politics/2018/11/what-cult-ruth-bader-ginsburg-rbg-got-wrong-obama-trump/
I highly doubt it but maybe Justice Ginsburg believes in the collective wisdom of the American people even if it turns against the Left. May her ideological bias on the Court leave with her when that time comes.
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The video of the comedian and her exercising was poignant for me.
It reminded me of a very close aunt .
she was a very ardent Democrat.
she worked nearly every day
Even at the age of 86 she would show me her hard and toned biceps she would maintain by going to a fitness center,
She was inspirational when it came to exercise and she put the rest of us all into shame :))
She always could not resist bringing up politics when we met. We always disagreed but were able to do so without getting angry.
Ginsberg looks a lot like her.
My aunt passed away 2 yrs ago apparently peacefully and rapidly at home at age 86. She worked out till the day she passed............. :cry:
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http://www.scotusblog.com/2018/12/argument-analysis-majority-appears-ready-to-uphold-separate-sovereigns-doctrine/
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https://www.cnbc.com/2018/12/21/supreme-court-justice-ruth-bader-ginsburg-85-reportedly-undergoes-lung-procedure-.html
Not a minor ailment though they certainly try to make it sound so. They didn't tell us until the procedure (surgery) was over. Let our ccp.md comment on this but as I understand it there are at least three types of lung cancer with varying speeds of growth. My Dad who never smoked died of it. They removed all of his too, at Mayo, but it came back. Not being able to breathe is a horrible way to go.
I wish Justice Professor B-G the best personally and medically but look forward to the nation seeing a different constitutional viewpoint in her seat at some point in the future in that we are all mortal.
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It might be best if she were to retire now to focus on her health.
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Haven't read these yet but they look to be quite promising!
A Clash of Judicial Visions:
https://www.nationalreview.com/2018/10/supreme-court-judicial-philosophy-constitutional-system/
Taming the Administrative State:
https://www.nationalreview.com/2018/10/supreme-court-brett-kavanaugh-administrative-state/
Privacy"
https://www.nationalreview.com/2018/11/supreme-court-brett-kavanaugh-privacy-rulings/
Religion:
https://www.nationalreview.com/2018/11/supreme-court-first-amendment-religious-freedom-special-protection/
Second Amendment:
https://www.nationalreview.com/2018/11/supreme-court-second-amendment-rights/
Racial Preferences:
https://www.nationalreview.com/2018/12/supreme-court-racial-preferences-affirmative-action/
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This seems a reasonable assessment from what I can tell:
https://www.nytimes.com/2018/12/21/health/ginsburg-cancer-lung.html
She could survive till 2020. Not clear.
OTOH say the findings from path reports are NOT promising - we won't know . The MSM will certainly black out that news.
"oh that is an invasion of her privacy and is a violation of HIPAA...blah blah blah...."
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https://www.investors.com/politics/editorials/electoral-college-democrats-rights/?fbclid=IwAR3UdBSZgVbvE6LvDumnopFwqsyEVMRbDPEoezU4FhCHCA7xQ2Ib0_Uq4y0
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https://www.nationalreview.com/2019/01/anti-gerrymandering-case-supreme-court-judicial-power/?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Monday%20through%20Friday%202019-01-11&utm_term=NRDaily-Smart
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https://thehill.com/regulation/court-battles/426126-new-momentum-for-womens-equal-rights-amendment?userid=188403
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The fight over Trump's third pick to the Court could easily dominate the 2020 Presidential election.
Sen. Kamala Harris practiced her anti-Catholic skills with an attack on Knights of Columbus in a Senate Judiciary hearing:
https://www.washingtontimes.com/news/2018/dec/30/kamala-harris-mazie-hirono-target-brian-buescher-k/
Ms. Harris asked Mr. Buescher, who became a member 25 years ago as a teenager, “Were you aware that the Knights of Columbus opposed a woman’s right to choose when you joined the organization?”
Sen. Hirono: “If confirmed, do you intend to end your membership with this organization to avoid any appearance of bias?”
Next watch how quickly hate against the Covington Catholic kids went viral. They wore red hats, they were Catholic and they were presumed to be bigots.
If you associate with hate groups like Christianity or Catholic ideas, be warned. Hateful ideas like marriage being between and man and a woman, a child needs a mother and a father, and a human life is a life are viciously discriminatory hate thoughts now that Leftism is in and conservative Christians are out of favor.
Why the obsessive, sudden escalation of attacks now? According to some, John Hinderaker at Powerlineblog for example, Amy Coney Barrett will be nominated to replace RBG on the Supreme Court.
https://www.powerlineblog.com/archives/2019/01/haters-wont-stop-with-the-jews-2.php
If they can go gang rape on Kavanaugh including a parade of non-witness witnesses, guess what's coming for Judge Amy. Kavanaugh was picked to replace a moderate on the Court. The next pick, it appears with Ginsburg missing work with lung cancer treatment, will be to replace a liberal with a conservative. You think the Left went bonkers last time, you ain't seen nothing yet!
Paul Mirengoff also of Powerline says bring it on:
https://www.powerlineblog.com/archives/2019/01/a-battle-the-trump-administration-should-relish.php
Judge Barrett is the mother of seven children. Two of them were adopted from Haiti. Her youngest biological child has special needs. She is a remarkable and very sympathetic woman.
In addition, she is a first rate legal mind. Barrett graduated summa cum laude from the Notre Dame Law School, where she was executive editor of the Notre Dame Law Review. She then clerked for our friend Judge Laurence Silberman on the D.C. Circuit and for Justice Scalia on the Supreme Court.
As a law professor at Notre Dame, Barrett was twice named “distinguished professor of the year.” She continues to teach law as a sitting judge.
Do the Democrats really want to got after someone this sympathetic and this distinguished because she believes in the tenets of the Catholic faith? The answer seems to be yes. After all, they did it when Barrett’s nomination to the court of appeals was before the Senate.
But the Supreme Court is different. The public pays virtually no attention to battles over appeals court nominees. By contrast, as we saw with Brett Kavanaugh, fights over Supreme Court nominees rivet the nation.
Let’s say, hypothetically, that Judge Barrett is nominated to the Supreme Court in mid 2020, as the presidential race is heating up. Let’s hypothesize further that Senate Democrats try once again to savage Barrett because, as Sen. Feinstein once put it, Catholic dogma “lives loudly within” her.
Back to Hinderaker: "They may be coming for Catholics today, but they will come for Protestants next."
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https://thehill.com/regulation/court-battles/426126-new-momentum-for-womens-equal-rights-amendment?userid=188403
This is right, be warned. Effort is also now in place to put a state ERA on the Minnesota ballot.
Deniers of gender differences are deniers of science. As pointed out in the article, all gender discrimination against women is already illegal.
Learn the issues and the ramifications. Making the genders equal, same, is NOT a good idea.
"There is some debate in the legal community about whether the deadline was ever valid in the first place."
- It was part of getting Congress passage at the time. Without the expiration, it is not known whether Congress consented.
“We’re going to get women in the Constitution whether men like it or not,” she said. [NOW President]
- It is not "men" who oppose it.
Know your adversary. NOW is adversary to the interests of all but the far Left.
Having a color-blind society as Rev Dr. Martin Luther King advocated is a goal the Left has abandoned in favor of a preference and reparations based society. But gender preferences for women, like having their own bathrooms, must be stopped as they strive for a genderless society.
If they win the fight to remove distinctions based on gender, can we then close once and for all the field of gender studies?
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I brought up the matter of the time frame in my constitutional Law class in 1980 when Prof RBG was pushing the ERA and its merit for showing the required level of unanimity among the American people. Prof RBG acknowledged the point.
IMHO a key point to appreciate here is the principle of statutory interpretation that says laws are not to be read as to make them meaningless. Thus the inference will be that to have passed something as monumental as an Amendment to our Constitution that it must be read as requiring something much more than already exists.
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https://dailycaller.com/2019/02/12/supreme-court-ginsburg-incapacity/?utm_medium=email
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https://dailycaller.com/2019/02/12/supreme-court-ginsburg-incapacity/?utm_medium=email
"Despite its periodic encounters with judicial disability, the Supreme Court has no official mechanism for assessing the mental or physical health of a justice. What’s more, short of impeachment, there is no process to remove a justice who is medically impaired, as with a coma or Alzheimer’s disease."
I don't like the current system but believe the alternatives would be worse.
Impeachment is unrealistic because the selection and confirmation process has become so polarized, all votes would be partisan. No Democrat would vote for impeachment or removal of any liberal justice before the next election in and vice versa if the situation was reversed.
Doctors might be able to keep someone alive or in a coma for a politically motivated period of time where they wouldn't choose to otherwise, but no one knows the outcome of the next election.
Threat of impeachment proceedings might cause an incapacitated justice to step down. There is no reason to think Justice Ginsburg has any mental incapacity.
Lung cancer for a nonsmoker is a nasty, unfair disease that took my father. I don't wish it on anyone.
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http://www.intellectualtakeout.org/article/michigan-seeks-ban-police-seizing-property-people-who-have-not-been-convicted-crimes?fbclid=IwAR1NLZ7HWgXEqVaH_A0zzZxRPMnZxllTLNFPUOgPZKi2Ha4fiwULWeqQCVo
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https://patriotpost.us/alexander/61347-isis-bride-hoda-muthana-birthright-citizenship?mailing_id=4095&utm_medium=email&utm_source=pp.email.4095&utm_campaign=digest&utm_content=body
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https://www.firstthings.com/web-exclusives/2019/04/a-nation-under-god?fbclid=IwAR2vSi_Lz3yWVstldguvjV-mp7T7XnUIT_N9hg0vJomK_IYhvHF3FS5UX28
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https://thehill.com/regulation/court-battles/443169-five-big-supreme-court-decisions-to-watch
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Reconsidering Bush v. Gore
The Florida Supreme Court was wrong, but so was the U.S. Supreme Court.
By Gary Rosen
Updated Nov. 7, 2001 11:59 p.m. ET
Indignation toward the Supreme Court has been a defining feature of American conservatism since at least the early 1960s, when Chief Justice Earl Warren and his like-minded brethren launched the judicial "rights revolution" that has continued, more or less unabated, up to our own day. With each expansive new ruling over the years--on obscenity, school prayer, the death penalty, busing, abortion and a host of equally inflammatory issues--conservatives have found fresh evidence of the justices' disdain not only for the limits of their own office but, more gallingly, for the views of the American people and their elected representatives. In a controversial 1996 symposium, the religious journal First Things went so far as to wonder whether this "judicial usurpation of politics" should be seen as the "end" of American democracy.
Where this question stands now, in the wake of the extraordinary events that brought the 2000 presidential election to a close, is unclear. Judging by the many books published in the past year--and especially in the past several months--on the legal aspects of the dispute over the Florida vote, the right is hardly alone any longer in entertaining serious doubts about the role that the courts play in our democracy, nor is the left alone in discounting such concerns.
To be sure, as matters unfolded in Florida after the vote a year ago today, conservatives--or, to be more precise, the supporters of George W. Bush--saw their longstanding fears about the imperial judiciary confirmed yet again. In a series of remarkably freewheeling decisions, the Florida Supreme Court, invoking the "will of the people" to trump what it called "a hyper-technical reliance upon statutory provisions," allowed or ordered manual recounts that were seemingly designed to give Al Gore every opportunity to overtake the slim official lead of his Republican rival. James Baker, Mr. Bush's chief spokesman in Florida, called it "a sad day for America and the Constitution when a court decides the outcome of an election." For the conservative Weekly Standard, the Florida justices had become, as the magazine's cover declared, "Our Robed Masters."
But within a matter of days the entire situation had been turned on its head, both politically and ideologically. In short order, the five-justice conservative majority of the U.S. Supreme Court--William Rehnquist, Anthony Kennedy, Sandra Day O'Connor, Antonin Scalia, and Clarence Thomas-- intervened first to impose a stay on the recount and then to reverse the Florida high court, thus barring any further effort to discover votes among the disputed ballots. The endless wrangling about hanging, dimpled and pregnant chads was over, Mr. Bush was president-elect, and conservatives, who had spent weeks decrying the high-handed activism of judges, were elated.
Now it was the other side's turn to speak of a "stolen" election and to vent its fury at a purportedly out-of-control judiciary. Taking their cue from Justice Ruth Bader Ginsburg, who omitted from her opinion the "respectfully" that customarily softens the concluding phrase "I dissent," liberal commentators denounced Bush v. Gore as a "travesty" (Mary McGrory in the Washington Post), a "scandal" (Randall Kennedy in the American Prospect) and a ruling that lacked any "credible explanation" (Anthony Lewis in the New York Times). The "four vain men and one vain woman" of the court's majority were accused of having simply indulged their "self-interested political preferences" (Jeffrey Rosen in The New Republic), rendering a decision that was at once "illegitimate, undemocratic, and unprincipled" (Cass R. Sunstein in the Chronicle of Higher Education). In a full-page ad in the New York Times, 554 law professors--"teachers whose lives," in their own words, "have been dedicated to the rule of law"--declared that by acting as "political partisans, not judges," the justices had "tarnished" the legitimacy of the court.
There was, of course, an element of almost comic irony in these full-throated denunciations, coming as they did from intellectual quarters that have long rationalized or celebrated the overreaching of the American judiciary. Such self-righteous critics should themselves have cleaner hands. But it is not enough to answer a charge of hypocrisy with a charge of hypocrisy. The fundamental question, with all that it portends for our constitutional politics, remains: Were the justices of the Supreme Court right or wrong to play the role they did in the 2000 presidential election?
From the moment reporters were handed Bush v. Gore in the waning hours of Dec. 12, it was apparent that the case had deeply divided the Court. The decision consisted of an almost unprecedented six distinct opinions: an unsigned "per curiam" ruling by all five conservative Justices, a concurrence by the three most conservative of them, and separate but overlapping dissents by each of the four liberal justices--Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens.
The concurrence written by Chief Justice Rehnquist and joined by Justices Scalia and Thomas hinged on the issue of just how activist the rulings of the Florida justices had been. Though "comity and respect for federalism" would normally compel the justices to defer to a state court's interpretation of state law, Chief Justice Rehnquist wrote, the Constitution did impose certain limits when it came to the procedures for presidential contests. In particular, Article II provides that the electors of each state are to be selected "in such Manner as the Legislature thereof may direct" (emphasis added in the opinion). Thus it was that the election laws devised by the Florida Legislature took on an "independent significance," demanding a degree of deference that the state's highest court, in its various reworkings of that law, had failed to show. By the light of Article II, the court's most reliably conservative troika held, the Florida justices had "impermissibly distorted" the intention of the state's lawmakers.
The actual judgment of the court--the ruling that carried the force of law--lay, however, in entirely different constitutional precincts, in concerns about the "equal protection" guaranteed by the 14th Amendment. Here the conservative justices, now including the more centrist Kennedy and O'Connor, formed a united front.
Where the Florida Supreme Court had run into constitutional trouble, the five justices declared, was in ordering a recount whose lone instruction to election officials was to determine the "intent of the voter." In the absence of more specific standards, this open-ended rule had resulted in a range of abuses, with contested ballots treated differently not only "from county to county but indeed within a single county from one recount team to another." The mechanism set in motion by the Florida court failed, in short, to "satisfy the minimum [constitutional] requirement for non-arbitrary treatment of voters."
Nor was there time, according to the justices, to devise a new procedure, since the Florida Legislature (at least in the estimation of the Florida court) had meant to protect the state's presidential vote from congressional challenge by taking advantage of the "safe harbor" provision of federal law, the deadline for which, as the decision was announced, was just minutes away. For the violations now before it, the Supreme Court concluded, the only available remedy was to bring the whole contentious process to a halt.
For their part, the liberal justices were unanimous in rejecting the idea that the Florida high court had somehow usurped the role of the state Legislature. The rulings of the Florida justices may have been flawed--"other interpretations were of course possible," Justice Souter observed, "and some might have been better than those [that were] adopted"--but they certainly fell within the bounds of permissible interpretation. Furthermore, Justice Stevens maintained, Article II did not "create state legislatures out of whole cloth, but rather takes them as they come--as creatures born of, and constrained by, their state constitutions," a circumstance that, in this case, gave the Florida Supreme Court broad powers of review.
More complicated was the response from this side of the court to the majority's equal-protection claim. On this question the liberal justices split. Justice Ginsburg saw no evidence that the recount "would yield a result any less fair or precise" than the official count that preceded it. Justice Stevens pointed to the danger of "too literal" an interpretation of constitutional principles; after all, he wrote, if the recount was suspect on equal-protection grounds, so too was Florida's entire election system, which left "to each county the determination of what balloting system to employ--despite enormous differences in accuracy."
Justices Breyer and Souter, by contrast, agreed that the conduct of the recount raised serious questions about the unequal treatment of similarly situated voters. But their agreement with the majority went only that far, and still left them very much in dissent. As Justice Breyer stipulated at the outset, and as Justice Souter echoed in his own opinion, "The Court was wrong to take this case."
Moreover, having taken it and found a violation of equal protection, the court was obliged to send it back to Florida for resolution. As both Justices Breyer and Souter stressed, six days remained until the electoral votes absolutely had to be cast on Dec. 18--meeting the imminent "safe harbor" deadline, all four liberal justices insisted, was not in fact required by Florida law--and the state's high court deserved a chance, however fleeting, to devise the uniform standards now demanded of it.
The most curious feature of the reaction to Bush v. Gore among conservatives has been the widespread agreement on two seemingly contradictory propositions: first, that the majority's decision was a necessary vindication of the rule of law; second, that the equal-protection analysis upon which it relied was entirely unpersuasive. Thus, for Rich Lowry, the editor of National Review, the Supreme Court "had little choice but to overturn the Florida court," though the "reasoning in its hasty per curiam decision was so shabby, one can only conclude that the Court did the right thing for the wrong reason." Robert H. Bork, writing in The New Criterion, also found "serious difficulties" with the court's reliance on the equal-protection clause. As he (like Justice Stevens before him) pointed out, disparities like those in the Florida recount "have always existed within states under our semi-chaotic election processes." Nonetheless, Mr. Bork argued, the justices could not permit "the stealing of a presidential election," even at the cost of an "inadequate majority opinion."
As a constitutional matter, what redeems Bush v. Gore in the eyes of Mr. Lowry, Mr. Bork and most other conservative commentators is the concurring opinion of Justices Rehnquist, Scalia, and Thomas. Indeed, it is widely (and plausibly) assumed that the court's three conservative stalwarts, having failed to persuade Justices Kennedy and O'Connor that the Florida court had violated Article II by rewriting the state's election laws, held their noses and accepted the egalitarian abstractions of what became the majority opinion. Either way, after all, the recount would be stopped.
That the concurrence had the better argument is hard to deny. As Richard A. Epstein of the University of Chicago and Michael W. McConnell of the University of Utah make clear in their separate contributions to "The Vote: Bush, Gore, and the Supreme Court," a useful collection of essays by legal academics on both sides of the controversy, the "interpretations" of the Florida Supreme Court went far beyond what was required to make sense of the sometimes ambiguous or conflicting provisions of the state's election code.
In the fateful first stage of the litigation, the Florida justices transformed a portion of the law concerned with rectifying "an error in the vote tabulation"--a transparent reference to problems with the counting machinery--into a mandate to correct errors committed by voters in the casting of their votes. For good measure, they also ignored a straightforward statutory deadline for certifying vote tallies and replaced it with a much later cutoff date entirely of their own making, thus throwing into disarray the whole process for mounting a challenge to the election results.
In the second stage of the litigation (and largely to compensate for their earlier errors), the Florida justices went still farther down the road of arrogation, ordering a statewide recount of all "undervoted" ballots under the direction of a single circuit judge--an action neither contemplated by state law nor requested by Mr. Gore or Mr. Bush. In all of these proceedings, the basic effect of the court's rulings was the same: to annul the far-reaching discretionary authority of the county and state officials to whom Florida law explicitly assigns the supervision of elections.
This much ground and considerably more are covered by Richard A. Posner in "Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts," the only book-length defense of the ruling in Bush v. Gore yet to appear. For Mr. Posner--a federal appeals court judge, lecturer in law at the University of Chicago and perhaps the country's widest-ranging and most prolific legal thinker--it is not enough to demonstrate that the Florida court went badly astray, "butchering" the state's election laws in violation of Article II. As he argues, with characteristic verve and intelligence, there are still deeper justifications for the Supreme Court's intervention.
Judge Posner concedes that more Florida voters probably set out to support Al Gore than George W. Bush, and that the wider availability of user-friendly voting technology would very likely have sent the Democratic candidate to the White House. But this, he insists, is no defense for what the Florida Supreme Court did. In our representative democracy, with its concern for order and stability, an election is "a formal procedure, a statutory artifact," not "a public-opinion poll." What matters is not some inchoate "general will," à la Rousseau, but votes, and what constitutes a vote is determined by pre-established rules. By promulgating its own rules after the fact, Judge Posner argues, the Florida court was not perfecting the democratic system, as many have claimed, but undermining one of its fundamental pillars: that succession take place according to procedures that are "fixed in advance, objective, administrable, and clear."
In a similar vein, Judge Posner dismisses those who think that the Supreme Court should ultimately have remanded the case to Florida, allowing the state courts and legislature to resolve the election dispute. Florida was entitled to six more days, he acknowledges, but "a responsible recount could not have been concluded by then." In fact, the whole mess, with rival slates of Florida electors, would soon have found its way to the divided halls of Congress, where it would have led to paralyzing chaos. With a new president still unnamed by Inauguration Day, Judge Posner somewhat fancifully suggests, the office would have passed down the line of executive succession until coming to rest, for various reasons, on then-Secretary of the Treasury Lawrence Summers--thus making him our first Jewish President! "Eventually, with the nation's patience completely exhausted," he writes, either Bush or Gore would have prevailed in the House of Representatives, but his presidency "would have started behind the eight ball, with an irregular and disputed accession, an abbreviated term of office, and no transition."
For Judge Posner, these "pragmatic" concerns are paramount in evaluating Bush v. Gore, and form what he considers its "hidden ground." As he concludes, the majority's decision may have "damaged the Court's prestige, at least in the short run; but it did not do so gratuitously--it averted a potential crisis."
There is much to be said for these exercises in apologetics. As its defenders have rightly stressed, Bush v. Gore, whatever the defects of the ruling, did bring an orderly conclusion to an unsettling chapter in our national politics, and it did so, at least in part, on the basis of a credible argument about the Constitution's Article II.
In these crucial respects, the Supreme Court's election-ending decision is not, as some of its critics have suggested, the ideological mirror image of Roe v. Wade, the 1973 abortion decision that has become synonymous with liberal judicial activism. As many liberals themselves are now willing to admit, the ruling in Roe was essentially a piece of judicial legislation, with no grounding in constitutional text or history. More important perhaps, the abortion decision, with its cavalier dismissal of how the states themselves wished to resolve the issue, continues to roil our politics even now, some 30 years after it was handed down--a marked contrast to the quiet that, outside the law schools, quickly descended over Bush v. Gore.
Still, in at least one key regard, the comparison to Roe is not favorable to the present Supreme Court. Say what one will about the authors of the abortion decision, their reasoning in the case, such as it was, was not a surprise; it followed their own activist precedents with respect to the so-called right of privacy, and it reflected a judicial temperament that they had displayed many times before. In Bush v. Gore, by contrast, the five conservative justices performed what can only be described as an ideological somersault, embracing an equal-protection claim that was not only unpersuasive on its own terms but irreconcilable with the basic tenets of their judicial philosophy.
That is the burden of Alan M. Dershowitz's instructive if at times intemperate and wrongheaded book, "Supreme Injustice: How the High Court Hijacked Election 2000." For Mr. Dershowitz--a professor at Harvard Law School who, when not himself taking part in the Florida litigation, was busily offering his opinions on it to any and all media takers--the clearest indication of the justices' culpability is what he calls "the-shoe-on-the-other-foot test." As he sees it, "they would not have stopped a hand recount if George W. Bush had been seeking it." Acting as partisans, they sought a political end without regard to the ideological means.
In support of this claim, Mr. Dershowitz puts together a damning compilation of the conservative justices' previous rulings and statements on the question of equal protection. All of these reveal, as anyone familiar with their views would expect, a profound reluctance to assign the idea anything like the sweeping effect they gave to it in the Florida case. Typical of the excerpts is this, from an opinion by then-Associate Justice Rehnquist:
In providing the Court with the duty of enforcing such generalities as the equal-protection clause, the framers of the Civil War amendments placed it in the position of Adam in the Garden of Eden. As members of a tripartite institution of government which is responsible to no constituency, and which is held back only by its own sense of self-restraint, . . . we are constantly subjected to the human temptation to hold that any law containing a number of imperfections denies equal protection simply because those who drafted it could have made it a fairer or a better law.
And this, from Justice Thomas:
The equal-protection clause shields only against purposeful discrimination: a disparate impact, even upon members of a racial minority, . . . does not violate equal protection. . . . [W]e have regularly required more of an equal-protection claimant than a showing that state action has a harsher effect on him or her than on others.
As Mr. Dershowitz writes, the "glaring and dramatic inconsistencies" between these earlier opinions and the Florida ruling strike at "the core of everything these Justices have stood for over many years."
Nor have the more clear-eyed members of the left, despite their condemnation of the decision, failed to see the opportunity presented by the conservative justices' epiphany on the meaning of equal protection. In The Nation, the historian Eric Foner found a "silver lining" in the court's having "opened the door to challenging our highly inequitable system of voting." Harvard Law School's Lani Guinier, writing in the New York Times, invoked the decision to renew her call for dispensing with winner-take-all legislative districts and moving to a system of proportional representation, since the court had been explicit in "valuing no person's vote over another."
Indeed, taken to its logical conclusion, the notion of equal protection affirmed by the court in Bush v. Gore would draw into question virtually every aspect of the country's locally run, state-administered and highly decentralized electoral system--a point that the conservative justices themselves, confronted by a different set of litigants, could have been counted on to make. This may explain what is perhaps the most objectionable part of the majority's opinion. As if to confess their bad faith, the justices announced toward the end of the decision that they were not, in fact, playing for keeps. Because "the problem of equal protection in election processes generally presents many complexities," they wrote, "our consideration is limited to the present circumstances."
Alongside this extraordinary disavowal, Alan Dershowitz places the following passage from a 1996 opinion by Justice Scalia, in which the Court's most articulate conservative aptly described the institution's proper role:
The Supreme Court of the United States does not sit to announce "unique" dispositions. Its principal function is to establish precedent--that is, to set forth principles of law that every court in America must follow. As we said only this term, we expect both ourselves and lower courts to adhere to the "rationale upon which the Court based the results of its earlier decisions." . . . That is the principal reason we publish our opinions.
No less disturbing as a matter of judicial philosophy--and seeming partisan favoritism--was the Supreme Court's obvious unwillingness to let the election dispute work itself out in Florida or, if need be, in Congress. If judicial self-restraint means anything, it is that the justices should respect the prerogatives of the other branches of the state and federal governments, especially with regard to those "political questions," as they are known in legal circles, that do not clearly fall within the court's institutional competence and would needlessly involve it in partisan controversy. In such instances, the Justices should exercise what the legal scholar Alexander Bickel called, in his classic formulation, the "passive virtues."
In the Florida case, this would have required, at a minimum, letting the state's high court try to remedy the (supposed) violation of equal protection in its recount standards. Would this have resulted in the political chaos predicted with such flair by Richard Posner? Perhaps. But as he himself grants (and as other commentators on both sides of the political aisle have agreed), the "likeliest outcome of the remand that Justices Souter and Breyer wanted would have been abandonment of the recount when it became clear that it could not be completed, subject to appropriate judicial review, by December 18." Under this scenario, Mr. Bush would still have won--but his victory would not have been tainted by the peremptory action of the court.
More fundamentally, there is the question of whether the Supreme Court should have taken any action at all in the Florida dispute. Even the better argument made by the conservative justices, based on Article II, was, for all its force, without precedent. There can be no doubt that the intentions of the Florida legislature had been perverted, but this alone did not compel the court to take the case or to find an infraction of the Constitution, and concerns about federalism might well have counseled restraint. Moreover, in light of the potential conflicts of interest involved--with candidate Bush having repeatedly declared his admiration for Justices Scalia and Thomas and the justices themselves having an obvious stake in who might be appointed to join them in the future--the court would perhaps have been well advised, in effect, to recuse itself.
Had this happened, we now know, Mr. Bush would almost certainly have retained his lead. As recounts conducted after the election at the behest of news organizations have shown, even the more open-ended counting standards advocated by Democrats and accepted by the Florida court would not have provided enough votes to put Gore ahead. Bush would have made it to the White House on his own.
Needless to say, the justices of the Supreme Court had no way of knowing this as they considered whether to intervene (nor should it have mattered, if their concerns were exclusively of the constitutional variety). What they did know--and what should have furnished the strongest argument for holding back--was that, under both the Constitution and federal law, it was the duty of other, more democratically accountable institutions to safeguard the integrity of the presidential election. The Florida Legislature was prepared to act, and so too was Congress, if disagreement among the branches of the state government had resulted in the naming of separate Republican and Democratic slates of electors.
Had it come to this, the scene on Capitol Hill would certainly have been partisan, and perhaps even ugly. But as we learned from the impeachment proceedings against President Clinton (and as we have had occasion to see again in the wake of the terrorist attack on Sept. 11), our politicians are capable during times of crisis of conducting themselves with the necessary sobriety and seriousness of purpose. Though Judge Posner is probably correct that "whatever Congress did would have been regarded as the product of raw politics," the same has been said, with some reason, about the court's settling of the Florida case--and politics is not supposed to be the court's business.
Why this should be so was well stated more than a century ago by the sponsor of the Electoral Count Act, the law under which Congress would have considered the Florida dispute. As Sen. John Sherman noted in introducing the measure--a belated response to the fiasco surrounding the Hayes-Tilden presidential contest of 1876--some members of Congress had wished to involve the Supreme Court in the process:
But there is a feeling in this country that we ought not to mingle our great judicial tribunal with political questions, and therefore this proposition has not met with much favor. It would be a very grave fault indeed and a very serious objection to refer a political question in which the people of the country were aroused, about which their feelings were excited, to this great tribunal, which after all has to sit upon the life and property of all the people of the United States. It would tend to bring that court into public odium of one or the other of the two great parties.
Naturally enough, much of the bitterness arising from the 2000 election has since evaporated, especially as the country has turned of late to decidedly more urgent matters. But American political life will gradually revert to something like its former state, and when it does, it is unlikely in the aftermath of Bush v. Gore that either of the "great parties" will see the Supreme Court in the same light.
The Democratic Party, of course, has never been well disposed to the court's current majority, and has fought energetically--often unfairly--to keep other conservative judges off the bench. But the critique of the conservative justices has previously been ideological; their ideas were "extremist," their view of the Constitution unacceptably narrow. Now, as never before, liberals have at their disposal the argument that has long served as a rallying cry for conservative critics of the Warren and Burger courts: that the justices are not just mistaken but, in some sense, corrupt, having forgotten the limits of their office.
Perhaps more profound may be the effect on Republicans and conservatives, who, one suspects, will find it difficult to continue avowing their old judicial principles with a straight face. Phrases like "judicial restraint" and "strict construction" may not sound the same for some time. Conservatives will thus be hampered in resisting what may be, in due course, the left's dominant reaction to Bush v. Gore: not second thoughts about its own history of judicial activism, but a renewed commitment to using the courts as an engine of social change. After all, if the judicial gloves are off, they are off for everyone.
The great shame in all this is that the 2000 election might have turned out very differently for the U.S. Supreme Court and our constitutional politics. Given the opportunity to decide who would be President, the conservative Justices, in the service of long-held principle, might have done what members of the high court have always found it difficult to do in the face of society's most pressing concerns and their own strongly held preferences. They might have passed.
—Mr. Rosen is managing editor of Commentary, in whose November issue this article appears, and author of "American Compact: James Madison and the Problem of Founding" (University Press of Kansas, 1999).
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2010
https://www.cnsnews.com/news/article/harvard-law-dean-kagan-did-not-require-study-us-constitutional-law-did-require-study?fbclid=IwAR2jOZhgRTH6rPBC851MvUsQgD2nBAH8nzjysFXbgMV_Mpzz3sRFWT3gF8E
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2010
https://www.cnsnews.com/news/article/harvard-law-dean-kagan-did-not-require-study-us-constitutional-law-did-require-study?fbclid=IwAR2jOZhgRTH6rPBC851MvUsQgD2nBAH8nzjysFXbgMV_Mpzz3sRFWT3gF8E
"As Harvard Law Dean, Kagan Did Not Require Study of U.S. Constitutional Law But Did Require Study of International and Foreign Law"
The constitution is no longer applicable in their view. You can have a Harvard Law degree and not study constitutional law? A liberal arts degree should require it. A high school diploma should require it. Harvard should lose their accreditation.
Kagan should recuse herself from Supreme Court cases that require applying the constitution to the case.
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Your right Doug
Yet the Left MOB and their media hit men
all love to yell and preach how it is their Constitutional duty to investigate . Trump .
Suddenly the Constitution is important.
Rush pointed it out this afternoon too.
If this Bullshit was not carried by the Left's "made men " in the media like Mario's kid and the rest of the Democrat machine guys and gals in the Letist media it could almost be funny . Instead it is a threat to all of us.
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'Tis the season for Supreme Court decisions and they are coming out with strange combinations of majorities and dissent so far while we wait for the big one, the citizenship question on the census, which will probably come down 5-4 on partisan lines.
http://www.wsj.com/podcasts/opinion-potomac-watch/the-new-supreme-court/28993836-B656-41F3-B5AB-4226B19795C2
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https://video.foxnews.com/v/6051440412001/#sp=show-clips
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https://www.supremecourt.gov/opinions/18pdf/18-966_bq7c.pdf
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https://www.powerlineblog.com/archives/2019/06/the-citizenship-question.php
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https://www.powerlineblog.com/archives/2019/06/the-citizenship-question.php
From the link
http://amylhowe.com/2019/06/27/court-orders-do-over-on-citizenship-question-in-census-case/
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This does not bode well , , ,
https://dailycaller.com/2019/07/03/ruth-bader-ginsburg-praises-brett-kavanaugh-again/?utm_medium=email
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https://patriotpost.us/articles/64004-kavanaughs-first-year-report-card
I agree though a compliment from Ginsberg is usually based through her leftist politics glasses .
(though she and Scalia were friends ..... :|)
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Thank you for that.
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https://www.nationalreview.com/2019/07/declaration-of-independence-illuminates-constitution/?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Monday%20through%20Friday%202019-07-04&utm_term=NRDaily-Smart
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https://thefederalist.com/2019/07/15/john-roberts-citizenship-decision-legally-politically-corrupt/
Roberts’ opinion affirms that including a question about citizenship in the decennial census is constitutional, writing that the “Enumeration Clause…permits Congress, and by extension the Secretary [of Commerce], to inquire about citizenship on the census questionnaire.” It affirms that the process by which it was to be reinstated was “reasonable, and reasonably explained,” consistent with the Administrative Procedures Act (APA). That should have been the end of it.
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https://reason.com/2019/06/08/justice-stevens-admits-error-in-the-kelo-case-but-also-doubles-down-on-the-bottom-line/
Stevens admits he applied precedent wrongly.
He also neglected basic property rights wrongly.
The article says that decision has 80% disapproval. I didn't know the Forum had that wide a reach.
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https://www.theatlantic.com/magazine/archive/2019/09/deconstructing-clarence-thomas/594775/
The Left just doesn't get ideas likes constitutional jurisprudence.
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https://www.quora.com/Why-does-America-allow-the-general-public-to-keep-guns-Why-doesnt-America-restrict-guns/answer/Andrew-T-Post
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https://reason.com/2019/08/09/assessing-justice-sotomayors-first-ten-years-on-the-supreme-court/?fbclid=IwAR2kYl8oFvZ7cl6mTXPfgsSVWufMdZv8WWGquQuluKAAH3xnjH9KcSR-YYM
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All they asked her to do was lie and take down an innocent man 'for the good of the country'. She refused - for the good of the country.
One columnist (and I) salute her:
https://www.greensboro.com/opinion/columns/kathleen-parker-the-other-victim-of-the-kavanaugh-saga/article_23048407-2ca7-524a-af00-121d4b8b62e5.html
They almost got Kavanaugh anyway without knowing the date or even the year and without a single corroborating witness.
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Haven't watched this yet, but put it here for when I get around to it.
https://www.youtube.com/watch?v=mcbhRBQuKXg
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https://www.forbes.com/sites/nicksibilla/2019/10/22/south-carolina-judge-declares--civil-forfeiture-unconstitutional/?fbclid=IwAR30p36KznwDqJwN35JAhOURBfAf-v3B4PuNMcyr_Ro4v7zzJMqQqAGKrFw#6b7de27a2135
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https://www.nationalreview.com/bench-memos/is-bill-clinton-saying-that-justice-ginsburg-lied-to-the-senate/?fbclid=IwAR2Ez41ZgnXXW3YDOSrPftyctoICTKPaB4_tgETh3FdYHahgSoMfP1iZSFE
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Most Plea Bargains Are Unconstitutional
Harsh punishments for defendants who exercise their right to trial violate the Sixth Amendment.
By Alan M. Dershowitz
Nov. 5, 2019 6:54 pm ET
When is a constitutional right not a right? When you’re punished for exercising it. If the government arrests or fines you for something you say, everyone recognizes a violation of the First Amendment, even though you had your say. Yet when prosecutors and courts impose massive punishments on criminal defendants for exercising their Sixth Amendment right to trial by jury, it’s considered business as usual—even by the Supreme Court.
In my own practice I’ve seen cases in which defendants declined a plea bargain, were convicted, and received sentences more than 10 times as severe as prosecutors had offered them. A doctor was offered one year if he pleaded guilty to Medicaid fraud and received 11 years at trial. He rejected the plea offer because he believed he was innocent and had expert testimony to back him up. In another case, two businessmen accused of financial fraud were offered sentences of seven years and sentenced to 80 years after a trial.
The worst case involved two young men who robbed a store in Alabama, then picked up one robber’s uncle and drove away. A police chase and shootout ensued in which a state trooper was shot and killed. The two young men copped a plea and were sentenced to prison. The uncle—who was unarmed and mentally disabled—went to trial. The jury convicted him of conspiracy to commit felony murder and sentenced him to death. (Fortunately he wasn’t executed; he died of old age after several failed appeals.)
In a pending case, a young mother took a job at a health-care company and got caught up in a fraud scheme already under way, masterminded by the company’s principals. She refused a four-year plea offer, was convicted, and ended up with a 20-year sentence, which the district judge attributed to her decision to go to trial. The ringleaders of the scheme, who stole tens of millions of dollars, pleaded guilty and were sentenced to less than 10 years in prison.
Or consider two actresses charged in the college-admissions scandal. Felicity Huffman received 14 days after waiving a trial. Lori Loughlin could face as long as 45 years (although likely less) if she exercises her right to go to trial. The prosecutor has been clear: “If it’s after trial, we would ask for something substantially higher. If she resolves it before trial, something lower than that.”
In justifying the practice, prosecutors and courts play word games, denying that a far harsher sentence is a “punishment.” Rather, they say, it’s what the defendant deserved for the crime, and the relative lenience of a plea bargain is a “reward” for saving the government the expense, inconvenience and risks of a trial. As the Supreme Court put it: “We cannot hold that it is unconstitutional for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the State” (emphasis added).
Yet imagine if the government, instead of directly punishing disfavored speech, accomplished the same objective in a roundabout way by offering a tax rebate for people who waive their First Amendment rights. Any judge would see through the maneuver. So why do the courts invoke the same meaningless distinction when it comes to the right to trial?
Because more than 90% of defendants waive the right to trial, usually for fear of the trial penalty. If the penalty were held unconstitutional, it could overwhelm the system. But is that a good enough reason to trample a constitutional right? Under America’s Constitution, rights are the absolutes to which practical considerations must adapt. We can build more courthouses and appoint more judges and prosecutors to accommodate the right to trial. We can also decriminalize many actions that are today treated as crimes, beginning with drug use.
Another rationalization for the trial penalty is that defendants who plead guilty are showing remorse and taking responsibility for their crimes. The Supreme Court asserted in Brady v. U.S. (1970) that in accepting a plea bargain, a defendant “demonstrates . . . that he is ready and willing to admit his crime and to enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period of time.” Yet in practice, most plea bargains make perfect rational sense and thus are no evidence of remorse. Often the defendants are the most experienced criminals, whose lawyers have personal relationships, and thus carry influence, with prosecutors.
The other justification is that some defendants who waive trial also provide information or testimony against higher-ups. Fine—reward them for providing that evidence. But don’t punish them for going to trial in their own case. Separate cooperation against others from waiving their own right to a trial. Prosecutors will respond that a defendant can’t both cooperate and go to trial; if he cooperates, he has to admit his own guilt. That isn’t always true; defendants often cooperate after a conviction.
In any case, there’s no constitutional problem with rewarding a defendant for cooperation. There is a constitutional problem with punishing a defendant for going to trial. The complex issue of how to deal with defendants who provide evidence against others should not be a barrier to ending the trial penalty of the vast majority of defendants, who have no such information and simply want to have a trial without being punished for exercising their Sixth Amendment right.
The time has come to end the unconstitutional trial penalty.
Mr. Dershowitz is a professor emeritus at Harvard Law School and author of the forthcoming book “Guilt by Accusation: the Challenge of Proving Innocence in the Age of #MeToo.”
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The Supreme Court’s Textualism Test
Kagan tries to lure Gorsuch and Roberts off the Scalia method.
By The Editorial Board
Nov. 21, 2019 7:21 pm ET
The Supreme Court in Washington. PHOTO: ERIN SCHAFF/REUTERS
It won’t grab headlines like impeachment, but a major political drama this year will unfold at the Supreme Court. To wit, how will the Court, and especially new Justices Neil Gorsuch and Brett Kavanaugh, define the meaning of textualism and originalism?
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These are the watchwords of the jurisprudence made prominent by the late Justice Antonin Scalia, and all of the Justices claim to honor them in one way or another. But how the Justices define these tools of judicial interpretation will determine how the Court decides major cases going forward. An important test will be the discrimination cases under Title VII that the Court heard in oral arguments last month.
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On traditional grounds of textualism, the two cases—Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC—should be straightforward. The plaintiffs say they were fired because they were gay or transgender, and that such discrimination is illegal under Title VII of the Civil Rights Act of 1964.
But Title VII bans discrimination because of “race, color, religion, sex, or national origin.” No one in Congress in 1964 claimed that outlawing discrimination based on sex applied to sexual orientation, much less to the transgendered. The plain meaning of the text of Title VII is that “sex” referred to a man or a woman.
Under this plain reading, the Justices could and should say that discrimination against gays or the transgendered is invidious but that Title VII doesn’t ban it and it isn’t the job of judges to rewrite the text. If Congress wants to ban such bias in the workplace, it should pass a law, as some 23 states have done.
Enter Justice Elena Kagan, bearing a different definition of the text of the statute, updated for current mores. During oral arguments, she sought to redefine “sex” in Title VII to mean more than the binary choice of a man or woman. She offered a hypothetical case in which a company fires a woman employee for dating another woman but wouldn’t have fired a man for dating a woman. Voila, discrimination based on sex.
Justice Kagan is a shrewd Court politician, and her goal in politically significant cases is to attract one of the conservative Justices to form a 5-4 liberal majority. She’s succeeded more than once with Chief Justice John Roberts, who is above all an institutionalist who wants to preserve the Court’s public standing. Justice Kagan has used appeals to precedent and the “legitimacy” of the Court to pull the Chief to liberal policy ends.
Her main target on the Title VII cases is Justice Gorsuch, and, sure enough, in oral arguments he suggested he might agree with Justice Kagan’s nouveau interpretation of “sex.” At one point he said “the textual evidence” is “really close, really close” and we’re not talking about “extra-textual stuff.”
At another point he asked Solicitor General Noel Francisco to respond to Justice Kagan’s argument “and the fact that at least one contributing cause [of dismissal from the job] appears to be sex?”
Mr. Francisco gave an excellent answer: “First, I don’t think that one contributing cause is sex. I think that as long as you’re treating gay men and women exactly the same regardless of their sex, the contributing cause is sexual orientation, not sex. And, two, I think it reflects the fact that sex and sexual orientation are different traits.”
In other words, the employment bias isn’t based on sex since it could apply to gay men or gay women. The bias is against sexual orientation. Congress has expressly protected against such bias in other statutes, taking care to balance other interests such as religious views. Simply because Congress hasn’t done so for Title VII doesn’t mean the Court should usurp the role of the legislature and do so.
American social mores have traveled far since 1964, and today there is broad acceptance of differences based on sexual orientation and gender self-identification. The Fortune 500 and most employers have policies that ban bias on either grounds. A Supreme Court decision that said the job of reforming Title VII is up to Congress could well supply the political impetus to do so, while also allowing for the compromises necessary to protect other interests such as concerns over same-sex bathrooms and women’s sports teams.
***
The larger threat is to the new Court and the use, or misuse, of textualism. If the plain binary meaning of “sex” in 1964 as a man or woman can be redefined to fit today’s cultural politics, then textualism as a legal doctrine becomes meaningless. Justice Scalia might say it tortures the language more than it can bear. Textualism would become merely one more tool for judges to impose their politics on the law—based on whatever creative uses Justice Kagan can conjure to apply it.
Justice Clarence Thomas is now the Court’s foremost originalist and he makes his spirited arguments within the four corners of his opinions. Justice Samuel Alito appreciates textualism, though he also is a more traditional follower of judicial restraint.
Justice Gorsuch has taken on the role of public evangelist for the Scalia method, as he’s shown with his recent book “A Republic, If You Can Keep It.” He wants younger Americans in particular to understand and appreciate the benefits of textualism and originalism—a laudable mission unless their proper understanding is washed away when politically convenient.
Justice Kavanaugh, Justice Gorsuch’s generational peer, will also have a say in defining what textualism means in the years ahead. If Justice Gorsuch or the Chief Justice follow Justice Kagan in defining textualism down, we hope Justice Kavanaugh and the others will explain their errors.
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https://www.nationalreview.com/2019/11/constitution-ninth-amendment-protects-rights-not-listed-in-bill-of-rights/?utm_source=Sailthru&utm_medium=email&utm_campaign=WIR%20-%20Sunday%202019-11-24&utm_term=WIR-Smart
and the longer and more serious
http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1850&context=facpub
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https://www.youtube.com/watch?v=tUR9UIscLGU&feature=emb_logo
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Just my opinion but these new state laws awarding their states delegates to the national popular vote winner are unconstitutional. They disenfranchise that state's voters. We will see.
https://www.cnbc.com/2020/01/17/supreme-court-takes-key-electoral-college-cases-ahead-of-2020-election.html
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Serious article by serious resumes
Congress Declares War, but Only the President Can Make It
The effort to tie Trump’s hands in Iran would be unconstitutional if it weren’t meaningless.
By David B. Rivkin Jr. and Lee A. Casey
Jan. 15, 2020 7:11 pm ET
Iranian soldiers outside the U.S. Embassy in Tehran, Nov. 13, 1979. PHOTO: ASSOCIATED PRESS
House Democrats, joined by a few Republicans, responded to the killing of Iran’s Maj. Gen. Qasem Soleimani by questioning the president’s authority to order that strike. But the resolution they passed last week makes a mockery of Congress’s own powers. It purportedly “directs the President to terminate the use of United States Armed Forces to engage in hostilities in or against Iran or any part of its government or military” unless Congress authorizes the use of force or an Iranian attack on the U.S. is “imminent.” But it’s styled as a nonbinding resolution. That means it doesn’t need Senate approval, but it also makes no pretense of having the force of law.
Which is just as well. Congress cannot limit the president’s constitutional authority to wage war in the way it pretends to here.
The resolution purports to restrict the president’s power to an even greater extent than the 1973 War Powers Resolution. The latter was enacted over President Richard Nixon’s veto, and every president since has regarded it as unconstitutional. It demands that the White House notify Congress anytime U.S. forces are introduced into hostilities abroad, then either obtain congressional authorization or withdraw troops within 90 days. The new resolution applies to all forms of military power, including drones and missiles, and claims to prohibit them effective immediately.
It’s true that the Constitution assigns Congress the power “to declare war.” Yet even in the 18th century, a declaration of war wasn’t required to create a state of armed conflict, governed by the laws of war. Today, such a declaration has to do with how citizens and property from belligerent and neutral states are treated, rather than the actual use of force. The last time Congress formally declared war was in 1942. Since World War II, lawmakers have approved U.S. military actions by other means, from the 1964 Gulf of Tonkin Resolution, which allowed President Lyndon B. Johnson to expand U.S. involvement in Vietnam, to the Authorization for Use of Military Force Against Iraq Resolution of 2002.
The power to declare war is different from the power to make war, which belongs to the president in his role as “commander in chief of the Army and Navy of the United States.” There are few constraints on that power when the president is defending Americans, civilian or military, against armed attack.
True, the Framers didn’t grant the president power to initiate hostilities at his pleasure. They gave Congress, not the president, the authority to raise and support armies, to create a navy, and to make rules and regulations for their governance. It’s also up to the legislative branch to define the legal framework for armed conflict: offenses against international and military law, the procedures for their prosecution, the treatment of captured enemy property and prisoners and so forth.
Congress also has the power “to provide for organizing, arming, and disciplining, the militia.” Military officers are subject to Senate confirmation. Congress can use its exclusive appropriation powers to limit or eliminate funding for a particular conflict—if lawmakers are prepared to take the resulting political risks. Inaction or nonbinding resolutions have no constitutional import.
Even if it passes legislation, Congress cannot dictate when and how the president exercises his power over the military forces it has provided—especially in selecting targets. Like any American, Speaker Nancy Pelosi is free to speak her mind. But her claim that the attack on Soleimani was “provocative and disproportionate” is preposterous.
Iran has been engaged in on-and-off armed conflict with the U.S. since “students” seized the embassy in Tehran in 1979. Soleimani was a uniformed member of the Iranian armed forces, and a critical player in Iran’s worldwide terror campaign. All that made him a legitimate target. The notion that Soleimani was too senior to be killed finds no support in the laws of armed conflict. Even the most senior military leaders can be targeted, as the U.S. did in 1943 when it shot down Adm. Isoroku Yamamoto’s plane in New Guinea.
Nor is it legally relevant, as some congressional Democrats have claimed, that killing such a high-ranking officer could heighten the danger of a wider war. Any military action has the potential to escalate hostilities, as do other exercises of presidential authority. President Franklin D. Roosevelt’s imposition of an oil embargo against Japan in August 1941 arguably prompted the attack on Pearl Harbor four months later.
Under Mrs. Pelosi’s logic, virtually every major foreign-policy decision would require congressional authorization. Imagine if President John F. Kennedy had to ask lawmakers for approval during the Cuban Missile Crisis of 1962 before subjecting Cuba to a “naval quarantine,” an act of war against Havana. The threat of Soviet missiles in Cuba was real, but it wasn’t “imminent” in the sense that Mr. Trump’s critics use that word today.
Kennedy acted to prevent a long-term, highly dangerous change in the nuclear balance of power that would have put Moscow in a position to launch a nuclear attack on the U.S. with virtually no warning. But there was no reason to think an attack was planned for the immediate future.
Kennedy decided that action, while risky, would enhance deterrence, as President Trump did when he ordered the killing of Soleimani. The president deserves credit for a decision that would, at any time until recently, have been considered a triumph by Democrats and Republicans alike.
Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush
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Ruth Bader Ginsburg among others has put ERA back in the news.
https://www.baltimoresun.com/opinion/editorial/bs-ed-0216-era-ratification-20200213-kzp6yfftunbxrai42wdykwdt5i-story.html
Working to see this fail in the 70s and early 80s was my own mother's passion. Most of what she warned against is already here, women in combat, gay marriage, the end of gender distinction. However we feel about those issues, the equal rights amendment would end any remaining special protections girls and women enjoy.
We don't have a draft right now but if we needed one, drafting our daughters into war with equal opportunity would be a constitutional requirement if we needed to draft anyone into combat. No distinction on the basis of gender allowed, regardless of whom the needs most. Leftists think this prevents war, but WWII etc were not wars of our choosing.
Sports may be one of the last remaining areas of gender recognition. This is already being screwed up by the trans movement with boys winning girls events. Sports may seem trivial but ask the girls who benefited from girls and women's sports what it meant to their upbringing. With ERA, LPGA is gone. WNBA gone. Title IX, gone. Girls tennis, girls soccer, girls everything, mixed doubles, gone. Girl Scouts, no longer. Equal prize money at the US Open? Not needed anymore, they only need one event and men will be winning it. Federer versus Serena? Not going to happen, she wouldn't make the qualifying round. No distinction on gender is constitutional mandate under ERA. Lost not just for the athletes, but those who like to watch women compete.
Who does this benefit? No one.
Gender discrimination is not what holds women back in the workplace. But even if it is, it's already against federal law. My mom was an aeronautical engineer in the 40s. She entered when there was one woman in the field. Girls weren't kept out of engineering; they wanted out of engineering. That has (partly) changed. A constitutional amendment would not affect wrongful discrimination, but it would end any remaining preferences girls and women still enjoy.
Equal means the same and the TWO genders are not the same. Some of us enjoy the differences.
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I remember debating exactly this point with Ruthie back in 1980 when the ERA came up in class. She acknowledged my point about the validity of a time limit.
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Truth in Constitutional Amending
Justice Ginsburg says the push for the Equal Rights Amendment should start over.
By The Editorial Board
Feb. 14, 2020 6:40 pm ET
SAVE
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Supreme Court Justice Ruth Bader Ginsburg participates in a discussion at the Georgetown University Law Center in Washington, D.C., Feb. 10.
PHOTO: SARAH SILBIGER/GETTY IMAGES
Everything old is new again in politics, including socialism. So why not the long lost Equal Rights Amendment that failed in the 1980s? The answer came Monday from no less than Supreme Court Justice Ruth Bader Ginsburg, who said at Georgetown University’s law school that ERA supporters are obliged to “start over.”
Congress passed the ERA in 1972, but it fell short of the three-quarters of the states it needed to become a constitutional amendment. Progressives have made a cause of reviving it in recent years, and Nevada, Illinois and recently Virginia have added their names to the list of ratifying states. Which brings the total to 38 states, the number they need.
One problem: The original legislation passed by Congress imposed a deadline of seven years. Though Congress later extended the original 1979 deadline to 1982, the amendment still didn’t garner enough states to be added to the Constitution. Another complication is that five state legislatures (Idaho, Kentucky, Nebraska, Tennessee and South Dakota) rescinded their original ratifications, most of them before the 1979 deadline.
On Thursday Nancy Pelosi’s House of Representatives passed, 232 to 183, new legislation meant to resolve the problem by dissolving the deadline. But the measure will likely die in the Senate, bringing us back to square one.
Meanwhile, the Justice Department’s Office of Legal Counsel has produced a memo saying that the Supreme Court has upheld Congress’s constitutional authority to impose a deadline for ratification—and “because that deadline has expired, the ERA Resolution is no longer pending before the States.” Although the memo disagreed with the office’s previous conclusion in 1977 that Congress can extend a ratification deadline on an amendment that’s still pending, it agreed that “Congress may not revive a proposed amendment after the deadline has expired.”
This is the legal and political context in which Justice Ginsburg offered her opinion. She did so, moreover, as a strong supporter of the ERA, not an opponent. “If you count a latecomer on the plus side,” she asked her audience, “how can you disregard states that said, ‘We’ve changed our minds?’”
The ERA also isn’t necessary today. America in 2020 is a very different place for women than it was when the ERA was written. Laws bar discrimination against women in all walks of life, and women are CEOs, Senators and the Speaker of the House. There are also legitimate concerns that the ERA would become another avenue for judges to impose a progressive agenda on abortion or transgender rights.
Justice Ginsburg is right to counsel prudence and process. If the champions of the ERA truly believe the Constitution needs revising, stop with the gimmicks and do it the right way.
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https://www.washingtontimes.com/news/2020/mar/2/mike-bloomberg-aipac-boasts-backing-mosque-near-91/
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https://www.washingtontimes.com/news/2020/mar/2/mike-bloomberg-aipac-boasts-backing-mosque-near-91/
???
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:oops:
Let's try this: https://reason.com/2020/03/02/gorsuch-throws-shade-at-trump-administration-for-rewriting-federal-gun-laws-without-congressional-approval/
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https://mises.org/wire/joe-biden-father-drug-wars-asset-forfeiture-program
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The Whitehouse Effect at the Supreme Court
Democrats think they’ve found a way to move John Roberts to the left.
By The Editorial Board WSJ
April 29, 2020 6:56 pm ET
Our editorial Tuesday on the Supreme Court’s gun-rights ruling has inspired a letter nearby from four Senate Democrats led by Sheldon Whitehouse of Rhode Island. We recommend it to readers as it amounts to a victory lap and perhaps a sign of what it is come on the High Court.
Some readers may recall the Supreme Court phenomenon known as the Greenhouse Effect. That was how Judge Laurence Silberman of the D.C. Circuit Court of Appeals described in 1992 the impact on the High Court of former New York Times legal reporter Linda Greenhouse.
The Supreme Court is Still Gun-Shy
She applied a carrot-and-stick approach to the Justices in her coverage of Court decisions depending on whether they pleased or offended her political preferences. Justices are human and want to be admired, and over time the Greenhouse Effect influenced John Paul Stevens, Sandra Day O’Connor and Anthony Kennedy to move left.
Well, now it looks like we have a Whitehouse Effect in which Chief Justice John Roberts can be moved by political threats to judicial independence. The Chief joined the four liberal Justices in remanding as moot a case challenging a New York City regulation barring people with a legal gun permit from carrying those guns outside the city to a shooting range or second home (New York State Rifle & Pistol Assn. v. City of New York).
Justice Samuel Alito clearly believes in the Whitehouse Effect, as he makes specific reference in his dissent to the amicus brief filed by Mr. Whitehouse and other Democrats that threatened the High Court with restructuring if it didn’t toe their line on the New York gun case. He was joined by Justices Clarence Thomas and Neil Gorsuch.
Justice Alito’s dissent shredded the short, unsigned majority opinion on the mootness point. New York changed its rule but not enough to eliminate all of the burdens it put on the plaintiffs in violation of the Second Amendment. Yet the Court majority didn’t even attempt to rebut the dissent’s arguments.
Note, too, how the Whitehouse letter to us treats all of this as entirely political, as if there is no matter of law at stake. Because the National Rifle Association supports the New York plaintiffs, he suggests their case is illegitimate. Does he think plaintiffs backed by Planned Parenthood should be disqualified on abortion cases?
Lower-court judges are flagrantly disregarding the High Court’s Heller precedent as they uphold new gun laws, yet the Court has stood idly by for a decade. No wonder Mr. Whitehouse and his mates are chortling. They think they can turn the Chief Justice their way whenever they whip up the Whitehouse Effect.
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https://www.nationalreview.com/corner/a-unanimous-supreme-court-brushes-back-the-legal-resistance/
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‘Faithless Electors’ at the Supreme Court
A constitutional case could destabilize presidential elections.
By The Editorial Board
May 12, 2020 7:26 pm ET
In December 2016, Hillary Clinton’s campaign called for members of the Electoral College to be briefed on Russia-related intelligence before voting to ratify Donald Trump’s November election victory. This was unprecedented and amounted to an effort to nullify the judgment of 137 million voters.
Yet such gambits could become more common depending on the outcome of two cases before the Supreme Court Wednesday. In Colorado Department of State v. Baca and Chiafalo v. Washington, ex-Electoral College members want the Justices to declare that they can’t be bound by their states’ voters. They say all 538 presidential electors can instead vote their conscience like Senators or members of a jury.
The Supreme Court is right to settle this ahead of what looks to be a fiercely contested 2020 election. While the Founding-era ideal of an Electoral College of philosopher-kings may be appealing in the abstract, the Constitution leaves responsibility for selecting and regulating electors to the states. Those that want to enforce electors’ pledges should be allowed to do so.
Voters expect a state’s electors to vote for whichever presidential candidate wins the state. That’s the basis of the ubiquitous red-blue Electoral College map showing a path to a 270-vote majority. “Faithless electors” have historically been rare.
Thirty-two states require that an elector vote for the candidate he or she has pledged to. Among those states are Colorado and Washington, where Hillary Clinton won in 2016. When a Colorado elector sought to cast a ballot for a different candidate in 2016, the Secretary of State removed him. When electors did the same in Washington state, they faced a $1,000 fine. The Washington Supreme Court upheld the fine, while the Tenth Circuit Court of Appeals held that Colorado couldn’t constitutionally enforce electors’ pledges.
The electors—represented, ironically, by anti-Electoral College crusader Lawrence Lessig—argue that the Founders intended the Electoral College to be independent or they wouldn’t have created it. They point to Alexander Hamilton’s ruminations in the Federalist Papers about the electors serving as an intermediary between the masses and the Presidency.
Yet the states note that Hamilton’s views weren’t shared by all the Founders. If there had been a consensus around Electoral College independence, it would have been protected in the Constitution. The framers of the original Electoral College also did not envision parties. The 12th Amendment in 1804 rewrote the Electoral College rules to prevent a President and Vice President of opposite parties.
Most important, the Constitution gives states broad control over their Electoral College process. States appoint electors “in such Manner as the Legislature thereof may direct,” implying they can attach conditions to serving. They can bind electors—or not—and decide what if any penalty to impose for breaking a pledge. In the absence of a constitutional restriction on states’ authority, federalism ought to carry the day.
The Republican National Committee in its amicus brief argues the real mission of this lawsuit is “to sow chaos in the Electoral College.” More chaos is coming as Democratic state legislatures seek to nullify it through the National Popular Vote Interstate Compact, which could also one day end up at the Supreme Court. Meantime, the Justices should not swoop in to create more opportunities for 2016-style shenanigans after votes are cast this fall
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SEN. TOM COTTON: “If the Chief Justice believes his political judgment is so exquisite, I invite him to resign, travel to Iowa, and get elected. I suspect voters will find his strange views no more compelling than do the principled justices on the Court.”
https://althouse.blogspot.com/2020/06/if-chief-justice-believes-his-political.html
I will start reading these decisions and dissents, but it is hard to believe that a pretend law made by "Executive Order" cannot be repealed executive order of the successor. He didn't give a good reason for his action? Are you kidding? The original order was a breaking of existing law. The reasoning of the repeal was laid out in a 17 month campaign for the Presidency and approved by 63 million Americans and 306 electors in the Electoral College. If you don't believe the President, listen to his opponents who warned DACA recipients this repeal would happen if Trump was elected.
If you disagree, fine, vote for someone else, but don't tell us its unconstitutional to insist on enforcement of the passed and signed laws of the land.
---------------------------
More: https://nypost.com/2020/06/18/supreme-court-becomes-supreme-power-overruling-president-and-congress/
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au jus teece is. clearly twisting logic on its head on decisions he seems not to want to really rule on .
maybe someone has a naked picture of him
ready to go viral if he rules the "wrong way"
or he might loss a club membership .........
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https://www.nationalreview.com/2020/06/against-columbia-statehood/
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again a 5 -4. decision
https://www.nationalreview.com/2020/06/supreme-court-espinoza-decision-rejects-blaine-amendments/
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https://www.nationalreview.com/2020/06/a-modest-win-for-the-constitution/?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Monday%20through%20Friday%202020-07-01&utm_term=NRDaily-Smart
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https://teachingamericanhistory.org/library/document/the-constitution-of-the-united-states-is-it-pro-slavery-or-anti-slavery/
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Politics & Policy
To Construe the Constitution, Look to the Declaration
By George Will
July 4, 2019 6:30 AM
Detail of Declaration of Independence by John Trumbull, 1819 (US Capitol)
Frames are important and silver is precious, but what is framed is more important and gold is more precious.
Washington — On this 243rd anniversary of the beginning of the best thing that ever happened — “The Great Republic” was Winston Churchill’s tribute — many of today’s most interesting arguments about America’s nature and meaning are among conservatives. One concerns the relevance of the Declaration of Independence to the contested question of how to construe the Constitution.
The crucial question is: What did the Founders intend — what was their foundational purpose? Mark Pulliam, who might disagree that this is the crucial question, certainly thinks the Declaration is not pertinent to construing the Constitution.
Pulliam, a lawyer and contributing editor of the excellent Law & Liberty blog, notes portentously that the Declaration is not mentioned in the Constitution. This, however, is as obvious as it is obviously irrelevant. Neither is democracy “mentioned,” and the Declaration is hardly mentioned in The Federalist Papers. However, the Declaration expressed, as Jefferson insisted, the broadly shared “common sense of the subject.” Rather than belabor the Declaration’s (to them, unremarkable) assertions, the Constitution’s Framers set about creating institutional architecture that would achieve their intention: to establish governance that accords with the common sense of their time, which was that government is properly instituted to “secure” the preexisting natural rights referenced in the Declaration.
Also obvious and irrelevant is Pulliam’s observation that Jefferson, the Declaration’s primary author, was not at the Constitutional Convention (he was a U.S. diplomat in Paris). What is obvious — and, concerning the Constitution’s original meaning and continuing purpose, dispositive — is this: The Declaration’s role is the locus classicus concerning the Framers’ intention, which is surely the master key to properly construing what they wrought.
The late Judith Shklar (1928-1992), a Harvard political philosopher, correctly noted the “momentous novelty” of the Constitution’s first three words, “We the people.” They announced a “declaration of independence from the entire European past,” a root-and-branch rejection of all prior attempts to ground the legitimacy of government in anything other than the consent of the governed. The Constitution was, however, written by men of the Enlightenment who were not confident that the rationality they practiced and espoused could be counted on to constantly characterize the republic for which they wrote.
NOW WATCH: 'The White House Has Looked into Demoting the Federal Reserve Chief'
The Declaration did not mention majority rule, which the Founders embraced because they considered it, when public opinion is properly refined and filtered, the best — although hardly a certain — mechanism for protecting the natural rights affirmed in the Declaration. Those rights, not a procedure (majority rule), was their foundational concern. The equilibrium of Madison’s constitutional architecture is currently in disarray, with congressional anemia enabling presidential imperiousness. Nevertheless, the architecture was designed to “secure” — the crucial verb in the Declaration’s second paragraph — the natural rights the Declaration affirms.
The Reverend Martin Luther King Jr.’s genius — he was, in a sense, the final Founder — was in understanding what the University of Pennsylvania’s Rogers M. Smith terms the “Declaration of Independence-centered view of American governance and peoplehood.” Over the years, this stance of “Declarationists” explicitly opposed Jacksonian democracy’s majoritarian celebration of a plebiscitary presidency, and the 1854 Kansas-Nebraska Act’s premise that majorities (“popular sovereignty”) could and should — wrong on both counts — settle the question of whether slavery should expand into the territories.
The learned and recondite disputes currently embroiling many conservatives, disputes about various doctrines of interpretive constitutional “originalism,” are often illuminating and sometimes conclusive in constitutional controversies. But all such reasoning occurs in an unchanging context. Timothy Sandefur, author of The Conscience of the Constitution, rightly sees the Declaration as the conscience because it affirms “the classical liberal project of the Enlightenment and the pervasiveness of such concepts as natural rights.”
Furthermore, Sandefur says, this explains the Constitution’s use of the word “liberty,” which “does not refer to some definitive list of rights, but refers to an indefinite range of freely chosen action.” Which means that the Constitution should be construed in the bright light cast by the Declaration’s statement of the Founding generation’s general intention to privilege liberty.
19
Pulliam dismisses as “inapt Biblical imagery” Lincoln’s elegant formulation that the Constitution is the frame of silver for the apple of gold, which is the Declaration. Lincoln’s mission was to reconnect the nation with its Founding. The frame, Lincoln said, is to “adorn” and “preserve” the apple. Frames are important and silver is precious, but what is framed is more important and gold is more precious. So, tonight, by the light of some sparklers, read the Declaration, which illuminates what came next, the Constitution, and a nation worth celebrating.
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https://www.reuters.com/article/us-usa-court-oklahoma-idUSKBN24A268?utm_campaign=trueAnthem%3A+Trending+Content&utm_medium=trueAnthem&utm_source=facebook
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https://www.nationalreview.com/2020/07/supremes-signal-a-brave-new-world-of-popular-presidential-elections/
lets see
eradicate immigration enforcement
grant them all voting rights
make all Pres. elections popular vote elections
increase the number of Supreme Court seats
this is not really a brave new world - we know where this leads .
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sounds like she has no more than weeks to months to live
the LEFT will hide her death if before election
and start a electronic AI version of her showing her still being alive and active alert ,
with Larry the Lib Tribe providing the opinions for the fraudsters. .... :wink:
well I would not put it past the Left
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If she fades/dies before the election/next term-- how long do we need to put someone through?
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" If she fades/dies before the election/next term-- how long do we need to put someone through?"
was wondering same thing.
quick google:
*According to the Congressional Research Service, the average number of days from nomination to final Senate vote since 1975 is 67 days (2.2 months), while the median is 71 days (or 2.3 months). Some believe this is because Congress sees Justices as playing a more political role than in the past.*
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Out of curiousity-- what is the shortest number of days?
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" what is the shortest number of days?"
zero, but back in the Truman days
https://www.nytimes.com/interactive/2016/02/13/us/how-long-does-it-take-to-confirm-a-supreme-court-nominee.html
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" If she fades/dies before the election/next term-- how long do we need to put someone through?"
was wondering same thing.
quick google:
*According to the Congressional Research Service, the average number of days from nomination to final Senate vote since 1975 is 67 days (2.2 months), while the median is 71 days (or 2.3 months). Some believe this is because Congress sees Justices as playing a more political role than in the past.*
It's been a month since the end of the Supreme Court term and no one resigned. RBG has been hiding her cancer recurrence. Her survival is the central focus of modern liberal medicine, and somehow they have succeeded. Good for her.
https://www.cnn.com/2020/07/31/politics/ruth-bader-ginsburg-discharged/index.html
She isn't going to resign; no liberal is going to resign at this time. Nor did Clarence Thomas leave to make room for someone younger. They are off until early October. [Nice gig.]
Only a death (very soon) would create a vacancy Republicans of this term could fill. August is recess month, September and October are campaign months, not a time Senators want to stuck in Washington.
Whoever wants to choose the next Justice(s) is going to have to win one more election cycle, White House and Senate.
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https://www.conservativereview.com/news/horowitz-trump-appointed-judge-idaho-cant-block-men-competing-womens-sports/
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Crafty's law professor dead at 87.
I was wondering the last couple of days, what will be the unknown event or issue that will dominate this election. This is it.
She was famously and consistently liberal, but if her only wish was to control the ideology of her successor, she could have retired under liberally friendly conditions and she didn't.
There is plenty of time left to nominate and confirm a replacement but the process promises to be the ugliest ever no matter who the President selects.
For the moment, let's celebrate her life and give her family and friends a respectful time to remember her and grieve.
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oh it wouldn't be fair blah blah blah
https://www.newsmax.com/politics/ruth-bader-ginsburg-senate-republicans-nomination/2020/08/03/id/980241/
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Sen. Cruz points out that if she is not replaced before the election, the SCOTUS will have an even number of Justices ruling on the plethora of election cases likely to come before it. Therefore it is the duty of the President and the Senate to replace RBG before the election.
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very good talking point.
if Dems get Harris in and win the Senate and House
then they will move to increase the number of Justices on the Court to gain the majority.
many Leftist big shots are already calling for that as part of the lawfare war we are in .
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Democrats should not "tolerate"
Ginsberg being replaced by the Republicans
and counter with increasing Court size to 13
of course this guy has to be a jewish democrat , no surprise , as they are the most partisan and uncompromising and get very dirty for the religion of the Democrat party:
https://news.yahoo.com/op-ed-democrats-secret-weapon-051959324.html
I am sure Chemerinsky was no where to be heard from when Chamiela Harris was making up stuff to keep Kavanaugh from being confirmed
I would be shocked if he wasn't fighting to get the One's Garland appointed.
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https://townhall.com/tipsheet/mattvespa/2020/09/19/history-is-on-the-gops-side-for-filling-ruth-bader-ginsburgs-legacy-and-mcconn-n2576501
================
Something I wrote:
In 1980 Ruth Bader Ginsburg was my Constitutional Law prof at Columbia.
Respect for the way she had genuine friendships with those of different points of view-- most famously Justice Scalia.
Respect for her various expressions of concern over how so many now fail to do that (including the Kavanaugh hearings!) and the dangers this poses for our country and respect for her appreciation that she got the job in 1993 with the votes (over 90 IIRC) of so many who disagreed with her.
Respect for her quiet courage in the face of a terrible disease.
Respect that I could disagree with her in class-- which I did both over National League of Cities and over the Equal Rights Amendment.
Respect that she later came to feel that Roe v. Wade forced an issue that should have been left to the political process.
That said, she was a prime example of judicial activism. If the reports of her dying words calling for her replacement to be made by Biden are true, they are both genuinely inappropriate and disappointing-- and consistent with other times she took off the mask. All too often she was a Prog using judicial power to impose political ends beyond the proper purview of the judiciary.
I followed the Bush v. Gore litigation quite closely (reading the statute, listening to the oral arguments of both the FL Supreme Court and the SCOTUS and read all the decisions). I had to laugh at her expressions of judicial deference to state courts (particularly in electoral matters in the South!) so that the political Florida Supremes could order inconsistent vote counting standards in order to give the victory to Gore-- not the Ruth I knew back in 1980 who gleefully advocated federal power over the States whenever possible-- hence my disagreement with her over National League of Cities v. Usery (working from memory, whether the Feds could make a State government pay its employees the federal minimum wage).
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Great Post Marc. May she rest in peace.
"All too often she was a Prog using judicial power to impose political ends beyond the proper purview of the judiciary"
Yes.
She had plenty of opportunity to retire under a Democrat President and Senate if that was her highest priority and it wasn't.
Now balance of the Court may shift. Was it Pres. Obama who said, elections have consequences.
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I hope she is up to the task. Watch the Catholic faith get attacked mercilessly in an election year, or will they hold back?
https://www.politico.com/news/2020/09/19/amy-coney-barrett-what-you-need-to-know-418378
https://www.cnn.com/2020/09/18/politics/trump-supreme-court-list-potential-nominees/index.html
She has been on the top of the list since 2017:
https://www.whitehouse.gov/briefings-statements/president-donald-j-trumps-supreme-court-list/
And this pick has to be a woman- just to avoid the gang rape allegations.
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already the leftist media is celebrating
Murkowski and Collins coming out of the starting gate
stating they will not back nominee till AFTER the election
of course all eyes on the other Trump hating Rino - Mitt Romney
Always the same three who have to prove how "principled" they are who make our party weak
even with a 53 to 47 edge
if we lose seats and it is not any of those 3 we will be effectively below 50% in the Senate
the Left knows how to go and intimidate and con these 3 - Romney will love the spot iight again .
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with his usual good points:
https://www.nationalreview.com/2020/09/replacing-justice-ginsburg-politics-not-precedent/
on this I would add a medical conclusion:
"On the other hand, Justice Ginsburg herself fanned the political flames. In her last days, she dictated a statement, made public after her death, expressing fervent desire that she “not be replaced until a new president is installed.”
From the best I can elucidate on her medical condition it is also quite obvious Ginsburg did do everything to stave off her death
she did not enter hospice , was even getting chemo in the end normally futile
and as Doug points out did not give her seat in hopes she would not die before the next election
The only reason her death is even this close to Nov 3rd may indeed have been due to her struggle to deny Republicans another nominee - she * devoted her last full measure to partisanship!"
like I said the Jewish Dems are the most fervent - to the last dying breath
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I think the vote will be: this Senate, after the election but before the end of the year. Yes, those three Senators are the big question marks but Pence breaks a tie so it takes four Republicans voting no to stop [her].
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"I think the vote will be: this Senate, after the election but before the end of the year."
Ah , yes
good thought
if trump loses the repubs will have one last chance to let trump get one more victory
if he wins and we hold the senate
all good
one problem with this i see - still risky
can you imagine if he looks like he won on nov 3 what the mail in ballots circus will surely look like
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https://www.independentsentinel.com/justice-ginsburg-nothing-in-the-constitution-prevents-filling-court-seat-in-final-year/amp/
https://amp.dailycaller.com/2020/09/19/ruth-bader-ginsburg-supreme-court-pick-2016
=====================
https://www.nationalreview.com/2020/08/history-is-on-the-side-of-republicans-filling-a-supreme-court-vacancy-in-2020/amp/?__twitter_impression=true
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second post
https://history.house.gov/Institution/Origins-Development/Electoral-College/
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third post
https://www.politico.com/news/magazine/2020/09/19/how-democrats-could-pack-the-supreme-court-in-2021-418453
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third post
https://www.politico.com/news/magazine/2020/09/19/how-democrats-could-pack-the-supreme-court-in-2021-418453
They promise to pack the Senate as well, with DC and PR.
If they behave badly between now and election day, that does not help them sweep the election. AOC: "Democrats need to radicalize." What if voters don't?
https://www.breitbart.com/politics/2020/09/19/nolte-passing-of-ruth-bader-ginsburg-permanently-resets-2020-election/
"Reason Trump has a pretty good chance of replacing Ginsburg is because the Republicans expanded their majority in 2018. Reason Republicans expanded their majority in 2018 was because of the abysmal and obscene behavior of Democrats and the media during the Kavanaugh confirmation. Funny how that works."
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".They promise to pack the Senate as well, with DC and PR."
Trump approved billions to PR just this past week:
https://www.washingtonpost.com/politics/trump-puerto-rico-election/2020/09/18/00ee5a2a-f9ba-11ea-be57-d00bb9bc632d_story.html
certainly has to be political
yrs after the hurricane just before an election
won't run puerto ricans into repubs that easily though
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just wondering
when dems go to expand number of justices on court can republicans then bring case to SCOTUS to have them rule if constitutional
and thus strike it down ?
as for dems "threatening" to expand judge number , they were already saying this evenn before ginsberg died
so they may well do this even if collins sasse murkowski and romney prevent her replacement
(and this would be another reason to replace her ASAP - not matter what we do now they are NOT going to be honorable - are they ever?)
I doubt founders would have wanted a system where one political party changes the rules to benefit only them.
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https://www.politico.com/news/magazine/2020/09/19/how-democrats-could-pack-the-supreme-court-in-2021-418453
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I notice Pelosi refuse say things like pack the court while AOC calls for radicalizing the party over this. [Over what? A Justice died.] Same ideology, different levels of strategery.
Democrat oversteps breathe life into Republican electoral chances. Democrats lost more than a dozen Senate seats since Obamacare, for example.
Things like abandoning the filibuster on judicial confirmations and perverse behavior in the Kavanaugh hearings have come back to bite them, big time.
Yes they could 'pack the court' but not without political consequence.
Another point, if/when Dems win their 'permanent majority', they don't need to pack the Court to overturn unfriendly legislation.
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Republican political perspective on Puerto Rico: millions with PR heritage live and vote in Florida. Without R's winning FL, there is little chance of getting constitutional conservative justices appointed or confirmed.
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https://en.wikipedia.org/wiki/Stephen_Breyer#U.S._Court_of_Appeals_(1980%E2%80%931994)
"In the last days of President Jimmy Carter's administration, on November 13, 1980, Carter nominated Breyer to the First Circuit, to a new seat established by 92 Stat. 1629, and the United States Senate confirmed him on December 9, 1980, by an 80–10 vote."
Source: https://query.nytimes.com/gst/fullpage.html?res=9C0DE0DF153FF933A25754C0A962958260
Read that again carefully. Breyer was nominated AFTER Carter lost the Presidential election to Reagan. He was confirmed AFTER Democrats lost control of the Senate to Republicans. To a "new seat" established by Democrat, one party rule gained by Democrats after the Nixon Ford fiasco.
What you see depends on where you sit.
"Let the voters decide"? Yes and they did. Voters knew RBG was aging and ailing with cancer in 2016 and in 2018.
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Barbara Lagoa: The (other) name speculated - for announcement Tuesday.
https://www.afj.org/nominee/barbara-lagoa/
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https://patriotpost.us/alexander/73600-debunking-demo-objections-to-president-trumps-third-scotus-nominee-2020-09-21?mailing_id=5320&utm_medium=email&utm_source=pp.email.5320&utm_campaign=digest&utm_content=body
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Diversity? Every current member of the Supreme Court has a Juris Doctor degree from Harvard or Yale.
By my calculation, two out of every million the US population graduates from Harvard or Yale Law School every year. 999,998 do not.
This is year 2020 and we still think gender and skin color are what make up diversity of life experience? These 8 people all got the same degree from one of the same two schools.
https://www.pewresearch.org/fact-tank/2017/03/20/what-backgrounds-do-u-s-supreme-court-justices-have/
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https://twitter.com/i/web/status/1307877608487628802
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https://patriotpost.us/articles/73636-senate-republicans-have-the-votes-but-dot-dot-dot-2020-09-22?mailing_id=5322&utm_medium=email&utm_source=pp.email.5322&utm_campaign=digest&utm_content=body
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Don’t Give In to Democrats’ Supreme Court Extortion
If Republicans don’t appoint a new justice, they’ll alienate their most loyal voters.
By Bobby Jindal
Sept. 21, 2020 7:11 pm ET
President Trump’s determination to fill the Supreme Court vacancy has enraged Democrats. Senate Minority Leader Chuck Schumer ominously warns that if Justice Ruth Bader Ginsburg is replaced and Democrats gain a Senate majority, “nothing is off the table.” It’s not clear what was off the table before: Democrats had already threatened to end the filibuster, ignore pay-as-you-go rules, make the District of Columbia and Puerto Rico states and pack the court.
The media frantically replays 2016 clips of Republican senators like Lindsey Graham, now Judiciary Committee chairman, explaining their refusal to give Merrick Garland a hearing. They are less likely to mention the many Democrats who flip-flopped in the opposite direction. But Republicans note that their objection to election-year nominations applied when the president’s party was a Senate minority. They reason that voters gave them the majority in 2014 as a brake on President Obama’s ambitions.
The media breathlessly cites Ginsburg’s dying wish that the next president appoint her successor, as if she had any claim to the seat after her death. It’s reminiscent of Democratic outrage a decade ago that Republican Scott Brown should occupy Ted Kennedy’s Senate seat, as if it belonged to the family and not the state of Massachusetts. And never mind Ginsburg’s own 2016 comments in favor of approving an election-year nominee or her decision not to retire before 2015, when Mr. Obama and a Democratic Senate could have appointed her successor.
The “Biden rule”—which the then-Judiciary chairman put forth in 1992, the vice president rejected in 2016, and the nominee has re-embraced in 2020—is that the president shouldn’t make a nomination to the Supreme Court in an election year so that voters have a chance to make their voices heard. That implies that presidential elections should be national referendums on the high court—a view that is of a piece with liberal judicial philosophy in that it is at odds with the Constitution.
If Republicans give in to Democratic extortion, it will never end, and they will forfeit the authority to govern—along with the support of the voters who make up their electoral base. If Republican senators fail to stand up and fight back, many of the party’s most committed supporters will decide it is time to quit the party and perhaps even politics. They won’t support Joe Biden or other Democrats, but they have little reason to go to the polls on Election Day.
Many voters were inspired by Mr. Trump’s promise to take on the establishment and drain the swamp. They wish he had kept all his promises, but they also credit him for having the courage to try. Some pundits claim beleaguered Republican senators from purple states—Arizona’s Martha McSally, Colorado’s Cory Gardner, North Carolina’s Thom Tillis—can demonstrate their independence from Mr. Trump, increase their election odds, and appeal to moderate voters by joining a Democratic effort to keep the seat open. The committed conservative voters those senators would lose would more than offset any such gains.
The best way to reduce the intensity of fights over judicial nominations is for the other branches of government to reclaim their constitutional powers. Liberal judges have assumed too much power; they want to write the laws, not just interpret them. Society’s most intense debates over the limits on individual autonomy and the proper role of government should not be decided by five unelected jurists, but rather by political leaders accountable to the voters.
Mr. Jindal was governor of Louisiana, 2008-16, and a candidate for the 2016 Republican presidential nomination.
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https://theweek.com/articles/938865/democrats-have-better-option-than-court-packing
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I need a citation for McConnell in 2016 making the distinction between President and Senate being same party or different party.
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From the link:
"The election in Arizona, unlike the other Senate elections in the country this year, is a special election. … If [Democrat] Mark Kelly defeats [incumbent Republican] Martha McSally, he could be a senator on November 30, which means the 53-47 edge during a lame duck [session] very quickly becomes 52-48"
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What did Pelosi say, arrows in a quiver? If the House impeaches, the Senate is required (?) to set aside all other business and take up the impeachment? The House could stop the Senate confirmation? There would be a political price to pay for such a trick before the election but not after.
The RBG confirmation hearings took 4 days. Let's go.
https://www-rev-com.cdn.ampproject.org/v/s/www.rev.com/blog/transcripts/justice-ruth-bader-ginsburg-confirmation-hearing-transcript-1993/amp?amp_js_v=a2&_gsa=1&usqp=mq331AQFKAGwASA%3D#aoh=16008320846472&referrer=https%3A%2F%2Fwww.google.com&_tf=From%20%251%24s&share=https%3A%2F%2Fwww.rev.com%2Fblog%2Ftranscripts%2Fjustice-ruth-bader-ginsburg-confirmation-hearing-transcript-1993
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https://www.nationalreview.com/the-tuesday/ruth-bader-ginsburg-didnt-understand-her-job/
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second
https://townhall.com/columnists/benshapiro/2020/09/23/democrats-threaten-to-burn-down-the-republic-to-stack-the-supreme-court-n2576708
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fighting for Democracy, the Constitution, the very existence of our Republic
https://www.latimes.com/opinion/story/2020-09-23/schiff-democracy-reform-trump
throw in a few other words
"monarch"
"wreckage"
"checks and balances"
"watergate"
"transparency"
"accountability"
"foreign interference"
and of course a quote from a historical figure of equal historic stature, Ben Franklin.
And viola = brilliant astounding courage and a work of linguistic art and philosophy for the Ages ;
needs a marble inscription on the Mall with these great words engraved.
Thank God we have such men on the Earth.
:roll:
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https://www.justsecurity.org/72512/with-rbgs-passing-start-thinking-about-how-to-rein-in-the-supreme-court/
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interesting article - author sounds more leftist to me - interesting he comes out with article just after ginsberg passes
in an "untimely fashion" - not sure what is untimely about 87 with history of 4 cancers being untimely but I 'll leave that alone.
perhaps Mark Levin could have him on with Dershowitz from the left, and maybe John Eastman from the right ,
and Ted Cruz from legislative branch
to discuss
their thoughts
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https://www.nationalreview.com/2020/09/amy-coney-barrett-supreme-court-dual-loyalty-canard/
how about dual loyalty - not with religion - but never breaking with one's preferred political party platform and simply interpreting the law as its stated.
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to lie in state
other then William Taft who was there for being President
wonder if Clarence Thomas will lie in state in the House?
https://history.house.gov/Institution/Lie-In-State/Lie-In-State-Honor/
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https://thf_media.s3.amazonaws.com/2020/Events/2020_08_0201_EssentialElectoralCollege_Ebook.pdf?mkt_tok=eyJpIjoiTVRJNE1EUXdOakEyTjJVeCIsInQiOiJGUDBmZ3B3RTNzbXJcL2loV2ozK1BqSmdmSTlXcVd6T1wvWHhhc2pTVGJueGE0MTRneWloU2RDK3RYQnVkOGltc3pkbHJDVytqU0JEamVvSnhCN0FKeGNycjNKMlYxOHFsMXpPOXkxNzNTaHFtZHVXcFJoYUxGYXZSUmEzQUJWblUyIn0%3D
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https://www.bloomberg.com/opinion/articles/2020-09-26/amy-coney-barrett-deserves-to-be-on-the-supreme-court
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https://reason.com/2020/09/23/amy-coney-barrett-thinks-the-second-amendment-prohibits-blanket-bans-on-gun-possession-by-people-with-felony-records/
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https://www.youtube.com/watch?v=7yjTEdZ81lI
Referral letters:
https://www.usatoday.com/story/opinion/voices/2020/09/27/amy-coney-barrett-supreme-court-notre-dame-students-column/3551971001/
https://www.usatoday.com/story/opinion/voices/2020/09/26/amy-coney-barrett-friend-supreme-court-appointment-column/3549103001/
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https://www.newsmax.com/politics/republicans-amyconeybarrett-supremecourt/2020/09/28/id/989224/
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https://www.newsmax.com/politics/republicans-amyconeybarrett-supremecourt/2020/09/28/id/989224/
Why? Once again, the stupid party earns it's name.
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just guessing they are hoping that they think waiting longer will give more time and opportunity for Dems to make fool of themselves
or maybe another strategic reason
or most cynically they are just D..bf..ks. :wink:
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just guessing they are hoping that they think waiting longer will give more time and opportunity for Dems to make fool of themselves
or maybe another strategic reason
or most cynically they are just D..bf..ks. :wink:
(https://gab.com/system/media_attachments/files/058/563/109/original/b4ae4eea664151cc.png?1601288169)
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Trying to remember numbers, but something like... RBG died with 45 to go until the election. RBG went through her process in 40 or 42 days with no hurry, therefore getting this done is possible and not unprecedented. The hearing date allows full 14 day FBI review. [They just did one so it should take 10 minutes.] Senators also have schedules and campaigns. This allows them to hear from constituents. The debate should be limited to things that came up since her recent confirmation. The timeline looks good to me - if they keep it. If they can't get it done before the election, Democrats will be emboldened with their delay and block strategies and Republican base voters will lose trust.
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A Winding Constitutional Path From Trump to Pence to Pompeo
The president is sick, so here’s a review of the laws governing succession.
By John Yoo
Oct. 2, 2020 6:31 pm ET
What if President Trump becomes seriously ill and unable to do his job? Under the 25th Amendment, the president can report to Congress that “he is unable to discharge the powers and duties of his office.” Vice President Mike Pence would become acting president until Mr. Trump sends a second written declaration that he can perform his duties again.
But suppose he’s unable or unwilling to issue the declaration. The 25th Amendment provides for that too. If the vice president and a majority of “the principal officers of the executive branch”—defined by statute to include the heads of the 15 major executive departments—declare in writing that the president “is unable to discharge the powers and duties of his office,” Mr. Pence becomes acting president “immediately.”
Mr. Trump’s opponents have often mused about invoking the 25th Amendment to remove him from office for behavior they regard as erratic. The idea reflects a misunderstanding of how the amendment works. Even in the unlikely event that Mr. Pence and the cabinet backed such a move, the president could challenge it. The disagreement would be resolved in the president’s favor unless two-thirds of both houses of Congress overrode him—and even then, his removal would be temporary. The 25th Amendment deals with cases of genuine debility, such as might arise if the president became seriously ill.
Mr. Pence has tested negative for the coronavirus. But suppose that changes and both he and Mr. Trump are too sick to perform the presidency’s duties. Article II of the Constitution states that in “the case of removal, death, resignation or inability” of both the president and vice president, Congress has the authority to declare “what officer shall then act as president” until the disability ends or a new president is elected. The term “officer” poses a problem for the current law.
The Presidential Succession Act of 1947 puts two congressional leaders in the line of presidential succession. The House speaker (Nancy Pelosi) is immediately behind the vice president followed by the Senate president pro tem (Chuck Grassley). From there, the order continues to the secretary of state (Mike Pompeo) and the other cabinet members in the order in which their departments were created.
But Yale law professor Akhil Amar persuasively argued in 1995 (at the prospect of Speaker Newt Gingrich becoming president should Congress impeach Bill Clinton) that this provision is unconstitutional. The Constitution generally—but not always—uses “officers” to mean members of the executive branch. Further, the Incompatibility Clause of Article I provides that “no person holding any office under the United States, shall be a member of either house during his continuance in office.” That implies that neither Mrs. Pelosi nor Mr. Grassley could become acting president without resigning from Congress, which would remove them from the statutory line of succession. The cleanest reading of the law, then, is that if Messrs. Trump and Pence were both unable to serve as president, Mr. Pompeo would become acting president.
The imminence of the election introduces more wrinkles. Suppose Mr. Trump remains disabled or dies. The Republican Party could seek to substitute his name on the ballot. But it’s probably too late for states to alter the ballots, many of which have already been mailed out and returned.
In that case, the much-maligned Electoral College could stabilize the system. When voters cast a ballot for Mr. Trump or Joe Biden, they are actually choosing slates of electors pledged to support one of the candidates. Even though the Supreme Court held this summer that states can punish electors who don’t keep those promises, the Founders intended for them to exercise discretion. In any case, if the candidate is unavailable to serve, an elector commits no breach of faith in voting for someone else.
In 1872, after Democratic nominee Horace Greeley died in late November, his 66 electors split among four other candidates. (Three votes cast for Greeley weren’t counted.) If that happens to the ballot victor, the Electoral College could lack a majority.
If that happens, under the 12th and 20th amendments the election would go to Congress. The House would choose the president, with each state delegation getting one vote; the Senate, the vice president.
In the current Congress, Republicans hold majorities in 26 state House delegations, Democrats hold 23, and one state is evenly split. But it would be the new Congress that would vote, and it could fail to reach a majority either through a 25-25 split or several evenly balanced delegations. Candidates could reach a deal through their House supporters, as John Quincy Adams and Henry Clay did in 1824 to deny Andrew Jackson the presidency. But if the House proves unable to reach a majority, the vice president-elect would accede. But that assumes there is one. The Senate could also divide 50-50 with no vice president available to cast the deciding vote.
If there’s no majority of electors, House delegations or senators, the federal succession law would kick in again. Mrs. Pelosi might think her time has come, but the argument would be stronger for inaugurating President Pompeo.
Mr. Yoo is a law professor at the University of California, Berkeley, and author of “Defender in Chief: Donald Trump’s Fight for Presidential Power.”
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https://www.nationalreview.com/2020/10/court-packing-would-be-the-biggest-scandal-in-decades/?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Monday%20through%20Friday%202020-10-06&utm_term=NRDaily-Smart
https://www.nationalreview.com/2020/10/the-democrats-are-flirting-with-the-destruction-of-the-judiciary/?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Monday%20through%20Friday%202020-10-06&utm_term=NRDaily-Smart
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we will hear this ad nauseam once confirmation hearings begin:
https://www.yahoo.com/news/democrats-slam-amy-coney-barrett-003821653.html
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https://www.yahoo.com/news/dems-introduce-bill-forming-panel-130900432.html
if so concerned about fitness
how about full cognitive test for senile Joe now ?
when they stop or cannot continue to cover for Joe's early dementia
they will use this to get Harris in charge
she is worse than Hillary if that is possible
If Joe pisses off wrong people in the elites he will be toast .......
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3 people who took public positions on abortion before becoming S.C. Justices:
Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan
https://www.realclearpolitics.com/articles/2020/10/11/barrett_is_hardly_the_first_nominee_to_take_abortion_stance.html
...
Justice Ginsburg established the Women’s Rights Project of the American Civil Liberties Union in 1971 and also served on its board of directors and as general counsel. The organization boasts that it was “the first national organization to argue for abortion rights before the Supreme Court . . .” There’s no question where the organization today stands on abortion.
Time magazine highlighted Ginsburg’s confirmation process as noteworthy for her decision to take “the unprecedented step of strongly endorsing abortion rights” in a Supreme Court confirmation hearing.
Any questions about Ginsburg’s stance on abortion were settled during her hearing. “It is essential to woman’s equality with man that she be the decisionmaker, that her choice be controlling . . . If you impose restraints that impede her choice, you are disadvantaging her because of her sex,” Ginsburg said.
While clarifying a talk she gave that year, Ginsburg explained: “Abortion prohibition by the state, however, controls women and denies them full autonomy and full equality with men. That was the idea I tried to express in the lecture to which you referred.”
Any “criticizing” came down to how Ginsburg would have preferred Roe v. Wade be about equal protection rather than privacy. She “first thought long and hard” about abortion, she explained, during her involvement with Struck v. Secretary of Defense.
A Planned Parenthood press release praising Sotomayor’s nomination mentions the Puerto Rican Legal Defense and Education Fund. From 1980 to 1992, Sotomayor was a “top policy maker” on its board when the fund filed briefs in at least six court cases strongly supporting abortion. With the 1980 Akron v. Ohio case, the fund wrote that it “opposes any efforts to overturn or in any way restrict the rights recognized in Roe v. Wade.” Then, a 2009 U.S. News & World Report post proclaimed “Source: Amicus Brief Proves Sotomayor is Pro-Choice,” with regards to a brief for 1989’s Webster v. Reproductive Health Services.
During Justice Kagan’s 2010 confirmation, Americans United for Life provided extensive information on her views. Throughout her legal career, Kagan was associated with various leaders and organizations in support of Roe v. Wade.
In a 1995 law review article from the University of Chicago, Kagan wrote that “a [Supreme Court] nominee . . . usually can comment on judicial methodology, on prior caselaw, on hypothetical cases, on general issues like affirmative action or abortion.” William Saunders, then with Americans United for Life, explained how “Kagan’s financial contributions, work history and writings offer clear insights into her views on whether unfettered abortion rights are constitutionally required.”
Then there’s Kagan and the “Partial-Birth Abortion” memo, a leaked 1997 letter on legislation banning the procedure. The ban was passed by Congress and sent to President Clinton, who vetoed it in 1996. It ultimately did not become law until 2003, under President George W. Bush. At the time of the memo, Kagan worked for the Clinton administration. Although she urged President Clinton to pass a form of the partial-birth abortion ban, it was one which contained “health” exceptions; the bill sent to Clinton, now law, contains only a life exception.
As Slate explains, “The basic story is pretty clear: Kagan, with ACOG’s [American College of Obstetricians and Gynecologists] consent, edited the statement. . .” The edit, in Kagan’s handwriting, read, “An intact D&X [dilation of the uterus and extraction of the fetus], however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman’s particular circumstances, can make this decision.”
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https://www.theepochtimes.com/revisiting-supreme-court-nominee-amy-coney-barretts-notable-rulings-votes_3525007.html?ref=brief_HumanRights&utm_source=morningbrief&utm_medium=email&utm_campaign=mb
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We keep hearing that Amy Coney Barrett will single-handedly strike down Healthcare leaving specific, named individuals would lose Healthcare and die if this evil woman were on the Court.
If there is something in the ACA that is unconstitutional it should be stricken down, but doesn't the rest of it stay in place?
They already removed the individual mandate. What is the Constitutional issue?
Even if all of it were struck down, Healthcare law would be governed by the will of the people, through their representative government. One side doesn't trust that.
The ACA was not passed by consensual government. The representatives voting did not represent the will of their people, witnessed by the Democrats losing the house immediately after that, almost losing the Senate, almost losing it again, then losing it, then losing the White House. In other words, the voters took down the people who did this, but the law was harder to remove, because Senators like McCain lied to their voters. In his case, knowing he would never face the voters again.
But in confirmation hearings, we can't have a discussion on the merits of the case with the nominee because of the Ruth Bader Ginsburg Rule started in 1993. Nothing can be said about a case that might come before the court, therefore all this noise from the Democratic senators is about the election, not the confirmation.
https://www.judiciary.senate.gov/press/rep/releases/09/04/2018/the-ginsburg-standard-no-hints-no-forecasts-no-previewsand-no-special-obligations
RBG: A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.” (U.S. Senate Judiciary Committee, Hearing, 7/20/1993)
Justice Kagan:
it would be inappropriate for a nominee to talk about how she will rule on pending cases or on cases beyond that that might come before the Court in the future.” (U.S. Senate Judiciary Committee, Hearing, 6/29/2010)
Justice Sotomayor:
the question assumes a prejudgment by me of what's an appropriate approach or not in a new case that may come before me (U.S. Senate Judiciary Committee, Hearing, 7/14/2009)
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Tucker says there is NO litigation on the subject in the court system at present.
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to maintain the legitimacy of the Supreme Court
published in liberal Atlanta paper:
https://www.theatlantic.com/ideas/archive/2020/10/skeptic-case-court-packing/616607/
author looks all of 16
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In 2016, Pres Obama nominated a Justice not favored by the majority of the Senate and he was not confirmed.
In 2020, Pres Trump nominated a Justice favored by the majority of the Senate, and she likely will be confirmed.
There is no inconsistency or unconstitutionality in this.
Had Pres. Obama nominated Amy Coney Barrett in 2016, she would have either been confirmed by the Republican majority of the Senate or blocked by the Democrat minority in the Senate. In either case, elected officials doing what they think is right.
It is the Constitution that calls for a political body (who must face the voters) to give advice and consent. That is what happened in all these situations.
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https://menrec.com/amy-coney-barrett-challenged-on-how-shes-able-to-recall-so-much-holds-up-blank-notepad/
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I've been watching extended clips of her inquisition. Gotta say, I'm impressed.
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I've been watching extended clips of her inquisition. Gotta say, I'm impressed.
Show us your notes Judge:
(https://pbs.twimg.com/card_img/1316065770389098497/USQnfQvZ?format=jpg&name=medium)
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1 min. watch:
https://twitter.com/SRCC/status/1316394901609873409
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https://www.washingtonexaminer.com/opinion/editorials/amy-coney-barrett-hit-a-home-run
Amy Coney Barrett hit a home run
by Washington Examiner, October 17, 2020
In three days before the Senate Judiciary Committee, Judge Amy Coney Barrett did more than just prove that she belongs on the Supreme Court. She delivered one of the most effective performances ever for a nominee seeking the job.
As judicial nominations have become more contentious, all recent nominees to the Supreme Court have demonstrated a depth of knowledge about constitutional law and a lawyer’s ability to field questions from senators. Barrett certainly did all of that. In days of testimony, she effortlessly recounted the issues at stake in various legal disputes, juggled questions from senators, and explained the reasoning in her own decisions and academic writings, all without notes.
Importantly, Barrett did so without pretense. Because of her serious-mindedness and years as a teacher, she was able to explain her views with crystal clarity, simplicity, and a conversational tone that was both engaging and impregnable. She managed to distill complex legal concepts into extremely lucid language rather than hiding behind legal jargon or Latin phrases. She was friendly and civil even when forcefully pushing back against questions that attempted to portray her as a tool of President Trump, a racist, or a denier of science.
Barrett described the late Justice Antonin Scalia, for whom she clerked, as her mentor and said she shared his judicial philosophy. But she also made it plain that this didn’t mean she would always reach the same conclusions as he did.
She succinctly summarized his philosophy as: “A judge must apply the law as written, not as the judge wishes it were.”
Asked to give a plain-English description of the originalist approach that she shares with Scalia, she explained, “[It] means that I interpret the Constitution as a law, that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it.”
Two originalists using the same approach could end up reaching different outcomes if their interpretation of what the document meant at the time was different.
Democrats became frustrated by Barrett’s refusal to describe her legal views on issues that may come before the court. But she followed the practice of modern nominees, invoking the late Justice Ruth Bader Ginsburg’s line that she would give “no hints, no previews, no forecasts.”
For much of the time, however, Democrats tried to pin Barrett down on policy issues, giving long speeches about Obamacare, which they said she was put on the court to overturn. They cited her writings as an academic, in which she critiqued past decisions by Chief Justice John Roberts upholding Obamacare. She patiently explained why prior Obamacare cases were different than the one now before the court.
Sen. Kamala Harris played a game of gotcha by asking Barrett a series of uncontroversial questions, such as whether the coronavirus is infectious or whether smoking causes lung cancer, and then asking whether she believed climate change was a threat to the environment.
But Barrett exposed Harris’s superficiality. “You have asked me a series of questions that are completely uncontroversial,” Barrett explained, “trying to analogize that to elicit an opinion from me that is on a very contentious matter of public debate, and I will not do that. I will not express a view on a matter of public policy, especially one that is politically controversial.”
As Democrats kept trying to press her on these and other policy positions, Barrett rightly deflected them by saying that it is up to Congress, not judges, to debate policy and write laws.
“I can’t impose the law of Amy,” she stated plainly.
Barrett’s impressive performance should leave no room for doubt about her readiness for the job.
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we will now see all the city of love democrat operatives rounding up for days any and all votes they need to push Biden over the top
https://www.foxnews.com/politics/supreme-court-turns-away-pa-gop-effort-to-block-extended-period
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Missed in all the analysis I think, Democrats will pack all the federal courts, not just the Supreme Court. What did Nancy Pelosi say, 'all the arrows in the quiver'?
Trump brags of making 300 confirmed appointments. This is to District Courts, Circuit Courts, and the Supreme Courts.
Dumb to think Nancy and the gang will pack just the top Court. If they're going to take the political heat for the change, they're going to go for the whole thing.
Elections have consequences.
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https://scholarship.richmond.edu/law-faculty-publications/1470/#:~:text=Judge%20Bork%20suspected%20that%20the,the%20Ninth%20Amendment%20was%20inappropriate
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https://www.iwf.org/2020/10/29/fact-check-is-acb-a-threat-to-the-aca/
1. Congress removed the penalty so Roberts argument for calling the mandate a tax is gone.
2. Severability. See Barrett explanation of that in s separate post. The mandate now having no meaning makes it unlikely the Court takes down the entire law on that clause.
---------------------
https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=2330&context=law_faculty_scholarship
"... it is illegitimate for the Court to distort either the constitution or the statute to achieve what it deems a more desirable result."
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https://www.americanthinker.com/articles/2020/11/the_founders_outsmarted_the_presidential_election_fraudsters.html
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"If no right is "absolute," then a constitution, illegally drafted, and never consented to, by anyone other than the authors....even less."
Am I missing the humor or do we have a Libertarian with no respect for the constitution here?
Did they break British law when they drafted it? Was it not ratified?
"This principle mistake of this country is in thinking that the Constitution ever had any authority." - ?
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I'm glad you asked. No British law was broken. They broke American law...which mandated a 13-0 unanimous vote. When did that happen? That's politicians breaking AMERICAN law. 1787.
Rhode Island had declared nationhood.
Patrick Henry and others were adamantly against it.
It was the elite (those with coastal access to trade) attempting to set themselves up and they did.
Respect? Surely you jest.
By the way....every legal agreement you'll enter into, in your life requires a signed contract. Where's the contract you signed agreeing to this set of laws? In fact... Have you ever seen anyone sign a contract of the sort, expressing explicit consent, as happens with ANY other legal transaction?
The Constitution having authority? It pretends to protect rights through empowering itself by stripping individuals or their rights. Consent? Never granted by anyone other than the signatories.
Doug... Better yet... Since the Constitution is not the founding document of this country...nor even are the Articles of Confederation, as the Declaration of Independence was finished first..and war being declared before the Articles were even finished.... It is the defacto founding document of this country and not anything else.
The Declaration speaks to "just power" obtained by consent...
And those that do not consent? What is the option for opting out? If there is no option, there can be no consent. If there can be no consent, there is no just power.
"If no right is "absolute," then a constitution, illegally drafted, and never consented to, by anyone other than the authors....even less."
Am I missing the humor or do we have a Libertarian with no respect for the constitution here?
Did they break British law when they drafted it? Was it not ratified?
"This principle mistake of this country is in thinking that the Constitution ever had any authority." - ?
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T - Interesting stuff. I don't agree with your conclusion. I've studied a little contract law myself and I believe there are a number of ways of expressing consent. In my view, all 50 states have. Rhode Island consents now and is sending electors to Washington to participate in a constitutional process.
"By the way....every legal agreement you'll enter into, in your life requires a signed contract. "
- Simply not true.
I prefer the Declaration of Independence as well but don't see it as the governing document.
"And those of us who do not consent?" - Count me often in that group, a conservative in a liberal electorate. We have some protections against tyranny by the majority but perhaps not enough. Mostly we don't have enough recourse against politicians we elect who don't keep their word.
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https://www.washingtonpost.com/opinions/republicans-are-arguing-against-the-framers-original-intent/2020/11/19/0269875e-2aab-11eb-9b14-ad872157ebc9_story.html
The Framers did not know of the concept of "illegal immigrants "
but it is hard to think to me at least they would have approved of illegals being shipped in to increase apportionments for Congress
they are here illegally
would the founders have granted them political representation ?
I don't think Will's argument is by any means fool proof
George - go away.
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https://townhall.com/tipsheet/mattvespa/2020/11/26/barrett-factor-scotus-rules-nys-cuomo-illegally-targeted-churches-with-covid-lockdown-order-n2580719
I wonder with Justice Barrett now on the Court will Ch. Just. Roberts now become even more of a lib?
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Statistician in Texas Lawsuit Against Georgia, Michigan, Pennsylvania and Wisconsin Says Probability of Biden Winning Election Was One in a Quadrillion!
USC and former Harvard statistician determines that the possibility of Joe Biden winning the states of Georgia, Michigan, Pennsylvania and Wisconsin were basically statistically impossible. ........... In the brief submitted to the Supreme Court, Texas includes a declaration from Pacific Economics Group member and USC economics professor, Charles J. Cicchetti, Ph.D. Dr. Cicchetti is the former Deputy Director at the Energy and Environmental Policy Center at Harvard University’s John Kennedy School of Government and received his Ph.D. in economics from Rutgers University. According to Dr. Cicchetti, his calculations show the probability of Joe Biden winning...
https://www.thegatewaypundit.com/2020/12/statistician-texas-lawsuit-georgia-michigan-pennsylvania-wisconsin-says-probability-biden-winning-election-one-quadrillion/
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The odds of winning the Powerball jackpot are 1 in 292,201,338.
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https://www.justsecurity.org/73851/the-constitutionality-of-non-specific-pardons/?fbclid=IwAR1xvtJw5FAXt1-p-C-wEJO9AQqCZg3LNQ0WvDIFKnxVIrxHuupO2r-Bkko
https://www.justsecurity.org/73539/why-a-self-pardon-is-not-constitutional/
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Not sure what to make of this , , ,
https://patriotpost.us/alexander/76520?mailing_id=5516&utm_medium=email&utm_source=pp.email.5516&utm_campaign=alexander&utm_content=body
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https://en.wikipedia.org/wiki/Special_counsel
the Dems will not be duped into this like Jeff Sessions
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https://reason.com/2020/12/17/justin-amash-introduces-bill-to-end-civil-asset-forfeiture-nationwide/?fbclid=IwAR2DbyZnAiEuVPpeUWdOvi3kmwwUbqcORbrn67S14eiU58fnI7Vn51njEyY
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https://reason.com/2020/12/17/supreme-court-rules-tanzin-v-tanvir-federal-agents-can-be-sued-when-they-violate-your-rights/?fbclid=IwAR2uTjEJwXx3flpMmQm5oub0swwefQoA2pK_ks_YK6e65_P4UOntotuaxZI
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https://justthenews.com/government/courts-law/supreme-court-vacates-lower-court-rulings-related-trump-admin-apportionment
illegals are not "undocumented" - they are "illegal" and we know full well there are 20 million in the US
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https://www.congress.gov/bill/117th-congress/house-joint-resolution/14/text?q=%7B&fbclid=IwAR396DiJJfvf4B2whMjlHOYyBUhOHF724KJOx1DC1Bpayr9sVcYFNgJpqpw
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https://www.congress.gov/bill/117th-congress/house-joint-resolution/14/text?q=%7B&fbclid=IwAR396DiJJfvf4B2whMjlHOYyBUhOHF724KJOx1DC1Bpayr9sVcYFNgJpqpw
What say half the states that are smaller than average in population about giving up all political clout? How does this poll in South Dakota? One of 38 states needed for ratification.
It would be more efficient for them to introduce an amendment abolishing the entire constitution in one swoop, except maybe the abortion article.
Seriously, who you elect to your state legislature determines your future freedom. Get involved!
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I heard part of the capital hill show today
and on the Democrat side all I heard
was "rule of law"
"protect" or "threat to democracy"
at least one "gentlemen or gentlewoman"
mentioned threat or attack of electoral college
then at same time these charlatans
sanctimonious hypocrites liars are proposing to rid of electoral
college
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who interprets the Constitution alway in ways to benefit Democrat party
behind the impeachment and Senate trial of Trump - the latter AFTER he leaves office
he interprets this can be done so as if convicted Trump is not eligible to run again
funny how equally qualified colleague would politely disagree with the rabid partisan (scumbag ) Larry the Lib:
https://www.washingtonpost.com/opinions/2021/01/13/senate-impeachment-trial-constitutional-after-trump-leaves/
I am having tough time controlling my outrage so do apologize if I offend anyone with my color comments
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Judge Luttig lays out the case, you cannot conduct an impeachment conviction trial on a former President.
https://twitter.com/judgeluttig/status/1348669592420290561
.
A president cannot be impeached after he leaves office. Therefore, were the House of Representatives to impeach the President before he leaves office, the Senate of the United States could not thereafter convict the former President and disqualify him from future public office.
·
The former President would no longer be incumbent in the Office of the President at the time of the Senate proceeding and would therefore no longer be subject to "impeachment conviction" by the Senate, under the Constitution's Impeachment Clauses.
·
This is to say that the Senate's power under the Constitution is only to convict (or not) an incumbent president.
·
The very concept of constitutional impeachment presupposes the impeachment, conviction, and removal from office of a president who is, at the time of his impeachment, incumbent in the Office of President from which he is removed by the impeachment.
·
The text, structure, and evident purposes of the Constitution's several Impeachment Clauses, all, confirm this understanding.
·
For example, Article II, Section 4 of the Constitution reads, "The President, Vice President and all civil officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."
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Interesting point here:
https://www.dailysignal.com/2021/02/01/this-legal-hurdle-could-trip-up-bidens-cancellation-of-keystone-xl-pipeline/
"A recent Supreme Court case that may provide guidance is Department of Homeland Security v. Regents of the University of California. In a 5-4 decision last June, the justices ruled that the Trump administration violated the Administrative Procedure Act by doing away with an Obama administration policy called Deferred Action for Childhood Arrivals, or DACA.
The key similarity is the concept of “reliance interest,” GianCarlo Canaparo, a legal fellow with The Heritage Foundation, told The Daily Signal. The phrase is mentioned several times in the high court’s opinion in the DACA case.
President Barack Obama’s executive action, which allowed illegal immigrants brought to the United States as minors to stay legally under certain circumstances, created an expectation among people in the country. Thus, if the U.S. government wanted to scrap the DACA policy, it would have to go through an administrative procedure.
This created a “reliance interest” in the policy, the majority opinion by Chief Justice John Roberts said."
- The Keystone XL Pipeline is already under construction. Investors and workers and state governments have made commitments based on prior policies - in a way that might be compared with the US Supreme Court's "reliance interest" declared in their DACA opinion, which stopped Pres. Trump from reversing his predecessor's policy.
"Both policies, according to court precedent, “created rights” that require the government to go through a procedure to undo ... “The administration also did not provide a stated purpose for the decision. You could say it was to reduce carbon emissions. But the oil will still be transported by train or truck.
The majority opinion in the Supreme Court’s ruling noted that some DACA recipients had enrolled in degree programs, started careers, opened businesses, and bought homes. This crossed from being an emotional appeal to being a legal argument, because those persons took such actions in reliance on government policy.
Similarly, TC Energy issued at least six contracts and was set to employ 11,000 for the $8 billion construction of the pipeline to carry 830,000 barrels of crude oil per day from oil sands in Alberta to Steele City, Nebraska. From there, the pipeline would connect with another Keystone pipeline that runs south to the Gulf Coast.
The Supreme Court kept DACA in place, for the interim, while stating that the Department of Homeland Security has the authority to rescind the amnesty policy.
The high court didn’t rule on the legality of Obama’s policy, only that the Trump administration violated the Administrative Procedure Act in ending it. The justices also said Trump’s DHS was “arbitrary and capricious” for not providing a compelling reason for the policy change.
Congress passed the Administrative Procedure Act in 1946, after World War II, to recognize that the executive branch might have to take emergency action without congressional approval. Congress, however, wanted guidelines in place. ”"
- Good points there. Now we may see if the Court has consistency in their decisions or just twisted these legal principles to stop Trump at every turn. It could be the latter.
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https://fee.org/articles/landlords-are-struggling-to-make-ends-meet-as-cdc-extends-eviction-ban/
Landlords Are Struggling to Make Ends Meet as CDC Extends Eviction Ban
Any landlord who fails to comply with the CDC’s policy can be slapped with fines up to $200,000 and could face criminal prosecution.
Many constitutional attorneys have questioned why the CDC is making policy decisions in the residential real estate market, given that the Constitution does not authorize it to do so. Only Congress has the power to create and pass laws.
The Public Health Service Act does give the CDC the authority to take steps to curb the spread of the virus, but it only authorizes the agency to “provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated…and other measures.”
The CDC has extended that authority by claiming that allowing landlords to evict delinquent or destructive tenants will exacerbate the spread of the virus.
------------------------------
If the order is lodge in place, why aren't ALL people banned from moving, not just deadbeat tenants? Isn't that unequal treatment under the law. What do their finances have to do with disease spread. Other courts are open using virtual techniques - like everyone else.
The constitutional question gets covered up by state and local mandates of the same. But if we allow our agencies these unauthorized, unchecked powers ...
... what could possibly go wrong?
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https://pjmedia.com/news-and-politics/tyler-o-neil/2021/02/22/inexplicable-alito-and-thomas-dissent-as-supreme-court-strikes-down-pennsylvania-election-lawsuit-n1427260
https://www.supremecourt.gov/opinions/20pdf/20-542_2c83.pd
I cannot find the votes
Alito and Gorsuch and Thomas dissent
of course the libs , as always take the partisan position and apparently Roberts who could be the least bold Chief Justice in history agrees with libs
I think Barret recused herself
so now the Democrats are free to rig future elections
as they did ......
:-(
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Kavanaugh Barrett
also joined Dems
:roll:
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takes us for fools
astonishing how dumb his answers sound :
https://pjmedia.com/news-and-politics/matt-margolis/2021/02/23/ag-nominee-merrick-garland-dodges-questions-about-enforcing-immigration-law-n1427622
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Congress Sowed the Seeds of Jan. 6 in 1887
The Electoral Vote Count Act lets Congress think it can choose the President, but it’s unconstitutional.
By J. Michael Luttig and David B. Rivkin Jr.
March 18, 2021 12:59 pm ET
Congress plans to establish a commission to investigate the Jan. 6 storming of the Capitol. We already know one reason for that terrible event. Members of the mob acted in the mistaken belief, encouraged by President Trump, that lawmakers had the power to determine the election’s winner. Congress itself sowed the seeds of this belief when it passed the Electoral Vote Count Act of 1887 and could destroy it root and branch by repealing that law.
The EVCA grew out of another bitterly contested presidential election. In 1876 officials in Florida, Louisiana and South Carolina certified competing slates of electors, one for Republican Rutherford B. Hayes and one for Democrat Samuel J. Tilden ; a single electoral vote from Oregon was similarly contested. The 20 disputed votes were enough to decide the election. A congressional commission ultimately chose Hayes in a political deal. In exchange for the presidency, Republicans agreed to end Reconstruction and withdraw federal troops from the South.
The EVCA was enacted 10 years later, largely to limit Congress’s role in determining which electoral votes to accept. Yet Congress gave itself more authority than the Constitution allows, by establishing a labyrinthine process to resolve state electoral-vote challenges. The most constitutionally offensive provision gave Congress the absolute power to invalidate electoral votes as “irregularly given,” a process that a single representative and senator can trigger by filing an objection.
Fortunately, this provision has seldom been invoked—only twice before 2021—and no objection has ever been sustained. But this year Republican lawmakers vowed to contest the results in six swing states that Joe Biden carried. Although the objections had no prospect of success in a Democratic House and those that were filed (for Arizona and Pennsylvania) were voted down overwhelmingly in both chambers, the law put Congress smack in the middle, where it uncomfortably found itself in 1876.
That’s not what the Framers intended. The Constitution’s Electors Clause gives state legislatures plenary authority over the manner of choosing electors and relegates Congress to determining on what day the Electoral College would cast its votes. The 12th Amendment, ratified in 1804, reformed the Electoral College by providing for separate votes for president and vice president. It also reiterates the Article II, Section 1 language that the certified state electoral results are to be transmitted to Washington, opened by the president of the Senate, and counted in the presence of both congressional houses.
No constitutional provision empowers Congress to resolve disputes over the validity of a state’s electoral slate—or for that matter addresses who is to resolve these disputes. Significantly, the 12th Amendment gives Congress no power to enact legislation to enforce its provisions, unlike subsequent amendments expanding the franchise. The Necessary and Proper Clause doesn’t support such legislation either. The constitutional text contains further indications that the Framers chose to exclude Congress from participating in presidential elections. While Article I, Section 5 grants Congress the authority to judge the elections of its own members, no such power is given with regard to presidential elections. And Article II, Section 1 forbids members of Congress from being appointed as electors.
In fact, after much debate, the Framers deliberately chose to deny Congress any substantive role in selecting the president and vice president, except in the rare case that no candidate has an Electoral College majority. This was for compelling separation-of-powers reasons. As Gouverneur Morris explained at the time, “if the Executive be chosen by the [National] Legislature, he will not be independent [of] it; and if not independent, usurpation and tyranny on the part of the Legislature will be the consequence.”
Thus Congress’s prescribed role as audience during the process of opening and counting the electoral votes is ministerial. With electoral college votes coming from all of the states, the counting had to be performed by a federal government entity, and both the executive and judicial branches had potential conflicts of interest. That Congress has no constitutional “skin in the game” of presidential selection made it perfectly positioned for this role of official observer.
Who then does have the power to settle disputes over electoral slates, such as those in 1876 and 2020? Whether electors are validly chosen is a quintessentially legal determination, not a political one. When state legislatures select presidential electors, they exercise power vested in them by the U.S. Constitution, not by state law. As the power to say what federal law is rests with the federal judiciary, it is the federal courts that have the authority and the responsibility to resolve these disputes.
Congress should promptly repeal the Electoral Vote Counting Act. Given the tight constitutional timeline for casting and counting votes and inaugurating a president, lawmakers should enact a statute providing for expeditious federal judicial resolution of all questions relating to compliance with state legislatively established procedures for selecting presidential electors, the validity of elector selection, and the casting of electoral votes—and requiring eventual mandatory Supreme Court review.
By ridding the country of this unconstitutional and anachronistic law, lawmakers would remove themselves from the process for choosing the president and surrender back to the federal judiciary the role Congress unconstitutionally arrogated to itself almost a century and a half ago. That would go a long way toward ensuring that America never witnesses a siege on the National Capitol on a future Jan. 6.
Mr. Luttig served as a judge on the Fourth U.S. Circuit Court of Appeals, 1991-2006. He advised Vice President Mike Pence on the 2020 vote certification. Mr. Rivkin practices appellate and constitutional law in Washington. He served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.
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https://www.nationalreview.com/news/biden-to-create-commission-to-study-packing-the-supreme-court/?utm_source=email&utm_medium=breaking&utm_campaign=newstrack&utm_term=23481882
https://en.wikipedia.org/wiki/The_switch_in_time_that_saved_nine
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no shortage of liberal Jewish democrat lawyers to serve on this "bipartisan" panel
I am sure Larry Lib will be selected for his expertise:
https://www.breitbart.com/clips/2021/04/08/buttigieg-eldercare-is-infrastructure-that-makes-americans-thrive/
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may I add the obvious
the conclusion of the panel is already etched in stone or a foregone conclusion
it is not if Dems should pack the Court it is really all to determine how to package to sell (scam ) the public into agreeing
it is needed to
save "democracy".
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from the fire hydrant thread
"The Supreme Court felt FDR’s heat and changed its jurisprudence. As progressives browbeat conservative justices and gradually filled vacancies with liberals, the Court abandoned its defense of the Constitution’s limits on federal government power, laying the groundwork for the imperial presidency, a Congress that concedes no boundaries, and the administrative state.
Do the Democrats really have their eyes on four Supreme Court seats? Yeah, I suppose they do. You can call those seats Roberts, Gorsuch, Kavanaugh, and Barrett."
They have already succeeded in intimidating Roberts
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unhappy with conservative justices:
https://www.rawstory.com/sonia-soto/
"stare decisis"
the leftist lawyers panicking over abortion etc
all rings hollow
giving the MSM another reason to overtake headlines with some trumped up outrage at the make up of the Supreme Court is "out of control" is "rogue" etc etc
we will see armies of Democrat lawyers on the MSM stations telling us all why the Court must be packed
flaming partisan Sonia is IN ON IT the pre planned script
watch Cooper and Cuomo and Wallace and and all their "legal analysts " start using this as a pretext to brainwash the viewers with this to justify Court packing
the game is played the same way over and over again
while W paints and gives lectures about being sweet and nice and humble an love thy immigrants
he really sounds like the biggest schmuck I have ever seen
wonder why conservatives have kept getting wiped up in the political octagon . :roll:
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https://www.foxnews.com/politics/supreme-court-hot-button-rulings-amid-retirement-talk
hang on till 2025 please :-D :wink:
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https://pjmedia.com/news-and-politics/matt-margolis/2021/06/01/is-the-supreme-court-sending-the-democrats-a-message-about-court-packing-n1451203
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https://www.theepochtimes.com/mkt_morningbrief/biden-and-harris-flout-constitutional-immigration-duties_3843852.html?utm_source=Morningbrief&utm_medium=email&utm_campaign=mb-2021-06-05&mktids=7fed606d021d3f8d1c8724cf617eba3c&est=YfF1XE%2Fb1y7FRGv19OUmsgVFJYiy7ksCDL7CPV3KF2S5oEc16D5Uhm%2FIHcB%2Bp%2BnU%2BCvX
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https://www.breitbart.com/politics/2021/06/07/scotus-unanimously-rules-against-illegal-aliens-seeking-permanently-stay-u-s/
:-o :-o
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Hang in there Justice Breyer. These people don't care about you.
https://www.theatlantic.com/ideas/archive/2021/06/stephen-breyer-legacy-retirement/619168/
Every Democrat right now seems to know the Democrats are about to lose power. Maybe instead of bitch, moan and whine, they should govern better. .
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A lot of people stood behind Brett Kavanaugh when he was under attack. All we ask in return is that he judge using the same constitution the Founders ratified with all its amendments. But no. He's using the make-it-up-as-you-go one.
https://www.powerlineblog.com/archives/2021/06/another-botched-republican-supreme-court-nomination.php
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He is a feminist Bushie.
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Big day in the Constitutional Law business. My last plea to Justice Breyer. The greatest liberal Justice ever isn't a quitter. Hang in there buddy!
Monte Python predicted it:
https://www.youtube.com/watch?v=Jdf5EXo6I68
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CNN Opinion is a contrary indicator of what really happened.
https://www.cnn.com/2021/07/01/opinions/arizona-voter-access-supreme-court-blow-douglas/index.html
------------
Your right is to participate in the election as reasonably defined by your state legislature.
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"CNN opinion"
what is the legal opinion of one of the world's most famous masturbator?
anyone see him on night time cable?
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"Professor". (quotes on purpose) Larry lib democrat party partisan biased poor analyst :
https://twitter.com/ac360/status/1412939401802436608
And Professor Dershowitz who works hard at keeping objectivity :
https://www.youtube.com/watch?v=ZrlScbbNYVY
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As liberals lick their wounds from the recent Supreme Court term, a small but noisy band on the right has launched a dissent against the conservative legal movement that produced the court’s majority. They want a new jurisprudence of “moral substance” that elevates conservative results over legalistic or procedural questions such as individual rights, limited government and separation of powers. Some advocates call this idea “common good originalism,” but it isn’t originalism. It’s no different from the raw-power judicial activism conservatives have railed against for decades as unaccountable, unwise and dangerous.
The “common good” pitch arrived nearly full-born in a 2020 essay by Harvard law professor Adrian Vermeule. A brilliant eccentric, Mr. Vermeule is best known for his advocacy of unchecked presidential and administrative supremacy and for the incorporation of Catholicism into civil law, which he calls integralism and critics call theocracy.
Mr. Vermeule is skeptical of law, restraints on government and the Enlightenment generally. He describes originalism as “an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation.” To that end, he would give less emphasis to “particular written instruments” like the Constitution and more to “moral principles that conduce to the common good.” A web link to Thomas Aquinas ’ “Summa Theologica” suggests what he has in mind.
A handful of populist conservatives— Hadley Arkes, Josh Hammer, Matthew Peterson and Garrett Snedeker —took up the “common good” banner in an essay published in March. Frustrated that conservatives can’t seem to win the culture war no matter how many judges they appoint, they fault the conservative justices’ legal formalism as morally denuded and counterproductive to conservative ends. But they part with Mr. Vermeule by avoiding sectarianism in favor of vague references to “moral truth” and in branding their enterprise as a variant of originalism, one centered on the Constitution’s preamble and its reference to “the general welfare.”
That phrase, according to the essay, opens the door to a “truly conservative jurisprudence,” one in which a judge’s duty is “to test the underlying moral justification for why a law exists” and render judgment “on whether the statutes or the executive orders in question can finally be judged as justified or unjustified, defensible or wrongful.”
As with liberal talk about the “living Constitution,” the high-minded rhetoric conceals an assertion of unbridled power. Liberals, the quartet justly complain, rack up victories because they are unabashed about enforcing their own moral purposes. That’s “a form of tyranny,” to which they urge conservatives to respond in kind by remaining cognizant of results and not splitting hairs (and votes) over arcane matters of legal interpretation.
That is a far cry from originalism, the interpretive philosophy Justice Antonin Scalia championed. Scalia looked to the plain meaning of the words in the Constitution at the time they were enacted. He also championed textualism, which applies the same approach to statutory interpretation. The common gooders, by contrast, would put a thumb on the scale (or, when necessary, a brick) to reach what they believe are conservative ends. They say that anything less is “morally neutered.”
But originalism and textualism defer to the morality wrought in the law by those who enacted it. The duty of a judge in a system of self-government is to exercise “neither Force nor Will, but merely judgment,” Alexander Hamilton wrote in Federalist No. 78. Or as Scalia put it in his dissent from Planned Parenthood v. Casey (1992), “Value judgments . . . should be voted on, not dictated.”
The Constitution doesn’t codify the common good, let alone appoint judges as its inquisitors. The Framers, as students of history, understood that mankind is fallible and that a government powerful enough to prescribe moral truth could achieve only tyranny. Rather than put their faith in the beneficence of statesmen, they established a structure that pits faction against faction to “secure the blessings of liberty,” as the preamble puts it. James Madison thought self-government “presupposes” public virtue, which can’t be dictated, only sown in the soil of freedom.
As in theory, so too in practice. Moral truth isn’t the output of any government program or court decision. It is cultivated by families, communities and civil society. It has long been the progressive tendency to seek a governmental mandate for the perfection of man and the conservative tendency to resist. The court decisions that social conservatives bemoan—from Roe v. Wade on down—can’t be criticized for failing to take a position on moral truth, only for imposing a progressive vision by judicial fiat. A jurisprudence of restraint, one that recognizes the proper limits of government, preserves the space necessary to practice moral values—ask the Little Sisters of the Poor or Catholic Social Services of Philadelphia.
There is no contradiction between the conservative legal movement’s pursuit of limited government and the common-gooders’ substantive ends. Genuine limits on government power protect the dignity and worth of the human person. The court’s history proves the point. When it has traded away constitutional command for popular notions of the common good, the result has been moral tragedy. Buck v. Bell (1927) approved compulsory sterilization of the “manifestly unfit” as a “benefit . . . to society.” Kelo v. New London (2005) regarded government’s taking homes from families for the benefit of a private corporation as “the achievement of a public good.” Yet the common-good quartet deride “the pursuit of limited government” as amoral, a hobbyhorse of the “individual liberty-obsessed.”
One might excuse these objections if a results-oriented jurisprudence promised some practical benefit, but it doesn’t. The success of the conservative legal movement is evident in the five Supreme Court justices, and scores of lower-court judges, who have described themselves as originalists. No jurist to date has claimed the “common good” mantle.
And originalism delivers results. In the past several months, self-consciously originalist decisions have fortified property rights, limited unaccountable bureaucracy, strengthened protections for freedom of association, recognized young adults’ Second Amendment rights, and expanded the freedom of religious practice. What is to be gained from abandoning originalism now, at the apex (at least to date) of its influence?
The critics’ main answer is to assail the court’s decision in Bostock v. Clayton County (2020), which interpreted the Civil Rights Act of 1964 to permit employment-discrimination claims based on sexual orientation or transgender status. Yet the Bostock dissenters, led by Justice Samuel Alito, faulted Justice Neil Gorsuch’s decision not for its embrace of textualism but for doing textualism badly. As Ed Whelan of the Ethics & Public Policy Center observed: “A bungling carpenter should not lead you to condemn the craft of carpentry.”
The high court in recent years has moved away from approaches that often sacrificed the principles of limited government to popular fashion or expert opinion. Fostering division among conservatives threatens that project at a time of special peril, as progressives march through the institutions of power. The chief obstacles to the left’s ambitions are the Constitution and a judiciary that withstands the pressure to read the enthusiasms of the elite into the law. If conservatives seeking easy victories succumb to the allure of facile judicial activism, those barriers will be breached.
For his part, Mr. Vermeule takes inspiration from an 1892 encyclical in which Pope Leo XIII “urged French Catholics to rally to the Third French Republic in order to transform it from within.” He imagines American Catholics will eventually co-opt “executive-type bureaucracies” to effect a “restoration of Christendom.” Such a ralliement seems far less likely in the U.S. than in France, but it failed there too.
Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.
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to not use the term "alien"
Are they part of the excutive branch or the judiciary?
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to not use the term "alien"
Are they part of the excutive branch or the judiciary?
https://www.law.cornell.edu/uscode/text/8/1101
(3)The term “alien” means any person not a citizen or national of the United States.
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“If the Constitution is to be changed from age to age merely by interpretation, why does it contain within itself a rather elaborate process for formal amendment?”
- M. Stanton Evans
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https://constitutioncenter.org/interactive-constitution/interpretation/amendment-ix/interps/131
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A Doctrine of Unlimited Power
The defense of Biden’s eviction ban should have the Justices on red alert.
By The Editorial Board
Aug. 24, 2021 7:02 pm ET
President Biden’s rental eviction ban has reached the Supreme Court a second time, and the Administration’s defense of its action is an alarm bell for the Justices about executive overreach.
In a brief filed Monday, the Administration argues that the law “by its plain terms grants the government broad authority” to take any measures that “in [its] judgment” are “necessary” to prevent contagion. It assumes as a given that the government could confine non-infectious people in their homes.
“It would be strange to hold that the government may combat infection by prohibiting the tenant from leaving his home, but not by prohibiting the landlord from throwing him out,” the brief says. Try to find the limiting principle in that view of the powers of the Centers for Disease Control and Prevention.
In defending its restrictions on cruise ships, the government had previously argued it could “shut down transportation in general” and entire industries. “Their legal authority goes all the way to getting transmission to zero,” a CDC attorney said. “Just because that’s not factually an option doesn’t mean that they don’t have the legal authority to try.” Wow.
A federal judge in Florida in June enjoined the CDC’s cruise-ship rules, joking (in part) that the government’s expansive interpretation of its public health powers could allow it to “generally shut down sexual intercourse in the United States.” Such an interpretation would run afoul of the non-delegation doctrine, the judge explained.
That's the doctrine that Congress can’t hand its legislative powers to an administrative agency without articulating an “intelligible principle.” The Sixth Circuit Court of Appeals also ruled last month that the Administration’s interpretation of its powers could raise a “nondelegation problem” because it would “grant the CDC director near-dictatorial power” during the pandemic.
Americans may be horrified by stories of Australians arrested for leaving their homes and the government shooting dogs over Covid-19 fears. But the CDC could do the same under the Biden Administration’s interpretation of its powers.
Chief Justice John Roberts and Justices Neil Gorsuch and Clarence Thomas raised the problem of Congress delegating limitless power to executive agencies in a Gundy v. U.S (2019) dissent. Justice Brett Kavanaugh didn’t take part in that case, but he has also signaled a need to revisit non-delegation precedents.
“If laws could be simply declared by a single person,” the Gundy dissenters wrote, “[l]egislators might seek to take credit for addressing a pressing social problem by sending it to the executive for resolution, while at the same time blaming the executive for the problems that attend whatever measures he chooses to pursue.”
That sounds prescient as Democrats in Congress take credit for stopping evictions while Republicans flay the Administration for harming landlords. Justices need to make clear that Congress can’t hand off its legislative power to the CDC to act as a dictator.
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https://townhall.com/tipsheet/rebeccadowns/2021/08/26/us-supreme-court-puts-an-end-to-bidens-unconstitutional-eviction-moratorium-n2594837
https://www.cnn.com/2021/08/26/politics/supreme-court-eviction-moratorium/index.html
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https://www.jewishworldreview.com/1021/hammer100121.php
Jurisprude Sotomayor speaks.
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Moreover, at the founding it might have been reasonable to
assume that legislators might deliberate about the constitutional
scope of their powers—as the first Congress did when debating a
national bank—a deliberation of which judges might well be
respectful. Today, however, if legislators pay any attention to the
Constitution at all—and they typically pay none—they merely
debate whether or not the courts will uphold their acts. When
courts, in turn, are deferring to legislatures about the scope of
their own powers, while legislatures are deferring to the court’s
willingness to uphold their laws, we have what I call the problem
of “double deference,” where no one is assuring that legislatures
are remaining within their just powers (pp. 128-129).
When devising implementing doctrine, courts should be
mindful of this reality. I propose that, to protect the rights
retained by the people, judges should require legislatures to
articulate the proper end they seek to accomplish—a seemingly
reasonable demand—and then examine the fit between the means
adopted and the stated end. And simply helping out a favored
interest group at the expense of either a minority of the people or
the people as a whole is not a proper end of a legislature in a
republic in which the people themselves retain their natural rights.
By the same token, where different persons are being treated
differentially, courts should ask how this differential treatment of
individuals or groups is justified. What judges should not do, I
maintain, is adopt highly unrealistic and formalist “presumptions”
in favor of legislative power that cannot be rebutted by any
argument or evidence presented by a member of the sovereign
people to an independent and neutral magistrate.
In this way, irrationality and arbitrariness review provides an
outer boundary or guard rails within which legislatures are
entirely free to regulate the exercise of natural rights or liberty in
good faith for the common good.
Such an outer boundary of good faith would seem to fall within the
qualifiers that Campbell attaches to the discretion he says legislatures
were thought to have at the founding: It is not “rigid,” it does not
“necessarily” lead to “less government,” and it “principally” relies on
reinforcing the structure of our Republican Constitution.
=========
Barnett responds to now Justice ACB:
AMY CONEY BARRETT
Like Jack Balkin, Amy Coney Barrett is entirely right that I
am not making an originalist case for the Republican versus the
Democratic constitutions.50 Perhaps an originalist case can be
made that the public meaning of “We the People” was
49. See Randy E. Barnett, Afterword: The Libertarian Middle Way, 16 CHAP. L. REV.
349, 358 (2013) (“ecause proponents of social justice and legal moralism typically
propose superimposing their schemes onto existing structures of private property and
freedom of contract, rather than supplanting them altogether, these stances are necessarily
more ambitious than simply limiting legal coercion to the libertarian core that must still be
ascertained and enforced.”).
50. See Amy Coney Barrett, Countering the Majoritarian Difficulty, 32 CONST.
COMM. 61, 66 (2016) (“The book is less about what the Constitution’s original public
meaning requires than about what is normatively attractive.”).
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224 CONSTITUTIONAL COMMENTARY [Vol. 32:207
individualist, but Jud Campbell’s article shows how challenging it
would be to establish this. There is one sense, however, in which
originalism does figure into my analysis: The “republican”
conception of the Constitution I identify explains and justifies
certain features of our written Constitution that Levinson and
others have condemned as “undemocratic.”
Put another way, if the original meaning of the text of the
Constitution is undemocratic, the narrative I present helps bolster
the case for adhering to these features rather than treating them
like inkblots. It may well be that the very features of our
Constitution that lead American law professors like Levinson to
prefer Euro-style parliamentary systems—and recommend them
to other countries—is what makes the original meaning of our
Constitution “republican” and therefore good, rather than
“undemocratic” and therefore bad.
Barrett begins by focusing on my claim that courts need to
“realistically assess whether restrictions on liberty were truly
calculated to protect the health and safety of the general public,
rather than being the product of ‘other motives’ beyond the just
powers of a republican legislature.”51 This is necessary, I wrote,
because “[r]equiring the government to identify its true purpose
and then show that the means chosen are actually well suited to
advance that purpose helps to smoke out illicit motives that the
government is never presumed by a sovereign people to have
authorized.”52
To this she responds with a series of questions:
Barnett’s emphasis on the importance of recovering the
legislature’s true purpose understates the complexity of
identifying legislative intent. It is extraordinarily difficult [. . . ]
for a court to glean what was “really” going on behind the
scenes of a statute. A legislature is a multimember body, and
different members may have different motives. Perhaps some
legislators enacting a ban on filled milk were concerned about
its health effects and others were beholden to a powerful dairy
lobby. Whose intent controls? Is such a statute truly calculated
to promote health and safety or is it the kind of rent-seeking
statute that rational individual sovereigns would not
countenance? Do the rent-seeking motives of some legislators
51. BARNETT, p. 125 (her emphasis) (praising the late-18th and early 19th-century
courts that took this approach).
52. P. 232 (my emphases).
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corrupt the statute if other legislators act with the public
welfare in view?53
Given how I expressed myself in the book, this is a point well
taken. Despite my assertion that courts should identify the “true
purpose” of a measure, I do not propose an inquiry into the
subjective motives of a multimember body like the legislature.
What I meant—and wish I had stated more precisely—is that
courts should be cognizant that legislators and regulators
sometimes, and even often, impose restrictions on the liberties of
some of the people for reasons other than the protection of the
health and safety of the public, or some other power they justly
exercise.
Instead, elected legislatures and unelected regulators alike
sometimes invoke the health and safety of the public as a pretext
for channeling special benefits and privileges to a politically well
connected few. As Barrett notes, in the book, I give several
examples. Indeed, most of the most famous constitutional cases
about economic regulation involve measures enacted for such
illicit reasons.
What I propose is that when restrictions on the liberties of
We the People are challenged, courts should be realistic rather
than formalist about the possibility that such laws were enacted
for what Justice Rufus Peckham described as “other motives.”54
But this is a conclusion he reached not by inquiring directly into
the motives of New York state legislators, but after realistically
assessing and debunking the purported health and safely rationale
for a maximum hours laws just for bakeshop employees—but
neither the bake shop employers who worked in the same
conditions nor employees in other occupations with comparable
working conditions.
So, rather than inquire into the subjective motives of
legislators, courts should require that legislatures commit
themselves to a proper end they claim to be achieving, and then
assess whether the means chosen to meet that end were
“irrational” or “arbitrary.” Although courts do not do so now, it
is not too much to ask legislatures to include the purpose for their
measures in the enactment itself, rather than rely on lawyers to
53. Barrett, supra note 50, at 70 (footnotes omitted).
54. Lochner v. New York, 198 U.S. 45, 64 (1905).
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226 CONSTITUTIONAL COMMENTARY [Vol. 32:207
make up the purposes after the fact in litigation, as courts
currently permit.
Then, courts should examine whether the means chosen
bears a sufficient relation to the stated end. This is an inquiry that
courts make routinely in cases involving judicially-favored
“fundamental rights” or “suspect classes” of persons.55 Again, in
the book, I provide examples of this inquiry in practice, including
the lower court opinion in Lee Optical v.Williamson. And I
contrast this with the Court’s uncritical deference to legislative
assertions of public purpose in Bradwell v. Illinois56 and Plessy v.
Ferguson.57
The search for sufficient means-ends fit is simply too
common a judicial inquiry to be dismissed as impractical for some
liberties and but not for others. The reason for disparate
treatment of different liberties is due to a judicial determination
that some liberties are more worthy of judicial protection than
others. Those who, like Barrett, question placing one’s “faith in
courts” need to explain why judges get to choose some rights as
“fundamental” and some classifications as “suspect” but not
others.
Denying a judicial duty to hold legislatures to within their just
powers in all cases or in no cases would eliminate the reliance on
judicial discretion to identify which rights and liberties deserve
protection. But putting one’s “faith in judges” to choose
meaningful scrutiny in some cases, and fictitious “rational basis”
scrutiny in others, is inconsistent with a professed skepticism of
the “institutional capacity” of judges. I do not see how you can
have it both ways.
Barrett characterizes “the normal functioning of the
legislative process” this way:
The legislature is not an idealized body that acts with one mind,
but a multimember body that produces legislation through a
complex and even chaotic process. Any bill that runs the gamut
of this process represents compromises made along the way,
sometimes to resolve the competing desires of different
55. See Randy E. Barnett, Scrutiny Land, 106 MICH. L. REV. 1479 (2008).
56. 83 U.S. (16 Wall.) 130 (1872).
57. 163 U.S. 537 (1896).
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constituencies and sometimes because the legislature has
drawn a line somewhere.58
But “resolving the competing desires of different
constituencies” is not, standing alone, a proper legislative purpose
in a constitutional republic in which the liberties of each and every
person merits protection. To this description of the “complex and
even chaotic process,” Barrett might have added that bills are
very often written by industry representatives for staffers, and
then are logrolled past legislators who typically know nothing of
their contents.
Without transparency, how are we supposed to know
whether these “compromises” among the “competing desires of
different constituencies” are proper or improper? In a
constitutional republic in which We the People are the ultimate
sovereign, the persons who are on the coercive end of such
“compromises” have a right to know. And the due process of law
requires them to have the opportunity to contest the necessity and
propriety of such compromises before a neutral magistrate.
Nor are legislators realistically “accountable” for most of
what they do. No legislator has ever been defeated because they
voted for a licensing bill that irrationally or arbitrarily restricted
the liberty of Americans to braid hair, arrange flowers or
furniture, make caskets, or drive a limo. And this is not because
such restrictions have been approved by the general public. It is
because the electorate is ignorant of these acts, has insufficient
interest in them to care, and is only allowed to choose between
two competing parties, each of whom favors an amalgam of
policies, only a handful of which are particularly salient (pp. 176-
178).59
In light of this, to imagine that these liberties are somehow
“balanced” in the legislative process by legislators who are held
to account by the voters is to engage in magical thinking. The only
time where legislators do consider the constitutionality of their
actions is when restricting a right such as the freedom of speech
that the courts will protect. Only when legislators know that
individual citizens may challenge their actions in court and judges
58. Barrett, supra note 50, at 73.
59. See also ILYA SOMIN, DEMOCRACY AND POLITICAL IGNORANCE: WHY
SMALLER GOVERNMENT IS SMARTER (2013).
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228 CONSTITUTIONAL COMMENTARY [Vol. 32:207
will be looking over their shoulders do they even discuss the
question of a measure’s constitutionality.
In every other area, legislators employ the artifice of “double
deference”: Courts will defer to the legislature’s assertion of
power and then, when asked if what they do is constitutional,
legislators say “yes, because the courts will uphold us” (pp. 128-
29). This is as big a fraud on the public as anything that economic
regulation is supposed to prevent.
Barrett asks a very good question: “Would Prigg, Dred Scott,
and Plessy have come out differently if courts had only applied
the standard Barnett proposes? Was it really a misguided
attachment to judicial restraint that drove those cases, or did the
Court see through the same discriminatory lens as the
legislature?”60 To answer this, consider three cases.
The first is the Slaughter-House Cases61 where there was an
extensive record in the Louisiana legislature that the slaughterhouse bill was a good faith public health measure.62 The only constitutional issue was whether a monopoly given to a private
company was an appropriate means of pursuing a legitimate
legislative purpose. But after the Supreme Court’s ruling refusing
to recognize the right to pursue a lawful occupation as protected
from state abridgement by the Fourteenth Amendment, the
entire legislative record was constitutionally irrelevant. Although
the majority in Slaughter-House cited this record, the law would
have been equally constitutional without a single witness being
sworn.
You need not take my word for this. The proof is that the
very next day, in Bradwell v. Illinois, 63 the Court relied on its
ruling in Slaughter-House to turn away Myra Bradwell’s claim
that denying her the right to practice law was arbitrary or
irrational. And the Court did so without any examination into the
irrationality or arbitrariness of this restriction. True, three of the
dissenters in Slaughter-House concurred in the judgment.64 So
Barrett is correct to suggest that, for these three justices, the
60. Barrett, supra note 50, at 79 (footnotes omitted).
61. 83 U.S. 36, 124 (1872).
62. See Randy E. Barnett, The Three Narratives of Slaughter-House, 41 J. SUP. CT.
HIST. 295 (2016).
63. 83 U.S. (16 Wall.) 130 (1872).
64. Id. at 139 (Bradley, J. concurring).
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outcome would have been the same under the standard that I
propose.
But, unlike Justice Miller, Justice Bradley was forced to
explain why Myra’s exclusion was not arbitrary, and the reasons
he articulated provided women’s rights advocates with a rallying
cry. In contrast, according to the majority’s approach, a court
need not even inquire into the basis of the law. So, while the case
would likely have come out the same under either approach, with
mine, Myra Bradwell had a chance of success. And, even if she
lost, the court’s reasoning could have been criticized and used as
a basis for change in the future.
Furthermore, in Bradwell, Chief Justice Chase dissented not
only from Miller’s majority opinion but “from all the opinions” in
the case,65 including Justice Bradley’s. Even in 1873, when
opinions of women were highly sexist, the Chief Justice would
have upheld Myra Bradwell’s challenge as an irrational or
arbitrary restriction on her right to pursue a lawful occupation.
So, under the standard I propose, one justice would have reached
a different result.
In Plessy, the Court asserted that: “[W]e cannot say that a
law which authorizes or even requires the separation of the two
races in public conveyances is unreasonable.”66 Most likely, like
the majority in Bradwell, they would have upheld segregation
regardless of what record was developed below. But relying on
Slaughter-House, the Court needed no such record to reach its
conclusion. Consequently, the Court did not even have to
consider whether the state’s claim to be preserving the public
order was plausible. How convenient for them. The judicial
restraint of the Democratic Constitution took them completely
out of the picture.
As with Chief Justice Chase’s dissent in Bradwell, in Plessy,
the more realistic assessment of this exercise of the police power
justified a solo dissent by Justice Harlan. So here too, the different
standard made a difference; the difference between a unanimous
decision and one accompanied by a contemporaneous dissenting
opinion to explain to the public and posterity why the majority
was wrong.
65. Id. at 142 (Chase, C.J., dissenting).
66. 163 U.S. 537, 550–51 (1896).
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230 CONSTITUTIONAL COMMENTARY [Vol. 32:207
The fact that such a law would get scrutiny today shows that
courts are quite capable of supplying it. So, where there is the will
to ensure that the liberty of We the People is not irrationally or
arbitrarily restricted, there is a way—provided that courts
appreciate their essential role as servants of the sovereign people,
including individual citizens like Myra Bradwell and Homer
Plessy.
Finally, like other authors, Barrett mentions my
“presumption of liberty”: Under “Barnett’s Republican
Constitution . . . [r]ather than treating legislation as presumptively
constitutional, they must treat the citizen’s challenge as
presumptively correct.”67 As she acknowledges, however, in this
book, I say very little about putting the thumb on the scale for the
citizen against the state: just two paragraphs. Indeed, after a long
discussion of the lower court opinion in Lee Optical, I note that
“who bears the formal burden of proof may be less important for
preserving the sovereignty of the people than that courts
realistically assess the rationality and arbitrariness, even if the
legislature is given the benefit of the doubt” (p. 243).
Given the professed sympathy of modern law professors for
so-called “legal realism,” ironically, in my book I am merely
advocating realism over formalism. I am skeptical that the legal
realists were really all that interested in realism. In the end, as
soon as they had the votes, they replaced realist “Brandeis briefs”
with a formal presumption of constitutionality, which eventually
was deemed to be irrebuttable, and therefore ceased to be a true
“presumption.”
In my jaundiced opinion, assertions of “realism” and
“restraint” were merely useful arguments to advance the
progressive political agenda of the Legal Realists. Likewise,
today’s progressives are interested in “judicial restraint” and
deference to the majoritarian branches only when the laws they
like are being challenged as unconstitutional.
Like others, Barrett refers to my approach as “libertarian,”68
yet all I am asking for is realism. If such realism cuts in a
“libertarian” direction, then that is more a reflection on
67. Barrett, supra note 50, at 62.
68. Barrett, supra note 50, at 76 (referring to “Barnett’s generally libertarian
approach”).
9 - BARNETT_DRAFT 1.DOCX (DO NOT DELETE) 1/3/17 9:11 AM
2017] A REPLY TO SIX CRITICISMS 231
c
legislatures and what they are “really” up to most of the time than
it is on my priors.
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https://www.theepochtimes.com/mkt_morningbrief/understanding-the-constitution-constitutional-amendments-work_4027117.html?utm_source=Morningbrief&utm_medium=email&utm_campaign=mb-2021-10-02&mktids=ad8a987bc58d9820d2f086e17273c3b0&est=svRTCM7Ne3u2%2BU44IlUcEAwWYxzVmpPI3PvoJNyJqs8TbA%2FbrxJqn9c9Dpw5K7KDMGnW
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we do need an amendment that people coming here illegally
or on vacation should not be able go to our hospitals give birth to an automatic citizen
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we do need an amendment that people coming here illegally
or on vacation should not be able go to our hospitals give birth to an automatic citizen
The 14th amendment gave black slaves born here, who have no citizenship anywhere else in the world, full citizenship.
As the article states, one purpose of an amendment is to clarify wrong interpretations. Ending birthright citizenship for tourists, visitors and illegal aliens is a perfect cause for a new amendment.
Here's the catch. Based on this 2015 Gallup list, The 38th most conservative state is Illinois. If you want a new conservative leaning amendment to pass in 3/4th of the state legislatures, it has to pass in IL. A liberal favored amendment would have to pass in South Dakota to be ratified. Steep hill to climb either way.
https://news.gallup.com/poll/181505/mississippi-alabama-louisiana-conservative-states.aspx
Perhaps the amendment fight can be a tactic. Make swing states deal with the constitutional issues of the day. The federal government shall provide border enforcement and may not ban states from joining in that effort. Maybe ending birthright wrongful citizenship falls in this category. Put a limit on the size and scope of federal government. Take popular fights to the state legislatures. Call the question. Make Dem representatives in swing districts vote against sovereignty and freedom. Target 'em and boot 'em, and try again. Fight the long war.
Even if critics say voting and politicking don't matter.
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She lamants . (the point being - she does not let law stop her from dissenting every chance she gets in a liberal DNC partisan way)
And in a speech on Wednesday liberal Justice Sonia Sotomayor said that “There is going to be a lot of disappointment in the law, a huge amount.”
“Look at me, look at my dissents,” she said.
“You know, I can’t change Texas’ law,” she said on Wednesday, “but you can and everyone else who may or may not like it can go out there and be lobbying forces in changing laws that you don’t like.”
“I am pointing out to that when I shouldn’t because they tell me I shouldn’t,” she said. “But my point is that there are going to be a lot of things you don’t like” and that she believes the people can change.
Justice Sotomayor penned her own dissent of the Supreme Court’s decision on the Texas law.
“The Court’s order is stunning,” she said. “Presented with an application to join a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of the Justices have opted to bury their heads in the sand.”
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It fairness it must be acknowledged that per current C'l law, the Texas law clearly violates Roe.
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https://www.law.cornell.edu/supremecourt/text/11-182
Note Scalia's dissent and McCarthy's critique from 2012
https://www.nationalreview.com/2012/07/sovereignty-preempted-andrew-c-mccarthy/
McCarthy in 2011
https://www.nationalreview.com/2011/05/winning-case-losing-principle-andrew-c-mccarthy/
More recently and on point see McCarthy
https://www.nationalreview.com/2021/09/bidens-immigration-treachery-threatens-the-nation-not-just-national-security/?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Monday%20through%20Friday%202021-09-29&utm_term=NRDaily-Smart
And from August also see:
https://www.nationalreview.com/2021/08/why-the-border-crisis-is-here-to-stay/
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https://www.fiercehealthcare.com/hospitals/how-many-employees-have-hospitals-lost-to-vaccine-mandates-numbers-so-far
the abortion issue will accelerate this.
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https://www.fiercehealthcare.com/hospitals/how-many-employees-have-hospitals-lost-to-vaccine-mandates-numbers-so-far
the abortion issue will accelerate this.
Is that the link you intended?
Of course, the left is preparing to push for additional justices to ensure the left dominates SCOTUS forever.
You aren't voting your way out of this.
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https://www.studyfinds.org/abolishing-limiting-supreme-court/
hat tip to GM
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https://amgreatness.com/2021/10/17/which-united-states-constitution/
FIRST PRINCIPLES
Which United States Constitution?
The choice between the Madisonian Constitution or the Wilsonian “living constitution” is stark and pressing indeed.
By Phillip Keuhlen
October 17, 2021
Fifty years ago my United States Naval Academy Class accepted its individual commissions. Each officer swore an oath of indefinite duration to support and defend the Constitution of the United States against all enemies, foreign and domestic; to bear true faith and allegiance to the same; and to well and faithfully discharge the duties of the office on which they entered. It is an interesting formulation, for it requires one’s allegiance to, and defense of, our founding document and by extension the principles it embodies.
For virtually all of us there was clarity about what was meant by the Constitution of the United States. Even in the unlikely event that a midshipman had arrived at the Academy unschooled in civics, one did not graduate without passing course H303, U.S. Government and Constitutional Development. Prospective officers understood the Constitution of the United States to be one of the organic laws of the United States, the Madisonian instrument designed by the Constitutional Convention, ratified in 1789, and adapted in the Bill of Rights and succeeding amendments, to protect the principles of the American founding stated in the first of the organic laws, the 1776 Declaration of Independence.
One cannot help but wonder which United States Constitution today’s generation of serving officers intends to support and defend when they swear and live their oaths of office. For, make no mistake, while the Madisonian Constitution, as amended, and the Declaration of Independence are still the written laws of the land, the United States is administered today by an entirely different constitutional regime, underpinned by a radically different set of principles. Each officer must face the moral and ethical questions of which to support and defend, and what that defense may entail.
The first principles of the American founding are concisely stated in the Declaration of Independence, the first official act of our Congress and the fountainhead of American law.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights,
that among these are Life, Liberty and the pursuit of Happiness. That to secure these Rights, Governments are instituted among Men, deriving their just powers from the consent of the governed” (emphasis added)
The political philosophy of natural law and natural rights championed in the Declaration was enshrined by the Congress as our nation’s statement of first principles. In the U.S. Code Congress has placed it at the beginning, under the heading “The Organic Laws of the United States of America,” ahead of the Constitution. James Madison, the father of the Constitution, said that it was “the fundamental act of union,” the first lawful document by which we illuminate the constitutional principles of Americans.
But, what do the words mean? The founders stated that our rights were individual rights; that they were shared in common by all mankind; that they were conferred by God, not by a state; and that they were ours by right, not rationed by government as a means to its ends. They proclaimed these values incontrovertible, requiring no defense. They declared that the legitimate function of government was to secure the natural rights of individual citizens, and that the power of governments to secure those natural rights derived only from the consent of the people.
The Constitutional Convention labored to craft a document that could be passed out of convention and be ratified by the states. The result was a Constitution founded upon natural law, designed to defend the natural rights of citizens, and equipped with safeguards intended to preserve the union, minimize abuse of power, and assure justice for all. The principle features designed to protect the Republic and constitutional governance included:
Separation of powers between the legislative (enact law), executive (enforce law), and judicial (interpret law) branches of government;
Multiple provisions to protect minorities, as individuals, classes or as States, from the tyranny of a majority by features such as due process, a bicameral legislature, and an Electoral College;
Formal processes for amending the Constitution;
Formal processes for electing the president; and
Reservation of powers not delegated to the United States by the Constitution, nor prohibited by it to the states, to the states or the people respectively.
The founders’ political philosophy of natural law stands in stark contrast to the contemporaneous philosophy of utilitarianism espoused by Jeremy Bentham. Bentham found the motivating principle for society in the shorthand phrase, “The greatest good for the greatest number.” This view, rejected by the founders, embraced the state as the arbiter of a “common good;” found right and wrong to be relative, defined in terms of the effect on the “common good;” believed that the “common good,” and hence government by the state that defined it, was preeminent over individuals. In utilitarianism, personal liberty exists only to the extent it is bestowed by governments, granted in the context and support of the state defined “common good.”
There is a profound, irreconcilable, difference between the first principles of American values stated in the Declaration of Independence and the beliefs of Bentham and his philosophical heirs such as John Stuart Mill, Georg Wilhelm Hegel, Karl Marx, Herbert Marcuse, and Erich Fromm. Those political philosophers provide the philosophical underpinning of contemporary utilitarian-based Progressive movements. For over a century, the proponents of Progressivism have unceasingly advanced a vision and values directly opposed to those the country was founded on. They have mounted sustained legislative, judicial, and executive programs that have incrementally subverted the United States Constitution. They have supplanted it with a regime of governance that compromises essential elements of Madisonian constitutional governance, effectively replacing it with an antithetical political philosophy. And like the proverbial frog cooked in the pan of water brought slowly to boiling, many are totally unaware of this changed constitutional environment.
The seminal political architect of changes that have been impressed into American constitutional governance over the past century was President Woodrow Wilson. Under the cover of the national emergency of World War I, Wilson initiated two radical transformations to Madisonian constitutional governance of limited powers.
The first, his doctrine of a “living constitution” circumvents provisions of the constitution by constituting the Supreme Court functionally as a permanently sitting constitutional convention, usurping the power to make law reserved to the elected Congress and inventing new law and constitutional provisions by judicial action, contrary to the Madisonian Constitution’s separation of powers.
Wilson’s “administrative state” is an even more profound transformation of constitutional governance. Eliminating the separation of powers entirely, it empowers unelected, unaccountable bureaucratic agencies to reign sovereign over the people, able to make rules with the force of law, enforce them, and adjudicate breeches of them, often absent the due process guaranteed by Madisonian governance.
Wilson’s transformations were founded on the Hegelian concept of a state that is sovereign over the people. The Hegelian state functions to define the interests of the community and delimits individual liberty to conform to this revealed state interest. Wilson and his successors have substituted the state as the source and arbiter of citizen’s rights, eliminating the Madisonian construct of the state as the servant of the people, governing with their consent in defense of their inalienable rights bestowed from the Creator’s fountainhead.
Wilson’s Progressive successors have consolidated and extended the transformation of constitutional governance that he initiated. Under cover of another national emergency, the Great Depression, President Franklin Roosevelt radically extended the definition of interstate commerce in Article 1, Section 8 of the constitution. Initially rebuffed by the Supreme Court in his attempt to usurp powers reserved to the states, Roosevelt threatened legislation to pack the Supreme Court with supporters. Thus threatened, the court acceded to Roosevelt’s vast expansion of the extraconstitutional regulatory state. This further overturned constitutional protections such as the separation of powers, the presumption of innocence, and standing for judicial review.
Today, the Progressive effort to subvert and functionally replace the Madisonian Constitution and the rights that underpin it continues apace, with current events replete with examples.
Faced with a thin majority of Supreme Court Justices who profess a nominally Madisonian view of the Constitution and jurisprudence, and who are the sole bulwark against elective tyranny, today’s Progressives once again propose to pack the Supreme Court to further consolidate their power.
Several state legislatures have attacked the Constitution by enacting statutes to enable direct election of the president via the National Popular Vote Interstate Compact. This perversion intends to circumvent several constitutional provisions. These include those for the election of the president; for amendment of the Constitution; and for interstate compacts. At its core it would disenfranchise many voters by requiring state electors to cast votes based on the voting in other states, rather than in their own.
Progressives have attacked freedom of speech both directly and indirectly under cover of anti-extremism and fantastic allegations of insurrection with political indoctrination, cancel culture, speech codes, and
Prominent Progressives have attacked freedom of religion, perverting the Constitution’s intended protection of religious expression. They express open hostility to religion, designed to suppress religious expression and to attack qualification for public office on the basis of professed religious belief. They have initiated numerous government actions to coerce individuals and religious organizations to take actions contrary to their faith.
So which United States Constitution does the current generation of serving officers support and defend? The formally adopted Madisonian Constitution and its Lockean vision of liberty underpinned in natural law, inalienable rights, and legitimacy based upon the consent of the governed; or the Wilsonian constitutional regime and its Benthamite/Hegelian underpinning in a statist defined “common good” of contingent rights and liberties?
Will they embrace and fight for the defining values and rights conferred by natural law as enshrined in our founding documents, or abdicate the legacy our forefathers fought and died for and accede to the elective statist tyranny, moral relativism, and legal positivism (judge-made law) of the descendants of Bentham?
Make no mistake; the choice between these visions is the critical issue of our American age. Each officer, whether in our individual actions as citizens in civic affairs—or in organizational leadership to our communities, businesses, or government agencies—faces profound moral and ethical decisions in this regard. We will define our place in history, and bequeath our greatest gift or curse to our posterity, in the choice we make between them. A significant portion of our body politic unabashedly attacks the vision and values America was founded on, embracing a diametrically opposed vision and set of values, while others simply sleepwalk through it all, content to go along to get along.
From the earliest days of the American experiment, preeminent American leaders have understood how fragile it is. Franklin, asked about the form of the new government after the Constitutional Convention replied, “A Republic, if you can keep it.” Washington warned in his farewell address about the risk of losing shared common vision and values to factionalism. Lincoln, above all, understood and emphasized that preserving America and its common founding vision and values required covenantal rededication by each succeeding generation.
The United States of America has been engaged in a struggle over the choice between our formally adopted Madisonian Constitution and the competing, incrementally advanced Wilsonian constitutional regime for over a century. Taking inspiration from Patrick Henry’s speech before the Virginia Convention at St. John’s Church in Richmond on March 23, 1775, we argue that those who believe in America’s founding values but deny this reality have eyes, but see not; have ears but hear not. Hearkening back to a time of youth perhaps, they cry for a return to civility and restraint in public discourse, crying “Peace, peace!”—but there can be no peace between these alternatives.
We are potentially at a tipping point in the history of our Constitution and constitutional governance. Those who crusade for Wilsonian governance and its rejection of America’s founding values are today ascendant in government institutions and much of public culture. They already display the inclination to suppress opposition by such means as are available to them, including political indoctrination and broad proscription/punishment of “political speech” in the Armed Forces. Those who take an oath to support and defend the Constitution of the United States of America face choices in the execution of that responsibility.
What does it mean to support the Constitution? Is their obligation passive or active? Does military service alone fulfill the obligation to support and defend the Constitution? Is there an obligation to speak up publicly, either inside or outside the military organization to support the Constitution? Is such speech a “political” or “extremist” activity or is it a core element of carrying out their oath of office? All are fair questions, yet all must be preceded by officers first consciously answering for themselves, “Which Constitution of the United States am I defending?” The choice between the Madisonian Constitution that remains the law of the land or the Wilsonian “living constitution” that subverts its intent, denies its underpinning values, and is increasingly the basis of current governance is stark and pressing indeed.
About Phillip Keuhlen
Phil Keuhlen graduated from the U.S. Navel Academy in 1971 and earned a Master of Arts in National Security Affairs, with distinction, from the Naval Postgraduate School in Monterey, CA. He spent his Navy career in nuclear submarines, was Commanding Officer of USS Sam Houston (SSN-609), and retired from Naval Service in 1992. His second career was as a senior manager for major Federal contractors to the Department of Energy's nuclear weapons complex, principally at the Savannah River Site in SC and the Hanford Site in WA. Phil retired again in 2013 but continued consulting on technology development until early 2018. He is finally succeeding at retirement.
Archive
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The Amendment That Remade America
The First? The Second? No, the 14th—the basis for every claim against a state government for violating individual rights. Randy Barnett and Evan Bernick say it’s time to assert its original meaning.
By Tunku Varadarajan
Oct. 29, 2021 6:08 pm ET
What’s the most important amendment to the U.S. Constitution? The First, which guarantees the freedoms of religion, speech and assembly? If you favor gun rights, perhaps the Second? Criminal-defense lawyers might be inclined to invoke the Fifth. Randy Barnett and Evan Bernick make a case for an amendment that isn’t even in the Bill of Rights—the 14th, ratified in 1868.
That amendment, among its other provisions, bars states from abridging “the privileges or immunities” of citizens or depriving any person of life, liberty or property “without due process of law.” It’s best known for guaranteeing to all persons “the equal protection of the laws.”
The 14th Amendment “not only changed the structure of our federalism, but it extended the protection of fundamental rights,” Mr. Barnett says. Before its ratification, the Supreme Court had held in Barron v. Baltimore (1833) that the Bill of Rights didn’t limit states’ authority. That started to change in 1897, as the court “incorporated” various rights, holding that the 14th Amendment’s Due Process Clause obligates the states to respect them.
By the end of the 20th century, all of the First and Fourth Amendments had been incorporated, as had most of the provisions of the Fifth, Sixth and Eighth Amendments, along with unenumerated rights such as privacy and travel. In 2010 the court added the Second Amendment to the list, and in 2019 the Eighth Amendment’s prohibition against excessive fines. Thus every challenge to a state or local law or action that alleges an improper establishment of religion, the imposition of cruel and unusual punishments, or anything in between is also a 14th Amendment challenge.
Consider New York State Rifle & Pistol Association v. Bruen, a gun-rights case on which the Supreme Court will hear oral arguments on Wednesday. It concerns “the right to bear arms outside the home, which most states protect and a few outliers do not, such as California and New York,” Mr. Barnett says. “So that’s a 14th Amendment case.”
In District of Columbia v. Heller (2008), the high court found that the Constitution protects “individual” gun rights. “That was truly a Second Amendment case,” Mr. Barnett says, “because it was about the federal government and D.C., a federal entity. But the ruling, by itself, didn’t protect the right to keep and bear arms from any of the 50 states in the union.” That protection arrived in McDonald v. Chicago (2010), which held that the Second Amendment is enforceable against states through the 14th Amendment. (Heller and McDonald, unlike Bruen, involved the right to “keep” firearms in the home.)
Mr. Barnett says the historical evidence is overwhelming that Second Amendment rights belong to individuals. “But if there’s any doubt about that, raised by the existence of the Militia Clause of the Second Amendment, there’s no doubt whatsoever that the 14th Amendment’s Privileges or Immunities Clause was aimed at the protection of the individual right—in this case the individual rights of the freed blacks to keep and carry their own weapons.”
Messrs. Barnett and Bernick make their case in a new book, “The Original Meaning of the 14th Amendment.” They are both law professors, and both describe themselves as libertarians, though their politics differ. Mr. Barnett has long been associated with the conservative legal movement and was a leading theorist behind the 2012 challenge to ObamaCare. Mr. Bernick is a self-professed “libertarian of the left” who in 2015 testimony before the U.S. Commission on Civil Rights argued for the abolition of qualified immunity for police officers.
Mr. Barnett, 69, is a professor of constitutional law at Georgetown. Mr. Bernick, 35, teaches at the Northern Illinois University College of Law. They met at a 2016 academic conference, where they bonded over the 14th Amendment. Mr. Barnett asked the “very astute” young scholar if he’d like to collaborate on a book. Mr. Bernick readily agreed.
In addition to their libertarian inclinations, the two share a commitment to the constitutional philosophy of originalism, which Mr. Barnett defines as the belief that “the meaning of the Constitution should remain the same until it’s properly changed by amendment.” Mr. Bernick adds: “Randy and I are trying to correct what is a longstanding originalist narrative about the limited force of the 14th Amendment.” They argue instead that it was meant to be sweeping, and that even today the court’s interpretation of it is in some ways too cramped.
The justices’ misinterpretation of the 14th Amendment, Messrs. Barnett and Bernick say, began only five years after its ratification and involved three key 19th-century decisions. The Slaughter-House Cases (1873) upheld a Louisiana monopoly that regulated butchers. The justices found that the Privileges or Immunities Clause required states to respect only the rights associated with federal citizenship, not state citizenship. In dissent, Justice Stephen Field wrote that his colleagues had made of the clause “a vain and idle enactment.”
Mr. Barnett says the majority feared the “terrible consequences” of an amendment that would “greatly disrupt the pre-existing arrangement between the states and the federal government.” The majority “really wanted to restore the federalism that they were more familiar with before the Civil War.”
Then, in U.S. v. Cruikshank (1876), the court held that the Bill of Rights doesn’t apply against the states. The justices overturned a white man’s conviction on federal charges of violating the civil rights of black protesters by participating in a Colfax, La., massacre in which scores of them were murdered.
In the Civil Rights Cases (1883), the high court struck down the Civil Rights Act of 1875, which barred racial discrimination in public accommodations. The justices said Congress had exceeded its authority under Section 5 of the 14th Amendment, which gives it “the power to enforce, by appropriate legislation, the provisions” of the amendment.
Messrs. Barnett and Bernick believe the Supreme Court has never given the 14th Amendment its full effect or allowed Congress to exercise all of its delegated constitutional power to enforce it. The justices upheld the Civil Rights Act of 1964 in Heart of Atlanta Motel v. U.S., decided barely five months after the bill became law, and they have effectively overturned Cruikshank through a series of incorporation cases.
But the Privileges or Immunities Clause is still moribund. In McDonald, Justice Clarence Thomas argued for overturning Slaughter-House and incorporating the Second Amendment via the Privileges or Immunities Clause rather than the Due Process Clause. But no other justice joined his opinion. Had the other conservatives on the court shared Justice Thomas’s approach, Mr. Barnett says, “our book would probably not need to be written. Our book, in some senses, is for the four justices who didn’t want to join with Justice Thomas.”
The 14th Amendment “gave Congress and the Supreme Court the power,” Mr. Bernick says, “to protect individual citizens and persons from having their fundamental rights violated by their own state governments.” This ran counter to the Constitution’s original federalist structure, under which, as Mr. Barnett puts it, states were “on their own” when it came to protecting the rights of their citizens.
“That had to be the case,” he says, “because otherwise slavery would have been unconstitutional under the original Constitution. The most egregious violation of rights that you can imagine is chattel slavery—and chattel slavery was consistent with the federalism originally established by the Constitution.” (Slavery was abolished by the 13th Amendment, ratified in 1865.)
The 14th Amendment also undid a basic political premise of the 1787 Constitution. The Framers believed, in Mr. Bernick’s words, that “the primary systematic threats to liberty were going to come from the federal rather than the state level.” Local threats to liberty, they thought, could be countered by vigorous political action. “The entire project of Reconstruction, the Civil Rights Acts of 1866 and 1875, as well as the Reconstruction’s constitutional amendments”—the 13th, 14th and 15th, which protects voting rights—“rested upon the belief that that older vision of federalism was inadequate to the needs of protecting liberty.”
The most significant misinterpretation of the 14th Amendment, as Messrs. Barnett and Bernick see it, is the judicial disregarding of the Privileges or Immunities Clause. Judges see it as an impenetrable “inkblot” (to borrow a metaphor Robert Bork used in a different constitutional context), the recognition of which would serve as a license to judges to invent new rights. In its original conception, Mr. Barnett says, the Privileges or Immunities Clause “protects rights that are fundamental to what we call ‘republican citizenship’—citizenship that’s grounded in natural rights and civil equality.”
Those include rights guaranteed by the Constitution and the Civil Rights Act of 1866, which extended citizenship to all persons born in the U.S. “without distinction of race or color, or previous condition of slavery or involuntary servitude.” They also include rights that are deeply rooted in tradition and history, as evidenced by the laws of the states.
Some of these rights are listed in the text of the Constitution, such as the freedom of speech. “Others are not,” Mr. Barnett says, “like the right of parents to raise their own children.” The key question is what the privileges of citizenship are, not what they ought to be.
Mr. Barnett says the Privileges or Immunities Clause is unpopular across ideological lines. “Conservatives don’t care for the clause,” he says, “because they think it’s going to open up the protection of unenumerated rights, some of which, let’s just say, they don’t really want to see protected.” Liberals think the clause is “going to legitimate the protection of certain rights, like economic liberty rights, that they don’t want to see protected.”
Yet the court since the mid-20th century has read the Due Process and Equal Protection clauses expansively, and the professors agree it would be impossible to imagine modern American law without it. “It’s difficult to think of a seminal Supreme Court case that does not have to do with the 14th,” Mr. Bernick says.
He names Brown v. Board of Education (1954), which held segregated schools unconstitutional; Gideon v. Wainwright (1963), which guaranteed the right to legal counsel for criminal defendants; Griswold v. Connecticut (1965), which established a “right to privacy” and accorded married couples the right to obtain contraception; Roe v. Wade (1973), which extended that right to include abortion; and Obergefell v. Hodges (2015), which found that same-sex couples have the “fundamental” right to marry.
The last two are still controversial; most legal conservatives think they were wrongly decided. “I don’t think those are originalist decisions,” the liberal Mr. Bernick says. “They make claims about the meaning of the 14th Amendment, and Roe in particular has a long discussion of the history of abortion law, but neither of them is an example of public-meaning originalism in practice. So they’re not entitled to any presumption of correctness that might attach to a good-faith, reasonable effort to determine public meaning.”
Which brings us to another pending case, Dobbs v. Jackson Women’s Health Organization. On Dec. 1, the state of Mississippi will ask the high court to uphold a law banning abortion after 15 weeks of pregnancy, in what Mr. Bernick calls “a frontal challenge to Casey v. Planned Parenthood and the rule that effectively prohibits restrictions on abortion prior to the point of viability.” (Casey is the 1992 decision that upheld what a three-justice plurality called Roe’s “central holding.”)
The legal arguments on both sides of the abortion issue are ultimately about the 14th Amendment, Mr. Bernick says. “Is the right to terminate a pregnancy among the privileges or immunities of citizenship? Are unborn fetuses constitutional people?” The answers “turn on the original meaning of ‘persons’ and ‘citizens’ in the 14th Amendment.”
Mr. Varadarajan, a Journal contributor, is a fellow at the American Enterprise Institute and at New York University Law School’s Classical Liberal Institute.
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https://www.amazon.com/Original-Meaning-Fourteenth-Amendment-Letter/dp/0674257766?crid=IIZFGN3VI3GU&keywords=randy+barnett+and+evan+bernick&qid=1636427336&sprefix=randy+barnett,aps,279&sr=8-1&linkCode=sl1&tag=insta0c-20&linkId=238f21492a246348e737f57a07f2c2a9&language=en_US&ref_=as_li_ss_tl
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CD: I hope you can share some classroom experiences with us.
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https://www.theepochtimes.com/mkt_morningbrief/trump-setting-stage-for-supreme-court-battle-over-executive-privilege_4128919.html?utm_source=Morningbrief&utm_medium=email&utm_campaign=mb-2021-11-30&mktids=e3ffdcdc5ef282b9d305eafa32e996b7&est=7i9mAKEol2xOJ5kLT7ddaB%2BlN%2BjAgGVtf0V8HVu%2BoXE9JO1oDLd%2FG4Cbtq5eZV%2Bwz7rc
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This seems small to me, abortion is not banned (in one state) but limited to the first 13 weeks, violating the "trimester" framework of Roe v Wade. But this is giant in the world of Leftism, to lose any ground on the right to slaughter your unborn.
I can't find the takeaways I was reading but here are other sources.
https://www.cbsnews.com/live-updates/supreme-court-mississippi-abortion-case-2021-12-01/
https://www.scotusblog.com/2021/11/roe-v-wade-hangs-in-balance-as-reshaped-court-prepares-to-hear-biggest-abortion-case-in-decades/
https://notthebee.com/article/justice-thomas-asks-where-abortion-is-found-in-the-constitution-what-specifically-is-the-right-here-that-were-talking-about
https://www.hillfaith.org/hillfaith/think-about-this-12-facts-about-a-15-week-old-unborn-baby-you-may-not-know/
https://news.yahoo.com/5-takeaways-supreme-court-showdown-012038390.html
https://pjmedia.com/news-and-politics/chris-queen/2021/11/30/supreme-court-determines-the-fate-of-roe-v-wade-starting-this-week-n1537697
https://www.theepochtimes.com/justice-thomass-moment-arrives-as-supreme-court-reviews-abortion-rights_4131450.html?utm_source=partner
To the Left, the mother is a victim, not a participant in getting pregnant, yet abortion after rape (less that 1% of them) is still legal in Miss.
Breitbart: Conservatives Think a Fetus ‘Should Have the Same Legal Rights as Full-Grown Black People
[Doug] Strange that the disparate impact gets ignored by the Left, black unborn 5 times more likely to die than white.
The other odd point is that we are only talking about the federal government's power to take away the states' right to regulate this kind of thing. People can still cross state lines and do what is legal in the other state.
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aka "pack the court":
https://www.thegatewaypundit.com/2021/12/democrat-politicians-renew-calls-pack-supreme-court-add-liberal-judges/
the Left - never take no for an answer
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aka "pack the court":
https://www.thegatewaypundit.com/2021/12/democrat-politicians-renew-calls-pack-supreme-court-add-liberal-judges/
the Left - never take no for an answer
Seems to me Manchin and Synema have already been vindicated. America didn't want this left wing clown show. Neither did their states and they knew it early on. Why cave now.
Joe Manchin doesn't need the Democrat Party; it's exactly the other way around. Same for Jon Tester in Montana, and others.
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Supreme Court case places Sixth Amendment in peril
Arizona’s legal challenge could endanger the right to appeal based on ineffective assistance of counsel
By Marc Hyden
With many Americans focused on headline- grabbing U.S. Supreme Court cases, it would be easy to miss a critically important case that has flown under the radar: Shinn v. Jones and Ramirez. Despite the consolidated case’s low-profi le, it has the potential to fundamentally reshape the criminal justice system in a manner that should offend conservatives’ core sensibilities — that of protecting life, liberty, and unalienable rights.
The case revolves around something quintessentially American — the right to an attorney and a fair trial. According to decades-old case law , the Sixth Amendment provides Americans the right to “effective assistance of counsel,” but not all lawyers are created equal. There are plenty of reports of defense attorneys showing up to court drunk, sleeping during the trial or simply ignoring exculpatory evidence. Thanks to the Sixth Amendment, if an attorney’s assistance was so inadequate that it influenced the case’s outcome , then the courts can order a retrial.
To obtain such relief, appellants must traverse the arcane appeals process, but if state appellate courts rebuff them, they can apply for relief in federal court via a writ of habeas corpus. This process is incredibly time-consuming. In fact, the time between sentencing and execution in capital cases can easily exceed 20 years . During the interim, new evidence of ineffective counsel can arise, which brings us to the crux of Shinn v. Jones and Ramirez, and the stakes are high — very high. Both Barry Jones and David Ramirez face death sentences for separate cases in Arizona, but appeals attorneys presented evidence in federal court, questioning their verdict and sentence, respectively. In 1995, despite steadfastly maintaining his innocence, Mr. Jones was convicted of an unconscionably heinous crime — child abuse resulting in death — although there is evidence that suggests he may not be guilty. Medical evidence available at the time would have poked holes in the prosecutors’ case against Mr. Jones, according to court documents , but his counsel failed to introduce it . While I can’t say for certain whether Mr. Jones is innocent, it seems that the jurors passed their verdict based on incomplete evidence.
Meanwhile, Mr. Ramirez’s guilt isn’t in question. A jury convicted him in 1990 of a gruesome double murder. Still, there’s reason to believe that Mr. Ramirez suffers from an intellectual disability, has brain damage, and endured serious childhood trauma. However, his lawyers originally failed to provide any evidence of this. Why is this important? Because mitigating evidence such as this would have virtually ensured that he received a sentence other than death.
Mr. Jones’ and Mr. Ramirez’s new attorneys have since brought the aforementioned evidence to light in federal court. They claimed that more effective counsel could have easily raised all of this evidence during the original trials, and as a result, their clients deserve retrials. It’s not unheard of for appeals attorneys to make such 11th-hour assertions in desperate bids to save their clients, but they made a good case. How good? Federal courts overturned Mr. Jones’ conviction and ordered a new hearing for Mr. Ramirez .
Normally, this would ultimately trigger a retrial for Mr. Jones and a new sentencing hearing for Mr. Ramirez, but instead, the State of Arizona appealed the decision. Citing a provision in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Arizona asserts that new evidence demonstrating the ineffectiveness of counsel cannot be considered in habeas petitions if the defendant’s lawyers neglected to develop the evidence in state court proceedings.
The State of Arizona’s interpretation of the AEDPA is unique, to say the least. To date, no appellate court has adopted such a reading, and the United States District Court in Arizona found the State of Arizona’s argument laughable, calling it “ simply illogical.” After all, it makes no sense for the law to allow federal courts to entertain evidentiary hearings on claims of ineffective counsel but then to forbid the consideration of the same evidence simply because post-conviction relief counsel failed to raise it in state court.
If the U.S. Supreme Court sides with Arizona, the state will subsequently execute Mr. Jones and Mr. Ramirez despite the evidence. This will also set a dangerous precedent that new evidence of ineffective counsel — in all criminal cases, not just capital cases — can never be considered in federal court even though such claims almost always rely on new evidence.
This will lead toinsidious effects that will reverberate throughout the criminal justice system—ensuring that an untold number of Americans, including the wrongly convicted, will never get a fair trial. This should concern all Americans—especially the U.S. Supreme Court’s conservative wing.
Conservatives believe in law and order, but you can have neither as long as Americans are wrongly denied their constitutional rights and stripped of their lives and liberties. Yet, that could become a regular occurrence if the U.S. Supreme Court rules in favor of Arizona.
Marc Hyden is the director of state government affairs at the R Street Institute—a free-market think tank—and he used to work for the National Rifle Association
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https://fee.org/articles/12-marvelous-quotes-on-the-bill-of-rights/
12 Marvelous Quotes on the Bill of Rights
On this very day in 1791—December 15—a young United States of America formally adopted the first ten amendments to its Constitution that we call the Bill of Rights.
Wednesday, December 15, 2021
On this very day in 1791—December 15—a young United States of America formally adopted the first ten amendments to its Constitution that we call the Bill of Rights.
Wednesday, December 15, 2021
History Bill of Rights U.S. Constitution Natural Rights George Carlin Thomas Jefferson Civil Rights
Americans over the age of 60 will likely remember the hilarious TV game show that ran for 25 years (1965-1980) called Hollywood Squares. On the show, host Peter Marshall (still living at age 95) once directed this question to comedian Paul Lynde: “Pride, anger, covetousness, lust, gluttony, envy and sloth are collectively known as what?”
Sustained laughter ensued when Lynde replied, “The Bill of Rights.” (The correct answer, of course, is the Seven Deadly Sins.)
It was on this very day in 1791—December 15—that a young United States of America formally adopted the first ten amendments to its Constitution that we call the Bill of Rights. Those amendments were fundamental and foundational, as bedrock as it gets, without which adoption of the Constitution itself might not have occurred. In fewer than 500 words, many of our most cherished liberties are expressed as rights to be protected. It’s a roster of instructions to government to keep out of where it doesn’t belong.
Not long ago, the late and famous trial attorney F. Lee Bailey (1933-2021) posed a poignant question to which he provided a disturbing answer: “Can any of you seriously say the Bill of Rights could get through Congress today? It wouldn’t even get out of committee!”
Bailey was likely right, which makes it even more urgent that Americans renew a learned passion for the Bill of Rights. Toward that end, I offer here a sample of thoughts in its defense:
_____
The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our government. - Supreme Court Justice Hugo Black
Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men, without a consequent loss of liberty? - Patrick Henry
The Bill of Rights wasn’t enacted to give us any rights. It was enacted so the Government could not take away from us any rights that we already had. - Kenneth G. Eade, author
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. - Robert H. Jackson, Supreme Court Justice
Education on the value of free speech and the other freedoms reserved by the Bill of Rights, about what happens when you don't have them, and about how to exercise and protect them, should be an essential prerequisite for being an American citizen — or indeed a citizen of any nation, the more so to the degree that such rights remain unprotected. If we can't think for ourselves, if we're unwilling to question authority, then we're just putty in the hands of those in power. But if the citizens are educated and form their own opinions, then those in power work for us…In the demon-haunted world that we inhabit by virtue of being human, this may be all that stands between us and the enveloping darkness." - Carl Sagan, astronomer
"There are two ways to choke off free expression. We've already discussed one of them: clamp down on free speech and declare some topics off-limits. That strategy is straightforward enough. The other, more insidious way to limit free expression is to try to change the very language people use" - Dennis Prager, author
"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States." - Noah Webster
"The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, … or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press." - Thomas Jefferson
"In 1942, there were 110,000 Japanese American citizens in good standing, law-abiding people who were thrown into internment camps simply because their parents were born in the wrong country. That's all they did wrong. They had no right to a lawyer, no right to a fair trial, no right to a jury of their peers no right to due process of any kind. The only right they had: "Right this way" into the internment camps! Just when these American citizens needed their rights the most, their government took them away! And rights aren’t rights if someone can take them away. They’re just privileges." - George Carlin
"The first article of the Bill of Rights provides that Congress shall make no law respecting freedom of worship or abridging freedom of opinion. There are some among us who seem to feel that this provision goes too far, even for the purpose of preventing tyranny over the mind of man. Of course, there are dangers in religious freedom and freedom of opinion. But to deny these rights is worse than dangerous, it is absolutely fatal to liberty. The external threat to liberty should not drive us into suppressing liberty at home. Those who want the Government to regulate matters of the mind and spirit are like men who are so afraid of being murdered that they commit suicide to avoid assassination." - Harry Truman
"In respect to political rights, we hold woman to be justly entitled to all we claim for man. We go farther and express our conviction that all political rights which it is expedient for man to exercise, it is equally so for women. All that distinguishes man as an intelligent and accountable being, is equally true of woman; and if that government is only just which governs by the free consent of the governed, there can be no reason in the world for denying to woman the exercise of the elective franchise, or a hand in making and administering the laws of the land. Our doctrine is, that “Right is of no sex." - Frederick Douglass
"The Bill of Rights is the United States. The United States is the Bill of Rights. Compromise the Bill of Rights and you dissolve the very foundation upon which the Union stands… Nowhere in the Bill of Rights are the words ‘unless inconvenient’ to be found." - A. E. Samaan, historian
For additional information, see:
Rights and Non-Rights: Distinguishing the Two by Lawrence W. Reed
Historic Figures Who Recognized that Speech is Freedom’s First Line of Defense by Lawrence W. Reed
The Holiday That Isn’t by Lawrence W. Reed
George Mason: Father of the Bill of Rights by Raymond Polin
The Bill of Rights is America’s Bulwark Against Government Overreach by Gary Galles
Mercy Otis Warren: Conscience of Great Causes by Lawrence W. Reed
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Justice Neil Gorsuch: Religious Freedom’s New Champion
Rob Natelson
Rob Natelson
December 26, 2021 Updated: December 26, 2021 biggersmaller Print
Commentary
Eight of the nine Supreme Court justices are Catholics or Jews—groups historically victimized by religious discrimination. Yet the court’s emerging leader in defending religious freedom is its only mainline Protestant.
Some see Neil Gorsuch, nominated by former President Donald Trump to succeed the late Justice Antonin Scalia, as Scalia’s natural successor: Both were or are highly intelligent, very well educated, generally (but not purely) originalist in constitutional interpretation, and eloquent writers. But Gorsuch, the Episcopalian, is showing himself even more dedicated to religious freedom than Scalia, the committed Catholic.
No doubt there were earlier indications of this side of Gorsuch, but they have come to the fore in the current pandemic. It’s a good time for that side to show itself, because in public emergencies, constitutional rights often are shunted aside. Indeed, in this emergency the federal judiciary’s record of defending constitutional rights has been mixed at best.
But Gorsuch’s record has been anything but mixed. When his fellow justices defend religious liberty only tepidly, Gorsuch’s concurring opinions stake out stronger positions. When his colleagues do not defend religious liberty at all, he dissents.
Gorsuch Opposes Anti-Religious Pandemic Orders
On Nov. 25, 2020, the justices issued their opinion in Roman Catholic Diocese of Brooklyn v. Cuomo (pdf). The Diocese and an Orthodox Jewish congregation had sued to void then-New York Gov. Andrew Cuomo’s severe capacity restrictions on houses of worship. The plaintiffs won, but only by a bare 5–4 majority.
Gorsuch penned a concurring opinion pointing out how Cuomo’s order—like those in many other states—both discriminated against communities of faith and privileged secularism. Here is a sample:
At the same time, the Governor has chosen to impose no capacity restrictions on certain businesses he considers “essential.” And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience? …
Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.
In another part of his opinion, Gorsuch took on the judiciary’s uncritical reliance on Jacobson v. Massachusetts (pdf). Jacobson is the 1905 Supreme Court mandatory vaccination case that many cite improperly to justify dictatorial pandemic powers.
Gorsuch Defends Religions Favoring Traditional Marriage
On June 17, 2021, the Supreme Court issued Fulton v. Philadelphia (pdf). This was not a pandemic case. Rather, religious organizations had sued the City of Philadelphia over a policy of discriminating against religions that reject same-sex marriage. The justices unanimously struck down the policy.
However, the court’s decision in Fulton was a flimsy one, because it allowed the city to continue discriminating merely by changing one of its paper forms. Gorsuch’s concurring opinion (joined by Justices Thomas and Alito) pointed out how flimsy the court’s decision was. Gorsuch also called for overruling Employment Division v. Smith (pdf), a 1990 precedent he believes insufficiently protects religious freedom. Scalia had written the opinion for the court in Smith. Gorsuch’s concurrence was gracious enough to cite one of Scalia’s writings even while asking the court to overrule Scalia.
Gorsuch’s Fulton concurrence, like many of his opinions, featured some witticisms, such as “Trailblazing through the Philadelphia city code turns out to be no walk in the park”… “playing along with this statutory shell game.”
Gorsuch Pushes Back Against A Biased Vax Mandate
In John Does 1-3 v. Mills (pdf), issued on Oct. 29, SCOTUS refused to review a Maine state order that heath care workers be vaccinated, irrespective of religious objections. The objections were based on the fact that all three vaccines were developed using material from aborted children. (I suspect the vaccines’ connection to abortion is one reason so many “progressives” want everyone vaccinated—so that everyone’s complicit.)
Gorsuch, again joined by Thomas and Alito, dissented. He contended that Maine’s order flunked even the standard set by Scalia in the Smith case. He finished his dissent this way:
This case presents an important constitutional question, a serious error, and an irreparable injury. Where many other States have adopted religious exemptions, Maine has charted a different course. There, healthcare workers who have served on the front line of a pandemic for the last 18 months are now being fired and their practices shuttered. All for adhering to their constitutionally protected religious beliefs. Their plight is worthy of our attention. I would grant relief.
Gorsuch Calls Out Hochul’s Bigotry
New York’s new governor, Kathy Hochul, has proved even less tolerant than her immediate predecessor. Cuomo had planned to include a religious exemption in his order mandating vaccinations for health care workers, but Hochul deleted it. The final order permitted exemptions for medical reasons but not for religious reasons. Furthermore, Hochul amended New York regulations so that any fired religious dissenter would be denied unemployment benefits as well.
The case of Dr. A v. Hochul (pdf) challenged these actions. But on Dec. 13, SCOTUS declined to intervene.
Thomas, Alito, and Gorsuch all dissented, saying they would have taken the case. Gorsuch’s dissent described the bigotry motivating Hochul’s order:
Governor Hochul acknowledged that “we left off [the religious exemption] in our regulations intentionally.” … Asked why, the Governor answered that there is no “sanctioned religious exemption from any organized religion” and that organized religions are “encouraging the opposite.” … Apparently contemplating Catholics who object to receiving a vaccine, Governor Hochul added that “everybody from the Pope on down is encouraging people to get vaccinated.” …
Speaking to a different audience, the Governor elaborated: “How can you believe that God would give a vaccine that would cause you harm? That is not truth. Those are just lies out there on social media.”
Hochul apparently doesn’t know that fallible man, not infallible God, made the vaccine. Gorsuch continued:
The day before the mandate went into effect, Governor Hochul again expressed her view that religious objections to COVID–19 vaccines are theologically flawed: “All of you, yes, I know you’re vaccinated, you’re the smart ones, but you know there’s people out there who aren’t listening to God and what God wants. You know who they are.”
Under the Supreme Court’s precedents, Hochul’s deliberate targeting of a religious minority should have been grounds for immediately quashing her order. Gorsuch commented on the court’s abdication of responsibility:
The Free Exercise Clause [of the First Amendment] protects not only the right to hold unpopular religious beliefs inwardly and secretly. It protects the right to live out those beliefs publicly in “the performance of (or abstention from) physical acts.” …
Today, we do not just fail the applicants. We fail ourselves. It is among our Nation’s proudest boasts that, “f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in [matters of] religion.” West Virginia State Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943). In this country, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit … protection.” Thomas v. Review Bd. of Ind. Employment Security Div., 450 U. S. 707, 714 (1981). Nor is the free exercise of religion “limited to beliefs which are shared by all of the members of a religious sect.” … Millions have fled to this country to escape persecution for their unpopular or unorthodox religious beliefs, attracted by America’s promise that “[e]very citizen here is in his own country.” …
As today’s case shows, however, sometimes our promises outrun our actions. Sometimes dissenting religious beliefs can seem strange and bewildering. In times of crisis, this puzzlement can evolve into fear and anger. It seems Governor Hochul’s thinking has followed this trajectory, and I suspect she is far from alone.
After recounting how the Supreme Court failed to protect religious freedom in a 1940 case, only to reverse itself in 1943, Gorsuch added:
Today, our Nation faces not a world war but a pandemic. Like wars, though, pandemics often produce demanding new social rules aimed at protecting collective interests—and with those rules can come fear and anger at individuals unable to conform for religious reasons. If cases like [the 1940 decision] bear any good, it is in their cautionary tale. They remind us that, in the end, it is always the failure to defend the Constitution’s promises that leads to this Court’s greatest regrets. They remind us, too, that in America, freedom to differ is not supposed to be “limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.” … The test of this Court’s substance lies in its willingness to defend more than the shadow of freedom in the trying times, not just the easy ones. …
Still, it seems the old lessons are hard ones. … But how many more reminders do we need that “the Constitution is not to be obeyed or disobeyed as the circumstances of a particular crisis … may suggest”?
Yes, “the old lessons are the hard ones.” Time will vindicate Justice Gorsuch. And his dissent in Dr. A v. Hochul will be recognized as a masterpiece.
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.
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https://townhall.com/tipsheet/katiepavlich/2022/01/07/supreme-court-justices-spew-misinformation-during-arguments-on-bidens-vaccine-mandate-n2601558
If a vaccine or mask helps to protect you, you should be allowed to get one or wear one.
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VIRGINIA
Herring says Virginia can’t revoke its ratification of ERA
Issued statement just days before leaving office
BY STEPHEN DINAN THE WASHINGTON TIMES
Virginia’s legislature cannot rescind its ratification of the Equal Rights Amendment to the Constitution, Democratic Attorney General Mark Herring said in an opinion, acting just days before he leaves office.
Mr. Herring said the Constitution sets out procedures for ratification but is silent on revoking ratification, so it was not part of the founders’ design. He said Virginia law also only talks about ratification, not revocation.
“For the foregoing reasons, it is my opinion that Virginia cannot rescind its ratification of the ERA,” wrote Mr. Herring.
He will be replaced by Republican Jason Miyares, who has told The Washington Times he will review the state’s legal stance on the ERA.
Democrats in Virginia rushed to ratify the ERA in January 2020 after winning control of both chambers of the state’s General Assembly in elections in 2019. The state became the 38th to vote to ratify — putting the ERA over the two-thirds threshold the Constitution requires for a new amendment to be added to the founding document.
But that vote, as well as votes by Illinois and Nevada, came decades after the deadline Congress set, sparking a major constitutional conundrum that still confounds policymakers.
In addition to the deadline issue, five other states that previously ratified the ERA voted to revoke that vote — including several that acted before the original deadline for ratification. Without them, the amendment would stand at just 33 ratifications, well below the threshold.
Those issues are being fought in federal courts now, with Virginia — acting through Mr. Herring — as the lead plaintiff in the critical case. Mr. Miyares, who will soon take over, has indicated he expects that lawsuit to be dismissed.
The Equal Rights Amendment’s key text reads: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
Congress submitted the amendment to the states in 1972, with a ratification deadline of 1979. Only 35 states had ratified at that point — including the several that also voted later to revoke.
Congress then passed a law to extend the deadline to 1982.
It’s unclear whether the extension is legal, much less any ratifications after that deadline. Add to that the question of revoked ratifications and the push for recognition as the 28th Amendment is fraught with complications.
The National Archives has been blocked from recognizing Virginia’s ratification vote by a federal Justice Department opinion issued during the Trump era.
The long delay between the 1972 submission and Virginia’s 2020 ratification vote also highlights other problems with the amendment, such as what the intention was. Gay rights were not part of the 1972 debate in Congress or the early ratifying states, but were front-and-center in the General Assembly when Virginia voted nearly five decades later.
Mr. Herring’s opinion came in response to a request from state Sen. Mamie E. Locke, a Democrat from Hampton.
Democrats lost control of the state House in November’s elections, but still hold the Senate, 21-19. That lessens the likelihood of a revocation, at least until after the next General Assembly elections in 2023
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https://townhall.com/tipsheet/leahbarkoukis/2022/01/14/clarence-thomas-dissent-n2601851
Justices Clarence Thomas filed a dissenting opinion, which was joined by Samuel Alito, Neil Gorsuch, and Amy Coney Barrett.
Below are some of the most important quotes from that opinion.
1. "Here, the omnibus rule compels millions of healthcare workers to undergo an unwanted medical procedure that 'cannot be removed at the end of the shift,' In re MCP No. 165, 20 F. 4th 264, 268 (CA6 2021) (Sutton, C. J., dissenting from denial of initial hearing en banc)."
2. "The Government has not made a strong showing that this agglomeration of statutes authorizes any such rule. To start, 5 of the 15 facility-specific statutes do not authorize CMS to impose 'health and safety' regulations at all. [...] These provisions cannot support an argument based on statutory text they lack. Perhaps that is why the Government only weakly defends them as a basis for its authority."
3. "[T]he Government proposes to find virtually unlimited vaccination power, over millions of healthcare workers, in definitional provisions, a saving clause, and a provision regarding long-term care facilities’ sanitation procedures. The Government has not explained why Congress would have used these ancillary provisions to house what can only be characterized as a 'fundamental detail' of the statutory scheme. Had Congress wanted to grant CMS power to impose a vaccine mandate across all facility types, it would have done what it has done elsewhere—specifically authorize one."
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4. "If Congress had wanted to grant CMS authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly. It did not."
5. "These cases are not about the efficacy or importance of COVID–19 vaccines. They are only about whether CMS has the statutory authority to force healthcare workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo. Because the Government has not made a strong showing that Congress gave CMS that broad authority, I would deny the stays pending appeal. I respectfully dissent."
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And here is the decision:
https://www.supremecourt.gov/opinions/21pdf/21a240_d18e.pdf
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https://www.nationalreview.com/news/justices-sotomayor-gorsuch-deny-reported-clash-over-mask-wearing/?utm_source=email&utm_medium=breaking&utm_campaign=newstrack&utm_term=26416562
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Harris in ?
https://www.newsmax.com/politics/justice-breyer-liberal-retire-supreme-court/2022/01/26/id/1054127/
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https://www.breitbart.com/politics/2022/01/26/jcns-severino-stephen-breyer-bullied-into-retiring-by-left-wing-dark-money-groups/
does anyone understand how "dark money " works to shove out a Supreme Court Justice?
ccp
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Generally, https://www.foxnews.com/politics/dark-money-network-left-wing
Here, I'm guessing by financing the "Breyer Retire" campaign.
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https://www.bostonglobe.com/2020/09/23/opinion/no-hiding-behind-pences-skirt-supreme-court-nomination/
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"I'm guessing by financing the "Breyer Retire" campaign."
I still don't get where all this anonymous money goes
to advertising
to greasing palms
to lawyers
to where ?
https://www.opensecrets.org/news/2022/01/breyers-supreme-court-vacancy-even-more-dark-money-2022-midterm-elections/
Does freedom of speech/where money is spent guarantee anonymity of speech?
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Right of you to identify this question.
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Critics say Ginni Thomas’s activism is a Supreme Court conflict. Under court rules, only her husband can decide if that’s true.
Ginni Thomas, left, signed a letter in December criticizing the House committee investigating the Jan. 6, 2021, attack on the Capitol — just one month before her husband, Supreme Court Justice Clarence Thomas, right, ruled on a key matter involving the committee's probe. That vote has led some critics to again demand stricter rules for recusals on the court. (Patrick Semansky/AP)
By Michael Kranish
Today at 6:00 a.m. EST
Ginni Thomas’s name stood out among the signatories of a December letter from conservative leaders, which blasted the work of the House committee investigating the Jan. 6 insurrection as “overtly partisan political persecution.”
One month later, her husband, Supreme Court Justice Clarence Thomas took part in a case crucial to the same committee’s work: former president Donald Trump’s request to block the committee from getting White House records that were ordered released by President Biden and two lower courts.
Thomas was the only justice to say he would grant Trump’s request.
That vote has reignited fury among Justice Thomas’s critics, who say it illustrates a gaping hole in the court’s rules: Justices essentially decide for themselves whether they have a conflict of interest, and Thomas has rarely made such a choice in his three decades on the court.
“I absolutely do believe that Clarence Thomas should have recused from the Jan. 6 case,” said Gabe Roth, executive director of Fix the Court, a nonpartisan advocacy group, who called the Supreme Court “the most powerful, least accountable, institution in Washington.”
While the Supreme Court is supposed to operate under regulations guiding all federal judges, including a requirement that a justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” there’s no procedure to enforce that rule. Each justice can decide whether to recuse, and there is no way to appeal a Supreme Court member’s failure to do so.
Unlike in lower courts, there is no other judge that can step in, and thus a recusal by one justice would mean considering the case with only eight justices, increasing the chance it could not be resolved.
Thomas, 73, has recused himself 32 times in the last 28 years, mostly on petitions never granted by the court, according to research by Roth’s group. (He recused himself more often in his first two years on the court, due partly to conflicts with his previous employment.) He has recused himself in a family matter, sitting out a case involving a college that his son attended. But Thomas has never bowed out of a case due to alleged conflicts with his wife’s activism, according to Roth.
Ginni Thomas has long been one of the nation’s most outspoken conservatives. During her husband’s time on the Supreme Court, she has run organizations designed to activate right-wing networks, worked for Republicans in Congress, harshly criticized Democrats who she said were trying to make the country “ungovernable,” and handed out awards to those who agree with her agenda. Ginni Thomas also worked closely with the Trump administration and met with the president, and has come under fire over messages praising Jan. 6 crowds before the attack on the Capitol. In a number of instances, her activism has overlapped with cases that have been decided by Clarence Thomas.
Supreme Court allows release of Trump's Jan. 6 records
On Jan. 19, the Supreme Court rejected former president Donald Trump’s request to withhold records from the House committee investigating the Capitol attack. (Reuters)
Thomas’s vote in the Jan. 6 case is such a striking conflict of interest, critics say, that some hope it sparks further support for long-sputtering efforts to toughen rules governing the justices — an effort bolstered by a White House commission last month that noted the inherent problem with court’s recusals.
“It doesn’t get more partisan than sending a letter to the Republican caucus” criticizing the Jan. 6 committee, said Rep. Hank Johnson (D-Ga.), author of several bills that would require an independent review to determine when Supreme Court justices should recuse. He said in an interview that Clarence Thomas’s conflicts with his wife’s work make him “the poster child” for passing the ethics legislation.
However, some scholars said Clarence Thomas had no reason to recuse in cases such as the Jan. 6 decision. Louis J. Virelli III, the author of “Disqualifying the High Court: Supreme Court Recusal and the Constitution,” said in an interview that a spouse’s ideological position alone is no reason for a justice to recuse.
“Ginni Thomas is not a party to the case, nor is her organization as I understand it, so the fact that his spouse would prefer one outcome in the case is not in and of itself disqualifying,” Virelli said. He also said he did not believe it would be constitutional for Congress to impose a “recusal mandate” on the Supreme Court.
Caroline Fredrickson, a Georgetown University law professor who served on the White House commission, said that she could think of no precedent for Justice Thomas’s decision to rule on issues closely linked to his wife’s activism.
“In every case that has come up, he has shown no interest in recusal and has in fact seemingly been defiant,” Fredrickson said. “To be a Supreme Court justice and to be married to a firebrand activist who’s trying to blow things up” is unique. “It’s so out of bounds that if it weren’t so frightening, it would be comical.”
Fredrickson said that while Thomas theoretically is supposed to recuse himself when there is a perceived conflict, “there’s no binding mechanism” to enforce it. “It’s sort of the honor system, it depends on their own evaluation. … It’s kind of crazy. They’re supposed to be responsible for keeping us all on the right side of the law. And in fact, they don’t have any responsibilities themselves.”
But Michael Ramsey, who also served on the White House commission and is a former clerk for conservative justice Antonin Scalia, said he saw no reason for Clarence Thomas to recuse in the Jan. 6 case. “If Justice Thomas says he is not influenced by his wife, I believe him,” Ramsey said in an interview.
Ginni and Clarence Thomas, and a Supreme Court spokesperson, did not respond to a request for comment.
Neither Clarence nor Ginni Thomas appear to have spoken publicly about his stance on recusals related to her work, but in the past he has batted back criticisms of his objectivity. Amid demands that he recuse himself from an Obamacare case in 2011, Thomas said critics “seem bent on undermining” the court.
In a recording obtained by Politico at the time, he said his wife gave “24/7 every day in defense of liberty,” and that “there is a price to pay today for standing in defense of your Constitution.”
Ginni Thomas, who served as an attorney for the U.S. Chamber of Commerce, met Clarence — then the head of the Equal Employment Opportunity Commission — on lunch date in 1986, and they were married the following year. Four years later, Clarence Thomas survived tumultuous nomination hearings and began serving on the Supreme Court.
Ginni Thomas, already known for her conservative activism, eventually went to work for House Majority Leader Richard K. Armey (R-Tex.). She pushed back against Democratic complaints that there was a conflict of interest between her work and her husband’s Supreme Court rulings, telling the Wall Street Journal that “You really are seeing with Supreme Court or congressional spouses an evolution” in the roles men and women play.
The first major case that drew national attention to that potential conflict came in 2000, when the fate of the presidential campaign between Republican George W. Bush and Democrat Al Gore came before the Supreme Court. At the time, Ginni Thomas was working with the Heritage Foundation to recommend people for jobs within a possible Bush administration. Some Democrats called for Clarence Thomas to recuse himself from hearing the case that would decide the presidency, but Ginni Thomas told the New York Times at the time that “There is no conflict” and that she rarely discussed cases with her husband.
It was a pivotal, historic moment, and Gore faced a decision that would set the tone for politicians dealing with the court for years. Pressed by his aides about whether to call out the perception of the conflict, Gore instead instructed his deputy campaign manager Mark Fabiani to issue a statement that said, “The vice president has the highest regard for the independent judiciary, so we’re not going to comment on the various questions that have been raised.”
Thomas then joined with the 5-4 majority that ruled for Bush.
Today, Fabiani looks back and sees Gore’s faith in the independence of the judiciary as a turning point in history.
“It’s an attitude that, today, seems positively quaint,” Fabiani told The Washington Post in an email. “I wish we had objected more vigorously to the Vice President’s high-minded advice … Ginni Thomas’ claim in 2000 that she doesn’t talk to her husband about Supreme Court business now seems laughable. Is there a single opinion that Justice Thomas has ever written that is inconsistent with his wife’s far right-wing views?”
Gore did not respond to a request for comment.
In 2011, a group of 74 House Democrats wrote a letter to Clarence Thomas urging that he recuse himself from ruling on whether to uphold the Affordable Care Act, known as Obamacare. The letter noted that Ginni Thomas had received $686,589 between 2003 and 2007 from the conservative Heritage Foundation, which opposed the health care law. (Clarence Thomas had not disclosed the source of her income, as required; he was not required to disclose to amount of her earnings.) In addition, the letter said Ginni Thomas received an undisclosed salary from a nonprofit group she ran called Liberty Central that received undisclosed donations, which was made possible by Clarence Thomas’s vote with the 5-4 majority in the Citizens United case.
Clarence Thomas did not heed the request from House Democrats and he did not recuse in the 2012 case that upheld Obamacare. He was in the minority in that 5-4 decision. (Republicans had also called on Justice Elena Kagan to recuse from ruling on Obamacare, due to her work as solicitor general in the Obama administration — but she also remained on the case and voted to uphold the law.)
Ginni Thomas later founded Liberty Consulting, which she still operates. Her website does not list clients but provides a list of conservative charities that she supports, and says she speaks to “activist groups around the country.”
Ginni Thomas has reveled in her role as one of the nation’s leading right-wing activists, saying that conservatives must not “be complicit as the left moves its forces across our country.”
The Post reported in 2018 that she shared a post that accused Democrats of committing fraud in the midterms. She claimed that students who campaigned for gun control after surviving the mass shooting at a Parkland, Fla., high school were “dangerous to the survival of our nation.” She claimed President Barack Obama wiretapped Trump.
She wrote to officials in Clifton, Va., in 2020 urging that they take down a Black Lives Matter banner, saying “Let’s not be tricked into joining cause with radical extremists seeking to foment a cultural revolution because they hate America.”
When Ginni Thomas interviewed her husband in 2018 for a video produced by the Daily Caller News Foundation and featured on the conservative website the Daily Signal, he told his wife that being a justice “would be impossible without you. I have to be honest. It’s sort of like, how do you run with one leg? You can’t.” He also pushed back against those who suggested he should rule a certain way because he is Black. “As a judge you don’t get to be on one team or the other. You have to think independently in order to live up to the oath that you take.”
Ginni Thomas, in recent years, cultivated close ties to the Trump administration and other Republican leaders — an arrangement that critics say has created a number of potential conflicts for her husband.
In 2019, Ginni Thomas gave what she called an “Impact Award” to then-Rep. Mark Meadows (R-N.C.), who co-founded the Freedom Caucus, a group of hard-right Republicans in the House. In accepting the award, Meadows, who later became Trump’s chief of staff, told the audience he had “teamed up” with Ginni Thomas to combat charges against Trump in the first impeachment trial.
Meadows has refused to comply with a subpoena from the Jan. 6 committee, leading the committee to refer the matter to the Justice Department for possible prosecution — a matter that could wind up before the Supreme Court. Meadows could not be reached for comment.
Advocates have also said potential conflicts may extend to people who work with Ginni Thomas and file amicus “friend of the court” briefs. The New Yorker earlier this year detailed how the Center for Security Policy, run by Frank Gaffney, paid Ginni Thomas’s company for consulting services; tax returns reviewed by The Post show the center paid $101,500 in 2017 and $134,500 in 2018 for consulting.
Gaffney and others filed an amicus brief in 2017 supporting Trump’s travel restrictions on people from Muslim-dominated countries. The court upheld the restrictions by a 5-4 vote, with Clarence Thomas in the majority.
“We know that she has been a paid consultant to groups that have submitted these briefs before the court,” Johnson, the Georgia congressman, said.
Gaffney did not respond to a request for comment.
Sen. Sheldon Whitehouse (D-R.I.), who said that amicus briefs have flooded the Supreme Court in an effort to sway justices, has introduced legislation that would require those who file such briefs to disclose the source of the financing.
“They're not even at the point of letting the parties and themselves and the public know who's really behind the amicus front groups,” Whitehouse said in an interview.
Ginni Thomas has worked closely with the Trump administration on an array of matters, leading a group of conservative activists who met at the White House with the president, and going to the White House to celebrate his acquittal in his first impeachment trial. Her actions on Jan. 6, 2021, have also drawn scrutiny.
Hours before the attack on the Capitol, she celebrated the crowd at the “Save America” rally on the Ellipse, where Trump and others made baseless claims that the election had been stolen. She urged people to tune into C-SPAN “for what Congress does starting at 1:00 p.m. today. LOVE MAGA people,” referring to Trump’s slogan, “Make America Great Again.” In a subsequent post, she wrote, “GOD BLESS EACH OF YOU STANDING UP OR PRAYING.”
After the protesters stormed the Capitol, Ginni Thomas updated her post to note that it was written before the violence. She later wrote a message to a group of about 120 people who had clerked for her husband, suggesting that she would refrain from inserting herself in such divisive political matters.
“I owe you all an apology. I have likely imposed on you my lifetime passions,” she wrote. “My passions and beliefs are likely shared with the bulk of you, but certainly not all. And sometimes the smallest matters can divide loved ones for too long.”
In the wake of that apology, reported last year by The Post, she wrote, “Let’s pledge to not let politics divide THIS family, and learn to speak more gently and knowingly across the divide.”
Nonetheless, months later, Ginni Thomas inserted herself into one of the most fraught political issues of the moment: the investigation into what led to the insurrection.
She was among a group called the Conservative Action Project who signed a Dec. 15, 2021, letter to House Minority Leader Kevin McCarthy (R-Calif.) decrying the probe. The letter said that the two Republicans on the panel, Reps. Liz Cheney (Wyo.) and Adam Kinzinger (Ill.), should be removed as members of the House Republican Caucus, complaining that the committee put out “improperly issued subpoenas and other investigatory tactics designed not to pursue any valid legislative end, but merely to exploit for the sake of political harassment and demagoguery.”
Eight days later, Trump’s lawyers asked the Supreme Court to stop White House records from his administration from being turned over to the congressional committee. “Congress may not rifle through the confidential presidential papers of a former President to meet political objectives,” the filing said.
Meadows, the self-described teammate of Ginni Thomas, filed an amicus brief in support of Trump’s request.
On Jan. 19, the Supreme Court rejected the request. Clarence Thomas, the lone justice to say he would have sided with Trump, did not explain his reasoning.
Alice Crites and Robert Barnes contributed to this report.
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I have 100% confidence in the integrity and independence of Justice Thomas, but admit this bothers me when it happens on the other side. cf. Nancy Pelosi's husband.
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is what she said
but huffpost pajama boy who labels her extremist as well as the guy who sleeps with Chinese spies
purposely misinterpret what she says
https://www.yahoo.com/news/lawmakers-rip-rep-lauren-boebert-090414931.html
has anyone heard MSM label Omar AOC etc as an "extremist"
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https://en.wikipedia.org/wiki/Ketanji_Brown_Jackson
Harvard grad AGAIN
is there no one else
besides havard yale?
8 of the 9 justices from harvard / yale
there is something wrong with this imho
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https://thefederalist.com/2022/03/08/republicans-are-successfully-blocking-biden-nominees-and-his-scotus-nominee-could-be-next/
I have not read this in detail
they repubs must be doing this during Graham's br breaks
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http://republicbrief.com/scotus-announcement-causes-major-problems-for-gop/
as thought Supreme Courts are impartial :roll:
like they were in the '20 election with voting laws ignored
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https://www.heritage.org/courts/commentary/look-ketanji-brown-jacksons-most-noteworthy-judicial-decisions
what we do know seems partisan activist to me
no surprise
Dems never make the same mistakes repubs do in picking justices
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https://www.heritage.org/courts/commentary/look-ketanji-brown-jacksons-most-noteworthy-judicial-decisions
what we do know seems partisan activist to me
no surprise
Dems never make the same mistakes repubs do in picking justices
Yes, partisan activist. No real paper trail as an appellate judge. Will she be a great Justice? No one can know. Does she meet minimum requirements of background? Yes. But this is not Amy Coney Barrett.
Is she the most qualified candidate available? Of course not. She was picked by first eliminating most alternatives with litmus tests:
1. Black
2. Women
3. Stated litmus test on Roe v Wade
4. Age
5. Inexperience, lack of a cross examinable paper trail.
If I were a Senator, the above unacceptable preconditions means I start with a no vote, this is not the best possible constitutional pick, and let her prove otherwise which is impossible. To just say she will be impartial and call "balls and strikes" is no longer credible; it is to copy what others said before her and didn't do.
The confirmation comes down to the opinion of a few R's, the usual suspects, and Joe Manchin. (Did he switch parties yet, or does he like representing a fossil fuel state while his party freezes and starves us away from abundant resources).
If this is to be the first appointment of a black woman to the Court, Joe Biden owes us Janice Rogers Brown. Oh wait, Joe says 'she ain't black!'
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Jackson looks like a weak nominee to me. Of course it's hard to wow people when your objective is to hide your views. Picked because she's a woman, she doesn't know what a woman is - or when life begins - or that we are a constitutional republic, not a democracy. A lifetime as an abortion advocate and never contemplated when life begins, that's depth!
In terms of sharpness and clarity, she is the opposite of Amy Coney Barrett.
She may be a predictable vote for the political left but not a Justice who strongly influences others.
Looks like she is the placeholder. 'Law clerks' directed by the cabal that runs Biden and the country will write her opinions. So much for separation of powers.
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Katie Pavolich:
https://townhall.com/tipsheet/katiepavlich/2022/03/23/judge-jacksons-failure-to-define-woman-met-with-calls-for-disqualification-n2604924
If she isn't the best person for this job, I wouldn't hesitate to vote against her but it will be hard to find a weaker voice for the Left to take this seat.
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I'm more worried about Clarence Thomas.
https://www.cbsnews.com/amp/news/clarence-thomas-hospitalized-supreme-court-flu-not-covid/
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https://www.dailymail.co.uk/news/article-10642895/Bidens-Supreme-Court-nominee-Ketanji-Brown-Jackson-refuses-define-word-woman.html
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https://www.npr.org/templates/story/story.php?storyId=106528133&fbclid=IwAR3NvBUll7LwJm-E5tYo5Nwm2e8C7UNG86uwjX2y1mM0ljG--MEmiCdxXtg
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An Assist to the Supreme Court in Restoring the Separation of Powers
A judge moves the ball on presidential control over federal agencies.
By The Editorial Board
Follow
March 24, 2022 7:04 pm ET
A major judicial project of the coming years should be reasserting the separation of powers as properly understood in the U.S. Constitution. A small, but perhaps consequential, step in that direction arrived March 18 in a federal court ruling against the Consumer Product Safety Commission (CPSC).
Federal Judge Jeremy Kernodle ruled that a Congressional restriction on the President’s power to remove members of the CPSC is unconstitutional (Consumers’ Research and By Two LP v. CPSC). The plaintiffs are education companies that were denied fee waivers for Freedom of Information Act requests by the CPSC.
In their claim for relief they also included that the CPSC’s structure violates the Constitution “by insulating the commissioners from presidential removal.” Judge Kernodle agreed, and his reasoning could move the law on independent federal agencies another step toward proper Presidential control.
The Founders vested all executive power in a single President for political accountability. But in the 20th century Congress eroded that unitary control by establishing independent agencies (the SEC, FTC, etc.). The Supreme Court blessed the arrangement far too readily, most famously in a misbegotten 1935 case known as Humphrey’s Executor that said Congress could limit the President’s ability to fire agency commissioners.
The Supreme Court has chipped away at Humphrey’s Executor in recent years, notably in cases involving single directors at the Consumer Financial Protection Bureau and Federal Housing Finance Agency. President Biden took advantage of both cases by forcing the directors appointed by President Trump to resign.
Judge Kernodle has now ruled that the same logic applies to an agency such as the CPSC that is governed by multiple (five) commissioners. We’ll spare you the arcane legal details, but suffice to say the opinion is a logical extension of recent Supreme Court rulings. It is likely to be upheld by the Fifth Circuit Court of Appeals and the Supreme Court if the Biden Administration chooses to appeal.
In that event Humphrey’s Executor would be hollowed out enough to be a dead letter even if it isn’t formally overturned as a precedent. Such a decision would also further isolate Morrison v. Olson (1988) as the bastard child of constitutional law. Morrison upheld the independent counsel statute and was the cause of Antonin Scalia’s greatest dissent.
Judge Kernodle’s ruling won’t have large immediate policy consequences because he didn’t rule that all CPSC decisions are invalid even if the agency is improperly structured. But his opinion is significant for assisting the Supreme Court’s effort to return Congress, the executive branch and the judiciary to their proper constitutional lanes.
The Court may soon pare back its doctrines of Auer and Chevron judicial deference to administrative agencies, which might cause Congress to write clearer laws. The Justices are also more forcefully applying their “major questions” doctrine to scrutinize agency decisions such as the vaccine mandate. Kudos to Judge Kernodle for lighting the constitutional way forward.
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pretends to be an originalist when everything in their history says they are not:
some good points:
https://www.nationalreview.com/2022/03/ketanji-brown-jackson-closet-originalist/
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pretends to be an originalist when everything in their history says they are not:
some good points:
https://www.nationalreview.com/2022/03/ketanji-brown-jackson-closet-originalist/
They are a cancer, killing us from the inside.
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https://www.conservativereview.com/former-clarence-thomas-clerk-judges-are-never-asked-to-recuse-themselves-over-political-views-2657059942.html
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How dead French aristocrat helped Framers create Constitution
Bridging gap between Federalists, Anti-Federalists
By Aaron S. Van Allen
Editor’s note: This is one in a series examining the Constitution and Federalist Papers in today’s America.
In considering the Constitution, it is essential to remember that there were two factions involved in the discussion — the Federalists, who prioritized liberalism, and Anti-Federalists, who prioritized democracy — and one dead French aristocrat and political philosopher who helped them both find their way.
One should not freight the term “liberalism” with a 21stcentury connotation. During the Age of Enlightenment, particularly within 18th-century America, liberalism carried multiple definitions dependent upon the interpreter. In this setting, “liberalism” means simply a system of government that protects the rights of the individual. Democracy, supported by the Anti-Federalists, is fairly self-explanatory. The question with which the Framers grappled was how to create a system of government balancing democracy and liberalism.
The question is more complicated than it initially appears. In ancient Greece, particularly Athens, there was plenty of democracy, but no liberalism. One need only reference Socrates and his ultimate demise as evidence of that. In Great Britain, liberalism wholeheartedly existed, but there was a deficiency of democracy.
The Federalists and Anti-Federalists both agreed the answer was federalism: a system of government where powers are divided among a national, centralized government and regional, state governments. Do not mistake the term “Anti-Federalist” as being anti-federalism; this is an unfortunate misconception. The Anti-Federalists merely disagreed with the Federalist plan on the type of federalism initially suggested at the Constitutional Convention.
Anti-Federalists believed that democracy could exist only on a small scale. Thinking about Plutarch’s Athens, or Rousseau’s Geneva, one finds validity in that belief.
For this reason, Anti-Federalists were vocally opposed to Federalist assertion of the necessity of “extending” the democratic sphere. The Anti-Federalists believed that the extension of a pure democracy eventually would give rise to a tyrannical, centralized government — whether formulated in a despotic executive or an overly powerful legislature.
For their part, Federalists believed that democratic institutions, organized on a local spectrum, would lead to a nation divided: my country Virginia, my country Massachusetts, etc. Consequently, they favored a centralized government that would be the glue holding the smaller, democratic institutions of the states together as a unifi ed nation.
Enter Charles Louis de Secondat, Baron de Montesquieu — a French aristocrat who had died in 1755 — and his political treatise “The Spirit of the Laws.”
The Anti-Federalists admired Montesquieu and referenced Books (chapters) I-IX as the basis of their ideas about the primacy of democracy. The Federalists admired him as well and focused on Book XI as their guide with respect to liberalism and creating durable institutions that protect political liberty.
Influenced by Montesquieu, James Madison and the Framers created the first layer of separation of powers: federalism. The centralized government would act to hold the union together and protect individual liberties while not overly infringing upon the rights and authorities of the individual states.
It is federalism that provides the balance, that protects individual liberty while representative democracy administratively and more efficiently operates on a smaller scale within the states. The Federalists acknowledged that each state personifies different cultures — and that was to be respected. The responsibility of the federal government was to protect an individual’s right to privacy and property — not create a national culture, dialogue, etc. That responsibility was given to the states.
Montesquieu was not done contributing to the young republic yet. In addition to separating powers between levels of government, he advocated separating powers within levels of government.
Madison and the Framers ultimately wanted to construct a federalism in which the national government would not become tyrannical upon the states and in which the whims and emotions of those represented within the smaller democracies of the states would not result in an overly tyrannical federal government. Consequently, they also adopted Montesquieu’s idea of separation of the powers within the national government.
The political authority of the federal government is divided into the legislative (Article I), executive (Article II) and judicial (Article III) branches of government. Montesquieu proposed that these branches should be separate and independent from the others to effectively and efficiently defend the liberty of the body politic.
Furthermore, and solely through separation of powers, checks and balances find their port of origin. The separate, independent branches perform checks on the others to ensure, again, one does not become tyrannical.
Madison explains in Federalist 48 : “It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others.”
Without Montesquieu’s ideas on how democracy can be protected by federalism and tyranny checked by separation of powers within a national government, it is entirely possible that the Federalists and Anti-Federalists may not have been able to bridge their substantial differences and create our national Constitution.
• Aaron S. Van Allen is an adjunct professor of Government at Liberty Universit
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of course:
https://www.yahoo.com/news/gop-sen-collins-says-shell-124137062.html
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https://www.yahoo.com/money/u-supreme-court-declines-extend-142820098.html
of course the MSM headline is designed
to invoke immediate anger for the heartless mostly conservative SCOTUS in hurting the poor the elderly
blah blah blah
Certainly also telling is the expected lone dissent ........
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https://www.politico.com/news/2022/05/02/read-justice-alito-initial-abortion-opinion-overturn-roe-v-wade-pdf-00029504
98 pages.
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From Justice Byron White's Roe dissent:
"Decisions that find in the constitution
principles and values that cannot fairly be read into that document
usurp the people's authority.'
P.41 of the draft.
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https://www.politico.com/news/2022/05/02/read-justice-alito-initial-abortion-opinion-overturn-roe-v-wade-pdf-00029504
98 pages.
Some observations as I read it:
1. Crafty already mentioned, the leaking of it is a horrible breach of the Court and breach of trust.
2. It is authentic. No saboteur could fake reasoning this thorough and sound.
3. The document leaked is labeled Justice Alito's first draft dated Feb 10, probably circulated to the other Justices intended to sign on with it. Maybe it got circulated to all the Justices, because those writing dissents need to know what is in the ruling they are dissenting.
4. IMHO it has Justice Amy Coney Barrett's hand all over it. Better to let the more senior J. Alito author and take ownership of the opinion than such a recent (Trump) appointee.
5. The thoroughness and complete workability of this is designed to settle the matter (meaning return it to the states).
6. In the end, it returns the matter to the states where such a contentious matter belongs. It does not pretend to know, decide or define life, potential life, viability, due or undue burden or anything else. It returns those questions and issues to the people and to the states.
The ruling, if signed and approved, says:
"The constitution does not confer the right to an abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives." - Justice Alito ruling first draft
[Doug] How dare they return an unresolved, contentious issue to the people and their elected representatives!
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Appendix A is a history of 37 states regulating and restricting the right to an abortion prior to Roe. In other words, it was not a widely or universally recognized right throughout this country's history that didn't happen to get enumerated in the constitution, bill of rights or further amendments. It was not considered a right until Roe [was wrongly decided].
Appendix B goes further, lists states (and District of Columbia) that, in our history, banned all abortions (without judicial or constitutional challenge).
This is not a pro-life or pro-choice ruling. They are ruling on jurisdiction. They are ruling that there isn't a federal constitutional justification for the Court to interfere with reasonable, rational basis legislation by the states on the matter.
One last point, how come the dissent isn't leaked?
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The Abortion Disinformation Campaign
Don’t believe the claims that other rights are in jeopardy if Roe v. Wade falls.
By The Editorial Board
Updated May 4, 2022 7:53 pm
First, they ban abortion. Next will be a contraception ban. Then a ban on same-sex and even interracial marriage. Soon we will all be living in “The Handmaid’s Tale.”
That’s the parade of horribles that Democrats and the media are trying to sell Americans after the leak of a draft Supreme Court opinion that would repeal a constitutional right to abortion.
If Roe v. Wade falls, it “would mean that every other decision related to the notion of privacy is thrown into question,” President Biden warned Tuesday. “Does this mean that in Florida they can decide they’re going to pass a law saying that same-sex marriage is not permissible?” If we can borrow a word he likes, the President is peddling disinformation.
The press is full of similar pearl-clutching about which precedent the Supreme Court might strike down next. Is it Obergefell (2015), which enshrined gay marriage? Griswold (1965), which overturned a state law prohibiting married couples from buying contraceptives? What about even Loving v. Virginia (1967), which guaranteed interracial marriage?
In the marriage cases, there are also what the Court calls “reliance interests” at stake. Hundreds of thousands of Americans are married to people of the same sex. The Supreme Court isn’t going to invalidate those unions and disrupt so many lives. The same goes for interracial marriage. By the way, Justice Clarence Thomas is married to a white woman.
Roe also stands apart on what Justice Alito’s opinion calls “workability” grounds. Roe has continued to inspire a mass of litigation as modified by Casey’s “undue burden” test. No one really knows what that burden is, so states bring case after case to contest it. By contrast, Obergefell, Griswold and similar rulings have not been challenged by what Justice Scalia called “give-it-a-try” litigation.
Democrats don’t want Americans to know all this because their political goal is to frighten them into believing that Justice Alito is some black-robed Pharisee bent on invading their bedrooms. It’s simply not true. Repealing Roe would merely return abortion policy to the states and democratic debate. That’s all.
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https://www.nationalreview.com/2022/05/alito-should-be-less-defensive-about-unenumerated-rights/?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Saturday%20New%202022-05-07&utm_term=NRDaily-Smart
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https://nypost.com/2022/05/14/clarence-thomas-says-abortion-leak-has-changed-supreme-court/
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https://constitutioncenter.org/interactive-constitution/interpretation/article-iii/clauses/39?fbclid=IwAR3nZ0dKpyNCTAnSJMP9skR3K1t8pyfGXGZ0Cj0ZaxQ2Yccg5LkOMns4Usc
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Constitutional Thunder Out of the Fifth Circuit
An appeals court ruling against the Securities and Exchange Commission is a blow to the runaway administrative state.
By The Editorial BoardFollow
May 22, 2022 4:27 pm ET
That rumble you hear in the distance is federal courts moving to re-establish the proper understanding of the Constitution’s separation of powers. The latest legal bombshell is a decision last week by the Fifth Circuit Court of Appeals (based in Louisiana) against the Securities and Exchange Commission.
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The case involves hedge-fund founder George Jarkesy and an investment adviser, and it goes to the heart of whether the Constitution still protects individual liberty. In 2013 the SEC charged the pair with securities fraud for allegedly inflating the value of fund assets. The agency said the higher valuation allowed them to earn higher management fees.
Mr. Jarkesy wasn’t allowed to defend himself in a court under Article III of the Constitution. Instead the case came before an SEC administrative law judge, who ruled against Mr. Jarkesy and his business partner. The commissioners then affirmed the decision and ordered them to pay a civil penalty and disgorge allegedly ill-gotten gains. The commission barred Mr. Jarkesy from the securities industry.
Merits of the case aside, the constitutional problem is that the SEC acted as prosecutor, judge and jury. The Dodd-Frank Act lets the SEC decide whether to bring charges in its own tribunal or federal court. The agency usually chooses the former, as do other agencies such as the Federal Trade Commission.
Enter the Fifth Circuit, which held in Jarkesy v. SEC that the SEC’s tribunals, as currently structured, violate the Seventh Amendment’s right to trial by jury. As Judge Jennifer Walker Elrod explains for the 2-1 panel majority, the jury guarantee applies to all suits of “common law,” as understood at the time of the founding. This includes fraud prosecutions.
The Fifth Circuit also ruled that Congress’s delegation of legislative power to the SEC to decide where to bring fraud enforcement actions violates the Constitution’s separation of powers. Congress may grant agencies prosecutorial discretion to decide what cases to bring, Judge Elrod noted, but it cannot give them free rein to decide their judicial forum.
Notably, she cites Justice Neil Gorsuch’s dissent in Gundy v. U.S. (2019) in which he said the Supreme Court should revisit its nondelegation doctrine that has given too much leeway to the executive branch to perform legislative functions. Two new conservative Justices have joined the Court since Gundy and may be willing to take up their colleague’s invitation.
It gets better. The Fifth Circuit found that the job protections of administrative law judges violate the constitutional imperative that the President “take care that the laws be faithfully executed.” The Supreme Court has interpreted this to mean that a President must have power over officers’ appointment and removal.
Yet SEC judges can only be removed by the five SEC commissioners if the government’s Merit Systems Protection Board (MSPB) finds cause. Commissioners and MSPB members can only be removed by the President for cause. SEC judges are insulated from Presidential removal by two layers of for-cause protection. This violates the Court’s Free Enterprise Fund (2010) precedent.
All of this is a blow to the SEC, but it’s a blessing for the proper understanding of the Constitution. The agency isn’t used to losing cases since defendants often settle to avoid the expense and hassle of litigation. Credit to Mr. Jarkesy for fighting back. The Biden Administration could seek an en banc review of the panel decision, but Judge Elrod’s opinion is sound and unlikely to be reversed by the full Fifth Circuit.
The ruling applies only to the SEC, but it could encourage similar challenges against other independent agencies. Some conservative Justices have hinted that they’d like to overturn the Court’s wrong-headed Humphrey’s Executor (1935) precedent that upheld limitations on the President’s ability to remove members of bipartisan independent agencies. The Biden Administration will have to decide if it wants to take that risk by appealing to the Supreme Court.
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High Court watchers are preoccupied these days with looming decisions on social issues, especially abortion and gun rights. But the movement to rein in the runaway administrative state is arguably more important for limiting government and protecting liberty. This is an essential project of the conservative judicial movement, and the Fifth Circuit ruling shows the thunder coming from the judicial provinces.
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Supreme Court Justice Sotomayor Reveals Her Thoughts About Clarence Thomas
By Jack Phillips June 17, 2022 Updated: June 17, 2022biggersmaller Print
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Supreme Court Justice Sonia Sotomayor on Thursday praised fellow Justice Clarence Thomas for his dedication to the high court’s integrity in light of recent protests and threats that were made against the institution.
Speaking at the American Constitution Society, Sotomayor, who was nominated by former President Barack Obama, said Thomas is a “man who cares deeply about the court as an institution.”
And while the two often disagree in their opinions, Sotomayor said she and Thomas have a “common understanding about people and kindness towards them,” adding, “Justice Thomas is the one justice in the building that literally knows every employee’s name, every one of them. And not only does he know their names, he remembers their families’ names and histories.”
“He’s the first one who will go up to someone when you’re walking with him and say, ‘Is your son okay? How’s your daughter doing in college?’ He’s the first one that, when my stepfather died, sent me flowers in Florida,” Sotomayor added of Thomas, who was nominated by former President George H.W. Bush.
Her comments come as the Supreme Court remains poised to release decisions on several high-profile cases, including potentially overturning Roe v. Wade. The Supreme Court will also soon issue a ruling in a New York gun rights case that could expand the scope of protection afforded under the Constitution’s Second Amendment—the first major decision on a gun-rights case in more than a decade.
Several weeks ago, the Supreme Court confirmed that a staffer may have leaked a majority opinion signaling that the court will indeed overturn Roe v. Wade, triggering a cascade of protests as well as threats against the institution.
An armed individual was arrested outside the Maryland home of Justice Brett Kavanaugh last week. The suspect allegedly told investigators that he was planning to kill Kavanaugh because he believed the justice would side with rulings to overturn Roe v. Wade and would side to expand gun rights in the United States.
“We are becoming addicted to wanting particular outcomes, not living with the outcomes we don’t like,” Thomas said after the draft was leaked. “We can’t be an institution that can be bullied into giving you just the outcomes you want. The events from earlier this week are a symptom of that.”
Later, Thomas commented on the leak, saying that “I do think that what happened at the court is tremendously bad.”
“I wonder how long we’re going to have these institutions at the rate we’re undermining them,” Thomas continued, adding that there is a “different attitude of the young” in how they view institutions and the rule of law.
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See our discussion on the abortion thread.
ccp, I had not read the Thomas opinion and had not seen your post with this link what I wrote that about Justice Thomas.
https://www.politico.com/news/2022/06/24/thomas-constitutional-rights-00042256
I don't want the issue of gay marriage revisited but the way that it happened, a 5-4 vote in the Supreme Court, was not in his opinion the way to resolve the matter of public policy regarding elected governments recognizing marriages.
I assume no other Justices signing on with this opinion.
Yes, I would call it something between unhelpful and politically tone deaf for him to say (write) that now, but political implications aren't his interest.
I like what crafty wrote about unenumerated rights:
"...prefer a Natural Law (see "endowed by their Creator", "laws of Nature and of Nature's God" and our Ninth Amendment itself) as a basis for Privacy, Self-defense, Parental Rights and other rights "not otherwise enumerated".
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"Yes, I would call it something between unhelpful and politically tone deaf for him to say (write) that now, but political implications aren't his interest."
I understand
but (as of course you know)
the LEFT will now warp even the hint of this into a threat to every identity political agenda they can think of
to round up the get out the vote next election
anyone who states this will not have an effect in November is kidding themselves in MHO.
we may just have lost the likes of PA Senate race and more
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FAST FORWARD to Alan Dershowitz at the 13 minute mark
then to 43:10 mark:
https://www.newsmaxtv.com/Shows/Rob-Schmitt-Tonight/vid/1_9dtvou4j
I like this guy Rob Schmitt
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Funny how nobody reads the first fifty pages of Alito's brilliant opinion, all true, but everybody will know that Thomas wants to ban contraception, which isn't true.
Because of ignorance and intentional disinformation we get wrapped up in the outcomes of these cases, abortion or no abortion, gay marriage or no gay marriage, even though the real issue before the Court often is who should decide these difficult matters.
Alito does quite an eloquent and thorough job of demonstrating how 'right to abortion' does not rise to what is meant by an unenumerated constitutional right.
I doubt gay marriage rises to that level either but you don't have the competing interest of arguably a life taken to make the importance or urgency of revisiting settled law.
When they overturned slavery and forced segregation and killing your unborn, there was a valid argument that someone was directly being harmed by a wrongly decided case. That argument is not nearly as clear or persuasive in the case of gay marriage or contraception.
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https://www.yahoo.com/news/supreme-court-justice-clarence-thomas-051733128.html
:x
no mention that Ginsberg served till the minute she croaked in order to shove liberal ideology down our throats...........
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I get Thomas's point about Substantive Due Process being conceptually unsound, but OTOH there is this:
Clarence Thomas’s Abortion Opinion Revisits Same-Sex Marriage, Contraception
Many conservatives say prospect of court taking another look at widely accepted decisions is remote, calling them more settled than Roe
WSJ
By Jan Wolfe
June 25, 2022 8:59 am ET
WASHINGTON—When the Supreme Court removed the constitutional right to an abortion, most of the justices in the majority focused on what they described as the “egregiously wrong” ruling that established that right in Roe v. Wade in 1973.
Justice Clarence Thomas took a broader view. In his opinion concurring with the majority, he wrote that if the legal underpinnings of Roe v. Wade were wrong, then so were the underpinnings of other rights not enumerated in the Constitution that the court recognized in recent decades. They include the right of married couples to use contraception, the right to same-sex romantic relationships and, in 2015, the right to same-sex marriage.
Justice Thomas’s stance raised the prospect that new challenges would soon be mounted against those rights, keying off the decision in the abortion case, Dobbs v. Jackson Women’s Health Organization.
The possibility that Friday’s ruling will have much greater applicability is an argument central to the dissent by the three liberal-leaning justices. Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan wrote: “Today’s opinion will fuel the fight to get contraception, and any other issues with a moral dimension, out of the Fourteenth Amendment and into state legislatures.”
A number of conservative legal scholars argued, as Justice Samuel Alito did in his opinion, that Roe was a special case. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” the justice wrote.
Sarah Parshall Perry, a lawyer at the conservative Heritage Foundation who worked in the Trump administration, said she sees no appetite among the other conservatives on the bench for revisiting rights that have become more accepted and entrenched in American life than Roe ever was.
“I don’t think there are the votes for re-examination of those other precedents,” she said. “Abortion is inherently different…Roe has always stuck out as a particularly egregious decision.”
Ms. Perry said repealing Roe has always been a singular focus for conservatives because of how poorly reasoned they think the ruling was and because they see it as bearing on the right not only of a consenting individual, but also on the fetus’s right to a life.
Ms. Perry said she expects that the court will be petitioned to revisit the issues in cases mentioned by Justice Thomas but that the current composition of the court suggests those petitions will be quickly turned away. “I’m virtually certain we won’t see the court granting them,” Ms. Perry said.
Justice Clarence Thomas wrote that if the legal underpinnings of Roe v. Wade were wrong, then so were those of some other rights upheld in recent decades.
Justice Brett Kavanaugh wrote a concurring opinion that distanced him from Justice Thomas.
“I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents,” Justice Kavanaugh wrote.
In his concurrence, Justice Thomas referred specifically to three cases that he considered to be on the same shaky constitutional footing as Roe: Griswold v. Connecticut (1965), which established the right of married couples to use contraception; Lawrence v. Texas (2003), which protects the right to same-sex romantic relationships; and Obergefell v. Hodges (2015), which establishes the right to same-sex marriage.
Justice Thomas said those cases—which some call “substantive due-process” cases—were wrongly decided because the court interpreted the 14th Amendment, adopted in 1868 to assure “due process of law” and “equal protection of the laws,” as establishing rights that the nation’s founders never intended.
The justices therefore have a duty, he wrote, to “correct the error” established in those precedents.
Justice Thomas’s views on those cases are no surprise to those familiar with his judicial thinking, said David Upham, a legal scholar at the University of Dallas who publicly disagreed with the 2015 decision that recognized same-sex marriage.
“He is saying things he has said in the past,” Mr. Upham said.
Mr. Upham said that, as social mores have shifted, the political will for revisiting Griswold has vanished.
“The contraceptive decisions are untouchable,” Mr. Upham said. “It’s not about constitutional law. It’s about the political reality that there aren’t a substantial number of people who would like to see that case revisited.”
Kris Ullman, president of the conservative Eagle Forum advocacy group, said: “There is a huge difference between abortion and contraception. This idea that all these other rights are in danger—that’s a scare tactic by the left.”
Some antiabortion groups, such as Students for Life of America, consider “Plan B” emergency contraceptives and intrauterine devices, or IUDs, to be abortifacients and have pushed to limit access to them. Where that line is drawn in jurisdictions across the country could give rise to legal battles, as could questions of which circumstances of a mother’s pregnancy qualify as exceptions to state abortion bans.
“I do think this opens up new battlegrounds for the court; it could be open season on what rights are protected by the Constitution,” said Joseph Thai, a University of Oklahoma law professor. Conservative views that once were confined to dissenting opinions, he added, “now can become majority opinions if you can count to five votes.”
“Today, Justice Thomas is an island unto himself,” said Jessica Levinson, a professor at Loyola Law School in Los Angeles. “While the majority goes to pains to say this is just about abortion and nothing else, the majority’s reasoning calls into question as to whether that is truly the case. Thomas could soon have visitors on his island.”
Mr. Upham dismissed that view, saying he sees no desire among lawmakers or the court’s conservative justices to push for overturning Obergefell, the same-sex marriage decision.
“I don’t think it’s likely, and I say this as someone who would like to see these precedents revisited,” Mr. Upham said.
At this point, he said, there is strong support for same-sex marriage among many Americans—and general acquiescence by people who once opposed it.
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My understanding is that the Supreme Court will not take up cases that have only one Justice voting to take it and if they did, the likely outcome would be 8-1 vote against overturning precedent.
That said, Thomas' point (imo) is about the role of these 9 people and the meaning of Article 3 and amendments and so on, not about what public policy should be on contentious issues.
That may give easy target to Leftist ads and talking points but sometimes should target them back, what is the role of the Court suppose to be? Just validation of 'woke' governance without regard to constitutional limits on federal government powers?
With R's poised to (possibly) take back all branches in the next two years with already a perhaps 6-3 Court advantage, is that really what even the Left wants, a rubber stamp Court of public opinion?
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https://www.yahoo.com/news/u-supreme-court-sides-doctors-145337654.html
as a doctor I am surprised by this
I think it pretty obvious when a "clinic" like this writes 300,000 prescriptions for opoids
and they are taking pharmaceutical kickbacks for writing fentanyl scripts
is obvious it is a cash for drugs business
these people belong in jail in MHO.
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New York Times v. Sullivan, the 1964
lawfare against lawfare
the DNC's
SPLC
https://nypost.com/2022/06/27/clarence-thomas-wants-to-make-it-easier-to-sue-media-companies-for-libel/
:wink:
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I say we topple George Floyd statues
and replace with Clarence Thomas monuments
:-D
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Supreme Court Narrows EPA’s Ability to Regulate Carbon Dioxide Emissions
By Matthew Vadum June 30, 2022 Updated: June 30, 2022biggersmaller Print
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The Supreme Court ruled 6–3 on June 30 that the Clean Air Act doesn’t give the U.S. Environmental Protection Agency (EPA) widespread power to regulate carbon dioxide emissions that a popular theory says contribute to global warming.
Chief Justice John Roberts wrote the court’s majority opinion (pdf) in West Virginia v. EPA, court file 20-1530. Roberts was joined by the court’s other five conservatives. The court’s three liberal justices dissented.
While “capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’” Roberts wrote, quoting a 1992 precedent, “it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d)” of the Clean Air Act.
“A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,” he wrote.
West Virginia and 18 other states challenged the authority the Clean Air Act provides the EPA.
In 2016, the Supreme Court overturned the Obama-era Clean Power Plan (CPP), which expanded controls over the industry. Next, the deregulation-minded Trump administration reversed course, easing control on the industry with its Affordable Clean Energy Rule (ACE Rule).
On Jan. 19, 2021, the U.S. Court of Appeals for the District of Columbia Circuit struck down the ACE Rule, restoring some of the EPA’s authority in American Lung Association v. EPA (pdf). The court held that the EPA, under Trump, had misconstrued section 7411(d) of the Clean Air Act.
In the new opinion, the Supreme Court reversed the D.C. Circuit decision and remanded the case “for further proceedings consistent with this opinion.”
In Justice Elena Kagan’s dissent, she criticized the court majority for a decision she said “strips” the EPA of the power Congress gave it to respond to “the most pressing environmental challenge of our time,” citing Massachusetts v. EPA (2007).
“Climate change’s causes and dangers are no longer subject to serious doubt. Modern science is ‘unequivocal that human influence’—in particular, the emission of greenhouse gases like carbon dioxide—’has warmed the atmosphere, ocean and land.'”
“Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decision maker on climate policy. I cannot think of many things more frightening.”
West Virginia Attorney General Patrick Morrisey, who previously told The Epoch Times that the EPA is trying to transform itself from “an environmental regulator into a central energy planning authority,” praised the Supreme Court.
“For many years, we’ve argued that EPA only had a narrow bit of authority to regulate carbon emissions,” Morrisey, a Republican who brought the appeal, said at a press conference.
“I think that the court today amplified that point. And once again, they also made clear that when you have something this big, something with vast economic and political significance, then that represents an extraordinary question. And that means Congress needs to step in, as opposed to the unelected bureaucrats.
“We know that over the last year and a half, the Biden administration has tried to run roughshod over the American economy with respect to its energy agenda.
“We want to make sure that the Biden agenda is limited by basis of what Congress authorized these agencies [to do],” he said.
“Our founders envisioned” that “Congress and not the unelected bureaucrats” should make decisions “about the major issues of the day.”
“They didn’t want to just have these unelected bureaucrats reach out and try to seize power where it didn’t exist,” Morrisey said.
U.S. Sen. Bob Menendez (D-N.J.) criticized the ruling and the six conservative justices.
“As the devastating impacts of climate change are becoming ever-more present, it is mind boggling and deeply alarming that the Supreme Court today has decided to hamstring the EPA’s authority to regulate greenhouse gases. This ruling not only restricts the agency’s ability to limit air pollution from the second-largest source of emissions in America, it also undermines the landmark Clean Air Act that gave it such authority,” the senator said.
“Make no mistake, with this devastating ruling in West Virginia v. EPA, the conservative majority of the Court continues to take our country backward and more worrisome, it opens the door to far-reaching implications for how other federal agencies generally create regulations to implement existing legislation moving forward.”
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This is a very important ruling IMHO.
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https://www.law.cornell.edu/wex/substantive_due_process
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Ted Cruz says Supreme Court legalizing gay marriage in 2015 was 'clearly wrong'
On his show, Verdict with Ted Cruz, the Texas senator discussed the 'vulnerability' of the Obergefell v Hodges decision
The ruling granted same-sex couples across the country the right to get married
Cruz, though, argued the decision should have been left to the states
His comments come just one month after the Supreme Court voted to overturn its landmark Roe v Wade decision guaranteeing the right to an abortion
By MELISSA KOENIG FOR DAILYMAIL.COM
PUBLISHED: 09:01 EDT, 17 July 2022 | UPDATED: 10:28 EDT, 17 July 2022
Texas Senator Ted Cruz has argued the Supreme Court should never have legalized gay marriage - branding the decision 'clearly wrong'.
The Texas senator discussed the 'vulnerability' of Obergefell v Hodges in 2015 and claimed it 'ignored two centuries of our nation's history'.
On his show, Verdict with Ted Cruz, he called for the rights to be handed back to states across the country.
His comments come after the Supreme Court's historic ruling to overturn the nationwide right to abortions under Roe v Wade.
At the time, Justice Clarence Thomas called for justices to 'reconsider' and potentially scrap other cases, which could include Obergefell v Hodges.
In Obergefell v Hodges, SCOTUS ruled the right to marry is guaranteed by the Due Process Clause and the Equal Process Clause of the 14th Amendment.
The move thereby guaranteed gay couples the right to get married across the United States.
He told conservative commentator Liz Wheeler that the decision should have been left up to the states
Cruz chatted on Saturday to conservative commentator Liz Wheeler, who asked him what the arguments would be to overturn Obergefell.
He told her: 'Obergefell, like Roe v Wade, ignored two centuries of our nation's history.
'Marriage was always an issue that was left to the states,' he continued. 'We saw states before Obergefell - some states were moving to allow gay marriage, other states were moving to allow civil partnerships.
'There were different standards the states were adopting.' He argued if the Supreme Court had not ruled the way it did 'the democratic process would have continued to operate'.
But, he said, in Obergefell, 'the Court said 'No we know better than you, and now every state must sanction and permit gay marriage.
"That decision was clearly wrong when it was decided,' Cruz said, adding that the court was 'overreaching.'
This is not the first time Cruz has spoken out against the Obergefell decision.
After the decision was first handed down in June 2015, he told NPR in an interview that states that were not involved in the lawsuit should disregard the decision.
'Those who are not parties to the suit are not bound by it,' he said at the time.
Cruz also said he would have made opposition to gay marriage a central part of his 2016 presidential primary campaign - which he ultimately lost to future Trump.
Still, he noted on Saturday, the Supreme Court's decision overturning the landmark Roe v Wade case suggested that Obergefell would be treated differently.
'In Dobbs, what the Supreme Court said is 'Roe is different because it's the only one of the cases that involves the taking of a human life, and it's qualitatively different,'' he said. 'I agree with that proposition.'
In Obergefell v Hodges, the Supreme Court ruled in 2015 that the right to marry is guaranteed by the Constitution. People are seen celebrating outside the Supreme Court following the decision
+16
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In Obergefell v Hodges, the Supreme Court ruled in 2015 that the right to marry is guaranteed by the Constitution. People are seen celebrating outside the Supreme Court following the decision
Cruz's remarks come just one month after the Supreme Court struck down its landmark decision guaranteeing women the right to an abortion.
The Supreme Court ruled that Roe v Wade was wrongly decided last month, effectively leaving it up to each individual state to determine whether to legalize abortions, with at least 18 states now banning it.
The ruling stated: 'Like the infamous decision in Plessy v. Ferguson, Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided.
'Those on the losing side - those who sought to advance the State's interest in fetal life - could no longer seek to persuade their elected representatives to adopt policies consistent with their views.'
Supreme Court Justice Clarence Thomas called for his fellow justices to 'reconsider' and potentially overturn other cases decided on the legal authority of 'substantive due process in the aftermath of the court's decision to overturn Roe v Wade
+16
View gallery
Supreme Court Justice Clarence Thomas called for his fellow justices to 'reconsider' and potentially overturn other cases decided on the legal authority of 'substantive due process in the aftermath of the court's decision to overturn Roe v Wade
'The Court short-circuited the democratic process by closing it to the large number of Americans who disagreed with Roe,' the ruling added.
In his majority decision, though, Justice Samuel Alito wrote that 'nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.'
But his colleague, Justice Clarence Thomas called for his fellow justices to 'reconsider' and potentially overturn other cases decided on the legal authority of 'substantive due process.'
Substantive due process refers to the idea that people have fundamental rights that are not specifically laid out in the Constitution - and was the basis for a number of landmark cases including Obergefell.
'In future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence and Obergefell,' Thomas wrote.
'Because any substantive due process decision is demonstrably erroneous, we have a duty to 'correct the error' established in these precedents,' he continued.
Thomas was specifically referring to the 1965 Griswold v Connecticut decision, which allows married couples to access birth control; and the 2003 Lawrence v Texas decision, which forbids states from outlawing consensual gay sex.
That decision ultimately led up to the 2015 Obergefell v Hodges decision that established a Constitutional right to gay marriage.
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"Gay marriage" is a sick, perverted joke.
Anyone think the founding fathers had sodomites in mind when they were writing the constitution?
Ted Cruz says Supreme Court legalizing gay marriage in 2015 was 'clearly wrong'
On his show, Verdict with Ted Cruz, the Texas senator discussed the 'vulnerability' of the Obergefell v Hodges decision
The ruling granted same-sex couples across the country the right to get married
Cruz, though, argued the decision should have been left to the states
His comments come just one month after the Supreme Court voted to overturn its landmark Roe v Wade decision guaranteeing the right to an abortion
By MELISSA KOENIG FOR DAILYMAIL.COM
PUBLISHED: 09:01 EDT, 17 July 2022 | UPDATED: 10:28 EDT, 17 July 2022
Texas Senator Ted Cruz has argued the Supreme Court should never have legalized gay marriage - branding the decision 'clearly wrong'.
The Texas senator discussed the 'vulnerability' of Obergefell v Hodges in 2015 and claimed it 'ignored two centuries of our nation's history'.
On his show, Verdict with Ted Cruz, he called for the rights to be handed back to states across the country.
His comments come after the Supreme Court's historic ruling to overturn the nationwide right to abortions under Roe v Wade.
At the time, Justice Clarence Thomas called for justices to 'reconsider' and potentially scrap other cases, which could include Obergefell v Hodges.
In Obergefell v Hodges, SCOTUS ruled the right to marry is guaranteed by the Due Process Clause and the Equal Process Clause of the 14th Amendment.
The move thereby guaranteed gay couples the right to get married across the United States.
He told conservative commentator Liz Wheeler that the decision should have been left up to the states
Cruz chatted on Saturday to conservative commentator Liz Wheeler, who asked him what the arguments would be to overturn Obergefell.
He told her: 'Obergefell, like Roe v Wade, ignored two centuries of our nation's history.
'Marriage was always an issue that was left to the states,' he continued. 'We saw states before Obergefell - some states were moving to allow gay marriage, other states were moving to allow civil partnerships.
'There were different standards the states were adopting.' He argued if the Supreme Court had not ruled the way it did 'the democratic process would have continued to operate'.
But, he said, in Obergefell, 'the Court said 'No we know better than you, and now every state must sanction and permit gay marriage.
"That decision was clearly wrong when it was decided,' Cruz said, adding that the court was 'overreaching.'
This is not the first time Cruz has spoken out against the Obergefell decision.
After the decision was first handed down in June 2015, he told NPR in an interview that states that were not involved in the lawsuit should disregard the decision.
'Those who are not parties to the suit are not bound by it,' he said at the time.
Cruz also said he would have made opposition to gay marriage a central part of his 2016 presidential primary campaign - which he ultimately lost to future Trump.
Still, he noted on Saturday, the Supreme Court's decision overturning the landmark Roe v Wade case suggested that Obergefell would be treated differently.
'In Dobbs, what the Supreme Court said is 'Roe is different because it's the only one of the cases that involves the taking of a human life, and it's qualitatively different,'' he said. 'I agree with that proposition.'
In Obergefell v Hodges, the Supreme Court ruled in 2015 that the right to marry is guaranteed by the Constitution. People are seen celebrating outside the Supreme Court following the decision
+16
View gallery
In Obergefell v Hodges, the Supreme Court ruled in 2015 that the right to marry is guaranteed by the Constitution. People are seen celebrating outside the Supreme Court following the decision
Cruz's remarks come just one month after the Supreme Court struck down its landmark decision guaranteeing women the right to an abortion.
The Supreme Court ruled that Roe v Wade was wrongly decided last month, effectively leaving it up to each individual state to determine whether to legalize abortions, with at least 18 states now banning it.
The ruling stated: 'Like the infamous decision in Plessy v. Ferguson, Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided.
'Those on the losing side - those who sought to advance the State's interest in fetal life - could no longer seek to persuade their elected representatives to adopt policies consistent with their views.'
Supreme Court Justice Clarence Thomas called for his fellow justices to 'reconsider' and potentially overturn other cases decided on the legal authority of 'substantive due process in the aftermath of the court's decision to overturn Roe v Wade
+16
View gallery
Supreme Court Justice Clarence Thomas called for his fellow justices to 'reconsider' and potentially overturn other cases decided on the legal authority of 'substantive due process in the aftermath of the court's decision to overturn Roe v Wade
'The Court short-circuited the democratic process by closing it to the large number of Americans who disagreed with Roe,' the ruling added.
In his majority decision, though, Justice Samuel Alito wrote that 'nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.'
But his colleague, Justice Clarence Thomas called for his fellow justices to 'reconsider' and potentially overturn other cases decided on the legal authority of 'substantive due process.'
Substantive due process refers to the idea that people have fundamental rights that are not specifically laid out in the Constitution - and was the basis for a number of landmark cases including Obergefell.
'In future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence and Obergefell,' Thomas wrote.
'Because any substantive due process decision is demonstrably erroneous, we have a duty to 'correct the error' established in these precedents,' he continued.
Thomas was specifically referring to the 1965 Griswold v Connecticut decision, which allows married couples to access birth control; and the 2003 Lawrence v Texas decision, which forbids states from outlawing consensual gay sex.
That decision ultimately led up to the 2015 Obergefell v Hodges decision that established a Constitutional right to gay marriage.
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Wrongly decided case and whether or not it is good public policy are different questions.
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the Constitution !!!
says two law professors
one from Yale and Harvard who together produce more SC/Federal justices/judges than all other law schools.
One an ex Jewish person who has since converted to the Democrat partisan religion orthodoxy.
https://www.breitbart.com/politics/2022/08/22/ivy-league-professors-reclaim-america-from-broken-constitution/
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Judge halts parental rights lawsuit against district
Says Gender Support Plan rules were designed to ‘apply flexibly’
BY SEAN SALAI THE WASHINGTON TIMES
A federal judge in Maryland has dismissed a lawsuit brought by three parents against Montgomery County Public Schools to stop a policy of hiding students’ gender transitions from “unsupportive” caregivers. U.S. District Judge Paul W. Grimm ruled late Thursday that the parents lack legal standing to proceed because the school district designed its Gender Support Plan guidelines to “apply flexibly.”
That means they exclude parents only at the request of transgender or gender nonconforming students who fear psychological or physical abuse — an area of “compelling interest” where Supreme Court precedent allows government intervention, the judge ruled.
“In sum, the Guidelines neither mandate nor encourage the exclusion or distrust of parents, but aim to include parents and other family in the support network they are intended to create,” Judge Grimm wrote in his opinion.
In a statement emailed to The Washington Times, the Montgomery County Board of Education welcomed the ruling.
“The Court rightly found that our Guidelines for Gender Identity actively encourage familial involvement in developing and implementing a transgender or gender nonconforming student’s ‘Gender Support Plan’ whenever possible,” the statement reads.
The board added that the ruling affirms the school district’s “strong commitment” to protecting student safety and privacy and preventing discrimination against gender-transitioning students.
Three unidentified parents filed the lawsuit in October 2020. It claims that the district violates their right under the 14th Amendment “to direct the care, custody, education, and control of their minor children” by questioning students’ gender identities in a confidential intake form.
Their attorney, Rick Claybrook, said they are considering an appeal.
According to district guidelines, teachers may hide how gender-transitioning students identify at school by reverting to “birth” names and pronouns with parents the children fear will not support them.
The guidelines state that “all students should feel comfortable expressing their gender identity,” Judge Grimm noted in his ruling.
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Very opinionated, would love to hear the other side:
https://www.youtube.com/watch?v=VWGfEDqTquQ
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https://www.msn.com/en-us/news/politics/report-on-supreme-court-abortion-leak-could-come-soon-gorsuch-says/ar-AA11EHMG
hopefully "soon"
:roll:
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https://nypost.com/2022/09/15/congress-doesnt-have-the-power-to-legislate-on-abortion/
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Elena Kagan’s ‘Political’ Supreme Court
The Justice gives an assist to those attacking the Court’s legitimacy.
By The Editorial BoardFollow
Sept. 15, 2022 6:43 pm ET
Justice Elena Kagan is the leading liberal on the Supreme Court now that Justice Stephen Breyer has retired, and she no doubt thinks of herself as an institutionalist. So it’s a shame to see her lending an assist to the current political attack on the High Court’s legitimacy.
“When courts become extensions of the political process, when people see them as extensions of the political process, when people see them as trying just to impose personal preferences on a society irrespective of the law, that’s when there’s a problem—and that’s when there ought to be a problem,” the Justice said Wednesday at Northwestern University School of Law.
***
Political? Hmmm. Whom do you think she has in mind? Justice Kagan didn’t mention Dobbs v. Jackson Women’s Health Organization, the case in which a majority overturned Roe v. Wade. But you don’t have to be Oliver Wendell Holmes to know that was the context, and her remarks feed the Democratic and media project to tarnish the current Court.
But let’s examine that “political” charge. If the majority was being political in Dobbs, it failed in spectacular fashion. By returning abortion to the realm of politics, rather than judicial ukases, the Court has galvanized Democratic voters. Republicans who supported the end of Roe are on the backfoot politically, and it could cost them control of Congress.
As for abortion and judging, note that Justice Kagan doesn’t defend Roe on the merits. Neither does any honest judge or legal academic on the political left. That’s because Roe’s logic was entirely political, an invention of Justice Harry Blackmun, a Republican appointee. The lead dissenter was Byron White, a Democratic appointee. In agreeing with Justice White’s critique of Roe, was Justice Samuel Alito being political—or correcting the historic mistake that Justice White called out at the time?
Justice Kagan would no doubt say, as the three dissenters did in Dobbs, that Roe had become a durable precedent. But when are judges justified in overruling an old precedent?
According to Justice Kagan at Northwestern, one such situation would be “when you’ve discovered that the doctrine that the Court has created is entirely unworkable, is usually the expression,” meaning that “a complete mess has been created.”
Please see page 56 of Dobbs to find Justice Alito’s analysis of the practical difficulties of asking judges to figure out what constitutes an “undue burden” on abortion rights. States kept challenging that standard because the Court itself was never clear about the undue burden test after three Justices concocted it in Planned Parenthood v. Casey in 1992.
“What makes a court legitimate,” Justice Kagan also said, “is that the court is acting like a court. It’s doing something that’s recognizably law-like.” Justice Kagan doesn’t have to agree with the majority opinion in Dobbs, but it’s wild to watch her talk as if it doesn’t exist. Spend an hour or so digesting Justice Alito’s 87-page opinion, and our guess is you’ll find that it’s plenty “law-like.”
Crazy idea, but maybe what’s really hurting the Supreme Court’s perceived legitimacy is that the Democratic Party, led by President Biden, is running a political campaign against it. Consider Gallup’s poll taken in July, after Dobbs, which shows approval of the Court at 43%, “statistically unchanged” from last year’s record low of 40%. That headline figure “masks big swings among partisans,” Gallup says. Republican approval is up 29 points to 72%. Democratic approval is down 23 points to 13%.
***
Justice Kagan is no political naif, and it’s too bad she’s feeding this narrative about the Court by suggesting her conservative colleagues do something other than follow the law as they see it. To return Justice Kagan’s disfavor to her colleagues, our guess is that she was playing some politics herself at Northwestern.
She’s warning the Justices that the “legitimacy” attacks will continue if they dare to rule in ways that progressives don’t like. She’s probably thinking in particular about the looming case on racial preferences at Harvard and the University of North Carolina.
Justice Kagan is no doubt frustrated that she isn’t in the majority in many of the most significant cases, but now she knows how Antonin Scalia and Clarence Thomas felt for decades. They never attacked the legitimacy of the Court. Justice Kagan would be wise to follow their example if she wants the public to respect the Court when her turn in the majority comes again
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Thomas’ philosophy of originalism will help guide justices in new term
BY STEPHEN DINAN AND ALEX SWOYER THE WASHINGTON TIMES
Justice Clarence Thomas has been on the Supreme Court for more than three decades, and his judicial philosophy rooted in the original meaning of the Constitution is finally controlling big rulings.
Yet he is cranking out opinions just like he did while in the legal desert of the liberal “living Constitution” era.
“He’s always been one to kind of identify problems that maybe the court hasn’t grappled with or issues that need to be brought up,” said Carrie Severino, who clerked for the justice 15 years ago. “It’s taken decades. He’s been on the court over 30 years now, but the court has ultimately been like, ‘Oh, yeah, that is an issue we need to look at.’” The difference between then and now, she said, is “you now see a majority of justices joining him.”
Justice Thomas will take the bench Monday for the start of the 2022-2023 term after his most influential year yet. He led colleagues in forcefully asserting Second Amendment gun rights and First Amendment religious free exercise rights and, of course, defenestrating Roe v. Wade.
That 1973 decision was the guiding star of liberal legal scholarship for decades but succumbed last year to Justice Thomas’ brand of originalism.
Justice Samuel A. Alito Jr. wrote the chief opinion, saying it was time to reverse years of wrong legal reasoning that had led to and flowed from Roe. Justice Thomas joined the ruling but wrote a concurring opinion to advise his colleagues that their job was not finished.
He said the same “substantive due process” right that Roe applied to establish a national right to abortion was the basis for other decisions, such as federal constitutional guarantees of access to contraception and same-sex marriage.
Ms. Severino said that’s typical of Justice Thomas. She said he likens the court’s use of precedent to engineers adding cars to a train.
“He’s like, ‘Look, you want me to add another car to this long train. I don’t even know where this train is going, who’s driving this train. So what we need to do is trace it back, go forward one car at a time, until we get to the very beginning, we find out what is going on,’” she said. “Sometimes, he says, you’ll find there’s a chimpanzee driving it. We should not be adding more cases to this line of reasoning.”
That’s one reason Justice Thomas is still writing prolifically while his philosophy controls more of the court’s opinions.
Adam Feldman, who runs Empirical SCOTUS, said Justice Thomas writes a separate opinion for every five cases on which he votes. That’s a full opinion ahead of the runner-up, Justice Sonia Sotomayor, the closest justice the liberal wing has to Justice Thomas.
Chief Justice John G. Roberts Jr. writes a separate opinion once every 14.5 cases in which he prevails, Mr. Feldman’s data shows.
“Even when [Justice Thomas] agrees with the outcome, he will go further in asserting his own points of view,” Mr. Feldman said. That’s particularly true when it comes to the use of stare decisis.
In the hands of many justices, fealty to justice can be a shield to defend a position or a weapon to attack a colleague’s position. For Justice Thomas, it’s usually just an academic question to be surmounted.
“Thomas will go out and say, ‘I don’t think it’s just overturning the law in this case; I don’t think there’s a distinct place for stare decisis in our jurisprudence that requires our respect. If I don’t agree with it, I’m going to overturn it,’” Mr. Feldman said. “He takes it a step further.”
During the past term, Justice Thomas wrote eight opinions in which he concurred with the outcome but wanted to make particular points, including in the abortion ruling. He had the highest concurrence rate on the court.
Court watchers figure Justice Thomas will play a significant role in the upcoming term in cases involving voting rights, election procedures, affirmative action in college admissions and First Amendment challenges to laws that require service for same-sex marriages when it conflicts with a business owner’s religious dictates.
“I could see him having, just because where he sits on these issues of religious liberty and the right to exclude based on a religious perspective, I could see him having some further-reaching opinion than the court’s willing to go,” Mr. Feldman said.
That the 6-3 conservative court has tilted toward Justice Thomas is mostly a matter of math. Justice Anthony M. Kennedy’s retirement and Justice Ruth Bader Ginsburg’s death opened slots that were filled by more conservativeleaning members, tilting a court from moderately originalist to aggressively originalist.
Justice Thomas has found a new voice in oral arguments during the pandemic.
He was famously reticent to take part in the back-and-forth during oral arguments and once went a decade without asking a question. The New York Times sniffed that he had given various explanations for his silence but seemed to settle on one that it was rude to the litigants to interrupt and preen and prod, as has been the practice for oral argument in recent years.
When the pandemic struck, the court went to virtual hearings and Chief Justice Roberts carved out specific time for each justice to ask questions. On a remote call, talking over one another would be a disaster. Justice Thomas, as the senior member of the court, got the first crack and began to engage again.
The court has gone back to in-person argument, but Chief Justice Roberts has maintained the structured format for each member to have a dedicated chance for questions, and Justice Thomas remains engaged.
“I think his colleagues recognized the value that added,” Ms. Severino said.
Justice Thomas’ success on the bench led to a rocky summer.
George Washington University’s law school, where he co-taught a constitutional law seminar for years, faced a rebellion of sorts from students who demanded that he be fired. The school rejected those calls. Although the justice’s views didn’t represent the school’s beliefs, GWU said, an open debate was part of education. Still, Justice Thomas withdrew from teaching the class.
An online petition circulating over the summer demanded the impeachment of the justice and garnered more than 1 million signatures. Democrats on Capitol Hill dismissed the idea as a non-starter.
Justice Thomas’ wife, Virginia “Ginni” Thomas, has been under scrutiny for communications surrounding the 2020 presidential election and her attendance at the pro-Trump rally on Jan. 6, 2021. She testified Thursday to the House committee investigating the mob attack on the U.S. Capitol later that day and reportedly told lawmakers that she believed the election was stolen.
She also said Justice Thomas doesn’t discuss his court work with her.
Detractors wonder whether the 74-year-old jurist will quit soon.
Ms. Severino doubts it. “No way,” she said. “On the Supreme Court, the mid-70s is like the new 40s.
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Taking rights seriously
To the government, rights are privileges
By Andrew P. Napolitano
‘If all mankind minus one were of one opinion, Mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.”
— John Stuart Mill (1806-1873) The world is filled with self-evident truths — truisms — that philosophers, lawyers and judges know need not be proved. The sun rises in the east and sets in the west. Two plus two equals four. A cup of hot coffee sitting on a table in a room, the temperature of which is 70 degrees Fahrenheit, will eventually cool down.
These examples, of which there are many, are not true because we believe they are true. They are true essentially and substantially. They are true whether we accept their truthfulness or not. Of course, recognizing a universal truth acknowledges the existence of an order of things higher than human reason, certainly higher than government.
The generation of Americans that fought the war of secession against England — according to Professor Murray Rothbard, the last moral war Americans waged. Rothbard understood the existence of truisms and recognized their origin in nature.
The most famous of these recognitions was Thomas Jefferson’s iconic line in the Declaration of Independence that self-evident truths come not from human beings but from “the Laws of Nature and of Nature’s God.” Thus, “All Men are created equal and are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness” is a truism.
Mr. Jefferson’s neighbor and colleague James Madison understood this as well when he wrote the Bill of Rights so as to reflect that human rights do not come from the government. They come from our individual humanity.
Thus, your right to be alive, to think as you wish, to say what you think, to publish what you say, to worship or not, to associate or not, to shake your fist in the tyrant’s face by petitioning the government, your right to defend yourself and repel tyrants using and carrying the same weapons as the government does, your right to be left alone, to own property, to travel or to stay put — these natural aspects of human existence are natural rights that come from our humanity and for the exercise of which all rational humans yearn.
This is the natural rights understanding of Jefferson’s Declaration and Madison’s Bill of Rights, to the latter of which all in government have sworn allegiance and deference.
A right is not a privilege. A right is an indefeasible personal claim against the whole world. It does not require a government permission slip. It does not require preconditions except the ability to reason. It does not require the approval of family or neighbors.
A privilege is something the government doles out to suit itself or calm the masses. The government gives those who meet its qualifications the privilege to vote so it can claim a form of Jeffersonian legitimacy. Jefferson argued in the Declaration that no government is morally licit without the consent of the governed.
No one alive today has consented to the government, but most accept it. Is acceptance consent? Of course not — no more than walking on a government sidewalk is consent to the government’s lies, theft and killing. Surely the Germans who voted against the Nazis and could not escape their grasp hardly consented to that awful form of government.
We need to distinguish between privileges that the government doles out and rights that we have by virtue of our humanity, rights so human and natural that they exist in all people even in the absence of government.
Are our rights equal to each other? Some are equal to each other, but one is greater than all, as none of the rights cataloged briefly above can be exercised without it. That is, of course, the right to live. This is the right most challenging to governments that have enslaved masses and gloried in fighting morally illicit wars that kill and thus destroy the right to live.
But if a right is a claim against the whole world, how can a government — whether popular or totalitarian or both — extinguish it by death or slavery? The short answer is no governments, notwithstanding the public oaths their offi cers take upon assuming office, accept the natural origins of rights. To the government, rights are privileges.
Stated differently, governments do not take rights seriously.
Governments hate and fear the exercise of natural rights. Ludwig von Mises properly called government “the negation of liberty.” Freedom is the default position. We are literally born free, naturally free.
Government is an artificial creation based on a monopoly of force in a geographical area that could not exist if it did not negate our freedoms. Government denies our rights by punishing the exercise of them and by stealing property from us.
Rights are not just claims against the government. They are claims against the whole world. This was best encapsulated by Rothbard’s non-aggression principle, which teaches that initiating all real and threatened aggression — whether by violence, coercion or deception — is morally illicit. That applies to your neighbors as well as to the police.
Of course, in Rothbard’s world, there would be no government police unless all people consented; and he wouldn’t have. A private police entity — paid to protect life, liberty and property — would be far more efficient and faithful to its job — which it would lose if it failed — than the government’s police, which thrives on assaulting life, liberty and property and keeping their jobs.
The exercise of rights requires abandonment of fear, acceptance of truth, and rejection of compromise with the government. As Ayn Rand famously observed, any compromise between good and evil, natural rights and slavery, food and poison, results in death — death of the body, death of liberty, death of both.
Andrew P. Napolitano is a former professor of law and judge of the Superior Court of New Jersey who has published nine books on the U.S. Constitution
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The Progressive Flight from Law and the Constitution
Outside the U.S. Supreme Court on the first day of the court's new term in Washington, D.C., October 3, 2022. (Jonathan Ernst/Reuters)
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By BRAD LINGO
&
JOHN ASHCROFT
October 13, 2022 6:30 AM
What’s happening at Yale is only one example of a broader trend.
The legal academy is abuzz over U.S. Circuit Judge James Ho’s decision to boycott clerks from Yale Law School. Judge Ho’s decision came in response to what he saw as a troubling pattern at Yale of disrespecting and disrupting speakers arguing from conservative viewpoints.
Whatever one thinks of the position taken by Judge Ho, something feels different as a new school year and new Supreme Court term get underway. And it’s troubling.
How did we get here? Not long ago, progressives and conservatives disagreed about case outcomes, but both sides still embraced constitutional values. Over time, however, progressives distanced themselves from certain parts of the Constitution. Then, they began questioning the legitimacy of the Supreme Court. Now, some call for us to scrap the Constitution altogether.
Several weeks ago, Harvard Law professor Ryan Doerfler and Yale Law professor Samuel Moyn argued in the New York Times that progressives should “reclaim America from constitutionalism” by “radically alter[ing] the basic rules of the game.” They envision an America where progressive majorities bestow and retract rights democratically “without having to bother with the Constitution.”
This progressive reaction is telling. Not long ago, conservatives felt forsaken by the Court. Their response? Embrace the Constitution. Today, progressives foresee a challenging season. Their response? Discard the Constitution, dismantle the Court, and disrespect those who disagree. (Thankfully, not all on the left take this approach, but it’s becoming distressingly common in the legal academy.)
We should pause to consider whether what is being taught in law schools has contributed to the dysfunction. A law professor arguing that it would be better to make law “without having to bother with the Constitution” is like a banker lamenting it would be easier to store valuables without bothering with the vault.
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Professors who make such arguments overlook something fundamental. The government does not grant rights. Government guarantees rights — rights that are unalienable and come from the very nature of what it means to be human.
Despite the doubts of progressive academics who think they know better, human nature is stubbornly unchanging. Humans are flawed, self-interested, and power-seeking. So too, are their governments. John Adams observed, “It is in vain to say that democracy is less vain, less proud, less selfish, less ambitious, or less avaricious than aristocracy or monarchy.” Or, as Tocqueville asked, “Have men, by gathering together, changed character? . . . As for me, I cannot believe it; and the power to do everything that I refuse to any one of my fellows, I will never grant to several.” Oppression can emerge from any form of government — democracy included.
That’s why the Constitution hardwires liberty-preserving features into the structure of the American government. It divides power within and among the three branches of the federal government and then again between federal and state governments. It “imposes” institutions like the Senate and Electoral College on our national government. In so doing, it restrains the pace of government and bogs things down. It sometimes frustrates majority rule — even things that professors in their ivory towers tell us are good ideas. That’s the point.
More on
CONSTITUTION
Federal Judge to Decide if U.S. Still Has Constitution
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This Day in Liberal Judicial Activism—October 12
Progressive academics love to criticize the Court’s reliance on history and tradition. “Trust us,” they tell their students, “we know better than the wisdom of the ages.” For example, professors Doerfler and Moyn accuse the Constitution of distracting us from “what the present and future demand for and from those who live now.”
But history counsels caution when democratic majorities are asserted as a basis for power. Some of us can still remember the election of Haitian president François Duvalier in the 1960s. While his term was to expire and the Haitian constitution prohibited reelection, Duvalier announced a presidential referendum in which he was the only candidate and received over a million votes supporting him. There were zero votes in opposition. Duvalier is said to have asserted, “I accept the people’s will. As a revolutionary, I have no right to disregard the will of the people.”
Our Constitution safeguards liberty and ensures we are ruled by laws, not men. Indeed, generations of progressives and conservatives in the federal government have long shared a commitment that transcended both time and politics. Their oaths bound them to preserve, protect, and defend our Constitution.
But now, that might all be changing. If Abraham Lincoln was right in his warning that “the philosophy of the schoolroom in one generation is the philosophy of the government in the next,” then we should be worried. Today’s students might well not be willing to take the same oath when it is their turn to govern.
Brad Lingo is the dean of the Regent University School of Law. John Ashcroft served as the 79th U.S. attorney general and is a distinguished professor at Regent University School of Law.
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The Progressive Flight from Law and the Constitution
By BRAD LINGO & JOHN ASHCROFT
October 13, 2022 6:30 AM
What’s happening at Yale is only one example of a broader trend.
The legal academy is abuzz over U.S. Circuit Judge James Ho’s decision to boycott clerks from Yale Law School. Judge Ho’s decision came in response to what he saw as a troubling pattern at Yale of disrespecting and disrupting speakers arguing from conservative viewpoints.
Whatever one thinks of the position taken by Judge Ho, something feels different as a new school year and new Supreme Court term get underway. And it’s troubling.
How did we get here? Not long ago, progressives and conservatives disagreed about case outcomes, but both sides still embraced constitutional values. Over time, however, progressives distanced themselves from certain parts of the Constitution. Then, they began questioning the legitimacy of the Supreme Court. Now, some call for us to scrap the Constitution altogether.
Several weeks ago, Harvard Law professor Ryan Doerfler and Yale Law professor Samuel Moyn argued in the New York Times that progressives should “reclaim America from constitutionalism” by “radically alter[ing] the basic rules of the game.” They envision an America where progressive majorities bestow and retract rights democratically “without having to bother with the Constitution.”
This progressive reaction is telling. Not long ago, conservatives felt forsaken by the Court. Their response? Embrace the Constitution. Today, progressives foresee a challenging season. Their response? Discard the Constitution, dismantle the Court, and disrespect those who disagree. (Thankfully, not all on the left take this approach, but it’s becoming distressingly common in the legal academy.)
We should pause to consider whether what is being taught in law schools has contributed to the dysfunction. A law professor arguing that it would be better to make law “without having to bother with the Constitution” is like a banker lamenting it would be easier to store valuables without bothering with the vault.
Professors who make such arguments overlook something fundamental. The government does not grant rights. Government guarantees rights — rights that are unalienable and come from the very nature of what it means to be human.
Despite the doubts of progressive academics who think they know better, human nature is stubbornly unchanging. Humans are flawed, self-interested, and power-seeking. So too, are their governments. John Adams observed, “It is in vain to say that democracy is less vain, less proud, less selfish, less ambitious, or less avaricious than aristocracy or monarchy.” Or, as Tocqueville asked, “Have men, by gathering together, changed character? . . . As for me, I cannot believe it; and the power to do everything that I refuse to any one of my fellows, I will never grant to several.” Oppression can emerge from any form of government — democracy included.
That’s why the Constitution hardwires liberty-preserving features into the structure of the American government. It divides power within and among the three branches of the federal government and then again between federal and state governments. It “imposes” institutions like the Senate and Electoral College on our national government. In so doing, it restrains the pace of government and bogs things down. It sometimes frustrates majority rule — even things that professors in their ivory towers tell us are good ideas. That’s the point.
Progressive academics love to criticize the Court’s reliance on history and tradition. “Trust us,” they tell their students, “we know better than the wisdom of the ages.” For example, professors Doerfler and Moyn accuse the Constitution of distracting us from “what the present and future demand for and from those who live now.”
But history counsels caution when democratic majorities are asserted as a basis for power. Some of us can still remember the election of Haitian president François Duvalier in the 1960s. While his term was to expire and the Haitian constitution prohibited reelection, Duvalier announced a presidential referendum in which he was the only candidate and received over a million votes supporting him. There were zero votes in opposition. Duvalier is said to have asserted, “I accept the people’s will. As a revolutionary, I have no right to disregard the will of the people.”
Our Constitution safeguards liberty and ensures we are ruled by laws, not men. Indeed, generations of progressives and conservatives in the federal government have long shared a commitment that transcended both time and politics. Their oaths bound them to preserve, protect, and defend our Constitution.
But now, that might all be changing. If Abraham Lincoln was right in his warning that “the philosophy of the schoolroom in one generation is the philosophy of the government in the next,” then we should be worried. Today’s students might well not be willing to take the same oath when it is their turn to govern.
Brad Lingo is the dean of the Regent University School of Law. John Ashcroft served as the 79th U.S. attorney general and is a distinguished professor at Regent University School of Law.
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the great issue of the 21st century :
https://www.youtube.com/watch?v=5A95rwWmBV0
Contrast this to Democrat partisan/operative/promoter Larry the Lib:
watch first 19:35 minutes on JBS:
https://www.youtube.com/watch?v=yFkR9Mt0LjY
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I'm not seeing Dershowitz in euther of those clips.
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https://thehill.com/policy/technology/3697807-how-billionaires-are-building-a-right-wing-online-ecosystem/
I can only think of Larry the Lib working hard to figure out how to shyster this in the DNC's favor
Objective Constitutional lawyer my ass.
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Having an bureaucracy independent of Congress's purse strings is an egregious violation of our C.
About fg time the Judiciary is getting to this!
https://www.washingtontimes.com/news/2022/oct/20/appeals-court-ruling-threatens-unravel-consumer-fi/?utm_source=Boomtrain&utm_medium=subscriber&utm_campaign=newsalert&utm_content=newsalert&utm_term=newsalert&bt_ee=%2FOKJLbAhBRIShZ6qjuRrVNAyd0r%2FnB8%2FfmOzDREPdmUu4Z08Ojw93C9asDwrGBs0&bt_ts=1666347236816
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" I'm not seeing Dershowitz in euther of those clips"
this is similar
Best part of Alan's interview for me is his comment that Larry Tribe also supported Michael Avenati for President - that is all you need to know about Tribe :-D
https://rumble.com/embed/vh21gv/
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Proposition 12, the Constitution, and Good Government
Gary M. GallesGary M. Galles
– October 25, 2022Reading Time: 3 minutes
AIER >> Daily Economy >> Regulation >> Government >> Free Markets
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Four years ago, California voters approved Proposition 12, in which a “yes” vote was promoted to “establish minimum space requirements based on square feet for calves raised for veal, breeding pigs, and egg-laying hens and to ban the sale of (a) veal from calves, (b) pork from breeding pigs, and (c) eggs from hens when the animals are confined to areas below minimum square-feet requirements.”
That proposition has been challenged, however, as unconstitutional on the basis of something missing from that proposition, namely, where it would apply. A California state law would have to apply to those industries nationwide, for producers who wish to sell anything to California consumers. And the Supreme Court has agreed to hear that challenge, based on what is called the “Dormant Commerce Clause” (because it gives exclusive jurisdiction over interstate commerce to the federal government, which excludes state interference with such commerce, even if no federal law has been passed on a topic). Oral arguments in National Pork Producers Council v Karen Ross will take place October 11.
It is important to note that there would be no federal constitutional violation if the proposition applied solely to producers of those products located in California, as one might well have expected was the case, given the lack of attention to that detail in the “yes” campaign. But California does not have the right to legislate for producers located in other states, which almost all of them are.
While the state comprises a substantial proportion of the U.S. market for pork, California imports 99.87 percent of its pork. That would mean Proposition 12 would have virtually no effect on the California producers they have legitimate jurisdiction over, and a massive effect on producers nationwide, over whom it has no legitimate jurisdiction. Very few of those producers meet the standards promulgated, which have cost those producers around $300 million. Because pork production and distribution is highly integrated, and California is a major market, the effects would extend to virtually every pork product sold everywhere in the country. The state would even send California Department of Food and Agriculture agents throughout the country to enforce those regulations. Further, 15 other states opposed Proposition 12 as a violation of their sovereignty.
It is hard to think of a more blatant violation of the Constitution’s Commerce Clause’s denial of state power over interstate commerce. That is why Elizabeth B. Prologar, the Solicitor General of the United States, “has come down on the side of the Interstate Commerce Clause and the pork producers.” That clause arose from many state regulations that had burdened interstate commerce under the Articles of Confederation, abuses which led to a call to the Constitutional Convention. Further, overturning state restrictions on interstate commerce (following the traditional meaning of regulate as “to make regular” or “to remove impediments”) were the sole applications of the Commerce Clause for America’s first century. And given the very tenuous bases under which the Supreme Court has invoked the Commerce Clause as a source of federal supremacy in the past, such as in Wickard v. Filburn, any sort of judicial consistency would put Proposition 12 well outside constitutional limits.
The Federalist Papers also support this interpretation. Federalist 11 describes the proposed federal power as a “prohibitory regulation, extending… throughout the states.” Federalist 42 describes its purpose as “the relief of the States…from the improper contributions levied on them by [other states].” Further, in 1785, a committee headed by James Monroe recommended amending the Articles of Confederation to give Congress “sole and exclusive” power to regulate commerce. James Madison in his Journal made clear that nationwide regulations on commerce (which Proposition 12 would impose) were a power solely granted to Congress.
Proposition 12 not only oversteps California’s regulatory powers under the U.S. Constitution, it also violates the political principle that those who will be forced to abide by laws should have a voice in them. Pork producers, as well as related producers and workers, in every other state would be forced to abide by laws that they had no say in, because a majority of voters in California, where its burdens would be virtually insignificant, approved forcing others to pay the price to give them what they want. What it most brings to mind is its inconsistency with an important phrase that played a big role in the creation of America: “No taxation [or regulation] without representation.”
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https://www.newsmax.com/newsfront/affirmative-action-cases/2022/10/30/id/1094066/
from ACLU lawyer:
"These challenges are a part of a broader attack on the importance and value that the Constitution and that American society place on diversity and inclusion in the core institutions of our society," said Sarah Hinger, an attorney with the American Civil Liberties Union, which has filed briefs in the cases supporting the school"
are "diversity" and "inclusion" words found in the Constitution?
I did not know that :wink:
This seems like a far better argument to me:
"The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all," Thomas wrote in a Grutter v. Bollinger ruling dissent.
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Not to mention the Civil War Amendments , , ,
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https://www.breitbart.com/education/2022/10/31/gorsuch-holistic-admissions-policy-once-used-against-jews/
very interesting he points out this was used against the Jews.
could it be significant that many ACLU and woke attorneys are Jewish that is why this point is made?
I am absolutely not for race or ethnic based admission policies
for colleges
But I would be open to the idea that economics conditions could play a role
that would not discriminate based on race ethnicity gender etc
but on financial societal conditions that could be applied to all Americans
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The Upside-Down Constitution and Its Critics
Michael S. Greve
– November 6, 2022Reading Time: 14 minutes
AIER >> Daily Economy >> History >> Government >> Books
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Reprinted from Law & Liberty
In revisiting The Upside-Down Constitution ten years after I put that baby to bed, I am violating time-honored principles of sensible authorial conduct. One, as a great Dane (Kierkegaard) observed, life makes sense only in retrospect, but you have to live it forward. Never mind second thoughts over past errors; entertain a third thought on what’s ahead of you. Two, never respond to critical reviewers, least of all in a “you-just-didn’t-get-it” tone. Three, do not fret over later events that may have dimmed or doomed your immaculate theory. Could I have predicted a candy-colored President and a “rigged and stolen election”? Only in dreams.
What I have written, I have written. Still, and at the risk of boring reviewers and readers who have heard this all before, I’ll (ab)use this opportunity to re-articulate a few UDC thoughts that may be worth remembering; and I’ll engage what has struck me as the most forceful—or at any rate, corrosive—criticism to date.
Federalism, Competition, and the Constitution
The ostensible subject of UDC is federalism, that oldest question of our Constitution. However, as one of my most perspicacious reviewers (Rob Gasaway, a dear friend and occasional contributor to this site) noted at the time, UDC is about federalism the way Moby Dick is about a whaling voyage. Its transcendent point is that the Constitution has a deep, ingenious structure and logic. That logic was well understood and articulated for the first century-plus of our constitutional history; a few examples appear below. It was rejected and repudiated by the leading lights of the Progressive and New Deal eras. Conventional forms of modern-day originalism do nothing to recover it and may in fact obscure it, and “common good originalism” gets you too far away from the Constitution than is good for anyone. Thus, UDC engages federalism as a way of rehabilitating an ancient thought: to make sense of the Constitution, and to distinguish constitutional elaboration from corruption, you have to understand the nature of the instrument. How?
UDC mobilizes precepts of public choice theory and constitutional political economy, pioneered by James Buchanan (the Nobel Prize economist, not the hapless President). Foremost, you want to think about a written constitution and its structure from an ex-ante perspective, meaning the perspective of folks who deliberate about a future Constitution. (Ex post, most everyone is an opportunist.) Those people must have certain characteristics. Their circumstances must make deliberation both possible and urgent: they need a constitutional moment, to borrow Bruce Ackerman’s apt phrase. They must think of themselves as a single sovereign people. (A collection of tribes, ethnic clans, or identity-mongers can with luck write a temporary peace pact, but never a durable constitution.) And they must have a very long time horizon, lest they succumb to the temptation of freezing temporary advantages into the instrument.
The public choice template is a convenient way of explicating ideas that the Founders understood perfectly well and, happily and indeed, put on paper. Hamilton’s famous opening passage on “reflection and choice,” versus “accident and force” (Federalist 1): there’s your constitutional moment. John Jay’s disquisition on why and in what way we are “one people” (Federalist 2): there’s your single sovereign. James Madison’s repudiation of Jefferson’s crackpot proposals for single-generation constitutions and frequent popular conventions (Federalist 49): there’s your extended time horizon. UDC works through all that, in long pages of exegesis. And if you insist on a piece of constitutional text, I give you the Preamble: We the people of the United States, etc. And we are doing this for “ourselves and our Posterity.” Res ipsa.
What, from that vantage, of federalism? It is not clear that any federalism is a sensible ex-ante choice. One can plausibly argue that the states, qua states, should disappear. Hamilton and Madison both advocated that program at the Convention. Obviously, though, that wasn’t going to happen. While there is no way the Founders would have invented states had they not already existed, they did exist, with their own political traditions and entrenched institutions. Some form of federalism was a foregone conclusion; the only question was what form it would take. That narrower question turns out to be tolerably straightforward.
For starters, you want a central government that can tax and regulate citizens directly, as opposed to governing states or through states. The Articles of Confederation had operated on that latter principle (as does the EU today): epic fail. The reasons have to do with agency and monitoring costs. The junior governments may not want to do what the general government wants and needs them to do. They will shirk, and when that happens, the central government must resort to armed force (assuming it actually has an army and the means to pay for it) or else, wheedling. In Hamilton’s splendid phrase, the government will become “imbecilic.” So you want federal powers to be “national in operation,” as Madison put it. They operate directly on citizens. They are plenary (they reach as far as they would even if the states did not exist), and they are supreme.
What does that leave for the states? The answer, here as with the separation of powers, is formal separation and functional specialization. Give the feds power to provide public goods and legal arrangements that states cannot provide on their own, starting with the national defense. Prohibit states from doing things that endanger sister-states, or the union. (You can look those up in Article I Sec 10.) Other than that, leave the states to their own devices so long as they have a “republican form of government” (Article IV), meaning some kind of elected legislature. And there you have the logic of limited, enumerated powers. In Madison’s taxonomy of the “compound republic,” the general government’s powers are national in operation, and federal in extent. Make federalism “dual”: separate, specialized, and near-exclusive spheres of federal and state authority.
All this is familiar to the point of ennui. What UDC adds, and what prompted some critics to dismiss the book as libertarian pamphleteering, is the elementary recognition—not mine, but that of a massive body of literature—that “dual” federalism is also and always competitive federalism. On all the margins that are beyond the federal government’s powers, states will have to compete for citizens’ “affections,” as the Federalist put it; for productive citizens and their talents and assets.
Charitable readers who can get past the econ lingo and think in terms of institutional competition will readily recognize the constitutional pattern. The separation of powers, and corresponding checks and balances, constitute a competitive arrangement. The separation of powers is an anti-monopoly device. The next move, of needs, is to make the separate institutions rivalrous, by giving them the means and the motives to block mutual encroachments. (I did not make that up: James Madison did.) Federalism is quite a bit like that: multiple, separate states, with turf-protective incentives.
What does institutional competition get you? Tyranny prevention and constitutional stability, Madison explained apropos the separation of powers and checks and balances. Pursue the thought and apply it to federalism. Citizens in different states will have different demand curves for public goods and accompanying tax payments (which, come to think of it, is the beginning of a pretty good argument for a federal arrangement). And it is child’s play to show that under suitably defined conditions, no state will be able to collect money from A and give it to B (to extract “surplus,” in Jim Buchanan’s parlance), lest the A’s migrate. Lo, those defined conditions are the ones that you find in the Constitution. States are equal, as of constitutional right (we don’t have a Catalonia or Quebec); they are territorial; and they must operate on principles of non-aggression, open borders, and non-discrimination: no standing armies; no import-export duties; no treating other states’ citizens worse than your own. (Hamilton called that principle, enshrined in the Privileges and Immunities Clause of Article IV, the “cornerstone of the union.”) The Founders did not couch their defense of the constitutional arrangement in terms of “competition” in a narrow, economic sense. But that is the logic of the deliberate institutional choices that they made.
The Constitution’s Federalism, Upside-Down
Explicating the Constitution’s logic in economistic terms has numerous advantages. Most importantly, it sheds light on our constitutional history and development. The Founders understood that the hard constitutional task isn’t really to divide powers between branches or levels of government on mere “parchment,” in Madison’s dismissive term. The hard task is to stabilize the constitutional arrangement over time. The Founders’ strategy, to repeat, was institutionalized competition.
Try as you might, though, to lock institutions into rivalry and competition: in politics as in markets, the institutional actors’ perennial temptation is to collude against citizen-consumers. The people’s agents are repeat players, and over time, they will discover institutional technologies to extract surplus. They will agree to deploy those technologies and to divvy up the surplus amongst themselves somewhere down the road. We have names for those innovations: “the administrative state.” “Cooperative federalism.”
Federalism-wise, states have two ways to thwart competition and to lock themselves into a cartel. First, they can agree to tax and regulate each other’s citizens on a full extraterritorial basis, such that each state’s jurisdiction extends to the ends of the nation. That is way more convenient than taxing your own citizens: the outsiders can neither run away nor vote you out of office. Those kinds of cartels are “self-enforcing,” as economists say: no state can defect; few even have an incentive to try; and the most aggressive state gets to set the pace. (Think products liability, or internet sales taxation.)
Second, states can have a central authority organize cartels and preclude defections. Federal minimum standards for things that states could, constitutionally speaking, do on their own (and which once upon a time were within their exclusive jurisdiction, such as labor conditions): those are cartel arrangements. “Cooperative” conditional federal grant programs, of which are over 1,200: those, too, are cartel arrangements. (They give reticent states a “choice” between complying with federal conditions or else leave money on the table.)
There you have the upside-down constitution, more colloquially known as the New Deal Constitution. Pace Madison, the general government’s powers have very nearly become national in extent and federal in operation. “Cooperative” federalism programs, regulatory or fiscal, covering the full range of domestic affairs and impenetrable even to experts, embody the constitutional strategy the Founders emphatically rejected: a government over governments.
Looking at federalism through this prism permits one to see things that otherwise remain clouded in conservative-libertarian mythology. As in, “the New Deal was a nationalist assault on the states”: the Commerce Clause, and all that. No way, no how: in large measure it was a response to state demand for federal intervention, in a form that would enable states qua states, meaning the political elites, to play a larger role and to shield them against competition (a “race to the bottom,” in New Deal parlance). The vast expansion of the states’ (especially state courts’) extraterritorial jurisdiction in the wake of Erie Railroad: a response to state demand. The demise of “economic substantive due process”: ditto. The Wagner Act, the Fair Labor Standards Act, the massive expansion of federal funding programs: ditto, ditto, ditto.
A second, related insight to emerge from the big-picture analysis is that something is amiss with the Supreme Court’s federalism. Once you permit state and federal powers to run concurrently over nearly the entire range of domestic affairs, you need coordinating rules to manage the overlap: what are they going to be? The Court’s watchword has been federalism’s “balance,” which translates into judicially engineered protections for the poor, pitiful states: various forms of state and official immunities; “clear statement” rules for congressional enactments that threaten to upset the “delicate,” “usual,” “constitutionally mandated” balance; a “presumption against federal preemption” of state law. Some of those doctrines may have a constitutional anchor. But not all do; and whatever the anchor may be, it cannot be “balance.” Go re-read Federalist 45, a diatribe to the effect that charlatans who obsess over the federal balance are the enemies of the people, and royalists at heart.
And consider, if you will, the constitutional structure and text. The first thing to expect in a Constitution that aims to protect “balance” is some binding allocation of tax revenues between the central government and the lower levels of government. Germany, Canada, India, and many other federal countries all have that. We don’t, and not by accident: the option was considered and rejected at the Convention. The Constitution’s principle is not “balance” but (dare I say?) tax competition. And the principal text that speaks to the issue is the Supremacy Clause. That is not a balancing rule but an ironclad, on-off choice-of-law rule: any conflict, federal law prevails. In a foundational case (Gregory v. Ashcroft), the Supreme Court sidestepped that awkward detail by calling the Supremacy Clause “an extraordinary power in a federal system,” with the intended implication that federal statutes aren’t quite as supreme as the Constitution postulates. Sure. You can always make up your own federalism with five votes. But that don’t make it right-side up.
UDC, to repeat, did not attempt to provide a full picture of the state of our federalism. Federalism aficionados who read the book now will be struck by two omissions. One is the interplay between federalism and the inexorable rise of executive government. Our federalism used to come from the Constitution and then from Congress. Now, it comes from the Executive, and the institutional consequences rattle through the system. For example, federalism relations have become much more confrontational and litigious. The second omission is the intensely partisan nature of our federalism. UDC stressed the sectional nature of our politics since the Founding. States have tended to act as blocs, on issues they deem to be of existential concern. Uncompromising opposition by one or another state bloc against the dominant political coalition has been the only meaningful obstacle to federally sponsored cartels. Witness the state of our contemporary politics: it is sectional, alright. It is also vehemently partisan.
Perhaps, I should have said more about those dynamics. If I had to re-write the book’s “Concluding Essay,” that is where my thoughts on these matters would appear. But I don’t think any of this would change the way I think about federalism or the constitutional enterprise at large.
But Is It Law?
Back in 2012, Yale Law School’s Professor Jack Balkin kindly sponsored a forum on UDC on his blog (and because he is a mensch, his further thoughts will appear on this site in short order). The critical essays by Gillian Metzger, Rick Hills, Michael McConnell, Ernie Young, Neil Siegel, Sandy Levinson, and Jack himself remain illuminating to this day. Having re-read them while noodling over this essay, I have re-discovered much food for sober reflection—and one line of criticism that, on first or second or even third thought, I must resist. It is exemplified by former Judge, then-Professor Michael McConnell’s review: Good book. Except, UDC “is better understood as a work of political science than of constitutional law.” The objection is understandable but, with all respect and in all friendship, misguided or at least misguiding.
UDC is profoundly constitutionalist and, if you will, originalist in spirit and substance. In trying to recover the Constitution’s logic and structure, the book does nothing without the text, let alone against it. An Appendix provides a schematic overview of the Constitution’s federal structure and gives every single federalism-related clause its place. The point is to show that the document does indeed have a coherent structure. Once you see it, you will see why the individual clauses belong where they appear. You will also see that the Constitution isn’t perfect. Some clauses are downright dopey. Others, chiefly the ones having to do with slavery, aren’t even constitutional in a robust, Buchananite sense: they are political compromises, on an issue where the Convention could not see its way clear to a genuinely constitutional solution. UDC drags patient readers through all that. And it seeks to demonstrate that everything I try to explain in terms of public choice theory was well understood by the Founders. What more am I supposed to do by way of proving my constitutionalist bona fides?
UDC, Michael McConnell noted, was “essentially silent on what [the author] thinks the various constitutional provisions relating to federalism mean, which is what constitutional interpretation is all about.” I get the idea, your Honor, and I plead guilty up to a point; but you lost me at “all about.” I do not believe that constitutional understanding can be reduced to constitutional meaning and interpretation. As Cass Sunstein has cogently argued, “There Is Nothing That Interpretation Just Is.” You have to say more, and a book that seeks to explicate the Constitution’s structure—beyond conventional interpretation—does not on that account cease to be (constitutional) law.
In a few short introductory pages, UDC tried to explain why the obsession with ”meaning” is a rabbit hole. You get to explore the meaning of meaning in countless caverns, inhabited by scholars who insist that theirs is the one and only legitimate method of interpretation. Stick your head in there, and you will never emerge with a genuine constitutional thought. I frankly have no idea whether I am a Wittgensteinian or a Kambartelian or something else; but I do know that my constitutional views don’t hang on it. If “living constitutionalists” proffer an exotic theory of linguistic indeterminacy, my answer is the one I give to my libertarian friends who fabricate their own Constitution: feel free. If corpus linguistics—the latest rage in orthodox originalist circles—tells me that the friendly janitor at the U.S. Mint may be an ”officer of the United States” and so must be appointed in accordance with Article II, I concede that the enterprise may shed light on “meaning.” However, I still ask why any sentient Convention member would write a Constitution of that import. As Professor Richard Epstein has written, with respect to administrative law and in admiration of nineteenth-century jurists who “tended to decide cases without using any overwrought methodological apparatus”: “The lower the level of intellectual angst, the more accurate and reliable will be the interpretations given.” Meaning matters. But you don’t want to make that inquiry the touchstone of what is or isn’t law, especially not constitutional law. You will want to think like a nineteenth-century jurist—say, John Marshall, or Joseph Story.
As every 2-L learns, the foundational opinions in McCulloch v. Maryland or Martin v. Hunter’s Lessee do not turn on textual exegesis. They turn on extended expositions of what I call the Constitution’s “logic” and the illustrious Justices called its “nature,” “spirit,” or “the genius of republican government.” Why bother with all that when the text—“necessary and proper,” “all Cases in Law and Equity,” the Supremacy Clause—lies so readily at hand? Because the nature of the instrument tells you how to read it. Once you see that, but only once you see it, the clauses make all the sense in the world and you will know how to read them. The Founders put them there because they did not want to leave the matter to “mere reason” or “general reasoning,” as John Marshall splendidly wrote in McCulloch. (The phrases re-appear in Story’s Martin opinion.) Only then do the Justices turn to interpretation: “necessary” need not mean “absolutely necessary.” “All” in Article III means that the entire Judicial Power of the United States must at all times vest in some federal tribunal, in original or appellate form. You can quarrel, as I do, with those particular arguments. (E.g., I wish I could agree with Justice Story’s take on Article III but I can’t, because the constitutional text gets in the way.) But there is no doubt about the structure of the argument: from the nature of the beast to its individual clauses.
Pursue the point and stick with just those two opinions: fixing the interpretive meaning of the clauses, in light of the Constitution’s genius, is just a prelude to the crucial constitutional enterprise of explicating tenable doctrine. McCulloch’s “necessary and proper” analysis grounds a pretext doctrine, derived from “the letter and the spirit of the Constitution” (my italics). Martin’s reading of the Judiciary Act, too, eventually hangs on the nature of the Constitution. Logically as well as descriptively, doctrine rather than clause-bound interpretation is the heart of the constitutional enterprise. Logically, because there is no way of “adapting” an unchanging Constitution to the “various crises of human affairs” (McCulloch again; original italics) except by means of constitutionally derived, abstract-concrete rules that we call, collectively, “doctrine.” Descriptively, because that is how judges, lawyers, and academics actually do constitutional law—how they write opinions, briefs, and articles. Maybe that is all make-believe. But it is necessary and constitutionally required make-believe. UDC supposes that the doctrinal middle ground is the true ground of constitutional law, and that it is defensible and worth exploring.
I cannot see an alternative. At one end lies legal realism, the lingua franca of a Supreme Court commentariat that does not even pretend to engage either itself or its audience in any genuinely constitutional conversation. At the other end lies a positivist originalism that contests the middle ground as just too open to improvisation. Obsess over “meaning,” though, and you will first miss the music and then even the notes; and it’s not like improvisation will end. Originalists with impeccable Federalist Society credentials and dozens of law review articles on exquisite originalist hermeneutics to their credit have told me that the Constitution establishes a “presumption of liberty.” They say so in the teeth of a text that provides that the Congress can tax just about anything and anyone at any rate and, moreover, has power to take your life, liberty, and property, subject only to the structural constraints contained in the document. Others have averred that there is a constitutional right to same-sex marriage in the 14th Amendment. Federalism-wise, the Supreme Court, in an opinion authored by its most earnestly originalist member, has held that a state agency cannot be made a party to a federal agency proceeding because that would violate the state’s “dignity.” Seriously?
All that is “law” in the way LA Law is law. Yet it has sprung—paradoxically, it would seem, but predictably to my mind—from the minds of learned jurists who obsess over meaning. And I am supposed to be the PoliSci guy who makes things up and doesn’t care about constitutional law? No way. Stand me up at the gates of Hell, or at any FedSoc confab: I won’t back down.
Hegelian at Heart (Up to a Point)
UDC rests on two unarticulated but firm convictions. Both are products of my Teutonic, Hegelian education.
One: if you think you have had an original thought, you are either illiterate or delusional, and quite possibly both. On that score, I plead innocent. Far from advancing some newfangled theory, UDC tries to recover old truths and to put lost intellectual pieces back together.
Two: any thought that cannot reflect upon the contingent conditions of its own origins is, or will soon become, raw ideology. That includes originalism. Quite a bit like the Founders’ federalism, modern-day originalism was born of necessity: conservatives needed an intellectually respectable way of fighting William Brennan’s made-up Constitution, and “judicial restraint” didn’t cut it. Ab ovo and ever since, originalism has shifted shape in conformity with political imperatives. Brown v. Board has to be right. The New Deal Constitution is water under the bridge. Obergefell must be right. And so on. Everyone understands the ideological nature of those moves. Yet nary a mainstream originalist will admit to it or reflect upon it, lest originalism appear as instrumental rather than timeless truth. And so, over time, originalism has come to resemble a parody of the ideological contentions that absorbed 20th-century Marxists. The -ists argue over what kind of -ists they and you and me are. Some have dug in their heels on increasingly abstruse semantics; others have attacked the true-blue -ists’ embarrassingly open flanks. For the diehards, there is Bostock originalism; for renegades and heretics, Adrian Vermeule has a book. I have followed those contretemps on this site and in the law reviews and elsewhere, but only out of the corner of my eye and out of professional necessity. As for the actual Constitution, there’s more to learn from a three-minute record.
I have stated my heterodox positions at public events and on Law & Liberty, but only after UDC. Should I have explained them in the book? My best answer still is “no.” If you tackle meaning and interpretation head-on, or even if you start the inquiry on that note, the meaning-of-meaning contingents will drag you onto their turf and eat you alive, regardless of what you may have to say about the Constitution itself. In that very real sense, interpretive originalism has become the disease it was meant to cure. And so instead, UDC asks its readers—sub silentio, or esoterically if you will, but either way quite plainly—for a certain willful innocence: ignore the meta-theoretical distractions. Instead, approach the Constitution in the spirit that, on the authority of McCulloch, inheres in the document itself: the disposition of the normal, reasonably educated and sensible citizens for whom the instrument was written. You will see, or so it still seems to me, that the right-side-up Constitution’s logic—its nature, genius, spirit—is simply irresistible.
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Michael S. Greve
Michael S. Greve is Professor of Law at Antonin Scalia Law School. His numerous publications include The Upside-Down Constitution (Harvard University Press, 2012).
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https://justthenews.com/government/courts-law/monalan-dershowitz-questions-whether-supreme-court-wants-solve-damaging
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https://dailycaller.com/2022/11/14/federal-court-blocks-bidens-student-loan-forgiveness-nationwide/?utm_source=piano&utm_medium=email&utm_campaign=breaking&pnespid=rbpmUnUXP7FHyPbRpTbuQ4Kd4AyrVZ90LrSimfZho0Fm1Kff9PczerY.4xQOtmDSqcg0KKEl
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SUPREME COURT
Justices urged to mull independent funding for Wall Street watchdog
BY ALEX SWOYER AND STEPHEN DINAN THE WASHINGTON TIMES
The Supreme Court has been asked to step into a thorny debate over whether Sen. Elizabeth Warren’s idea of a Wall Street policing agency is legal, potentially adding another major case to a docket already packed with affirmative action, voting and LGBTQ issues.
U.S. Solicitor General Elizabeth Prelogar asked the justices to reverse a lower-court ruling saying the executive branch’s Consumer Financial Protection Bureau (CFPB) steals Congress’ power of the purse by having independent funding.
Ms. Prelogar asked the justices to speed the case onto their calendar and hear it during this term. That would likely mean a court decision by June.
The CFPB’s independent financing was at the heart of the idea of creating an agency to police Wall Street in the wake of the 2008 financial collapse. Ms. Warren, at the time a law professor at Harvard University, promoted the idea as a way to have a regulator that was free of political pressure from Congress. She is now a Democratic senator from Massachusetts.
The 5th U.S. Circuit Court of Appeals said last month that whatever the merits of the idea, the Constitution demands that government be accountable to Congress, meaning agencies must subject their funding to lawmakers’ oversight.
The circuit court said the CFPB’s payday lending rule is illegally tied to the CFPB’s funding scheme, creating the clash with the Biden administration.
“No other court has ever held that Congress violated the appropriations clause by passing a statute authorizing spending,” Ms. Prelogar said in asking the justices to overturn the appeals court’s decision.
Created by a Democratic-controlled Congress and signed into law by
President Obama in 2010, the CFPB was intended to be insulated from both branches of government.
It was given a single director who would be appointed and confirmed by the Senate but couldn’t be removed unless the president showed good cause. The CFPB takes its financing directly from the Federal Reserve, putting it out of reach of the annual appropriations process on Capitol Hill.
The Supreme Court has ruled that the removal provision violated the Constitution. Now CFPB opponents are back to challenge the financing.
The 5th Circuit’s ruling stands in contrast with other federal appeals courts, which have upheld the agency’s arrangement. Those other courts noted that other federal agencies, such as the Federal Reserve and the Federal Housing Finance Agency, also have budget autonomy.
The 5th Circuit said the CFPB is “double-insulated” from Congress and its regulatory power is far greater than the other agencies in question.
Ms. Prelogar said Congress effectively answered the question of appropriations when it set up the CFPB.
The 5th Circuit’s ruling didn’t close the agency. It did invalidate the payday lending rule, which became effective in 2018 during the Trump administration, though it was issued by a director installed by Mr. Obama. The rule restricted lenders’ ability to provide loans unless the consumers determined that they could repay them according to certain terms. It also restricted lenders’ access to accounts.
That policy was intended to resolve what the bureau saw as predatory lending practices.
The 5th Circuit said the rule must be vacated because it can be tied to the CFPB’s unconstitutional funding structure.
At least four justices are needed to vote in favor of reviewing the 5th Circuit’s decision for the petition to be granted.
Devin Watkins, an attorney with the Competitive Enterprise Institute, said he thinks the high court will take up the invitation to review the case. He reasoned that the 5th Circuit ruling ensures “Congress can’t create an unaccountable funding mechanism.”
He said that would be worth the court’s time.
“Ultimately, if the payday lending rule were invalidated, everything the CFPB has ever done could end up being invalidated until Congress decides to fund the CFPB,” Mr. Watkins said
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Democrats Give Supreme Court Chief Justice John Roberts An Ultimatum
Story by Paul Blumenthal • Yesterday 3:14 PM
Top Democrats on the House and Senate Judiciary Committees demanded on Sunday that Supreme Court Chief Justice John Roberts comply with their investigation into the court’s refusal to abide by ethics laws.
And if the court continues to suggest it’s not serious about policing itself, Congress will step in, warned the joint letter from Sen. Sheldon Whitehouse (D-R.I.), and Rep. Hank Johnson (D-Ga.), chairs of the subcommittees overseeing the federal judiciary in their respective chambers.
“If the Court, as your letter suggests, is not willing to undertake fact-finding inquiries into possible ethics violations that leaves Congress as the only forum,” they wrote.
The letter came a day after The New York Times reported that Justice Samuel Alito leaked the outcome of a 2014 decision in the case of Hobby Lobby v. Burwell. Alito reportedly spoke about the decision ahead of its release to Supreme Court Historical Society donors who were part of an influence operation led by a former conservative evangelical leader, Rev. Rob Schenck.
The two lawmakers firmly stated Congress’ right to investigate the court and demanded Roberts provide information related to the influence operation run by Schenck through his Faith & Action group.
They also demanded information about Schenck’s letter to Roberts in July disclosing that he learned about the Hobby Lobby outcome days before it came down from one of his volunteers after she attended a dinner with Alito and his wife. Schenck sent his letter as part of the court’s investigation into the leak of the Dobbs v. Jackson Women’s Health Organization decision that overturned Roe v. Wade. Alito, who authored both the Dobbs and Hobby Lobby decisions, denied leaking the Hobby Lobby outcome.
Whitehouse and Johnson asked Roberts to identify the individuals or offices involved in investigating any element of the influence campaign or Schenck’s allegations about Alito. It also asked him to identify those in charge of “policing the relationship between the Supreme Court and the Supreme Court Historical Society to ensure that paid membership in the Society is not used as a means of gaining undue influence.”
In a sign that their investigation is moving towards hearings, the two lawmakers stated that the court should “designate an individual knowledgeable about” these issues “to provide testimony to us about ... issues related to ethics or reporting questions raised about justices’ conduct.”
Their letter to Roberts on Sunday followed up on a prior inquiry Whitehouse and Johnson made on Sept. 7 after Politico first reported on Schenck’s influence campaign. At the time, they wrote to Roberts to encourage the court to adopt a formal ethics code. They demanded answers about how many justices were provided travel, dinners, lodging and other hospitality from donors connected to Schenck’s influence operation and why the justices did not disclose these gifts on their annual financial disclosure statements.
Whitehouse posted the Nov. 7 response he and Johnson received from the legal counsel of the court on Twitter on Saturday, after the New York Times story came out. The court’s response simply restated which ethics laws apply to the court and that court’s court’s code of conduct, which is non-binding and unenforced, exists.
“Tellingly, it notes the existence of the wall-decoration code, but is not responsive to my letter and shows no sign of inquiry or interest in what went on,” Whitehouse tweeted.
Progressive groups called for a Senate investigation into the Alito allegations following their disclosure on Saturday.
Since Democrats lost control of the House in the midterm elections, Johnson will lose the gavel of the House Judiciary Committee’s subcommittee overseeing the courts in January. But Democrats kept control of the Senate.
That means that Whitehouse can still compel testimony and hold hearings through the subcommittee he chairs on the Senate Judiciary Committee for at least the next two years.
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"The letter came a day after The New York Times reported that Justice Samuel Alito leaked the outcome of a 2014 decision in the case of Hobby Lobby v. Burwell."
NYT leads the Dem politicians by the nose here
funny
no one demanding Roberts find the leaker of Dobbs vs Wade
instead divert attention away from that to bring up something obscure from 8 yrs ago
dem shysters do this every time
wonder if Larry Lib was behind this
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Abortion ruling sends law schools scrambling, constitutional law teachings now out-of-step
By Stephen Dinan and Alex Swoyer - The Washington Times - Friday, December 30, 2022
The Supreme Court’s decision this summer didn’t just upend abortion law — it sent law professors scrambling to retool how they teach constitutional law itself.
From classrooms to casebooks, teachers are grappling with the justices’ ruling in Dobbs v. Jackson, wondering what it means for big legal concepts like fealty to precedent and the court’s role in refereeing itself, as well as Congress and the presidency.
Josh Blackman, a professor at South Texas College of Law and editor of a “Con Law” casebook, said they are rethinking years of teaching that the Roe v. Wade decision establishing a national right to abortion and a follow-up case, 1992’s Casey decision, were “safe” from future court meddling.
“Dobbs changes the narrative of constitutional law,” said Mr. Blackman. “Roe and Casey were finally overruled. The Supreme Court did so, without regard to its reputation among progressives and elites. And substantive due process is a very shaky foundation. Dobbs caused a fundamental transformation of how constitutional law operates.”
Lois Shepherd, a law professor at the University of Virginia who will be teaching a reproductive law class next year, said the debate has shifted from looking at the contours of rights to whether those rights actually exist.
She said her students will explore the ramifications of Dobbs, including its potential effect on other high court precedents dealing with marriage rights and privacy.
“We’ll need to consider the political situation that has brought us here — how this was a long game for anti-abortion strategists and how much this decision depended upon certain judicial appointments,” she said. “Spending time thinking about the court in a more political way than in the past in my class is probably going to be necessary,” she said.
She added: “Honestly, the decision is so huge in impact that it deserves an entire semester-long course.”
In Dobbs, the court ruled that Roe, the 1973 case that identified a right to abortion in the U.S. Constitution, was junk.
Justice Samuel A. Alito Jr., writing the chief opinion, delivered a withering takedown, saying the original decision was a charade, built upon shaky legal reasoning.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” he said. “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.”
More crucially, he said the passage of nearly five decades couldn’t paper over those deficiencies. It was a blaring announcement that talk of cases as “super-precedent” would no longer fly.
The ruling also cast some doubt on a legal doctrine known as “substantive due process,” which is a way of looking at individual rights protected within the Constitution.
Justice Clarence Thomas, in a concurring opinion, said the idea lacks “any basis in the Constitution.” He said with Roe out, it may be time to look at other cases based on substantive due process, including ones dealing with same-sex marriage and the right to contraception.
Justice Thomas has led a revolution at the high court that stretches beyond abortion, with recent rulings on guns and religious freedom that also signal the dominance of his originalist approach to deciding constitutional cases.
That’s something law professors must grapple with, said Richard Albert, who is director of constitutional studies at the University of Texas at Austin.
“It would be professional malpractice for any professor of constitutional law not to introduce students to the theory of originalism because that is now ascendant on the court,” Mr. Albert said.
He led a program for law professors over the summer, just after Dobbs, where they pondered how to teach constitutional law in the midst of those shifts: “Do you still teach Roe, do you teach only Dobbs? What kind of questions do you ask students? What kind of discussion do you seed in class? How provocative do you get?”
As for his students, Mr. Albert said they’ve been girding for a ruling like Dobbs for several years, and it’s changed the way they’ve approached constitutional law, transforming them from scholars into “scholar-activists.”
“They’re thinking creatively about how to defend their values. And it’s not just, by the way, students who are opposed to the ruling in Dobbs. You have students who may feel the other side, and their view now is ascendant,” he said. “Law has always been a tool to engineer society and to reengineer society. That’s just the nature of law. So when I notice a shift from scholar to scholar-activist, for me it’s completely appropriate for students to do that, on either side.”
For some professors, the moment is a scary time as they’ve become unmoored from decisions they had become attached to.
“I have always perceived of the law as a tool for justice,” Jolynn Childers Dellinger, a professor at Duke Law School told Slate, “and my faith that the law is being used toward that end has definitely been shaken by this Supreme Court.”
The ruling may also be affecting students personally.
Law.com wondered whether students would flee from schools in states that have more restrictive abortion laws, pointing out since 2016, women make up a majority of new law school enrollees.
The publication also said schools were trying to sort through how to help students “cope” with the realities of the decision.
That’s just as true for some of the teachers.
G.S. Hans, an associate clinical professor of law at Cornell University, penned a piece this summer wondering how professors are supposed to teach constitutional law “while the Supreme Court is wrecking it.”
He said that while the current “supercharged” and “hyperconservative” court is stirring passions, it’s just unwinding a “fairy tale” many lawyers have adopted that the court is a bulwark of individual rights. He said it’s time professors teach the court’s ability to be swayed by legal realism.
“And although it can come off as cynical, I find it hard to argue against cynicism given how radical the Court has become,” he wrote.
Other teachers took a more scholarly view.
David Cohen, a law professor at Drexel University said he has always told students that constitutional law is ever-changing. He noted how lessons on constitutional rights changed over time when the court issued rulings varying from Plessy v. Ferguson to Brown v. Board of Education, and so on.
“I’m always just teaching a snapshot in time and the history of constitutional law is that it is ever-changing,” he said.
“The Supreme Court gets romanticized from the left and the right and in doing so, we forget they are a political body, with political actors, making political decisions and that doesn’t mean we don’t have to teach what the law is and what the doctrine is — we do — but at the end of the day, these are political actors,” Mr. Cohen said.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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Supreme Court to look at CFPB case on budget, Congress
Created 12 years ago as part of Dodd-Frank law
BY DAVE BOYER THE WASHINGTON TIMES
The Consumer Financial Protection Bureau could be nearing the end of its run as a regulator free from Congress controlling its budget.
The bureau, which is funded by the Federal Reserve, is asking the conservative Supreme Court to uphold that arrangement, which Republicans say is unconstitutional. But the CFPB’s legal arguments to the high court contradict its long-standing position that it doesn’t receive appropriations from Congress.
The Biden administration, confronted with a federal appeals court ruling that found the CFPB’s funding method violates the Constitution, has asked the Supreme Court to hear an appeal and make a decision by this spring. The administration said the ruling “calls into question virtually every action the CFPB has taken in the 12 years since it was created,” and that leaving the agency’s funding in limbo would have “major” consequences for the U.S. financial industry.
Analysts say the problem has been brewing ever since Congress created the CFPB for consumer protection in 2010 as part of the Dodd-Frank law imposing more regulations on the financial services industry. The legislation was a response to the Wall Street meltdown of 2008-09.
“There’s always been from the very beginning clouds of legal uncertainty around the CFPB,” said Adam White, a senior fellow at the American Enterprise Institute and co-director of George Mason University’s Gray Center for the Study of the Administrative State. “The Biden administration is clearly very keen to get this in front of the justices.”
The CFPB was conceived largely by Sen. Elizabeth Warren, Massachusetts Democrat, when she was a professor at Harvard University. Its mission is to police against “unfair, deceptive, or abusive” business practices in areas ranging from credit cards to payday loans.
Over 12 years, the CFPB has sent more than 3.3 million consumer complaints to companies, with a 98% timely response rate by financial firms, according to the House Financial Services Committee. It has delivered more than $14.9 billion in monetary compensation, principal reductions, canceled debts and other consumer relief.
Among its recent actions, the bureau reached a $3.7 billion settlement with Wells Fargo this month over abuses tied to mortgages, auto loans and overdraft fees.
The bank was ordered to pay a $1.7 billion civil penalty and more than $2 billion “in redress to consumers,” the CFPB said.
To ensure the CFPB’s independence, lawmakers set up its funding to come directly from the Fed instead of annual congressional appropriations. The agency’s director is authorized to request whatever funding he or she believes is “reasonably necessary” to carry out CFPB’s operations, as long as the amount doesn’t exceed 12% of the Federal Reserve’s “total operating expenses.” (The bureau was allowed to exceed the cap by $200 million in each of its first five years as long as it notifi ed the president and Congress of any anticipated surplus).
For fiscal 2022, the CFPB requested $642 million for operations that include 1,600 employees. In 2018, the bureau requested $381 million.
The bureau is headed by a sole director appointed by the president and confirmed by the Senate. Current Director Rohit Chopra was nominated by President Biden and confirmed by the Senate for a five-year term in September 2021.
Conservatives have long argued that the CFPB isn’t accountable to voters because it evades Congress’ power of the purse. They have criticized the bureau under Democratic administrations as a regulator run amok, saddling businesses with a wide array of new red tape such as the Payday Lending Rule, which was crafted during the Obama administration and finalized during the first year of the Trump administration.
The complaints came to a head on Oct. 19, when the Fifth Circuit Court of Appeals vacated the Payday Lending Rule because, the judges said, the CFPB’s funding is unconstitutional. The court said that the bureau’s “perpetual insulation from Congress’s appropriations power, including the express exemption from congressional review of its funding, renders the bureau ‘no longer dependent and, as a result, no longer accountable’ to Congress and, ultimately, to the people.”
By creating this self-funding system, the court ruled, “Congress ran afoul of the separation of powers embodied in the Appropriations Clause.”
In urging the Supreme Court to hear its appeal of the ruling, the Biden administration said the Fifth Circuit relied on an “erroneous” interpretation of the Constitution’s Appropriations Clause.
“Congress enacted a statute explicitly authorizing the CFPB to use a specified amount of funds from a specified source for specifi ed purposes,” the administration said in its brief. “The Appropriations Clause requires nothing more.”
The CFPB said its funding method “indisputably establishes an appropriation under the longaccepted understanding of that term.”
But Mr. White points out that the bureau and its leaders have consistently and repeatedly claimed since its creation that the CFPB does not receive “appropriations.”
Among the examples, then-Director Richard Cordray testifi ed to Congress in 2012 that the bureau’s revenues were “nonappropriated funds.” And the bureau’s annual report in 2014 said Dodd-Frank gave it “a source of funding outside the appropriations process.”
“The agency itself, throughout its entire life, has insisted that its funding is not appropriations,” Mr. White said. “Suddenly, the agency has discovered that all along it did get appropriations. I don’t think the agency has been that foolish for that long. I think they are now suddenly changing their story and trying to reframe what Dodd-Frank did. Dodd-Frank was not an appropriation statute.”
The CFPB’s legal brief to the Supreme Court said Congress “is free to modify the Bureau’s funding at any time by simply passing a statute.” It also notes that the federal Court of Appeals for the District of Columbia upheld the CFPB’s funding mechanism because it “fits within the tradition of independent financial regulators.”
The Biden administration said it’s worried that the Fifth Circuit’s ruling will invite new legal challenges to the CFPB’s regulations and will frustrate its “critical work administering and enforcing consumer financial protection laws.”
For example, the administration said if CFPB’s regulations on home loans were vacated, “mortgage lenders would have to immediately modify the disclosures they give millions of consumers each year, and borrowers could seek to rescind certain mortgage transactions that had relied on regulatory disclosure exceptions.” The Mortgage Bankers Association, National Association of Home Builders, and National Association of Realtors have warned that calling into question the CFPB’s past actions could bring “catastrophic” results for the real estate finance industry.
Mr. White dismissed the claim that a Supreme Court ruling against the CFPB would result in economic chaos.
“American financial institutions’ fortunes do not rise and fall merely on the existence of a single federal agency,” he said. “To the extent that the CFPB has for a decade leveraged enormous power over financial institutions based on an extremely shaky constitutional foundation, that reflects a mistake of the CFPB and of the people who created it.”
At a House Financial Services Committee hearing on Dec. 14, Mr. Chopra said the CFPB is taking a variety of actions, including issuing orders to Big Tech firms regarding their use of payment platforms such as Apple Pay, PayPal and Venmo. He said the bureau wants to know “what data they are extracting from transactions and whether they can use that data to preference their other business lines.”
“We are also particularly interested in how these payment platforms implement existing consumer protections, as well as how they make decisions on account approvals, freezes, and terminations,” Mr. Chopra said.
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https://reason.com/2023/01/07/dont-underestimate-clarence-thomas/
SCOTUS, Thomas, a fiercely independent thinker with an excellent legal mind
Excellent, in depth read. Author doesn't agree with Thomas on everything but does a good job with analysis.
(Doug) Magazines award man or person of the year honors. If it was for the last 30 years, this is your man.
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Nice find Doug.
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I found this article on deep themes very interesting.
For the record as I read it I felt uncomfortable with his all too brief assessment of Brown v. Board of Education and his dismissal of the exclusionary rule but overall, he takes on a big picture discussion with good depth IMHO.
https://www.aier.org/article/the-supreme-courts-complicity-in-our-loss-of-freedom/
The Supreme Court’s Complicity in Our Loss of Freedom
George LeefGeorge Leef
– January 14, 2023
After the Constitution had been drafted, it was submitted to the states for ratification. It had quite a few opponents, called the Anti-Federalists. They argued that the proposed government would have too much power and would become a danger to the people’s rights. Most of their fire was aimed at Articles I and II, which created the legislative and executive branches, but some Anti-Federalists also expressed fears that the judiciary in Article III could become a menace. Seeking to allay all such fears, the Constitution’s proponents wrote 85 essays known as The Federalist Papers.
In Federalist 78, Alexander Hamilton defended the judiciary, calling it “the least dangerous branch” since it would have neither the legislature’s control over spending nor the executive’s power of enforcement. Hamilton argued that judicial review, the ability of a court (in this case the Supreme Court) to invalidate legislation passed by a legislature (in this case Congress) posed no threat to the rights of Americans, but was essential in protecting them against possible encroachments by the political branches.
So how has judicial review worked out?
That’s the question addressed by Hillsdale history professor Paul Moreno in his new book How the Court Became Supreme: The Origins of American Juristocracy. He provides readers with a comprehensive history of the concept of judicial review, beginning in England in the 17th century and through to the latest developments in the US Supreme Court. Moreno’s conclusion is that judicial review was a good idea but has gone terribly awry. Rather than protecting our rights under the Constitution, the Court has chosen to turn a blind eye to violations of ones it doesn’t regard as “fundamental,” and has at the same time created pseudo-rights that require coercion against peaceful people. It has been, all in all, a failure.
In the US, the history of judicial review traditionally begins with the famous 1803 case Marbury v. Madison. (Actually, there were a few obscure cases where courts declared laws unenforceable prior to Marbury, as Moreno’s deep research shows.) In Marbury, Chief Justice John Marshall ruled that Congress had unconstitutionally enlarged the Supreme Court’s original jurisdiction (cases that could be brought directly to it) in the Judiciary Act of 1791, and for that reason William Marbury, a last-minute appointment as a Justice of the Peace by President Adams, could not receive the writ of mandamus he sought to compel Secretary of State James Madison to deliver his commission. While he was legally entitled to his office, he had brought his case to the wrong court.
Marbury never pursued the matter, indicating that the case was set up to allow Marshall to declare that the Supreme Court was empowered to declare laws not in accordance with the Constitution to be null and void. How important was Marbury? Moreno argues that far too much is made of it. The case was scarcely mentioned for many decades afterwards and was perfectly in line with the thinking of most of the Founders. And it did not infringe on the rights of the people.
Throughout John Marshall’s long tenure, the Court strongly upheld property and contract rights, greatly aiding the nation’s economic development. In 1824, in Gibbons v. Ogden for example, the Court struck down a New York monopoly granted to Robert Fulton to run steamboats on the Hudson River. Congress alone had the authority to regulate interstate commerce, and state acts that interfered with commerce were unconstitutional, Marshall held. The Court was protecting freedom.
After the Civil War, however, the Court began to turn away from using judicial review to protect freedom and instead approved laws that whittled away at it. In the Slaughterhouse Cases (1873), the Court upheld a monopoly that Louisiana had granted to a cattle slaughtering business in New Orleans against a charge that doing so violated the rights of other businesses under the 14th Amendment. Ratified in 1868, the 14th Amendment was intended to make permanent the Civil Rights Act of 1866, protecting recently freed Blacks against discriminatory legislation. But the language of the 14th Amendment was racially neutral, protecting all citizens against state laws that deprived them of life, liberty, or property without due process of law, abridged the privileges or immunities of citizenship, or deprived them of equal protection of the laws. So was a state monopoly a violation of the rights of the other butchers in New Orleans?
The Court said no, declaring that the 14th Amendment only applied to the “privileges or immunities” of US citizenship, not state citizenship. Therefore, this piece of special-interest legislation was allowed to stand, despite a passionate dissent from Justice Stephen Field, who argued that “the right of free labor” was among the rights that the 14th Amendment was written to protect. Mistakenly, the Court neglected its duty to strike down a special-interest law that took freedom away from some citizens.
In a similar vein, in 1876 the Court approved a state law fixing prices for grain elevators in Munn v. Illinois. It was permissible, the majority held, for the state to take away the freedom of a business to set prices for its services where the property was “affected with the public interest.” Again, special-interest politics (the farm lobby wanted the state to limit prices for grain storage) won out and the Court wasn’t troubled by the consequent erosion of liberty.
Even in that era, the Court was sometimes inclined to rule against state coercion and in favor of liberty. The most famous case was Lochner v. New York (1905), where, in a 5-4 decision, the Court held that a statute that set a maximum number of hours bakers could work during a week was a violation of the 14th Amendment, which protected liberty of contract. In a famous dissent, Justice Holmes complained that “the 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics.” Of course not, but it was meant to defend people’s freedom against having a choice as basic as how much to work taken away by government edict.
Law professors almost invariably ridicule Lochner as a bad decision where the justices imposed their values to override the democratic process. That’s the wrong way to look at it. They were safeguarding an individual’s freedom against encroachment by the state, a proper application of judicial review.
During this time period, some decisions struck down laws that took freedom away, giving rise to the mistaken notion of a “laissez-faire” Court. That’s mistaken because, as Moreno shows, there were also cases where the Court allowed governments to get away with highly illiberal policies, most notably the eugenics case Buck v. Bell in 1927.
From the cases the “progressives” lost, however, they drew a lesson: concentrate on using law schools to train future lawyers to think the progressive way, and staff the courts with judges who were favorable to the use of government power to accomplish social and economic transformation.
In that, they were highly successful. An early breakthrough came in 1916 when President Wilson nominated Louis Brandeis for an empty seat on the Court. Brandeis was a progressive who would become known for what legal scholars and his fellow justices called “Gefuhlsjurisprudenz” – German for “jurisprudence by sentiment.” To Brandeis, getting the desired outcome meant far more than the letter of the law.
After the Great Depression hit, the Court was faced with a series of cases in which government power was employed to supposedly fix the nation’s troubles. Initially, the Court was content to approve such measures. In Nebbia v. New York (1934), the Court upheld a state regulation of the price of milk where a merchant was fined for selling milk below the mandated price. And in Home Building and Loan v. Blaisdell (1934) the Court approved of a Minnesota law putting a moratorium on mortgage foreclosures. All the old concern over property rights and freedom of contract had been swept away with the “progressive” tide. Such measures did nothing to stem the Depression, but they did undermine the Constitution and individual freedom.
Then in 1935, several cases involving federal legislation came to the Court and it struck them down on the grounds that Congress had exceeded its authority. In Schechter Poultry v. US, the Court held that Congress had impermissibly delegated regulatory authority to bureaucrats, and thus the National Industrial Recovery Act was unconstitutional. After that and several other reversals, President Roosevelt was furious. Following his landslide re-election in 1936, he proposed his plan to “pack” the Court with six new justices who would, of course, all be sympathetic to his goals.
Although the court-packing legislation ran into stiff opposition among congressional Democrats and never advanced, it nevertheless had an effect on two members of the Court, Chief Justice Charles Evans Hughes and Justice Owen Roberts, who in 1937 sided with the government in cases such as National Labor Relations Board v. Jones & Laughlin Steel where the issues were no different than in the 1935-36 cases. In Jones & Laughlin, the issue was the legitimacy of the National Labor Relations Act, which trampled upon employer property rights, contractual freedom, and even freedom of speech in its objective of aiding unionization. Constitutional liberties were again sacrificed on the altar of politics, exactly as the Founders had feared.
And then things got even worse.
In 1938, a case came to the Court named United States v. Carolene Products Co. The dispute was over a federal law, the Filled Milk Act, which prohibited the sale of “adulterated” milk products. Carolene had sold a product that blended coconut oil with condensed milk. This was more special interest legislation, the dairy lobby’s seeking to use the government to stifle competition. Would the Court approve?
Yes, but more than that, Chief Justice Stone added a famous footnote stating that the Court would employ different standards of review depending on the type of case. It would presume constitutionality for “mere” business regulations, but would scrutinize cases involving “fundamental rights” or the interests of minority groups. Nothing in the wording of the Constitution indicates that some rights are superior to others, nor that some Americans deserve more protection than others. But the Court had spoken and thereafter, it and other courts would rubber-stamp any federal or state law that regulated business or property, so long as legislators might have had some rational basis for it.
The most egregious example of this judicial mindset came in the 1942 case Wickard v. Filburn. Federal regulations prescribed how much wheat farmers were allowed to grow in pursuit of higher prices. (One of the beliefs of the New Dealers is that higher agricultural prices would somehow restore general prosperity.) An Ohio farmer was penalized for having grown more wheat than he was allowed to. He argued that even if trying to raise the price of wheat were a valid use of federal power, he had consumed all of the wheat on his own farm and therefore no interstate commerce was involved. Since congressional power only extended to interstate commerce, the regulation couldn’t apply to him. But the Court found an ingenious response to crush his right to use his own property as he saw fit: if he hadn’t grown more than his permitted amount of wheat, he might have had to purchase wheat that could have come through interstate commerce, and thus his action affected the price of wheat.
Property rights and freedom of contract had been read out of the Constitution by “progressive” justices who thought they knew which rights were truly important and which ones weren’t.
Could matters get worse? Yes—in the 1950s, we had the Warren Court.
Under Chief Justice Earl Warren, the Court strode much further into judicial supremacy. Warren was noted for caring little about what the law actually said and focusing on what was “fair.” His first big decision was Brown v. Board of Education, declaring “separate but equal” public schools unconstitutional. Among the country’s elites, the outcome was very popular, but many legal scholars who applauded it nevertheless found the legal reasoning weak. Warren and his allies were soon joined by William Brennan, who loved the idea of using the Court to push progressive policy ideas. In the early 1960s, it waded into what had always been regarded as a political question when it declared that state legislatures must be apportioned equally. It also changed criminal procedure, mandating that courts use the exclusionary rule to void any evidence obtained in violation of the defendant’s rights. The Court was now making policy, not just reviewing constitutionally questionable laws, exactly what the Anti-Federalists had feared.
Warren retired in 1969, and President Nixon replaced him with Warren Burger, a judicial conservative who was expected to steer the Court away from activism. Things didn’t work out that way.
One of Burger’s first major decisions was Griggs v. Duke Power (1971) where he expanded the Equal Employment Act to say that business testing that had a “disparate impact” on protected minority groups was illegal. Civil rights advocates were amazed, and said that they didn’t think Burger knew what he had accomplished for them.
Then in 1973, Nixon’s second appointment, Justice Harry Blackmun, authored the decision in Roe v. Wade, where the Court made abortion policy for the entire nation. Again, the result met with favor among elites who had come to see the Court as the conscience of the nation, but the decision was widely denounced by friends and foes alike. Yale law professor John Hart Ely wrote that Roe “was not constitutional law and gives almost no sense of an obligation to try to be.”
Another signal failure of judicial review in recent decades has been the Court’s deferential attitude toward the administrative state, those numerous bureaucracies that effectively govern much of our lives. As noted above, the Court had looked with favor on the agencies since the New Deal, but in the 1984 case Chevron v. Natural Resources Defense Council, it declared that such agencies should be given deference with regard to the scope of their authority. In other words, the bureaucrats were to be presumed correct in their interpretation of their power. The result was mushrooming administrative regulation.
The US certainly is suffering from, as Moreno puts it, “juristocracy.” Too many of the former and present members of the Court think of themselves as the nation’s conscience, but they have a great numerous sins, both of commission and omission, to atone for.
George Leef
George Leef is director of editorial content for the James G. Martin Center for Academic Renewal. He holds a bachelor of arts degree from Carroll College (Waukesha, WI) and a juris doctor from Duke University School of Law. He was a vice president of the John Locke Foundation until 2003.
A regular columnist for Forbes.com, Leef was book review editor of The Freeman, published by the Foundation for Economic Education, from 1996 to 2012. He has published numerous articles in The Freeman, Reason, The Free Market, Cato Journal, The Detroit News, Independent Review, and Regulation. He writes regularly for the National Review’s The Corner blog and for EdWatchDaily.
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What an apt segue from my previous post of this morning!
Racial Preferences and the Fainthearted Supreme Court
For 45 years, the justices have tried to set strict limits and colleges have ignored them. It’s time for a bright-line ruling that discrimination is unlawful.
By John B. Daukas
Jan. 13, 2023 6:00 pm ET
The Supreme Court is revisiting the issue of racial preferences in higher education. The last time it did so, in 2016, it upheld them by a 4-3 vote. All three dissenters are still on the court, along with three new conservative colleagues.
In this term’s cases, involving Harvard and the University of North Carolina, Students for Fair Admissions asks the justices to hold that racial preferences violate Title VI of the Civil Rights Act of 1964 and, when practiced by public institutions, the 14th Amendment. The common expectation is that they will do so and definitively overturn 45 years of precedent permitting colleges and universities to discriminate in the interest of achieving “the educational benefits of a diverse student body.”
But that isn’t a sure thing. During oral arguments in Students for Fair Admissions v. Harvard, the university’s lawyer, Seth Waxman, urged the justices to avoid such a ruling. “If you think . . . that the district court and the court of appeals didn’t properly apply the kind of strict-scrutiny and narrow-tailoring analysis that it should have,” Mr. Waxman told the justices, they should send the case back to the lower courts rather than “dispense with decades of constitutional precedent.” Adam Liptak of the New York Times later speculated that Chief Justice John Roberts “might be pursuing a characteristically incremental path,” as he attempted with abortion last year in Dobbs v. Jackson Women’s Health Organization.
The court has tried that fainthearted approach repeatedly with racial preferences in higher ed, and the results have always proved unsatisfactory. The justices’ mistake has injured countless Americans by permitting institutions to divide us by race and creating a well-funded, deeply entrenched racial spoils system that degrades us all. Unless the court issues a bright-line decision prohibiting the use of race in admissions, schools will continue to disregard judicial limitations and engage in brazen racial discrimination.
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The first decision addressing the question, Regents of the University of California v. Bakke (1978), famously yielded a split decision. A five-justice majority struck down the university’s affirmative-action practices as unlawful under Title VI because they involved racial quotas, while a different five-justice majority held that race could be used as a “nonpredominant” factor in admissions, solely in the interests of diversity. Only Justice Lewis Powell endorsed both conclusions, and his solo opinion effectively decided the matter.
It became formal Supreme Court precedent in 2003, when the court issued another split decision in a pair of cases involving the University of Michigan. In Gratz v. Bollinger, the court voted 6-3 to strike down Michigan’s undergraduate affirmative-action program, which used a “point system” to discriminate in favor of blacks and Hispanics.
But in Grutter v. Bollinger, a 5-4 majority upheld the Michigan law school’s admission policies, which purported to use race merely as a “plus factor” as part of “a highly individualized, holistic review” that gave “serious consideration to all the ways an applicant might contribute to a diverse educational environment.”
Justices Sandra Day O’Connor and Stephen Breyer joined both majorities. Justice O’Connor wrote the court’s opinion in Grutter, which asserted in a footnote that “race-conscious admissions policies must be limited in time” and that “the Court expects that 25 years from now, the use of racial preferences will no longer be necessary.”
In a pointed dissent, Justice Anthony Kennedy agreed that diversity was a “compelling interest” but argued that the law school illegally used race as “an automatic factor in most instances . . . to achieve numerical goals indistinguishable from quotas.” He accused the majority of abdicating its “constitutional duty” to apply “strict scrutiny” when evaluating racial distinctions.
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In Fisher v. University of Texas (2013), known as Fisher I, Justice Kennedy appeared to make good on that criticism. In an opinion for a 7-1 majority, he wrote that the Fifth U.S. Circuit Court of Appeals “did not apply the correct standard of strict scrutiny” and sent the case back for reconsideration—as Mr. Waxman urged the current court to do in the Harvard case.
The Fifth Circuit again upheld Texas’ use of preferences, and the case returned to the high court in 2015. By the time the justices decided Fisher II (2016), Justice Antonin Scalia had died. (Justice Elena Kagan, a former Harvard Law School dean and U.S. solicitor general, recused herself from both Fisher cases.) Justice Kennedy wrote for the 4-3 majority that Texas’ preferences were constitutional, holding that judges owe “considerable deference . . . to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”
All these distinctions ignore the clear text of the law. The 14th Amendment prohibits state institutions such as UNC from denying to any person “the equal protection of the laws.” Title VI of the Civil Rights Act prohibits entities receiving federal funds, including almost all colleges and universities, from discriminating on the basis of “race, color, or national origin.”
These laws apply to every race and don’t have carve-outs. They don’t say “discrimination to promote ‘diversity’ is OK,” or “discrimination against whites and Asians is OK.” In Rice v. Cayetano (2000), the court explained that “one of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.”
Moreover, what the court insisted was an exception has become the rule. Bakke, Gratz, Grutter and Fisher II all purported to set firm limits on the use of racial preferences—they were to be used only as a “nondeterminative” factor in a “holistic” process to promote “diversity.” But colleges have taken these rulings as carte blanche to discriminate pervasively.
The record in the Harvard case proves it. “Harvard monitors the evolving composition of the class by race at every stage of the process,” Eric Dreiband, then assistant U.S. attorney general for civil rights, told the First Circuit in 2020. “The application summary sheets used by admissions officers use race. First readers use race, second readers use race, subcommittees use race, the Harvard admissions committee uses race. . . . The overall rating Harvard assigns to each applicant uses race.” The objective—and the effect—is to produce “a class that year over year is racially balanced within a very narrow range.” Harvard’s own expert admitted that race is the determining factor for hundreds of applicants each year.
I helped run the Justice Department’s Civil Rights Division under Attorney General William Barr. Our two-year investigation into complaints of discrimination against Asian-Americans led us to sue Yale for illegal discrimination in undergraduate admissions. We found that race was the determinative factor for a majority of admitted black and Hispanic applicants and for many rejected Asian and white applicants.
Among other examinations, we performed statistical regression analyses, which demonstrated that race was determinative even after accounting for myriad other factors (such as socioeconomic background, first generation to college, legacy, geography, percentage of high-school students receiving subsidized meals, extracurricular activities and sports). Black applicants were up to eight times as likely to be admitted as comparable Asians and whites. Like Harvard, Yale engaged in blatant racial balancing by keeping the percentages of admitted blacks and Asians within a narrow range, and it favored and disfavored applicants based on race at every step of its multistep admissions process.
Colleges flout the high court’s limits on the use of race because in truth they seek racially balanced student bodies, not merely diversity. And their treatment of students on campus belies claims of diversity. Many schools have separate race-based freshman orientations, separate living spaces, separate majors, separate clubs, separate fraternities and sororities, even separate graduation ceremonies. How are students supposed to benefit from diversity if they are encouraged to segregate themselves?
This misuse of race is analogous to the situation the high court faced in Brown v. Board of Education (1954). Proponents of segregation argued that black and white schools were “separate but equal.” In reality, they were grossly unequal. Justice Ruth Bader Ginsburg, a supporter of racial preferences, noted deception at the heart of the court’s university precedents in her Gratz dissent: “If honesty is the best policy, surely Michigan’s accurately described, fully disclosed college affirmative-action program is preferable to achieving similar numbers through winks, nods, and disguises.”
Tragically, such games mask society’s failure to prepare black and Hispanic students better for college. They lead to mismatching of schools and minority students, which reduces the number of blacks and Hispanics who graduate and go on to professions such as medicine, science and engineering.
Should the Supreme Court hold that race discrimination is flatly unlawful, we can expect universities to resist, as many segregated communities did in the 1950s and ’60s after Brown. It will be incumbent on the Justice Department, state attorneys general, lawmakers and private plaintiffs to root out misconduct through diligent oversight and litigation.
Yet the justices shouldn’t fear a public backlash. Polls show that Americans of all races overwhelmingly oppose consideration of race in college admissions. In 2020 more than 57% of California voters defeated a statewide referendum to end a formal ban on the use of race in college admissions and other state programs.
Chief Justice Roberts got it right when he observed in Parents Involved in Community Schools v. Seattle School District No. 1 (2007): “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” For 45 years, the Supreme Court has tried to have it both ways. The result has been a divided country and policies that harm tens of thousands of college students of all races. It is past time for the justices to follow the law and recognize that it mandates equal treatment regardless of race.
Mr. Daukas served as principal deputy and acting U.S. assistant attorney general for the Justice Department’s Civil Rights Division, 2020-21.
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https://www.theatlantic.com/ideas/archive/2023/01/supreme-court-justices-public-conflict/672494/?fbclid=IwAR0ftZoifOiUTDkFHzNSRU_Q17yWCQV8rWL2qBGvR1YT9bjGQlIr8qBF7rQ
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https://twitchy.com/brettt-3136/2023/01/19/jonathan-turley-says-the-scotus-report-about-dobbs-leak-is-almost-as-chilling-as-the-leak-itself/?bcid=a1714aba6c197395707aecde9ada65a65090b7be5f45291f6611e9cf3bd6bace&utm_campaign=nl&utm_medium=email&utm_source=twtydaily
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https://twitchy.com/brettt-3136/2023/01/19/jonathan-turley-says-the-scotus-report-about-dobbs-leak-is-almost-as-chilling-as-the-leak-itself/?bcid=a1714aba6c197395707aecde9ada65a65090b7be5f45291f6611e9cf3bd6bace&utm_campaign=nl&utm_medium=email&utm_source=twtydaily
The smart money says it was Sotomayor.
It was one of the justices. Ask yourself, who is the most nakedly partisan? Who had the most to gain in a politically partisan direction? Who believes in the institution the least? Who is the dumbest? See where it points.
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https://www.mtsu.edu/first-amendment/article/1146/reporter-s-privilege
I do not agree that sources should be cart blanche protected
at the discretion of the darn journalist
yeah I get the bogus theory the benefit outweighs the risk
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"The smart money says it was Sotomayor. It was one of the justices. Ask yourself, who is the most nakedly partisan? Who had the most to gain in a politically partisan direction? Who believes in the institution the least? Who is the dumbest? See where it points."
I cannot disagree :-D
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based on former colleague
wife of Justice Roberts having been a legal recruiter prior to his being on the SCOTUS
does this have any merit or is it simply political lawfare ?
https://www.yahoo.com/gma/ex-colleague-supreme-court-chief-011405790.html
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Yes. :lol:
Interesting arguments to be made in both directions.
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https://hotair.com/headlines/2023/03/01/please-show-us-the-experts-clause-of-the-constitution-justices-sotomayor-and-kagan-n534278
No difference between the parties? Bullsh*t. One wants freedom for the people. One wants rule by the elites.
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https://hotair.com/headlines/2023/03/01/please-show-us-the-experts-clause-of-the-constitution-justices-sotomayor-and-kagan-n534278
No difference between the parties? Bullsh*t. One wants freedom for the people. One wants rule by the elites.
https://rollcall.com/2009/08/06/senate-confirms-sotomayor-on-bipartisan-68-31-vote/
Sotomayor was approved with the support of 59 Democrats and nine Republicans, including Conference Chairman Lamar Alexander (Tenn.) and Sens. George Voinovich (Ohio), Mel Martinez (Fla.), Lindsey Graham (S.C.), Judd Gregg (N.H.), Kit Bond (Mo.), Dick Lugar (Ind.) and Maine’s Susan Collins and Olympia Snowe.
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And THAT refutes my point that 'no difference between the parties is bullshit'?
Sotomayor was picked by Democrats and supported by ALL of them. Most of the Rs you mention are gone now. Collins represents a blue state and that makes 60. And YOUR party gives us NO votes in ANY chamber on ANY issue.
What a waste of my time this is. You quote me and don't address the points you quote. What a waste of my time this is. What a waste of my time this is.
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https://www.powerlineblog.com/archives/2023/03/thinking-about-biden-v-nebraska.php
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https://www.law.cornell.edu/constitution-conan/amendment-9/historical-background-on-the-ninth-amendment
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https://dailycaller.com/2023/04/17/democrats-supreme-court-ethics-code-experts-seperation-power/?utm_medium=email&pnespid=7uI5BzkeLaEYhuGaqTivFoODrwvxRMptLvm1kek5pARmD6u_TdYfBknORXtoZYV3iQHn3qny
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Et Tu, Juan? Clarence Thomas’s Fickle Friends Pile On
Mitt Romney and Mona Charen go on the attack, then go silent in the face of new information.
By James TarantoFollow
April 24, 2023 4:29 pm ET
Mitt Romney once complained that Barack Obama didn’t play fair. “I’ve been disappointed in the president’s campaign to date, which is focused on character assassination,” he told reporters in May 2012. He complained Mr. Obama was trying to “suggest that I’m not a good person or I’m not a good guy.”
Last week a reporter asked Mr. Romney, now a Utah senator, about recent press attacks on Justice Clarence Thomas, most of which relate to his friendship with Dallas businessman Harlan Crow. “If the reports are accurate, it stinks,” Mr. Romney said. “I don’t have to explain more than that.” But the reports contained many inaccuracies, as I documented last week. I emailed Mr. Romney’s deputy communications director, and she confirmed the senator’s quote but didn’t respond when I asked if his views have changed in light of those demonstrated errors.
I don’t mean to accuse Mr. Romney of hypocrisy, a charge that would be uninteresting if true. It’s only human to find meanness and dishonesty more regrettable when directed against oneself than one’s opponents. But Mr. Romney’s piling on Justice Thomas is weird. The senator is a longtime Republican, and Justice Thomas’s opponents are Democrats. Mr. Romney’s 2018 Senate campaign reported $10,800 in contributions from Mr. Crow and his wife. And reproaching Justice Thomas is unlikely to pay political dividends in Utah, where Mr. Romney may face a primary challenge next year.
Mona Charen is a longtime conservative commentator. She published a column two weeks ago titled “Is Clarence Thomas Crooked?”—a classic example of Betteridge’s law, which holds that “any headline which ends in a question mark can be answered by the word ‘no.’ ”
“The reason Crow desires a friendship with Clarence Thomas,” Ms. Charen asserted, “is not principally for his hearty laugh or his storytelling. It’s because he’s a justice on the Supreme Court who rules in ways Crow finds congenial. Over time, all of that largesse can be a kind of soft coercion. If Thomas were ever tempted to stray from the doctrinaire views the two share, would the justice hesitate, if only unconsciously, contemplating the risk that he might lose access to the Bombardier Global 5000 and the private fishing guide?”
I emailed Ms. Charen to ask if she had any factual basis for this characterization of the Thomas-Crow friendship, and if she’s reconsidered her view in light of new information, particularly my colleague Barton Swaim’s interview with Mr. Crow. She didn’t reply, possibly because the former question was a bit unsporting. Obviously she was engaging in pure speculation—or, to put it charitably, acting the drama critic and puzzling out characters’ motives from their actions.
But her analysis is laughable. As Mr. Swaim reported, Mr. Crow describes himself as “a moderate Republican” and “moderately pro-choice—a first-trimester guy” and says of the justice: “Do I influence him? Hell no. I respect his judgment about those things way more than mine.”
Justice Thomas appears impervious to influence and always has. He is, in the words of Justice Samuel Alito, “a purist and an important voice”—and often a soloist, whose lone concurring opinions or (less often these days) dissents argue for adhering to the original meaning of the Constitution even if that requires uprooting precedents that have become deeply established in law and culture.
Ms. Charen once admired Justice Thomas. In a 1991 column, she called the effort to sink his nomination over allegations of ribaldry “one of the greatest liberal misfires in American politics” and observed that “smear tactics backfired.” In 2000 she raved about his opinion in Stenberg v. Carhart, an abortion case: “In a lengthy dissent, Justice Clarence Thomas turns the majority ruling slowly on a spit, burning off one flimsy argument after another.”
So what happened to Mr. Romney and Ms. Charen? I’ll don my drama-critic cap and note that both of them (like many Republicans and conservatives) experienced discomposure in 2015-16 over Donald Trump’s political rise. Neither got over it, and both have endured cruel treatment from Trump supporters as a result.
In a 2018 New York Times op-ed, Ms. Charen described being jeered at the Conservative Political Action Conference, where she appeared on a panel and accused Republicans of hypocrisy for countenancing untoward personal behavior by the likes of Mr. Trump and failed Alabama Senate candidate Roy Moore. “I had to be escorted from the premises by several guards who seemed genuinely concerned for my safety,” she wrote.
Well, shame on CPAC. But none of this is Clarence Thomas’s fault. Why lash out at him? Perhaps because politics can be as much about identity as about ideas. Justice Thomas hasn’t changed, but political alignments have. Mr. Romney and Ms. Charen, in your humble critic’s opinion, now see him as being on the other side. They may also crave what the late Tom Bethell called “strange new respect” from the left. Good luck finding it in today’s Washington.
image
Juan Williams speaks on Fox News Channel in New York, Sept. 17, 2019. PHOTO: STEVEN FERDMAN/GETTY IMAGES
The guy I can’t figure out is Juan Williams. In an April 17 op-ed for the Hill, he called Justice Thomas “my old friend” and cast himself as Brutus, declaiming against “the smell of financial corruption around Thomas” along with “Thomas’s unyielding loyalty to a hardline Republican agenda that made former President Trump call Thomas his favorite justice.”
I emailed Mr. Williams and asked if he had anything to add in light of my debunking of the attacks on Justice Thomas. “I think you made the case that aside from questions about disclosure there is no evidence of outright corruption,” he replied. Then he softened his criticism but didn’t retract it: “My worry for the Justice is that the free vacations, free travel and honors from one group lead to questions about a limited circle of influence.”
Mr. Williams is liberal and has wide, deep and honest differences of opinion with Justice Thomas. But that’s been clear since 1980, when the two men met. In 1991, when Mr. Williams was at the Washington Post, he defended then-Judge Thomas and accused Senate Judiciary Committee Democrats of “an unforgivable abuse of a human being named Clarence Thomas.”
In the Post’s politically correct newsroom, Mr. Williams paid a professional price for that stance. But today he’s at Fox News Channel, where support for Justice Thomas would be a welcome liberal heterodoxy. So why turn on his “old friend” now? I can’t imagine, but I’ll bet it’s personal.
Mr. Taranto is the Journal’s editorial features editor.
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It's almost like there is some kind of Uniparty...
Et Tu, Juan? Clarence Thomas’s Fickle Friends Pile On
Mitt Romney and Mona Charen go on the attack, then go silent in the face of new information.
By James TarantoFollow
April 24, 2023 4:29 pm ET
Mitt Romney once complained that Barack Obama didn’t play fair. “I’ve been disappointed in the president’s campaign to date, which is focused on character assassination,” he told reporters in May 2012. He complained Mr. Obama was trying to “suggest that I’m not a good person or I’m not a good guy.”
Last week a reporter asked Mr. Romney, now a Utah senator, about recent press attacks on Justice Clarence Thomas, most of which relate to his friendship with Dallas businessman Harlan Crow. “If the reports are accurate, it stinks,” Mr. Romney said. “I don’t have to explain more than that.” But the reports contained many inaccuracies, as I documented last week. I emailed Mr. Romney’s deputy communications director, and she confirmed the senator’s quote but didn’t respond when I asked if his views have changed in light of those demonstrated errors.
I don’t mean to accuse Mr. Romney of hypocrisy, a charge that would be uninteresting if true. It’s only human to find meanness and dishonesty more regrettable when directed against oneself than one’s opponents. But Mr. Romney’s piling on Justice Thomas is weird. The senator is a longtime Republican, and Justice Thomas’s opponents are Democrats. Mr. Romney’s 2018 Senate campaign reported $10,800 in contributions from Mr. Crow and his wife. And reproaching Justice Thomas is unlikely to pay political dividends in Utah, where Mr. Romney may face a primary challenge next year.
Mona Charen is a longtime conservative commentator. She published a column two weeks ago titled “Is Clarence Thomas Crooked?”—a classic example of Betteridge’s law, which holds that “any headline which ends in a question mark can be answered by the word ‘no.’ ”
“The reason Crow desires a friendship with Clarence Thomas,” Ms. Charen asserted, “is not principally for his hearty laugh or his storytelling. It’s because he’s a justice on the Supreme Court who rules in ways Crow finds congenial. Over time, all of that largesse can be a kind of soft coercion. If Thomas were ever tempted to stray from the doctrinaire views the two share, would the justice hesitate, if only unconsciously, contemplating the risk that he might lose access to the Bombardier Global 5000 and the private fishing guide?”
I emailed Ms. Charen to ask if she had any factual basis for this characterization of the Thomas-Crow friendship, and if she’s reconsidered her view in light of new information, particularly my colleague Barton Swaim’s interview with Mr. Crow. She didn’t reply, possibly because the former question was a bit unsporting. Obviously she was engaging in pure speculation—or, to put it charitably, acting the drama critic and puzzling out characters’ motives from their actions.
But her analysis is laughable. As Mr. Swaim reported, Mr. Crow describes himself as “a moderate Republican” and “moderately pro-choice—a first-trimester guy” and says of the justice: “Do I influence him? Hell no. I respect his judgment about those things way more than mine.”
Justice Thomas appears impervious to influence and always has. He is, in the words of Justice Samuel Alito, “a purist and an important voice”—and often a soloist, whose lone concurring opinions or (less often these days) dissents argue for adhering to the original meaning of the Constitution even if that requires uprooting precedents that have become deeply established in law and culture.
Ms. Charen once admired Justice Thomas. In a 1991 column, she called the effort to sink his nomination over allegations of ribaldry “one of the greatest liberal misfires in American politics” and observed that “smear tactics backfired.” In 2000 she raved about his opinion in Stenberg v. Carhart, an abortion case: “In a lengthy dissent, Justice Clarence Thomas turns the majority ruling slowly on a spit, burning off one flimsy argument after another.”
So what happened to Mr. Romney and Ms. Charen? I’ll don my drama-critic cap and note that both of them (like many Republicans and conservatives) experienced discomposure in 2015-16 over Donald Trump’s political rise. Neither got over it, and both have endured cruel treatment from Trump supporters as a result.
In a 2018 New York Times op-ed, Ms. Charen described being jeered at the Conservative Political Action Conference, where she appeared on a panel and accused Republicans of hypocrisy for countenancing untoward personal behavior by the likes of Mr. Trump and failed Alabama Senate candidate Roy Moore. “I had to be escorted from the premises by several guards who seemed genuinely concerned for my safety,” she wrote.
Well, shame on CPAC. But none of this is Clarence Thomas’s fault. Why lash out at him? Perhaps because politics can be as much about identity as about ideas. Justice Thomas hasn’t changed, but political alignments have. Mr. Romney and Ms. Charen, in your humble critic’s opinion, now see him as being on the other side. They may also crave what the late Tom Bethell called “strange new respect” from the left. Good luck finding it in today’s Washington.
image
Juan Williams speaks on Fox News Channel in New York, Sept. 17, 2019. PHOTO: STEVEN FERDMAN/GETTY IMAGES
The guy I can’t figure out is Juan Williams. In an April 17 op-ed for the Hill, he called Justice Thomas “my old friend” and cast himself as Brutus, declaiming against “the smell of financial corruption around Thomas” along with “Thomas’s unyielding loyalty to a hardline Republican agenda that made former President Trump call Thomas his favorite justice.”
I emailed Mr. Williams and asked if he had anything to add in light of my debunking of the attacks on Justice Thomas. “I think you made the case that aside from questions about disclosure there is no evidence of outright corruption,” he replied. Then he softened his criticism but didn’t retract it: “My worry for the Justice is that the free vacations, free travel and honors from one group lead to questions about a limited circle of influence.”
Mr. Williams is liberal and has wide, deep and honest differences of opinion with Justice Thomas. But that’s been clear since 1980, when the two men met. In 1991, when Mr. Williams was at the Washington Post, he defended then-Judge Thomas and accused Senate Judiciary Committee Democrats of “an unforgivable abuse of a human being named Clarence Thomas.”
In the Post’s politically correct newsroom, Mr. Williams paid a professional price for that stance. But today he’s at Fox News Channel, where support for Justice Thomas would be a welcome liberal heterodoxy. So why turn on his “old friend” now? I can’t imagine, but I’ll bet it’s personal.
Mr. Taranto is the Journal’s editorial features editor.
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read recently - may be leftist propaganda
that Just. Thomas wealthy friend is tied to case(s ) in front of Supreme Court
if true that certainly give the appearance of conflict of interests.
does he recuse himself ? would not that be the ethical standard ?
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https://www.msn.com/en-us/news/politics/neil-gorsuch-has-joined-the-supreme-court-ethics-scandal-party/ar-AA1akkFz?ocid=msedgntp&cvid=61d5c09e566748f0be8f92405cffd076&ei=28
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https://thefederalist.com/2023/04/25/politicos-hit-on-neil-gorsuch-is-another-transparent-attempt-to-delegitimize-scotus/
Politico’s Hit On Neil Gorsuch Is Another Transparent Attempt To Delegitimize SCOTUS
BY: DAVID HARSANYI
APRIL 25, 2023
Even as propaganda, it’s shoddy work.
As with ProPublica’s recent smear of Clarence Thomas, there’s a lot of excitement across the left-wing Twittersphere over a Politico hit on Neil Gorsuch. But even as a transparent piece of partisan propaganda, it is poorly conceived.
Politico kicks off the piece, “Law firm head bought Gorsuch-owned property,” with a purposefully deceptive claim: “For nearly two years beginning in 2015, Supreme Court Justice Neil Gorsuch sought a buyer for a 40-acre tract of property he co-owned in rural Granby, Colo.”
No. For nearly two years before he was even nominated as a Supreme Court justice, a group that included Gorsuch tried to sell a Colorado property they owned together since 2005. And nine days after Gorsuch was confirmed, but before he ruled on any cases, the property was sold to a lawyer who runs Colorado’s biggest law firm. Gorsuch netted between $250,000 and $500,000 on the sale.
The reason Politico’s Heidi Przybyla is aware of Gorsuch’s supersecret arrangement is that it’s listed right there on his publicly available federal disclosure form from 2017 alongside every other income — stock sales, etc.
Yet, one of Politico’s central insinuations is that Gorsuch was trying to conceal this transaction because he “did not report the identity of the purchaser.” And it’s true that the nominee didn’t fill out the “Identity of buyer/seller” column for the estate transaction — or, for that matter, on any other income. I went back and looked at all the disclosure forms of Supreme Court Justices in 2017, and none of them made a single notation in that column for any transaction. And, as far as I can tell, that line has never seen as much as a scribble from any justice in any year. Politico is holding Gorsuch to a completely new standard.
The piece also goes onto claim that Gorsuch “didn’t indicate that there had been a real estate sale or a purchaser.” This is just false. On the very first page of the disclosure, Gorsuch notes that he was a member of the “Walden Group, LLC,” right next to the words “mountain property.” On the next page, he lists the specifics.
This seems like pretty important context for a professional journalist to share with readers. Of course, Przybyla, who put in a yeowoman’s work smearing Brett Kavanaugh by spreading the uncorroborated claims of Julie Swetnick and Deborah Ramirez, is not any kind of real journalist.
The other central accusation of the piece is that the sale of the property created a conflict of interest for Gorsuch. But the lawyer who bought the property, Brian Duffy, says he’s never met or spoken to Gorsuch. And Politico offers no evidence to the contrary. Nor does Politico offer evidence that Gorsuch has ever deviated from his long-held legal philosophy to help anyone at Duffy’s huge law firm, Greenberg Traurig. (Duffy, incidentally, sends most of his contributions to Democrats — including Raphael Warnock, Hillary Clinton, Charles Schumer, and Barack Obama.)
It takes only a few paragraphs to figure out that Gorsuch broke no law and did nothing that a good-faith observer could deem unethical. So the piece, much like the coverage of Thomas’s friendship with Harlan Crow, tries to cover up its lack of substantiation with a veneer of vaguely journalistic-sounding verbiage. Przybyla then gives the floor to Dick Durbin and other left-wing anti-court activists, as one does when writing an unbiased piece insinuating that a Supreme Court is corrupt. “Without decisive action, the conservatives on the Supreme Court will forever tarnish its reputation in our public life,” one of these activists explains.
Elena Kagan, who served as Barack Obama’s Solicitor General, had no problem participating in a case upholding Obamacare. But Gorsuch once associated with characters that Przybyla finds unsavory. “Gorsuch’s ties to the oil and gas industry run deep,” Przybyla reminds the reader (which is bad, in case there is confusion.)
To bolster allusions of impropriety, Politico links to a similarly weak New York Times article from 2017, “Neil Gorsuch Has Web of Ties to Secretive Colorado Billionaire.” The shadowy tycoon in question is Philip Anschutz, whose name adorns medical facilities and buildings and museums across the state because he is known to basically everyone in Colorado. Anyway, years ago, Gorsuch worked with Anschutz, who in turn championed the fellow Coloradoan for a court during the Bush years. And because Gorsuch made money with people connected to Anschutz in the private sector, it means …
I don’t know what it means. And it doesn’t really matter. These hits are chum for partisans to swarm around. The only thing that matters is creating the perception that “conservative” justices – as if that explains Gorsuch’s legal philosophy – are corrupt. How else could they possibly believe those wacky originalist ideas, anyway? It’s all part of a concerted effort to delegitimize a Supreme Court that still occasionally upholds a semblance of constitutional limits on the state, the one thing still standing in the way of progressive project.
David Harsanyi is a senior editor at The Federalist, a nationally syndicated columnist, a Happy Warrior columnist at National Review, and author of five books—the most recent, Eurotrash: Why America Must Reject the Failed Ideas of a Dying Continent. He has appeared on Fox News, C-SPAN, CNN, MSNBC, NPR, ABC World News Tonight, NBC Nightly News and radio talk shows across the country. Follow him on Twitter, @davidharsanyi.
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https://www.linkedin.com/in/heidi-przybyla-86b3537
she is clearly a Democrat who runs hit jobs on Conservatives
hence the purported loads of "awards"
which are seemingly heaped on those who write anti Republican hit pieces.
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9 to 0
a momentous loss for the shysters :
https://www.westernjournal.com/dems-handed-massive-defeat-justices-scotus-sends-rare-unanimous-letter/
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YAY!
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https://arbalestquarrel.com/progressive-game-plan-neutralize-the-supreme-court-and-disarm-the-citizenry/
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PROGRESSIVE GAME PLAN: NEUTRALIZE THE SUPREME COURT AND DISARM THE CITIZENRY
also seeing repeat stories about Congress quest to hoist "ethics" standards on the SCOTUS
coming from the often unethical and bribes taking pack of liars
I can think only too funny if was not true.
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I've skimmed some additional articles mentioned in that Arbarlest Quarrel GM-- nice find. The writing is serious, well educated, and thoughtfull.
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Left-Wing SCOTUS Justice Took $3M from Book Publisher, Didn’t Recuse Herself from Cases
By Eric Lendrum
May 4, 2023
https://amgreatness.com/2023/05/04/left-wing-scotus-justice-took-3m-from-book-publisher-didnt-recuse-herself-from-cases/
Supreme Court Justice Sonia Sotomayor, a left-wing justice nominated by Barack Obama, repeatedly refused to recuse herself from cases involving the publishing company that paid her millions to publish her own books.
According to the Daily Wire, Sotomayor was paid $3.1 million by Penguin Random House over the course of two years; in 2010, she was paid $1.2 million by Knopf Doubleday Group, part of Random House’s conglomerate, and then received two separate advance payments in 2012, which amounted to $1.9 million when combined. These payments have made Penguin Random House her single largest source of income.
Despite this, Sotomayor did not recuse herself when making a decision in the 2013 case of Aaron Greenspan v. Random House. In the case, Greenspan – an author who was classmates with Facebook founder Mark Zuckerberg while at Harvard – alleged that his proposed book about the founding of Facebook was rejected by Random House, only for the company to then grant a book deal to another author who copied his idea and then turned it into the successful movie “The Social Network” in 2010.
During that case, then-Justice Stephen Breyer, a fellow left-wing justice, did ultimately recuse himself due to receiving payments from the publisher in the past. Sotomayor, however, did not recuse herself despite doing the same thing.
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Doctors Can’t Explain But This Can Vanish Tinnitus (Ear Ringing)
In 2017, Sotomayor began receiving additional payments directly from Random House, which ultimately lasted until 2021 and totaled $500,000, thus bringing her final total amount from the publisher to $3.6 million over the course of 11 years.
In another case in October of 2019, the Supreme Court declined to hear the case of children’s author Jennie Nicassio, who sued Random House after the publisher allegedly began selling a book that was nearly identical to one of her own. In declining to hear the case, the Court ultimately affirmed the ruling of a circuit court which had ruled in Random House’s favor. Sotomayor once again did not recuse herself in the vote to decline Nicassio’s case, even though Breyer once again did recuse himself.
Sotomayor has written five books since becoming a justice, starting with her memoir My Beloved World in 2013. All five were published by Penguin Random House or one of its subsidiaries, with the most recent one, Just Help! How to Build a Better World, being published in 2022.
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https://townhall.com/tipsheet/guybenson/2023/05/04/who-is-planting-all-the-bogus-hatchet-jobs-on-conservative-scotus-justices-n2622855
good question
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https://arbalestquarrel.com/progressive-game-plan-neutralize-the-supreme-court-and-disarm-the-citizenry/
https://www.theburningplatform.com/2023/05/04/how-to-bribe-the-supreme-court/#more-301756
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RBG accolades
I am not sure the Emmy was mentioned that she won:
https://www.indiewire.com/awards/industry/rbg-wins-emmy-exceptional-merit-documentary-filmmaking-1202173567/
did she make an album of her philosophy so she could win a grammy as we have seen the left do in the past
or write some piece and of course get a pulitzer as well
we have also seen in the past with lib heroes
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RBG accolades
I am not sure the Emmy was mentioned that she won:
https://www.indiewire.com/awards/industry/rbg-wins-emmy-exceptional-merit-documentary-filmmaking-1202173567/
did she make an album of her philosophy so she could win a grammy as we have seen the left do in the past
or write some piece and of course get a pulitzer as well
we have also seen in the past with lib heroes
Books and art are also ideal ways to launder money.
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https://www.newsmax.com/us/scotus-ethics-sotomayor/2023/05/04/id/1118673/
did anyone watch [Sen.] Al Frankin on alisyn camerota last night
https://twitter.com/alfranken/status/1654291468742275073 ?
can't find it now
but he is a typical Jewish partisan Democrat
no matter what he twists the arguments and logic every time to fit the Democrat talking points
Even goes so far as saying Justice Sotomayor not recusing herself from publishing cases is NOT a problem , while of course bashing Just. Thomas.
Of course he thinks the legislature should make rules for the SCOTUS
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https://www.newsbusters.org/blogs/business/joseph-vazquez/2023/05/09/did-harvards-larry-tribe-really-just-advise-biden-ignore
does he even realize he sounds like a dope
not a college professor
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https://thehill.com/homenews/administration/3998574-biden-uses-14th-amendment-as-leverage-in-debt-talks/
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https://www.washingtontimes.com/news/2023/may/18/neil-gorsuch-scolds-americans-over-handling-pandem/?utm_source=Boomtrain&utm_medium=subscriber&utm_campaign=newsalert&utm_content=newsalert&utm_term=newsalert&bt_ee=HJ2ETAJPiCKTzcIMi3aZ%2BFUy6T94QztZrejX6ruLudbV8o7Ro%2Btc1Aduqljy9do3&bt_ts=1684500033117
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maybe a bit of shysterism (what's new)
but I have to agree when reading the Constitutional amendments it does not preclude this possibility.
this could work . Biden runs with Obama as VP , then the dems push 25th amendment and viola - a shyster's dream!
https://www.breitbart.com/politics/2023/06/04/republican-bill-to-exempt-turbans-from-motorcycle-helmets-advances-in-california/
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https://conventionofstates.com
Why this is a bad idea:
https://www.washingtontimes.com/news/2023/jun/8/gavin-newsom-california-governor-calls-us-constitu/?utm_source=Boomtrain&utm_medium=subscriber&utm_campaign=newsalert&utm_content=newsalert&utm_term=newsalert&bt_ee=5L0IPtP3hpSUgNrCaUmQA3rX9ahNcITS018eHj1IO5TydJuwuP0z%2Bh4wL62HU9l%2F&bt_ts=1686247157187
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https://www.politifact.com/factchecks/2017/may/16/james-risch/does-president-have-ability-declassify-anything-an/
Correlary question, does Congress have the power to reign in a constitutional power of the President? (No!)
At the instant he finishes his term, can President Trump give possession of boxes of documents (declassify) to what is now citizen Trump?
Hillary, Pence and (former) VP Biden were a) not prosecuted, and b) never had that absolute power to declassify.
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https://www.politifact.com/factchecks/2017/may/16/james-risch/does-president-have-ability-declassify-anything-an/
Correlary question, does Congress have the power to reign in a constitutional power of the President? (No!)
At the instant he finishes his term, can President Trump give possession of boxes of documents (declassify) to what is now citizen Trump?
Hillary, Pence and (former) VP Biden were a) not prosecuted, and b) never had that absolute power to declassify.
The legal doctrine of ORANGEMANBAD overrides these otherwise valid points.
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"At the instant he finishes his term, can President Trump give possession of boxes of documents (declassify) to what is now citizen Trump?"
if one second before Biden is sworn in I believe
but here is the problem
big mouth is on tape admitting he did not declassify ( we know he didn't anyway and his saying he did is surely BS as no record or evidence that he did to support any such claim)
and he then seemed to hold up admitted document to someone though not clear person actually saw it .
can't get more gotcha then that !
like the stupid admission on tape with Billy Bush admitting he assaults women and something to the effect he is rich they like it and he can get away with it.
as for the double standard of persecution (prosecutors who are really playing. persecutors
no coincidence I highlight with. orange
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I hope
the present situation
meets what Dershowitz calls the Nixon standard
Republicans start abandoning Trump
and we can get rid of him once and for all
unfortunately we have the dupe Republicans who will stand by the fool
no matter what
and they with him might well drag us down
and drag us through more yrs of torture having to defend the dope
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The one true branch of government will NEVER let an outsider into power EVER again.
This applies to both Trump and RFK jr.
I hope
the present situation
meets what Dershowitz calls the Nixon standard
Republicans start abandoning Trump
and we can get rid of him once and for all
unfortunately we have the dupe Republicans who will stand by the fool
no matter what
and they with him might well drag us down
and drag us through more yrs of torture having to defend the dope
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"Republicans start abandoning Trump and we can get rid of him once and for all
unfortunately we have the dupe Republicans who will stand by the fool no matter what."
I get it of course, but the problem is the counter point which that doing so is bending the knee to the weaponization of the Deep State.
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"I get it of course, but the problem is the counter point which that doing so is bending the knee to the weaponization of the Deep State."
true but why continue to shoot ourselves in the foot?
Trump criticized Biden for taking bribes from Ukraine in exchanging sending money to them
then later Trump does exact same thing in telling Ukraine they can have money only if investigate Biden
HRC has the server in a bathroom somewhere in (Utah?)
then destroys evidence and the rest
then later Trump is showing off he continues to keep classified info at his mansion
and brags about it.
WE DO NOT NEED THE GENIUS / IDIOT ANYMORE
I am done defending the mafia DONJT
IMHO
[either way probably will not matter - thought I would save GM from having to post this in advance :-]D
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"I get it of course, but the problem is the counter point which that doing so is bending the knee to the weaponization of the Deep State."
true but why continue to shoot ourselves in the foot?
Trump criticized Biden for taking bribes from Ukraine in exchanging sending money to them
then later Trump does exact same thing in telling Ukraine they can have money only if investigate Biden
HRC has the server in a bathroom somewhere in (Utah?)
then destroys evidence and the rest
then later Trump is showing off he continues to keep classified info at his mansion
and brags about it.
WE DO NOT NEED THE GENIUS / IDIOT ANYMORE
I am done defending the mafia DONJT
IMHO
[either way probably will not matter - thought I would save GM from having to post this in advance :-]D
:-D
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"Trump criticized Biden for taking bribes from Ukraine in exchanging sending money to them. then later Trump does exact same thing in telling Ukraine they can have money only if investigate Biden"
Disagree with the reasoning here. Unlike VP Biden, President Trump was not in search of corrupt personal gain. He was correctly seeking to ferret out corrupt and comprised behavior in the previous administration.
"HRC has the server in a bathroom somewhere in (Utah?) then destroys evidence and the rest. then later Trump is showing off he continues to keep classified info at his mansion and brags about it."
HRC was digitally available to foreign states, including hostile ones according to contrary-to-self-interest FBI Director Comey. Trump was waving around a hard copy. We don't even know if he actually showed the contents.
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"Unlike VP Biden, President Trump was not in search of corrupt personal gain. He was correctly seeking to ferret out corrupt and comprised behavior in the previous administration. "
I disagree
Trump had plenty to gain by taking out his future opponent
additionally he used the threat /. or gift of trying use Federal to punish / bribe
Ukraine officials
not defensible in my mind
"HRC was digitally available to foreign states, including hostile ones according to contrary-to-self-interest FBI Director Comey. Trump was waving around a hard copy. "
so why was he refusing to return the documents?
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Knowing if the American Vice President, who was in charge of our Uke policy, was compromised is a highly relevant matter both for criminal prosecution and for understanding the lay of the land in the present.
The Ukes also meddled in the 2016 election by providing intel on Manafort's consulting for the Russian backed candidate.
""HRC was digitally available to foreign states, including hostile ones according to contrary-to-self-interest FBI Director Comey. Trump was waving around a hard copy. "
"so why was he refusing to return the documents?"
A separate point. Hillary left American highly secret diplomatic correspondence eletronically hackable to hostile powers. Trump had hard copy documents at Mar al Lago. Not even close to be equivalent in my opinion.
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CD posted:
A separate point. Hillary left American highly secret diplomatic correspondence eletronically hackable to hostile powers. Trump had hard copy documents at Mar al Lago. Not even close to be equivalent in my opinion.
I have come around to your opinion but more because of this then your post :-D :wink: :
start at minute 15 and can stop ~ 23 but it goes on further making the same point with different examples:
https://www.newsmaxtv.com/Shows/Greg-Kelly-Reports/vid/1_txce53o8
For fun (I mean aggravation) watch minute 25:50 with Obama's sleazy either tip to Comey to drop the case on HRC or to publicly come out in public to approve the case be dropped.
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ccp: "big mouth is on tape admitting he did not declassify ( we know he didn't anyway and his saying he did is surely BS as no record or evidence that he did to support any such claim)
and he then seemed to hold up admitted document to someone though not clear person actually saw it ."
- But what if 'big mouth' was wrong, he did in fact declassify them when he transferred them from POTUS Trump to a person (himself) he knew was about to become a private citizen who might show it to a writer. Also, my understanding is that they don't have the document that ties to the tape. It could have been a restaurant menu for all we know. Trump has been known to blow smoke when he talks.
Seems to me this case is a tangled up mess for both sides. (Exactly what was intended.). Lock up the nomination for Trump as conservatives rally around him, and lock up the general election for Democrats as liberals, moderates and plenty of conservatives can't stand another minute of the news being all Trump all the time.
Missed in all this is motive. We now know the agencies broke laws and broke their own rules targeting a president, and made totally unprecedented steps to get back documents that might prove their guilt. Complying with the process of capturing and destroying evidence of those crimes perhaps was the real obstruction of justice.
What is unprecedented is what the investigators and prosecutors did, not what Trump did .
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Hi Doug
not sure what you mean.
"But what if 'big mouth' was wrong, he did in fact declassify them when he transferred them from POTUS Trump to who he knew was about to become private citizen Trump, who might show it to a writer. Also, my understanding is that they don't have the document that ties to the tape. Trump has been known to blow smoke when he talks."
well this audio is THEIR main evidence .
so the new defense is
"he incriminated himself by mistake?"
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Yes. What if he came out of the bank with a suitcase filled with a million dollars and said he just robbed the bank, but it turns out the money all came from his account. No crime.
What if he said he could shoot someone on 5th avenue and his supporters would stand by him, but he meant that shooting would be in self-defense or he wouldn't have done it. It would be a legal, justifiable homicide. No crime.
What if the current president called a small crowd at the White House transjester, when in fact they claim to be transgender. Wrong words, even with a tape recorder on, don't make these people transjester.
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:-o
Doug,
you should have been a DC lawyer!
:-o
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"I have come around to your opinion but more because of this then your post"
Hey!!! :-D :-D :-D
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CCP:
I have ignored Newsmax but what I heard in that has me willing to reconsider.
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https://www.propublica.org/article/samuel-alito-luxury-fishing-trip-paul-singer-scotus-supreme-court?utm_source=sailthru&utm_medium=email&utm_campaign=majorinvestigations&utm_content=feature
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propublica
from the sandler foundation
(another rich jewish family, oh vey)
https://www.breitbart.com/politics/2023/06/22/left-wing-foundation-backing-propublica-dumps-millions-into-groups-targeting-scotus-justices-clarence-thomas-and-samuel-alito/
https://www.sandlerfoundation.org/grants/
founders herbie and marion have since died
as did susan
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https://www.washingtontimes.com/news/2023/jun/23/alejandro-mayorkas-non-deportation-policy-survives/?utm_source=Boomtrain&utm_medium=subscriber&utm_campaign=newsalert&utm_content=newsalert&utm_term=newsalert&bt_ee=woGTyblYupFQeYYN3cFwtEUW71vPhelBaTOqO7OXD4EIOXh4N5DxO2N4yHrTGKC6&bt_ts=1687534730708
Mayorkas’ non-deportation policy survives Supreme Court challenge
The Supreme Court breathed new life into President Biden’s lenient immigration policies Friday, giving the Homeland Security Department tacit approval to refuse to arrest and deport illegal immigrants even where the law says it must try.
In an 8-1 ruling, the justices said Texas and Louisiana couldn’t sue to force the administration to carry out a law that requires the government to attempt to arrest, detain and deport illegal immigrants with significant criminal records.
“In sum, the States have brought an extraordinarily unusual lawsuit. They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests,” wrote Justice Brett M. Kavanaugh in the key opinion. “Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this.”
The ruling’s implications stretch far beyond immigration, suggesting that federal courts can’t — or won’t — step in to police prosecution and law enforcement decisions, except in particular circumstances.
The result, warned one justice, will be presidents increasingly willing to disregard the laws passed by Congress, and lawmakers who find their only recourse to an unruly executive is impeachment.
“Relegating Congress to these disruptive measures radically alters the balance of power between Congress and the Executive, as well as the allocation of authority between the Congress that enacts a law and a later Congress that must go to war with the Executive if it wants that law to be enforced,” wrote Justice Samuel A. Alito Jr.
At issue in the case is a memo issued by Homeland Security Secretary Alejandro Mayorkas in 2021 that ordered immigration agents and officers to limit the illegal immigrants they tried to arrest and deport. No longer would being in the country illegally be sufficient grounds for deportation, and even those who did have serious criminal records also had to be considered for leniency.
Texas showed in court that because of that policy, Homeland Security was forcing it to release criminals back onto the streets.
Among them was Heriberto Fuerte-Padilla, an immigrant in the country illegally who was driving drunk in 2020 when he smashed into the car driven by a Texas teenager, killing her. He tried to flee the scene, but police caught up with him.
Homeland Security said under Mr. Mayorkas’s policy that Fuerte-Padilla wasn’t a priority for deportation, so Texas should release him into the community when he’d served his time on the state charge.
Friday’s ruling produced a complicated set of opinions.
Five justices, led by Justice Kavanaugh, said Mr. Mayorkas’s decision-making could not be questioned by Texas or the courts.
“In light of inevitable resource constraints and regularly changing public-safety and public-welfare needs, the Executive Branch must balance many factors when devising arrest and prosecution policies,” Justice Kavanaugh wrote. “That complicated balancing process in turn leaves courts without meaningful standards for assessing those policies.”
Three other members also shot down Texas’s case but on different grounds. They said there was no obvious solution a court could deliver for Texas — what’s known in legal speak as “redressability.”
Even if Mr. Mayorkas’s memo was vacated, courts can’t compel a change in the department’s behavior, Justice Neil M. Gorsuch said in a concurring opinion joined by Justices Clarence Thomas and Amy Coney Barrett.
Justice Alito said everybody got it wrong and warned that the ruling could convey an imperial power on the presidency that could only be stopped by Congress either passing a law to strip money from the president or outright impeaching him.
He compared that to an absolutist English king ignoring a law passed by parliament — something he said even the English ceased after the Glorious Revolution in the late 1600s.
Justice Kavanaugh insisted his ruling was not as wide-ranging as critics suggested. He said it applied only to arrest and prosecution decisions.
But Justice Gorsuch said there’s no way to draw that line based on the Constitution, which doesn’t include a specific prosecution power but rather charges the president with an “executive power” and a duty to make sure the laws are “faithfully executed.”
“These provisions give the President a measure of discretion over the enforcement of all federal laws, not just those that can lead to arrest and prosecution,” Justice Gorsuch said. “So if the Court means what it says about Article II, can it mean what it says about the narrowness of its holding?”
Immigrant rights advocates hailed the decision, saying it frees Mr. Biden to pursue a gentler policy.
“This is a victory for common sense over chaos and a blow against Republicans’ reliance on the anti-immigrant judicial pipeline,” said David Leopold, a former president of the American Immigration Lawyers Association.
He suggested the ruling could also be used against GOP state challenges to the DACA program for illegal immigrants who came to the U.S. as youths.
Andrew “Art” Arthur, a former immigration judge and congressional aide responsible for crafting immigration laws, said the ruling upends immigration law.
“What this decision effectively does is it takes immigration decisions out of the hands of Congress, where the Constitution has placed them, and effectively places it in the hands of the executive branch,” said Mr. Arthur, who is now with the Center for Immigration Studies.
Mr. Arthur said another administration with differing ideological beliefs from the Biden administration could cite the court’s ruling in refusing to pursue prosecutions of environmental law or income tax payments.
In issuing its ruling, the high court may be trying to replace a lid on a Pandora’s Box it opened in 2007 with Massachusetts v. EPA, a case that found a state could sue to force the administration to take action based on speculative claims of damage from future climate change.
That ruling has been cited in subsequent cases as giving states the power to bring lawsuits to force presidential action on everything from environmental policy to immigration.
In Friday’s decision, the majority said in a footnote that the Massachusetts case was different.
Justice Alito, in his dissent, said that was a skimpy way to brush aside a crucial precedent.
“So rather than answering questions about this case, the majority’s footnote on Massachusetts raises more questions about Massachusetts itself — most importantly, has this monumental decision been quietly interred?” Justice Alito said.
===============================
https://www.theepochtimes.com/supreme-court-rules-states-cant-challenge-biden-deportation-policy_5351742.html
The Supreme Court ruled 8–1 on June 23 that Texas and Louisiana may not challenge the Biden administration’s 2021 decision to focus its deportation efforts on individuals deemed to be a threat to public safety.
The new, complex decision allows the government’s selective immigration enforcement policy, which had been blocked by a lower court, to take effect.
The case was one in a series brought by Republican-controlled states that have helped to frustrate Biden administration policies related to immigration and border security.
The Homeland Security Memo
Texas and Louisiana sued the Biden administration over a policy announced in a Sept. 30, 2021, memorandum (pdf) by Homeland Security Secretary Alejandro Mayorkas that claims it is impossible to remove the estimated 11 million illegal aliens present in the United States. Mayorkas has been heavily criticized by Republicans for his allegedly lax approach to immigration enforcement. Some Republicans in Congress want to impeach him for dereliction of duty.
“We do not have the resources to apprehend and seek the removal of every one of these noncitizens. Therefore, we need to exercise our discretion and determine whom to prioritize for immigration enforcement action,” the memo states.
The document prioritizes the arrest and deportation of suspected terrorists, people who have committed crimes, and illegal aliens recently apprehended at the border.
The memo praises the “majority of undocumented noncitizens who could be subject to removal [even though they] have been contributing members of our communities for years.”
“They include individuals who work on the frontlines in the battle against COVID, lead our congregations of faith, teach our children, do back-breaking farm work to help deliver food to our table, and contribute in many other meaningful ways,” it states.
But the states argued that the federal government is illegally refusing to enforce the nation’s immigration laws by prioritizing only certain enforcement categories at the expense of others. They said that the federal Immigration and Nationality Act (INA) requires that specific criminal aliens, such as aggravated felons, must be detained upon release from criminal custody pending a decision on whether to remove them from the country. The law also requires that aliens subject to final orders of removal must be detained pending their removal, they said.
The states argued that the immigration statute requires authorities to detain and deport even those deemed to pose little or no risk to the public.
Instead, the Biden administration said in the memo that it would embark on case-by-case determinations instead, which the states said leaves the door open for violent criminals to return to the nation’s streets.
“Keeping our citizens safe is one of the most fundamental duties of government, perhaps even the most fundamental. The Biden Administration has tried to ignore that duty, but we’re fighting every single day to remind them,” Texas Attorney General Ken Paxton, a Republican, said on Nov. 29, 2022, the day the case was heard by the court.
The Memo Was Blocked
The Mayorkas memo was blocked last year by U.S. District Judge Drew Tipton, a Trump appointee, who ruled that Texas had legal standing to pursue the case because it could show the state was harmed when illegal aliens who should have been detained by the federal government found their way to the state and committed crimes there.
The now-suspended policy is similar to one enforced by then-President Barack Obama but differs from the more aggressive policy pursued by his successor, then-President Donald Trump, who limited the role of discretion in the enforcement of immigration laws.
The Biden administration asked the Supreme Court to stay Tipton’s order, but on July 21, 2022, it refused to do so. Conservative Justice Amy Coney Barrett, along with the three liberal justices–Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—dissented, indicating they would have granted the stay.
New Majority Opinion
The new majority opinion (pdf) in the case, United States v. Texas (court file 22-58), was written by Justice Brett Kavanaugh. The opinion says that precedent dictates that states lack legal standing to challenge the policy.
Four other justices—John Roberts, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—joined Kavanaugh’s opinion.
Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett agreed with the outcome but for different reasons.
The sole dissenting opinion was filed by Justice Samuel Alito.
The states here “have brought an extraordinarily unusual lawsuit,” Kavanaugh wrote for the majority.
“They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this. The States lack Article III standing because this Court’s precedents and the ‘historical experience’ preclude the States’ ‘attempt to litigate this dispute at this time and in this form.’ And because the States lack Article III standing, the District Court did not have jurisdiction,” he wrote.
Article III of the U.S. Constitution lays out the powers of the judicial branch.
Because resources are limited, the government must prioritize some enforcement areas over others.
The executive branch “invariably lacks the resources to arrest and prosecute every violator of every law and must constantly react and adjust to the ever-shifting public-safety and public welfare needs of the American people,” Kavanaugh wrote.
The court “has consistently recognized that federal courts are generally not the proper forum for resolving claims that the Executive Branch should make more arrests or bring more prosecutions,” he wrote.
Kavanaugh added a proviso, writing that even though the court found Texas and Louisiana lack standing, “we do not suggest that federal courts may never entertain cases involving the Executive Branch’s alleged failure to make more arrests or bring more prosecutions.”
The Supreme Court reversed the decision of Judge Tipton.
Justice Gorsuch wrote an opinion concurring in the judgment of the court but with a different analysis of the standing issue than was stated in the majority opinion.
The opinion was joined by Thomas and Barrett.
Barrett also wrote her own concurring opinion, which Gorsuch joined.
“I agree with the Court that the States lack standing to challenge the Federal Government’s Guidelines for the enforcement of immigration law,” Barrett wrote.
“But I reach that conclusion for a different reason: The States failed to show that the District Court could order effective relief. … And because redressability is an essential element of Article III standing, the District Court did not have jurisdiction.”
The Dissenting Opinion
In his dissenting opinion, Justice Alito wrote that he would have held that Texas has standing.
The majority opinion inappropriately favors the president over Congress, he said.
“And it renders States already laboring under the effects of massive illegal immigration even more helpless,” the justice wrote.
To deny Texas standing “to challenge a federal policy that inflicts substantial harm on the State and its residents by releasing illegal aliens with criminal convictions for serious crimes” the court “brushes aside” precedent.
In so doing, the court also “refuses to apply our established test for standing, disregards factual findings made by the District Court after a trial, and holds that the only limit on the power of a President to disobey a law like the important provision at issue is Congress’s power to employ the weapons of inter-branch warfare—withholding funds, impeachment, and removal, etc.,” Alito wrote.
“I would not blaze this unfortunate trail. I would simply apply settled law, which leads ineluctably to the conclusion that Texas has standing,” he wrote.
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May I glitch, but I am not seeing the actual name of the case , , ,
-
Justice Thomas :
n concurring with the majority, Justice Clarence Thomas wrote that under the 14th Amendment, "the color of a person’s skin is irrelevant to that individual’s equal status as a citizen of this nation.”
Justice Brown (I thought she recused herself - but she can still write a dissenting opinion ?)
:
In a dissenting opinion, Justice Ketanji Brown Jackson wrote that deeming race irrelevant in law does not make it irrelevant in reality.
"And having so detached itself from this country’s actual past and present experiences, the court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are do- ing to solve America’s real-world problems."
WHICH ONE IS MORE LOGICAL with regards to the Constitution?
-
the "rev":
https://www.breitbart.com/clips/2023/06/29/sharpton-on-scotus-affirmative-action-decision-sticking-a-dagger-in-our-back/
Hey Rev:
I got some news for you ->
it isn't race
it is socioeconomics
The Dems :
start the ballot harvesting
get them to sign up while this is hot !
:roll: :wink:
-
the "rev":
https://www.breitbart.com/clips/2023/06/29/sharpton-on-scotus-affirmative-action-decision-sticking-a-dagger-in-our-back/
Hey Rev:
I got some news for you ->
it isn't race
it is socioeconomics
The Dems :
start the ballot harvesting
get them to sign up while this is hot !
:roll: :wink:
Ultimately, it is about race. Intelligence and group behavior matters.
But we are not allowed to even think such things for even a moment.
-
"Hey Rev:
I got some news for you ->
it isn't race
it is socioeconomics :-D "
Isn't that the truth. Plenty of whites and others are in the welfare state socioeconomic trap and plenty of blacks have sprung free from that trap - so (to them) STOP CALLING IT RACE.
Even if you haven't sprung free from it yet, the best path to prosperity is the (disappearing) free enterprise system. Why wouldn't you use it.
The focus on race for victimhood is self defeating. Maybe your race or neighborhood makes it harder. Lots of things make it harder. Do your best. You are lucky to live in a time and place where you can escape poverty in one generation, or even faster.
If you can't get into a top college based on grades and test scores, I recommend MIT OCW "open courseware". The top tech school in the world has every course in the last 20 years posted for free online and every public library has free internet. Same with ACT prep courses etc. Sharpen your brain and apply again. Community college etc, go to the place that fits your level and potential. Learn electricity or plumbing or car repair so well people can't afford to NOT hire you. Get off your @ss. )
Lower standards for what liberals think are lower races never was the answer.
-
"Hey Rev:
I got some news for you ->
it isn't race
it is socioeconomics :-D "
Isn't that the truth. Plenty of whites and others are in the welfare state socioeconomic trap and plenty of blacks have sprung free from that trap - so (to them) STOP CALLING IT RACE.
Even if you haven't sprung free from it yet, the best path to prosperity is the (disappearing) free enterprise system. Why wouldn't you use it.
The focus on race for victimhood is self defeating. Maybe your race or neighborhood makes it harder. Lots of things make it harder. Do your best. You are lucky to live in a time and place where you can escape poverty in one generation, and even faster.
It's not self-defeating, it's a major industry. It's the path to money and power in the FUSA.
-
https://twitter.com/ericareport/status/1674453321078415362
Erica Marsh
@ericareport
Today's Supreme Court decision is a direct attack on Black people. No Black person will be able to succeed in a merit-based system which is exactly why affirmative-action based programs were needed. Today's decision is a TRAVESTY!!!
9:22 AM · Jun 29, 2023
·
8.7M
Views
-
"Hey Rev:
I got some news for you ->
it isn't race
it is socioeconomics :-D "
Isn't that the truth. Plenty of whites and others are in the welfare state socioeconomic trap and plenty of blacks have sprung free from that trap - so (to them) STOP CALLING IT RACE.
Even if you haven't sprung free from it yet, the best path to prosperity is the (disappearing) free enterprise system. Why wouldn't you use it.
The focus on race for victimhood is self defeating. Maybe your race or neighborhood makes it harder. Lots of things make it harder. Do your best. You are lucky to live in a time and place where you can escape poverty in one generation, and even faster.
It's not self-defeating, it's a major industry. It's the path to money and power in the FUSA.
https://thefederalist.com/2023/06/29/of-course-ketanji-brown-jackson-supports-affirmative-action-its-the-only-reason-shes-a-supreme-court-justice/
-
the "rev":
https://www.breitbart.com/clips/2023/06/29/sharpton-on-scotus-affirmative-action-decision-sticking-a-dagger-in-our-back/
Hey Rev:
I got some news for you ->
it isn't race
it is socioeconomics
The Dems :
start the ballot harvesting
get them to sign up while this is hot !
:roll: :wink:
Ultimately, it is about race. Intelligence and group behavior matters.
But we are not allowed to even think such things for even a moment.
https://www.takimag.com/article/mind-the-gap/
-
"Hey Rev:
I got some news for you ->
it isn't race
it is socioeconomics :-D "
"Isn't that the truth. Plenty of whites and others are in the welfare state socioeconomic trap and plenty of blacks have sprung free from that trap - so (to them) STOP CALLING IT RACE.
"Even if you haven't sprung free from it yet, the best path to prosperity is the (disappearing) free enterprise system. Why wouldn't you use it.
"The focus on race for victimhood is self defeating. Maybe your race or neighborhood makes it harder. Lots of things make it harder. Do your best. You are lucky to live in a time and place where you can escape poverty in one generation, or even faster.
"If you can't get into a top college based on grades and test scores, I recommend MIT OCW "open courseware". The top tech school in the world has every course in the last 20 years posted for free online and every public library has free internet. Same with ACT prep courses etc. Sharpen your brain and apply again. Community college etc, go to the place that fits your level and potential. Learn electricity or plumbing or car repair so well people can't afford to NOT hire you. Get off your @ss."
MARC: I did not know that about the MIT OCW. Great to know and a great point for political conversations.
"Lower standards for what liberals think are lower races never was the answer."
THIS!!!!!!!!
-
https://www.nationalreview.com/2023/06/a-victory-for-clarence-thomas/
A Victory for Clarence Thomas
By CHARLES C. W. COOKE
June 29, 2023 3:25 PM
At long last, Thomas has been able to make his case against affirmative action as part of a successful majority.
One of the many reasons that I have treated with reflexive contempt the insinuation that Justice Clarence Thomas is in some meaningful sense “corrupt” is that nobody has ever been able to explain to me to my satisfaction what tangible product that corruption is supposed to have yielded. Where, I have asked, is the evidence of inconsistency? In which of Thomas’s opinions can I detect the caprice? What suspicious shift in jurisprudential assumptions has hinted that something is off? I have never received an answer. For better or for worse, Thomas is always Thomas. Come hell or high water, condemnation or praise, momentum or inertia, his approach remains immediately recognizable. He is dismissive of error, unmoved by precedent, and deaf to political guile. There is one of him, and there will not be another any time soon. Day in, day out, he does his thing, and, if you don’t like it, he doesn’t care. He is an ideal candidate for the Supreme Court.
All of these qualities are on display throughout Thomas’s concurrence in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, a case in which the Supreme Court has held, 6–3, that “Harvard’s and UNC’s admissions programs violate the Equal Protection Clause of the Fourteenth Amendment,” and, more broadly, that affirmative action is unconstitutional. I will confess that, as a historical matter, I do not know whether Thomas’s long-held interpretation of the 14th Amendment as a bluntly “colorblind” measure is correct. I do know, however, that Thomas believes quite sincerely that he is right, and that he has believed it for years. Had he so wished, Thomas could have signed onto John Roberts’s opinion and left it there. That, I daresay, is what a mere “movement” pawn would have done. Instead, Thomas felt moved to “write separately to offer an originalist defense of the colorblind Constitution” to which only he, among his colleagues, put his name.
In Thomas’s telling, the original public meaning of the 14th Amendment was that of a tool “affirming that equality and racial discrimination cannot coexist.” “I do not contend,” Thomas concedes, “that all of the individuals who put forth and ratified the Fourteenth Amendment universally believed this to be true.” Nevertheless, he believes that enough of them did that, since it passed in 1868, “all forms of discrimination based on race—including so-called affirmative action” have been “prohibited under the Constitution.” Alas, at various points in American history, this has been massaged, subverted, or even completely ignored. Indeed, the backsliding began pretty quickly. Despite the flurry of legislation passed by the so-called radical Republicans — first, the Freedmen’s Bureau Act, then the 1866 Civil Rights Act, and eventually the 14th Amendment — “the promise of the second founding took time to materialize,” and, “seeking to perpetuate a segregationist system in the wake of the Fourteenth Amendment’s ratification, proponents urged a ‘separate but equal’ regime” that, to disastrous effect, “met with initial success.” “The great failure of this country was slavery and its progeny,” Thomas writes, “and, the tragic failure of this Court was its misinterpretation of the Reconstruction Amendments” — a misinterpretation that began as early as the mid 1870s. The latter failure, he laments, “stood in sharp contrast to the Court’s earlier embrace of the Fourteenth Amendment’s equality ideal,” which, though unrealized, was most poignantly outlined by Justice Harlan in his lonely dissent in Plessy v. Ferguson.
In Thomas’s view, this mistake has continued, in one form or another, to the present day, including in the courts’ tolerance of ostensibly benign racial discrimination within America’s government-run and government-funded colleges. Some people, Thomas notes, seem to believe that affirmative action is substantially different from earlier forms of injustice, because, in practice, the “[14th] Amendment forbids only laws that hurt, but not help, blacks.” But, he avers, “such a theory lacks any basis in the original meaning of the Fourteenth Amendment,” which declared that “the color of a person’s skin is irrelevant to that individual’s equal status as a citizen of this Nation” and that “to treat him differently on the basis of such a legally irrelevant trait is therefore a deviation from the equality principle and a constitutional injury.” If we are to stay faithful to the law, Thomas submits, “we cannot be guided by those who would desire less in our Constitution, or by those who would desire more.” That those who would opt out are elite colleges instead of segregationists is irrelevant. “Universities’ self-proclaimed righteousness does not afford them license to discriminate on the basis of race,” he affirms. “In fact, it is error for a court to defer to the views of an alleged discriminator while assessing claims of racial discrimination.”
Fleshing out this idea, Thomas takes direct aim at the dissent of the newest justice, Ketanji Brown Jackson, whose focus on “the legacy of slavery and the nature of inherited wealth,” and desire “to label all blacks as victims” he considers not just constitutionally irrelevant but culturally malign. Per Thomas, such thinking “locks blacks into a seemingly perpetual inferior caste” and “is an insult to individual achievement and cancerous to young minds seeking to push through barriers, rather than consign themselves to permanent victimhood.” In essence, Thomas’s approach echoes a line written by Chief Justice Roberts in 2007: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
That, at long last, Thomas has been able to make his case as part of a successful majority must thrill him to the core. Whether it will catch on more broadly now that the underlying controversy has been resolved remains to be seen.
-
"Whether it will catch on more broadly now that the underlying controversy has been resolved remains to be seen."
well the legal constitutional issue is solved
though already the shysters are pointing out the last part of dissent is "vague"
ok to put race as a topic in one's essay so they will shyster around it
the LEFT will not be stopped
but I enjoyed all the smug snarky looks from the commentators last night
particularly Allison Camerata 's angry expression ( she is usually smiley )
on CNN last night while she was reading messages throughout her interviews to come back with rapid fire leftist messages sent to her every minute or so.
-
kagans dissent to ruling the stops student debt cancellation from President who does not have the authority
for those with infinite patience and time on their hands:
https://thehill.com/regulation/court-battles/4075758-read-kagan-dissent-biden-nebraska-student-loan-case/
I am curious what twisted logic she uses to justify political judicial activism on the Court - Constitution is in the way
-
Chief Justice Roberts responds:
https://www.yahoo.com/news/roberts-takes-aim-liberal-justices-160428322.html
Constitution
--- > libs ----> suCottnitn
We can work it however the shysters want for the DNC voting block
-
Some quality legal analysis here from Deep State Andy!
============================================
Justice Barrett Helps Restore Constitutional Order
By ANDREW C. MCCARTHY
July 1, 2023 6:30 AM
The justice's concurrence in the student-loan case clarifies the major-questions doctrine and offers a significant rebuttal of Kagan’s dissent.
Among the most significant opinions issued in this week’s final Supreme Court rulings is Justice Amy Coney Barrett’s concurrence in the Court’s invalidation of Biden’s student-loan cancellation (Biden v. Nebraska). As a committed textualist, Justice Barrett rightly perceived the imperative of elaborating on the so-called major-questions doctrine, explaining what it does and does not permit in statutory interpretation.
The student-loan decision manifests that the Court’s conservative majority feels the tension between its avowed statutory textualism and its invocation of a doctrine that is claimed to endorse departures from text — or, at least, from the best interpretation of text. Justice Elena Kagan’s searing criticism of the major-questions doctrine as a “get-out-of-text-free card” clearly left a mark.
Justice Kagan, of course, is an administrative-state devotee who acknowledges that the Court has been forever (we hope) changed by the late, great Justice Antonin Scalia’s insistence that nothing in statutory interpretation takes precedence over the words Congress uses in its statutes — a sea change from the 20th-century era of judicial imperialism, when judges presumed a power freely to rewrite laws. Still, Kagan, the Court’s most formidable progressive, is a bureaucratic maximalist: If, read in a vacuum, the text of a statute can plausibly be construed as a delegation by Congress of enormous power to an administrative agency, then the textualist must vindicate that delegation, even if it defies history, common sense, and our Constitution’s vesting in Congress of all legislative power — i.e., the authority to enact major policy.
“But a vacuum is no home for a textualist,” Barrett counters.
Mindful of Kagan’s critique, the Court’s six-justice majority did two important things in the student-loan case.
First, Chief Justice John Roberts’s majority opinion did not rely on the major-questions doctrine to reach the result. Instead, applying an ordinary textual analysis, Roberts concluded that, in the Higher Education Relief Opportunities for Students (HEROES) Act of 2003, Congress had not delegated to the secretary of education the power to massively cancel student-loan debt.
The HEROES Act, which was enacted in the post-9/11 War on Terror era, predominantly for the benefit of military personnel, authorized the Education Department to forgive the student loans of narrow categories of borrowers (e.g., those who’d been killed, become permanently disabled, or gone bankrupt). The act empowers the DOE to “waive or modify” loans as the “Secretary deems necessary in connection with a war or other military operation or national emergency” (emphasis added).
Based on this text, President Biden deemed the Covid-19 pandemic a national emergency. He thus directed the secretary to cancel nearly half a trillion dollars in student-loan debt for millions of students. Not students who had served in the military, but virtually any students whose “hardship” is that they don’t want to repay money they borrowed for education they received (education that places them in higher potential-earnings strata even if it is not, in many instances, as valuable as they’d hoped).
Had the Court opted to decide the case based on the major-questions doctrine, it could easily have concluded that, in enacting a wartime relief provision tailored to a particular category of Americans (e.g., military personnel) who bore the hellacious costs of wartime operations, Congress was obviously not conferring on the education secretary the power to wreak economic havoc based on a medical emergency nearly two decades later — one that, though real, was nothing like a war, and whose victims were nothing like wartime casualties. Indeed, contrary to the HEROES Act, there is no real causal link in Biden’s boondoggle between the disaster cited and harms addressed. Instead, college students are a voting bloc of importance to Democrats, so progressives were scheming long before Covid to reward them with debt forgiveness and deviously used the pandemic as a pretext to do so.
But Roberts did not base the Court’s ruling on the major-questions doctrine. He based it on straightforward statutory construction. The Biden administration’s interpretation of the words “modify” and “waive” was untenable; the ordinary meaning of the words enable modest adjustments, not a wholesale transformation, of financial arrangements. Biden’s agency was not merely “waiving” loans; he was rewriting the Education Act.
The Court relied on the major-questions doctrine not to decide the case but to offer additional support for its decision. In particular, it used the doctrine to refute the Biden administration’s claim that it was Congress’s purpose, in the HEROES Act, to grant the education secretary sweeping discretion to address “unforeseen emergencies.” Relying on its decision last year in West Virginia v. EPA, and in light of the history and scope of the HEROES Act and the “economic and political significance” of a $430 billion loan cancellation, the Court concluded that it had great reason to doubt that Congress meant to confer such extraordinary authority on the Education Department.
All well and good. Nevertheless, the majority’s reasoning obviously invited Kagan to reassert her indictment of the major-questions doctrine. As expected, she zeroed in on the rule apparently derived from it that Congress must posit a “clear statement” of authority granted to an administrative agency. The majority’s claim to rely on routine statutory interpretation, she contends, is a smoke screen since, as she sees it, the words “modify,” “waiver,” and “national emergency” can plausibly be read to do exactly what the Biden administration has done. Ergo, Roberts is deciding the case based on the major-questions doctrine without saying so. She depicts the majority as textualists who recoil from text if they don’t like the policy outcome.
That brings us to the majority’s second gambit: Justice Barrett’s defense of the major-questions doctrine as applied textualism.
Barrett’s concurrence is a significant rebuttal to Kagan. Much as her mentor, Justice Scalia, rejected the label “strict constructionist,” Barrett emphasizes that a textualist is not a literalist. The major-questions doctrine, she explains, is not a license to flee from text. To the contrary, it stresses “the importance of context” (emphasis in original), providing “a tool for discerning — not departing from — the text’s most natural interpretation.”
Barrett’s contention is powerful because she takes Kagan’s critique as a serious challenge that calls for a serious answer. Canons of construction have been developed through centuries of Anglo-American jurisprudence. Consequently, they are reasonably seen as a component of the judicial power that is vested in the Supreme Court by the Constitution, as well as in the lower federal courts that Congress has established. But that’s not the end of the story. Some canons of construction can have the effect of nullifying congressional statutes — a constitutional problem.
For example, courts follow a canon of constitutional avoidance, which instructs that, if possible, judges should construe statutes in a manner that circumvents any question of constitutionality. This can crash into textualism, which admonishes that the best interpretation of a statute is the ordinary meaning of its text as understood at the time of enactment. That is, under the constitutional-avoidance canon, a judge will give a statute a less plausible meaning — though still one within the ballpark of what the text allows — if doing so is necessary to avoid a meaning that would call the statute’s constitutionality into question. That sounds sensible, but it is constitutionally fraught: By this avoidance doctrine, the Court elevates a judicial interest in dodging controversy over Congress’s undeniable Article I power to write the laws.
Barrett concedes that these canons, described as “strong-form,” can pose “a lot of trouble” for “the honest textualist” (as Scalia put it). Even though deeply rooted, they arguably exceed the judicial power. In light of that concern, Barrett rightly believes that courts should avoid the creation of new strong-form canons. Nevertheless, she concludes that the major-questions doctrine is essentially a rule of context-driven common sense — one that “is neither new nor a strong-form canon.” The doctrine doesn’t change the words that Congress has used, much less instruct courts to give the words an interpretation that is less plausible than their ordinary meaning. Indeed, it does the opposite: It derives the best interpretation of the words based on the circumstances of their enactment — based on their context.
Many things inform context, though those things can never rationalize slipping the tether of text. Statutory provisions are usually components of broader enactments that, literally and historically, can inform what the provisions mean (e.g., it should matter that the HEROES Act was obviously meant to benefit soldiers in wartime). Sometimes, a statute employs a term of art borrowed from other legal sources; such a term is understood to “bring the old soil with it.” Some laws are written into well-developed fields and are thus understood to be infused by that field’s assumptions (e.g., criminal statutes are presumed to require proof of criminal intent even if their terms are imprecise on this point). Similarly, Barrett says, the role of common sense in informing context “goes without saying.”
She gives us some examples. If a grocer tells his clerk to “go to the orchard and buy apples for the store,” that is plainly not as unqualified a directive as it sounds. If the clerk knows that the grocer keeps the shelves stocked with about 200 apples but takes the liberty of buying 1,000, then the clerk has overstepped — the purchase is so far beyond what the agent knew was customary that we must assume the principal would have said, “Get a thousand apples,” if that’s what the principal wanted.
Barrett also conjures up a hypothetical parent who hires a babysitter to watch her young children for the weekend. As she leaves, the mother hands the sitter a credit card and says, “Make sure the kids have fun.” Is it reasonable to believe that such an instruction authorized the sitter to “take the kids on a road trip to an amusement park where they spend two days on rollercoasters and one night in a hotel”? Of course not. A trip to the movies or an ice-cream parlor would make sense, sure. But “if a parent were willing to greenlight a trip that big, we would expect much more clarity than a general instruction to ‘make sure the kids have fun.’”
Think of this hypothetical instruction as a statute. It’s not that Congress didn’t use the words, “Make sure the kids have fun.” It’s that the judicial task is to construe what those words meant. That is not sensibly done in isolation, as if the task were merely to look up fun in the dictionary. Context is vital. The dictionary meaning of the text’s words is significant, of course, but that must be taken in conjunction with the all-important circumstances in which the words were uttered.
The administrative state’s turbochargers reject such limitations. If the word “waiver” can be understood in a literal, maximalist way to erase half a trillion dollars, then the secretary of education has that power, with no input from the branch of government vested with the Constitution’s power to tax, spend, and manage debt. In Justice Kagan’s construct, the only question is why the sitter only spent two days at the amusement park. After all, fun is fun, right?
But that’s not rational.
A court may not resort to the major-questions doctrine to rewrite or supplant text. The point of the doctrine is to bring rationality to text by accounting for context. That invariably includes recognizing the place of administrative agencies in our constitutional order. Barrett is not claiming that Congress may not delegate significant authority to bureaucrats. She is maintaining, however, that in our system, Congress is given the power to write laws: a power of such major consequence that the president must sign those enactments before they become law. By contrast, the agencies Congress has created are trusted only with the day-to-day administration of those laws, cabined by what the laws’ textual terms were understood to mean when enacted.
It is the task of the Court to interpret that meaning. When multiple interpretations are plausible, the best one is not necessarily found in the dictionary but in the circumstances that gave rise to the statute.
By Justice Kagan’s lights, the administrative state is a progressive overhaul of our constitutional framework, in which unelected, unaccountable bureaucrats stretch text to — and beyond — the breaking point on the theory that good governance is rule by experts.
The Court’s majority is bent on restoring constitutional order. As Justice Barrett demonstrates, the major-questions doctrine is not, pace Kagan, an artifice by which the Court departs from congressional text to impose its own policy preferences. It is a commonsense tool by which the Court gives contextually accurate meaning to the text Congress enacted.
-
AM
does mentions Kagan as the most "formidable " lib
I notice he does not bother to mention the [unprofessional]
"let the eat cake" interpretation from Justice KBJ.
:wink:
-
Why won't he discuss Ray Epps and Jayden X? Has he not heard of them? How is that possible?
Some quality legal analysis here from Deep State Andy!
============================================
Justice Barrett Helps Restore Constitutional Order
By ANDREW C. MCCARTHY
July 1, 2023 6:30 AM
The justice's concurrence in the student-loan case clarifies the major-questions doctrine and offers a significant rebuttal of Kagan’s dissent.
Among the most significant opinions issued in this week’s final Supreme Court rulings is Justice Amy Coney Barrett’s concurrence in the Court’s invalidation of Biden’s student-loan cancellation (Biden v. Nebraska). As a committed textualist, Justice Barrett rightly perceived the imperative of elaborating on the so-called major-questions doctrine, explaining what it does and does not permit in statutory interpretation.
The student-loan decision manifests that the Court’s conservative majority feels the tension between its avowed statutory textualism and its invocation of a doctrine that is claimed to endorse departures from text — or, at least, from the best interpretation of text. Justice Elena Kagan’s searing criticism of the major-questions doctrine as a “get-out-of-text-free card” clearly left a mark.
Justice Kagan, of course, is an administrative-state devotee who acknowledges that the Court has been forever (we hope) changed by the late, great Justice Antonin Scalia’s insistence that nothing in statutory interpretation takes precedence over the words Congress uses in its statutes — a sea change from the 20th-century era of judicial imperialism, when judges presumed a power freely to rewrite laws. Still, Kagan, the Court’s most formidable progressive, is a bureaucratic maximalist: If, read in a vacuum, the text of a statute can plausibly be construed as a delegation by Congress of enormous power to an administrative agency, then the textualist must vindicate that delegation, even if it defies history, common sense, and our Constitution’s vesting in Congress of all legislative power — i.e., the authority to enact major policy.
“But a vacuum is no home for a textualist,” Barrett counters.
Mindful of Kagan’s critique, the Court’s six-justice majority did two important things in the student-loan case.
First, Chief Justice John Roberts’s majority opinion did not rely on the major-questions doctrine to reach the result. Instead, applying an ordinary textual analysis, Roberts concluded that, in the Higher Education Relief Opportunities for Students (HEROES) Act of 2003, Congress had not delegated to the secretary of education the power to massively cancel student-loan debt.
The HEROES Act, which was enacted in the post-9/11 War on Terror era, predominantly for the benefit of military personnel, authorized the Education Department to forgive the student loans of narrow categories of borrowers (e.g., those who’d been killed, become permanently disabled, or gone bankrupt). The act empowers the DOE to “waive or modify” loans as the “Secretary deems necessary in connection with a war or other military operation or national emergency” (emphasis added).
Based on this text, President Biden deemed the Covid-19 pandemic a national emergency. He thus directed the secretary to cancel nearly half a trillion dollars in student-loan debt for millions of students. Not students who had served in the military, but virtually any students whose “hardship” is that they don’t want to repay money they borrowed for education they received (education that places them in higher potential-earnings strata even if it is not, in many instances, as valuable as they’d hoped).
Had the Court opted to decide the case based on the major-questions doctrine, it could easily have concluded that, in enacting a wartime relief provision tailored to a particular category of Americans (e.g., military personnel) who bore the hellacious costs of wartime operations, Congress was obviously not conferring on the education secretary the power to wreak economic havoc based on a medical emergency nearly two decades later — one that, though real, was nothing like a war, and whose victims were nothing like wartime casualties. Indeed, contrary to the HEROES Act, there is no real causal link in Biden’s boondoggle between the disaster cited and harms addressed. Instead, college students are a voting bloc of importance to Democrats, so progressives were scheming long before Covid to reward them with debt forgiveness and deviously used the pandemic as a pretext to do so.
But Roberts did not base the Court’s ruling on the major-questions doctrine. He based it on straightforward statutory construction. The Biden administration’s interpretation of the words “modify” and “waive” was untenable; the ordinary meaning of the words enable modest adjustments, not a wholesale transformation, of financial arrangements. Biden’s agency was not merely “waiving” loans; he was rewriting the Education Act.
The Court relied on the major-questions doctrine not to decide the case but to offer additional support for its decision. In particular, it used the doctrine to refute the Biden administration’s claim that it was Congress’s purpose, in the HEROES Act, to grant the education secretary sweeping discretion to address “unforeseen emergencies.” Relying on its decision last year in West Virginia v. EPA, and in light of the history and scope of the HEROES Act and the “economic and political significance” of a $430 billion loan cancellation, the Court concluded that it had great reason to doubt that Congress meant to confer such extraordinary authority on the Education Department.
All well and good. Nevertheless, the majority’s reasoning obviously invited Kagan to reassert her indictment of the major-questions doctrine. As expected, she zeroed in on the rule apparently derived from it that Congress must posit a “clear statement” of authority granted to an administrative agency. The majority’s claim to rely on routine statutory interpretation, she contends, is a smoke screen since, as she sees it, the words “modify,” “waiver,” and “national emergency” can plausibly be read to do exactly what the Biden administration has done. Ergo, Roberts is deciding the case based on the major-questions doctrine without saying so. She depicts the majority as textualists who recoil from text if they don’t like the policy outcome.
That brings us to the majority’s second gambit: Justice Barrett’s defense of the major-questions doctrine as applied textualism.
Barrett’s concurrence is a significant rebuttal to Kagan. Much as her mentor, Justice Scalia, rejected the label “strict constructionist,” Barrett emphasizes that a textualist is not a literalist. The major-questions doctrine, she explains, is not a license to flee from text. To the contrary, it stresses “the importance of context” (emphasis in original), providing “a tool for discerning — not departing from — the text’s most natural interpretation.”
Barrett’s contention is powerful because she takes Kagan’s critique as a serious challenge that calls for a serious answer. Canons of construction have been developed through centuries of Anglo-American jurisprudence. Consequently, they are reasonably seen as a component of the judicial power that is vested in the Supreme Court by the Constitution, as well as in the lower federal courts that Congress has established. But that’s not the end of the story. Some canons of construction can have the effect of nullifying congressional statutes — a constitutional problem.
For example, courts follow a canon of constitutional avoidance, which instructs that, if possible, judges should construe statutes in a manner that circumvents any question of constitutionality. This can crash into textualism, which admonishes that the best interpretation of a statute is the ordinary meaning of its text as understood at the time of enactment. That is, under the constitutional-avoidance canon, a judge will give a statute a less plausible meaning — though still one within the ballpark of what the text allows — if doing so is necessary to avoid a meaning that would call the statute’s constitutionality into question. That sounds sensible, but it is constitutionally fraught: By this avoidance doctrine, the Court elevates a judicial interest in dodging controversy over Congress’s undeniable Article I power to write the laws.
Barrett concedes that these canons, described as “strong-form,” can pose “a lot of trouble” for “the honest textualist” (as Scalia put it). Even though deeply rooted, they arguably exceed the judicial power. In light of that concern, Barrett rightly believes that courts should avoid the creation of new strong-form canons. Nevertheless, she concludes that the major-questions doctrine is essentially a rule of context-driven common sense — one that “is neither new nor a strong-form canon.” The doctrine doesn’t change the words that Congress has used, much less instruct courts to give the words an interpretation that is less plausible than their ordinary meaning. Indeed, it does the opposite: It derives the best interpretation of the words based on the circumstances of their enactment — based on their context.
Many things inform context, though those things can never rationalize slipping the tether of text. Statutory provisions are usually components of broader enactments that, literally and historically, can inform what the provisions mean (e.g., it should matter that the HEROES Act was obviously meant to benefit soldiers in wartime). Sometimes, a statute employs a term of art borrowed from other legal sources; such a term is understood to “bring the old soil with it.” Some laws are written into well-developed fields and are thus understood to be infused by that field’s assumptions (e.g., criminal statutes are presumed to require proof of criminal intent even if their terms are imprecise on this point). Similarly, Barrett says, the role of common sense in informing context “goes without saying.”
She gives us some examples. If a grocer tells his clerk to “go to the orchard and buy apples for the store,” that is plainly not as unqualified a directive as it sounds. If the clerk knows that the grocer keeps the shelves stocked with about 200 apples but takes the liberty of buying 1,000, then the clerk has overstepped — the purchase is so far beyond what the agent knew was customary that we must assume the principal would have said, “Get a thousand apples,” if that’s what the principal wanted.
Barrett also conjures up a hypothetical parent who hires a babysitter to watch her young children for the weekend. As she leaves, the mother hands the sitter a credit card and says, “Make sure the kids have fun.” Is it reasonable to believe that such an instruction authorized the sitter to “take the kids on a road trip to an amusement park where they spend two days on rollercoasters and one night in a hotel”? Of course not. A trip to the movies or an ice-cream parlor would make sense, sure. But “if a parent were willing to greenlight a trip that big, we would expect much more clarity than a general instruction to ‘make sure the kids have fun.’”
Think of this hypothetical instruction as a statute. It’s not that Congress didn’t use the words, “Make sure the kids have fun.” It’s that the judicial task is to construe what those words meant. That is not sensibly done in isolation, as if the task were merely to look up fun in the dictionary. Context is vital. The dictionary meaning of the text’s words is significant, of course, but that must be taken in conjunction with the all-important circumstances in which the words were uttered.
The administrative state’s turbochargers reject such limitations. If the word “waiver” can be understood in a literal, maximalist way to erase half a trillion dollars, then the secretary of education has that power, with no input from the branch of government vested with the Constitution’s power to tax, spend, and manage debt. In Justice Kagan’s construct, the only question is why the sitter only spent two days at the amusement park. After all, fun is fun, right?
But that’s not rational.
A court may not resort to the major-questions doctrine to rewrite or supplant text. The point of the doctrine is to bring rationality to text by accounting for context. That invariably includes recognizing the place of administrative agencies in our constitutional order. Barrett is not claiming that Congress may not delegate significant authority to bureaucrats. She is maintaining, however, that in our system, Congress is given the power to write laws: a power of such major consequence that the president must sign those enactments before they become law. By contrast, the agencies Congress has created are trusted only with the day-to-day administration of those laws, cabined by what the laws’ textual terms were understood to mean when enacted.
It is the task of the Court to interpret that meaning. When multiple interpretations are plausible, the best one is not necessarily found in the dictionary but in the circumstances that gave rise to the statute.
By Justice Kagan’s lights, the administrative state is a progressive overhaul of our constitutional framework, in which unelected, unaccountable bureaucrats stretch text to — and beyond — the breaking point on the theory that good governance is rule by experts.
The Court’s majority is bent on restoring constitutional order. As Justice Barrett demonstrates, the major-questions doctrine is not, pace Kagan, an artifice by which the Court departs from congressional text to impose its own policy preferences. It is a commonsense tool by which the Court gives contextually accurate meaning to the text Congress enacted.
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"Why won't he discuss Ray Epps and Jayden X? Has he not heard of them? How is that possible?"
Well as far as this article goes, neither of them have anything to do with it.
Concept for your consideration:
That it is possible to be wrong in one thing, and right in others.
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"Why won't he discuss Ray Epps and Jayden X? Has he not heard of them? How is that possible?"
Well as far as this article goes, neither of them have anything to do with it.
Concept for your consideration:
That it is possible to be wrong in one thing, and right in others.
So the essential question is, why won't he discuss them? We can reasonably assume he is aware of them.
He wants people like you to still believe that the American Republic still exists.
You are being strung along, as they fortify their position.
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https://www.revolver.news/2023/07/leaked-photos-show-obamas-rage-tweeting-about-oppression-from-lavish-yacht-in-greece/
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https://www.revolver.news/2023/07/berkeley-law-dean-secretly-filmed-while-bragging-about-undercover-anti-white-anti-asian-policies/
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Jewish
Harvard JD degree
worked at DOJ civil division during Carter term
Russian name
prob 2 or 3rd generation commie
but he is just soooo righteous. :roll:
His views here
right out of DNC playbook:
https://en.wikipedia.org/wiki/Erwin_Chemerinsky
For sure already working to undermine the latest SCOTUS decisions
:x
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https://thehill.com/opinion/judiciary/4076993-constitutional-cruelty-how-democrats-now-oppose-a-democratic-process-on-student-loans/
"In all of his study of the ancient Greek and Roman states and contemporary politics, Madison never encountered the likes of Schumer and his colleagues. "
"What is left, to paraphrase Schumer, is a cruel joke. But the ultimate joke is on the American people"
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https://rumble.com/v2x8b1w-flashback-thomas-sowell-schools-joe-biden-on-affirmative-action.html?mref=22lbp&mc=56yab&fbclid=IwAR0ZUgFfYOrEDh8K6w07IBI4i5Dkdy_6giCD0d1H36exWf6oih81Nto00W4
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https://gab.com/system/media_attachments/files/141/993/241/original/035f41a83478b8d0.mp4
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well another example of affirmative action back firing
reminds me of Kamala
if she was so smart and a nerd , and presumable she is, she could have gone to other colleges
maybe not Harvard
so where is the racism?
many smart hard working students by the tens of millions do not get into Harvard.....
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Presumably, she is?
:roll:
Let's see their SAT scores.
Whoops, those are SECRET, just like Obama's college transcripts.
well another example of affirmative action back firing
reminds me of Kamala
if she was so smart and a nerd , and presumable she is, she could have gone to other colleges
maybe not Harvard
so where is the racism?
many smart hard working students by the tens of millions do not get into Harvard.....
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https://www.westernjournal.com/3-minute-clip-clarence-thomas-need-know-joe-biden/
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https://dailycaller.com/2023/07/13/dems-attempt-ram-through-new-constitutional-amendment-creative-legal-maneuver/
we are not a nation of laws
we are a nation of those who manipulate and maneuver around laws
we are a nation of shysters
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I remember challenging Porfessor RBG on this. :evil: :evil: :evil:
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"I remember challenging Porfessor RBG on this."
how did it go?
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She acknowledged my point about the time limits being part of establishing a broad consensus across the country at the same time.
She pooh poohed my challenge on bathrooms etc by saying that such concerns could be met with "traditional notions of privacy." :roll:
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you can boast you argued in front of THE SUPREME COURT (justice)
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https://thehill.com/opinion/judiciary/4110525-tyranny-of-the-minority-liberal-law-profs-urge-biden-to-defy-the-courts-and-the-public/
https://en.wikipedia.org/wiki/Mark_Tushnet
"One of the more controversial figures in constitutional theory, he is identified with the critical legal studies movement and once stated in an article that, were he asked to decide actual cases as a judge, he would seek to reach results that would "advance the cause of socialism".[21] Tushnet is a main proponent of the idea that judicial review should be strongly limited and that the Constitution should be returned "to the people."
I wish these lib Jews would have left their socialism in Europe..........
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and Congress/Scotus powers
https://www.forbes.com/sites/alisondurkee/2023/07/28/supreme-court-justice-alito-slams-congress-efforts-to-impose-code-of-ethics-on-court/?sh=53a975a64a93
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Our Samuel Alito Scoop Is No Scandal
Ruth Marcus thinks she smells a rat. The truth is that partisanship has dulled her nose for news.
By
James Taranto
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Aug. 1, 2023 12:53 pm ET
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Justice Samuel Alito at the Supreme Court in Washington, April 23, 2021. PHOTO: POOL/REUTERS
Jealous journalists are trying to make a scandal out of a scoop. Last week on these pages David Rivkin and I published our second Weekend Interview with Justice Samuel Alito. Like the first one, in April, it both made news and drove the conformist press corps to hysterics.
Along with the usual heckling, Justice Alito’s detractors zeroed in on a sentence toward the end of the piece. “So one of the lawyers in a major Supreme Court tax case . . . just sat with a sitting justice for four hours?” ProPublica’s Jesse Eisinger, who oversees the site’s tediously antagonistic coverage of the justices, tweeted Friday. Yes, that’s true, and Mr. Eisinger knew it because the article disclosed it. Mr. Rivkin—an appellate lawyer with a sideline as a prolific freelance writer—represents the appellants in Moore v. U.S., which the court has agreed to hear in the 2023-24 term.
In a column published Sunday, the Washington Post’s Ruth Marcus went further. She observed correctly that “justices are going to have preexisting relationships with lawyers who appear before them—that’s inevitable.” But she also asserted that “it’s not a good look when one litigant has special access to a justice.”
In fact, litigants Charles and Kathleen Moore have no “special access” to Justice Alito, and Ms. Marcus’s accusation is scurrilous. It would have been an act of serious professional misconduct for Mr. Rivkin and Justice Alito to discuss the Moores’ case, and it never came up in the interview. Mr. Rivkin and I didn’t ask about pending cases at all, save for a glancing reference to Loper Bright Enterprises v. Raimondo, in which the court will reconsider Chevron v. NRDC (1984). Justice Alito responded only with a general observation about precedent.
The article mentioned Moore in a paragraph listing some of the major cases on the court’s fall docket, which I wrote while preparing the article three weeks after our July meeting with Justice Alito. We cited Mr. Rivkin’s involvement in the interest of full disclosure—which shows how easily disclosure can become a mug’s game. Mr. Rivkin was transparent with our readers about his pending business before the court. The thanks he gets is that Mr. Eisinger, Ms. Marcus and others are acting as if he has something to hide.
Ms. Marcus’s column also reveals the vacuousness of partisan demands for “ethical” standards. In presuming to judge Justice Alito’s conduct, she appeals to no principle or standard, only her own olfactory senses. She admits there’s nothing wrong when justices have “relationships” with members of the Supreme Court Bar—but then proclaims that this relationship doesn’t “smell right” to her. She professes that “I’m all for justices speaking and writing publicly” but she deems it “unseemly and unsettling” that Justice Alito would do so for the Journal rather than the many outlets that are openly hostile to him.
Last week Ms. Marcus participated in an online Post symposium of “left-leaning columnists” about Joe Biden’s 2024 campaign. “From my point of view,” she wrote, “the risk to the Supreme Court alone is enough to justify doing whatever it takes to maximize the chance of a Democrat being elected (which means: Biden, Biden, Biden).”
That isn’t a rat that Ruth Marcus smells. It’s her own stinking partisanship.
Mr. Taranto is the Journal’s editorial features editor.
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https://www.propublica.org/article/clarence-thomas-other-billionaires-sokol-huizenga-novelly-supreme-court?utm_source=sailthru&utm_medium=email&utm_campaign=majorinvestigations&utm_content=feature
https://www.newsweek.com/samuel-alito-was-right-congress-cant-force-new-rules-supreme-court-opinion-1818036?fbclid=IwAR1Uf1zjQagPf8wmS5Oo5V8Dw8l0Zz3HyMu7mWUc6gNUqwF_2m6tZq7WicA
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shysters go after Just. Thomas
but ignore Joe Biden
OTOH perhaps there is some ethical questions as to Just. Thomas accepting massive gifts
in return for fundraising
through his office
as Justice
or if there were any conflicts before the Court
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38 trips sounds like a lot, but the small print says this is over 30 years?
Definitely a campaign going on to take down the conservative justices and to bring SCOTUS under Congressional control. I would be very much on the alert for deceptive, disingenuous horsesh*t.
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https://www.law.cornell.edu/constitution-conan/amendment-9/historical-background-on-ninth-amendment?fbclid=IwAR2cAjmRL0ZrcW39Y5MsEgtAQTOqFl8kwV8WDcjr9XcjoNBT1CgFHm1ciFs
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https://www.nationalreview.com/news/justice-thomas-2022-financial-disclosure-form-clears-up-past-errors-undermines-corruption-allegations/?utm_source=email&utm_medium=breaking&utm_campaign=newstrack&utm_term=32567502
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second
https://www.theepochtimes.com/opinion/3-supreme-court-cases-could-shake-up-the-administrative-state-5483344?utm_source=News&src_src=News&utm_campaign=breaking-2023-08-30-2&src_cmp=breaking-2023-08-30-2&utm_medium=email&est=1DO69zJzaBc8Mz4ULkGWWNtlowlOkFN4WADVILlVhoiZr%2FEHQ7k6PzbQHPyx2EcSDu4K
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https://www.zerohedge.com/political/100-former-clerks-oof-supreme-court-justice-clarence-thomas-speak-out?utm_source=&utm_medium=email&utm_campaign=1790
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funny , while doing search on this
I find zero nadda zilch nothing from the MSM on this
only leftist polls that show the confidence in the Supreme Court has declined from 80 to 60 % .....
media mob :x :x :x corrupt as always
carrying the Leftist shyster propaganda with glee
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This article is about a SCOTUS case that stunned me when I read it in law school: IQ tests discriminate against blacks?!?
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https://shop.hillsdale.edu/products/constitution-em-a-reader-em?fbclid=IwAR1nNwk9d_9NgEy6JZEaYhgNk0N8uLkSzpXqiy8zDhxTDbiztKdEMgycHho
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https://www.theepochtimes.com/us/michigan-supreme-court-becomes-first-in-nation-to-adopt-they-pronoun-for-court-proceedings-records-5500939?utm_source=Morningbrief&src_src=Morningbrief&utm_campaign=mb-2023-10-02&src_cmp=mb-2023-10-02&utm_medium=email&est=CNVY%2F51LxelvohQ3OFBNUgb3E5IR%2BB8IDj2%2FJfuQEE%2FRiqRXv44uxNXTzNA%3D
I have seen
more accurate
what is birth sex
and maybe what is preffered gender (not sex ) now
questions which seems better
NOT "THEY" !
Does not make any medical sense and I don't know why courts need to play this game .
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Right. How do you teach our common language without identifying they them as plural?
Maybe 'they' have a right to a new pronoun and ask us to use it, but they don't have a right to steal and corrupt our language.
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My terms:
Chick with a dick= SheHe
Castrated Dude: HeShe
Asexual third person singular: Ta (taken from Mandarin, meaning he or she)
Possessive third person singular: Taz -- recreating the Z sound of his.
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Clearly unC'l IMHO-- I am surprised at Thomas here.
=================
Justice Gorsuch on the Spending Power
Is there any ceiling, or floor, to what the CFPB can decide to spend?
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The Editorial Board
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Oct. 3, 2023 6:36 pm ET
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Supreme Court Justice Neil Gorsuch PHOTO: J. SCOTT APPLEWHITE/ASSOCIATED PRESS
The Supreme Court on Tuesday heard oral arguments in a challenge to the Consumer Financial Protection Bureau’s novel self-funding scheme (CFPB v. Community Financial Services Assn.) A telling moment came when Justice Neil Gorsuch pressed the Solicitor General on the limits to the agency’s appropriations power.
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Democrats insulated the CFPB from political accountability in the Dodd-Frank Act by letting it obtain its funding from the Federal Reserve, unlike any other federal agency. Payday lenders say this violates the Constitution’s command that “no Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”
The CFPB’s legal brief argued the scheme was constitutional in part because the law sets a limit of $734 million, adjusted annually for inflation, on the amount that the Fed can transfer to the bureau. But the Solicitor General on Tuesday contended that the CFPB’s self-funding arrangement would be constitutional even if there were no cap.
“Could Congress pass the same law with no upper limit, allowing the executive branch to determine however much it wished to take?” Justice Gorsuch asked. SG Elizabeth Prelogar replied: “We don’t think that Congress would have to provide a statutory specified amount.”
Justice Gorsuch then probed: What if the President requested a trillion dollars from the Fed for the agency? Ms. Prelogar wavered, noting that the law limits the CFPB’s funding to what the director determines is “reasonably necessary.” But other than that, she couldn’t articulate even a hypothetical upper limit. If there’s no ceiling, is there a floor?
“What if the President decided zero was the appropriate sum? I’m not going to take any money. I don’t like the CFPB,” Justice Gorsuch asked. Ms. Prelogar replied that if the President didn’t enforce the laws, “I would expect Congress to step in and change the funding mechanism,” but “I don’t think the Appropriations Clause would be a check there.”
Under the Administration’s theory, there’s no limiting principle to executive power. A Democratic Congress could empower the Internal Revenue Service to fund itself like the CFPB with no spending limit. But a Republican President could also later zero out the IRS’s tax enforcement funding.
Justice Clarence Thomas said the CFPB’s unprecedented funding scheme doesn’t make it unconstitutional per se. But as Noel Francisco, who represented payday lenders, argued, “At a bare minimum, the Appropriations Clause requires Congress to determine how much the government should be spending.”
Congress abdicated its spending power by delegating it to the CFPB. Surely this wasn’t what the Framers intended by writing checks and balances into the Constitution.
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https://www.propublica.org/article/we-dont-talk-about-leonard-leo-supreme-court-supermajority?utm_source=sailthru&utm_medium=email&utm_campaign=majorinvestigations&utm_content=feature
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So the SCOTUS will hear Missouri v. Biden, and I have a hard time believing they will allow those first amendment violations to continue in view of the findings of the lower courts, but they’ve stayed enforcement of the lower court orders until this is heard by the SCOTUS, which strikes me as a reeking case of justice delayed:
https://reason.com/volokh/2023/10/20/court-agrees-to-hear-missouri-v-biden-federal-government-social-media-case/
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WTF?!?
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WTF?!?
For real. And a lot of people are treating this as some sort of free speech win. Either I’m missing something or folks are quite confident someone like Roberts won’t be swayed, creating some sort of 5-4 abomination.
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https://www.yahoo.com/news/senate-finance-committee-probe-clarence-231312783.html
yet my eyebrows to get raised with these reports.
does seem questionable ethically.
if only the LEFT would also investigate the Biden family the same way ..............
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"“The Thomases made all payments to Mr. Welters on a regular basis until the terms of the agreement were satisfied in full,” he said. Berke declined to provide additional information."
We shall see. Until then, what is possibly a smear will be enthusiastically spread and should it need correcteing, the damage will already be done.
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State Department uses “global disinformation tool” to suppress American speech:
https://thefederalist.com/2023/12/06/state-of-texas-joins-the-federalist-daily-wire-in-suing-the-federal-censorship-industrial-complex/?fbclid=IwAR02ulWrKSViUZ7iimA-fLLCRWTcwvQh7WAEXg9W7SSX6SDNqHbOZWhNQP0
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https://www.msn.com/en-us/news/politics/ethics-complaint-filed-against-supreme-court-justice-ketanji-brown-jackson-over-two-potential-violations/ar-AA1lLrob?ocid=msedgntp&pc=DCTS&cvid=a2f1d63052fb4f4abf1d130b9d18c75a&ei=18
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A compelling read:
Defending Clarence Thomas from My Good Friend Steve Lubet
The Volokh Conspiracy / by Steven Calabresi / January 03, 2024 at 03:21AM
[The best and most incorruptible Supreme Court Justice in U.S. History]
My good friend from the Northwestern Pritzker School of Law faculty Steve Lubet has very politely, but firmly taken issue with my recent post on this Blog about Justice Clarence Thomas. Steve does "not question [my] assessment of Thomas's exceptional intellect." But he does question my assertion that Justice Thomas is the best of the 116 justices to have sat on the Supreme Court. I want to begin by defending that claim before turning to the ethics issues that Steve is troubled by.
First, I am not alone in thinking that Clarence Thomas is the best of the 116 Justices to ever serve on the Supreme Court. I am one of the three co-founders and the 40 year Co-Chairman of the Federalist Society's Board of Directors. The Society has 70,000 members nationwide, chapters at every law school in the country, lawyers chapters in every major city in the country, and a substantial presence on the federal judiciary. After forty years of attending thousands of Federalist Society gatherings, I have a pretty good sense of what Federalist Society members think. They adored the late Justice Antonin Scalia, but after Clarence Thomas had been on the Supreme Court for about ten years—a frequent parlor game got started when Federalists got together. They would ask themselves who was right in those cases in which Justices Scalia and Thomas disagreed. The nearly unanimous answer was that Justice Thomas was right.
While Justice Scalia travelled all over the world and the United States giving speeches praising originalism and extolling its virtues, Justice Thomas worked in his office writing very consistent and powerful originalist opinions that started driving the Supreme Court in his direction. Some people said sadly as a joke that Justice Thomas had the courage of Justice Scalia's opinions. See Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cinn. L. Rev. 849 (1988-1989) (arguing for faint hearted originalism that did not overturn major precedents). All too often, as in Gonzales v. Raich, 545 U.S. 1 (2005) a case about whether the federal government had power under the Commerce and Necessary and Proper Clauses, to prosecute a cancer patient for growing three medical marijuana plants in her kitchen, Justice Scalia was in the liberal majority for national power and Justice Thomas was in dissent along with Chief Justice Rehnquist and Justice Sandra Day O'Connor.
These episodes added up, and Justice Scalia served only twenty-nine years on the Supreme Court, while Justice Thomas is still going strong in his thirty-third year on the Supreme Court. I am not alone in thinking that Justice Thomas is the best of the 116 justices to have served on the Supreme Court today. Most Federalist Society members who I talk to think the same way. It is striking and a wonderful thing for the country that an overwhelmingly white group of conservative and libertarian lawyers would look up to a Black man as their personal hero. Many of the six Republican appointees on the current Supreme Court are beloved by the Federalist Society membership. The three Trump appointees fall in that category, but they have not been on the Court for long enough to form a reputation. Federalist Society members greatly admire Justice Alito, but they regret that he is not really an originalist, that he follows precedent over the text of the Constitution, and has never ruled for a criminal defendant. Similar complaints are made about Chief Justice Roberts. Chief Justice Roberts is also seen as being too political and too concerned with public opinion about the Court. In my view, this is a form of corruption.
Well what about the justices who served from 1790 to 1986 when Justice Scalia joined the Supreme Court. William Rehnquist and Byron White are condemned by Federalist Society members as being just right-wing legal realists—the right's copy of Justice William O. Douglas. The Berger Court is viewed as having been a wasteland of intellectual mediocrities including Chief Justice Burger and Justices Harry Blackmun, Louis Powell, Potter Stewart, and Sandra Day O'Connor. The left wing justices on that Court all embrace left wing legal realism from William Brennan to Thurgood Marshall to John Paul Stevens. The Warren Court clocks in at higher mental acuity, but the only Warren Court justice who is really admirable is Hugo L. Black and, on occasion, Earl Warren himself. Six of the nine members of the New Deal Court joined the opinion in Korematsu v. United States, so it is hard to be wildly enthusiastic about any of them.
The pre-New Deal Supreme Court draws some admiration, but other than Justice Willis Van Devanter, I cannot say I have any heroes on the Taft or Hughes Court except for Van Devanter and Hughes himself. The Supreme Court from Abraham Lincoln's Administration to the 1920's was filled with mediocrities who followed their policy judgments and not the law. The Supreme Court from 1790 to 1860 had thirty six justices of which only four—two each appointed by John Adams and John Quincy Adams—opposed slavery. The other thirty-two justices were appointed by slaveowner Presidents or northern dough-faces complicit in slavery. This reflects the advantage the three-fifths clause gave the South in the Electoral College. The South had a near monopoly on the presidency prior to 1861 and therefore on Supreme Court appointments. Hence such decisions as Prigg v. Pennsylvania, 41 U.S. 539 ( 1842) and Dred Scott v. Sanford, 60 U.S. 393 (1857).
The truth is that the vast majority, probably ninety percent of the justices who have served on the Supreme Court, have been disappointments. This is one reason why the current Court should follow the original public meaning of the text of the Constitution and not the morass of erroneous Supreme Court opinions interpreting it. So yes, I will stick my neck out and say that Clarence Thomas followed by Antonin Scalia are the best justices so far to have served on the Supreme Court. I have read hundreds of Justice Thomas's opinions, and they are all exquisitely crafted, methodologically consistent, and are written in his own distinctive authorial voice. He never caves in to popular opinion or worries about how the public will react to his rulings, but instead he follows the rule of law in case after case. Liberal law school professors ignore Justice Thomas's opinions and do not read them, so they miss the genius of his intellect. I do not always agree with Justice Thomas, but I always understand and respect why he came out the way he did in any given case.
Steve Lubet pokes fun at my argument that if Congress had adjusted the Supreme Court justice's salaries for inflation since 1969, they would now make $500,000 a year, and Thomas would need less help from his billionaire friends, but the point is simply true. Steve is right that Republican Congresses, as well as Democratic Congresses, are to blame for this this, but the facts are what they are. High salaries for government officials allow the poor to serve in government and not only the rich. There is a public interest in making it possible for someone like Thomas who grew up dirt poor, and then served in government for his whole life as a lawyer, to be able to live comfortably and be paid the salary of a law school Dean.
Precisely because Clarence Thomas has such a worked out originalist methodology for deciding cases, which he always follows he cannot be bribed and is not at all influenced by public opinion. That is why I say Clarence Thomas is incorruptible. He always as a judge does what is right. The fact that he has friends who are conservative billionaires irks leftist law professors who yearn for the days when swing justices like Potter Stewart, Lewis Powell, Sandra Day O'Connor, and Anthony M. Kennedy were all influenced by the Linda Greenhouse effect. They all compromised their principles to be in good standing with Ivy League law professors and the Georgetown cocktail party set. But, this is a form of corruption far more insidious than anything alleged about Clarence Thomas and his billionaire friends. Thomas was never bribed in his official actions by money, but Justices Powell, O'Connor; and Kennedy were, in effect, bribed by the Linda Greenhouse effect.
As to Justice Thomas's failure to disclose gifts, he asked what the policy was and was told by his colleagues not to worry about disclosing vacation travel or gifts to support his elderly mother or the boy he is raising who has been abandoned. Congress has no enumerated power to require the justices to disclose any gifts anyway. Such a law is not necessary and proper for carrying into execution the judicial power of the United States. Steven Gow Calabresi, Elise Kostial, Gary Lawson, What McCulloch v. Maryland got Wrong: The Original Meaning of "Necessary" is not "Useful," "Convenient," or "Rational", 75 Baylor Law Review 1 (2023).
Justice Thomas has lived a good life. He has exemplified the four classical Greek and Roman virtues of: 1) Courage; 2) Temperance; 3) Justice; and 4) Prudence. Justice Thomas is by far and away the bravest justice on the Supreme Court. He has been vilified for being the personal hero of the 70,000 member Federalist Society, and he has learned to live with it. Justice Thomas does not eat, drink, or travel to excess. He practices temperance. Justice Thomas is devoted to Justice. He has stuck a golden mean between selfishness and selflessness. And, finally, Justice Thomas exhibits prudence—the ability to see ahead and to govern oneself and discipline oneself by the use of reason. Justice Thomas also lives out the three Christian Virtues of faith, hope, and love. He is the only justice who knows the names of every employee at the Supreme Court as well as what their struggles with children are. He is as beloved by the cafeteria workers, librarians, and police officers at the Supreme Court as he is by the 70,000 Federalist Society members. In a little more than four years, Clarence Thomas will replace William O. Douglas as the longest serving Supreme Court justice in American history. He has a record all Americans should be very proud of.
The post Defending Clarence Thomas from My Good Friend Steve Lubet appeared first on Reason.com.
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https://www.msn.com/en-us/news/politics/every-conservative-supreme-court-justice-skips-decision-in-rare-move/ar-AA1mDY1E?ocid=msedgntp&pc=HCTS&cvid=e9b55c0c636549cdb759e1067cadeca2&ei=17
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https://jonathanturley.org/2024/01/09/unpacking-by-packing-the-court-the-left-has-a-new-orwellian-mantra/#more-213942
Thus do to our courts what libs have done in Israel (which does not have a Constitution)
Libs here can simply twist/contort the Constitution anyway they like.
Lawfare is warfare I say again
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:x :x :x :x :x :x :x :x :x
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https://jonathanturley.org/2024/01/09/unpacking-by-packing-the-court-the-left-has-a-new-orwellian-mantra/#more-213942
Thus do to our courts what libs have done in Israel (which does not have a Constitution)
Libs here can simply twist/contort the Constitution anyway they like.
Lawfare is warfare I say again
Agree, lawfare is warfare. Knowing you can settle political disputes at the ballot box and other disputes in the courts is why we don't have civil wars more often.
Obama did 'pack the Court'. His governance caused the Republican majority in the Senate and the Republican win of the White House, and Joe Biden is about to do it again. Harry Reid released the Senate of needing 60 votes.
Don't these projectionists realize that "packing" the Court with the politically aligned outside of waiting for vacancies and filling them as they come up IS a way of becoming the dictatorship they falsely say they so fear?
Every time they say they fear a Trump dictatorship, hear that they want to be the dictatorship.
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https://reason.com/volokh/2024/01/10/supreme-court-oral-argument-indicates-radical-agreement-that-there-is-no-legislative-exception-to-the-takings-clause/
[Ilya Somin] Supreme Court Oral Argument Indicates "Radical Agreement" that there is no "Legislative Exception" to the Takings Clause
The Volokh Conspiracy by Ilya Somin / Jan 10, 2024 at 1:37 PM//keep unread//hide
[That's the big takeaway from yesterday's oral argument in Sheetz v. County of El Dorado. But it's not clear whether the Court will resolve any additional issues, and if so how.]
Yesterday, the Supreme Court heard oral argument in Sheetz v. County of El Dorado, an important Takings Clause property rights case. When the Supreme Court decided to take the case, most observers (myself included) thought the main issue would be whether there is a "legislative exception" to takings liability in at least some situations where the Fifth Amendment otherwise requires the government to pay "just compensation." In Nollan v. California Coastal Commission, Dolan v. City of Tigard, and other cases, the Supreme Court previously ruled that state and local governments sometimes violate the Takings Clause when they impose exactions as a condition of letting property owners develop their land. Some lower courts—including the California Court of Appeals in this case—have held there is no Takings Clause liability for land-use exactions in cases where the requirement was imposed by legislation, rather than by executive officials or regulatory agencies.
In Sheetz, a property owner had been barred by the Country from building a single-family home on his property unless he first payed at $23,420 "traffic mitigation" fee. The official question presented by the case is this:
Whether a building-permit exaction is exempt from the unconstitutional-conditions doctrine as applied in Nollan v. California Coastal Commission and Dolan v. City of Tigard, Oregon simply because it is authorized by legislation.
If yesterday's oral argument is any indication, the Supreme Court won't have any trouble concluding the answer is "no." All or nearly all of the justices seem to agree there is no legislative exception. Indeed, even counsel for the County of El Dorado agreed.
In answer to a question by Justice Thomas, she stated that the answer to the question of whether a permit condition qualifies as a taking cannot be answered "by looking
at whether there is some sort of legislation." Chief Justice John Roberts immediately noted that her "answer to the question presented is, I think, the same as the Petitioner [the property owner]."
Justice Neil Gorsuch later said he "thought we had taken the case address [the] question of whether Nollan and Dolan simply [do not] apply to legislative enactments of any kind," but oral argument revealed there is "radical agreement" on that issue. Gorsuch is a conservative justice and strong advocate of constitutional property rights. But liberal Justice Elena Kagan similarly stated there "there is radical agreement…. that you don't get a pass from unconstitutional conditions analysis just because you've passed generally applicable legislation. And that's, of course, true in unconstitutional conditions analysis generally, and so too it's true of unconstitutional conditions analysis in the property area."
With such unaccustomed consensus between the justices and the parties to the case, I think it overwhelmingly likely the Court will rule there is no such thing as a "legislative exception" to takings liability. The justices may even be unanimous on that issue (though I am not entirely sure Justice Sotomayor will agree, so they may not). For reasons summarized here, I think this resounding rejection of the legislative exception theory will be the right result.
That, however, still leaves the difficult question of what kinds of regulatory fees qualify as takings, and which do not. Over the course of the oral argument, the justices struggled with this issue. It's hard to tell what they will say if they try to resolve it, and how broad the resulting ruling will be.
A number of questions focused on the issue of whether tolls and user fees qualify as takings if the property owner prevails. I think the answer is "no," because there is a crucial distinction between the government charging a fee for the use of public property (such as a highway), and charging a fee in exchange for letting the owner use his or her own property, as in this case, where Sheetz must pay a large sum just to be able to build a house on his own land. Some justices also raised the perennial issue of how to distinguish takings from property taxes.
The Court could avoid these problems entirely by limiting its holding to the legislative exception issue (which, after all, was the focus of the official question presented), and remanding the rest to the lower courts. Gorsuch and Thomas appeared to want to do just that. But I don't know if there are three other justices who will go along with that approach. If not, it's hard to predict how much further the Court will go with its holding and what it will say.
For more analysis of the Sheetz oral argument, check out posts by Robert Thomas at Inverse Condemnation, and Tim Mulvaney at PropertyProfblog. Mulvaney has helpful additional details on what the Court might do if they decide to go beyond simply rejecting the legislative exception theory.
NOTE: The property owner is represented by the Pacific Legal Foundation, which is also my wife's employer. However, she is not part of the litigation team working on the case.
The post Supreme Court Oral Argument Indicates "Radical Agreement" that there is no "Legislative Exception" to the Takings Clause appeared first on Reason.com.
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Will the SCOTUS tell our elected officials it’s their job to state the regulatory outcomes a given law is meant to bring, yanking that power from the current factotums pretending to divine legislative intent?
https://nypost.com/2024/01/14/opinion/supreme-court-poised-to-end-constitutional-revolution-thats-marred-us-governance-for-40-years/?utm_campaign=iphone_nyp&utm_source=facebook_app&fbclid=IwAR3Yrx2WJo1OaEC5TirMXLbaOoqitq9rNks9rV7rsvNnMtAkFaiRklAMUYU
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Great minds think alike. See my post today at:
https://firehydrantoffreedom.com/index.php?topic=2228.300
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Congress and Chevron Deference
The judicial doctrine has made it easy to abdicate power to bureaucrats.
By The Editorial Board
Jan. 17, 2024 6:38 pm ET
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Judging by the left’s reaction, the Supreme Court’s oral arguments on Wednesday in two cases challenging the doctrine of Chevron deference didn’t go well for the government. “Disturbing oral arguments suggest dark turn for Supreme Court,” moaned the Alliance for Justice. Progressives are disturbed that the Justices might make Congress do its job.
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Wednesday’s cases (Relentless v. Dept. of Commerce, and Loper Bright Enterprises v. Raimondo) concern a regulation issued by the Trump Administration. Commerce contends that the government can force herring fisheries to pay for on-board federal monitors because federal law is silent on the matter. Lower courts agreed based on the Court’s Chevron doctrine, which requires judges to defer to regulators when the text is ambiguous as long as their interpretation of the law is reasonable.
Justice Elena Kagan said it’s up to Congress to overturn Chevron. But as fisheries’ attorney Paul Clement rightly rejoined: “I’m not sure everybody in Congress wants to overrule Chevron . . . It’s really convenient for some members of Congress not to have to tackle the hard questions and to rely on their friends in the executive branch to get them everything they want.”
He added that even if Congress were to pass a law overturning Chevron, “the President would veto it.” In any event, he said, Chevron wrongly “assumes that ambiguity is always a delegation” to the executive branch. More often, ambiguity is “‘I don’t have enough votes in Congress to make it clear, so I’m going to leave it ambiguous . . . and then we’ll give it to my friends in the agency.’”
By allowing Congress to pass off responsibility to regulators, Chevron has contributed to legislative dysfunction and gridlock. Congress has failed to pass a law regulating crypto-currency after the FTX fiasco, Mr. Clement said, “because there’s an agency head out there that thinks that he already has the authority to address this uniquely 21st century problem with a couple of statutes passed in the 1930s.”
Perhaps he means Securities and Exchange Chairman Gary Gensler. “And he’s going to wave his wand, and he’s going to say the words ‘investment contract’ are ambiguous,” Mr. Clement said. Or consider that the Federal Communications Commission has rewritten broadband regulation four times in 14 years.
It’s not too much to say Chevron has corrupted all three branches of government. It lets Congress abdicate its duty to write clear laws, the bureaucracy to grab more power, and the courts to abandon their normal method of judicial review. Time for the High Court to restore constitutional equilibrium.
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Perhaps not quite constitutional law, but given the question of agency this case will be interesting to track:
https://reason.com/volokh/2024/01/17/court-lets-first-ai-libel-case-go-forward/
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https://www.msn.com/en-us/news/us/supreme-court-justices-roberts-and-coney-barrett-split-with-conservatives-to-give-biden-a-border-win/ar-BB1h5Mjt
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If I am not mistaken, the court's decision is to lift an injunction against the Feds while the litigation continues.
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https://nypost.com/2024/01/30/news/sotomayor-tired-from-demanding-scotus-workload-i-live-in-frustration/
If only she can hang on till 1/20/25..... :wink:
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Stephen Halbrook’s That Every Man be Armed is my go to when it comes to the contextual history of the second amendment—I’m forever picking up used copies and then passing ‘em on to others as a means of evangelizing for the second tenth of the Bill of Rights—as such when Halbrook has something to say I tend to listen. Here’s his take on Chevron:
https://www.independent.org/news/article.asp?id=14815
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[Jonathan H. Adler] Whether Chevron Stands or Falls, Any Deference Should Be Based Upon Delegation, Not Ambiguity
The Volokh Conspiracy / by Jonathan H. Adler / February 05, 2024 at 11:36PM
Lower courts had initially adopted a rule requiring complete notice to trigger the rule.
[Some thoughts on the most important issue in Relentless and Loper Bright.]
The Supreme Court recently heard argument in two cases in which the petitioners have asked the justices to reconsider the Chevron doctrine. The Court's willingness to reconsider Chevron has been a long time coming. As I explained in my opening remarks at a recent Solomon Center panel at Yale Law School, concern about Chevron, and in particular how it has been applied in lower courts, has been building for some time.
Recall that in 2018, in Pereira v. Sessions, in what would be one of his last opinions on the Court, Justice Anthony Kennedy raised deep concerns about the way Chevron has been understood and applied in lower courts.
At issue was the timing and amount of notice the federal government must give non-citizen, non-permanent residents to trigger the stop time rule, which can affect whether such individuals are allowed to remain in the United States.
Lower courts had initially adopted a rule requiring complete notice to trigger the rule. Ultimately, however, in the context of individual adjudications, the Board of Immigration Appeals disagreed. This prompted multiple circuit courts to adopt the contrary rule—a rule contrary to what courts had previously determined was the best interpretation of the statute (and the interpretation eight of nine justices would later conclude was compelled by the statutory text.)
Even though there was little statutory basis for the BIA's stingy, late-developed, pro-deportation interpretation, a majority of circuit courts had upheld it because the statute was ambiguous.
As Justice Kennedy remarked, the sort of analysis courts conducted in these cases to justify upholding the BIA's interpretation, relying upon Chevron, constituted "an abdication of the Judiciary's proper role in interpreting federal statutes."
Wrote Kennedy:
The type of reflexive deference exhibited in some of these cases is troubling. And when deference is applied to other questions of statutory interpretation, such as an agency's interpretation of the statutory provisions that concern the scope of its own authority, it is more troubling still.
Given the concerns raised by some Members of this Court, it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision. The proper rules for interpreting statutes and determining agency jurisdiction and substantive agency powers should accord with constitutional separation-of-powers principles and the function and province of the Judiciary.
If Justice Kennedy expressed such concerns in 2018, it should not surprise us that–some five years later with little evident change–the Court has is reconsidering Chevron.
As I see it, the Court has reached this point because of a range of concerns, some (but not all) of which Kennedy identified in Pereira.
First, in practice, Chevron is often used to uphold agency interpretations that have little to do with allowing agencies to exercise their delegated authority to make policy judgments based upon agency expertise. The procedural issue in Pereira would seem to be a good example of this.
Second, despite Supreme Court decisions suggesting that ambiguity alone is insufficient to trigger Chevron deference, lower courts often fail to engage in any meaningful "step zero" analysis in order to make sure that Congress had delegated the relevant authority to the agency. Instead, Chevron has become an excuse for courts to abdicate their responsibility to resolve legal questions in favor of agencies.
Third, as highlighted in the various recent major questions cases, agencies increasingly view Chevron as a license to go on a scavenger hunt for plausible statutory authority to implement policies favored by the executive branch, whether or not such policies have been authorized by Congress. Put another way, rather than facilitating the ability of agencies to faithfully execute the law Congress enacts, Chevron is used to enable agencies to go their own way.
A fourth concern, most acute in areas in which agencies make policy through adjudication (as in immigration and labor policy) is that agencies are able to change their interpretations–and thus change the applicable law– without going through the sort of open and deliberative rulemaking process that ensures those who will be subject to the rule have notice and an opportunity to be heard.
What these concerns have in common is that they all represent a failure of agencies and lower courts to take seriously the idea that Chevron deference is grounded in delegation, and that this idea necessarily entails limits on Chevron's domain. While some initially sought to justify Chevron on separation of powers or broad policy grounds, the Supreme Court's post-Chevron jurisprudence (including, but not limited to, cases like Mead) make clear that if Chevron is to be justified, it must rest on the conclusion that Congress delegated such authority to the agency in question, and that where there is no indication that such a delegation occurred, there is no basis for courts to defer to an agency interpretation. Put another way, Chevron deference should apply only in those instances where it can be presumed that Congress delegated authority to an agency to resolve what is essentially a policy choice – e.g. whether an air pollution "source" should be defined so as to accommodate "bubble" policies – and not because agencies have any inherent authority to make such choices.
A key question in Relentless and Loper Bright is whether the concerns outlined above require overturning Chevron. For myself, I am skeptical. I am on record suggesting that, in addition to the failure of courts to respect the limits of Chevron's proper domain, that the underlying issue is the scope of authority that Congress delegates to agencies. In other words, a doctrine that focuses on delegation as the source of deference – as opposed to mere ambiguity – would likely do the trick, but this requires clarifying how many understand Chevron. As Thomas Merrill noted on this blog, while parts of Chevron stress the need to determine whether Congress delegated a given policy choice to the agency in question, other parts of the opinion suggest ambiguity or silence is sufficient to justify deference. Some subsequent opinions, such as that in City of Arlington v. FCC, further muddied the waters.
As it happens, the question presented in both Loper Bright and Relentless gives the Court ample space to navigate these questions. The question presented deliberately and carefully presents two possible ways to resolve the case and address Justice Kennedy's concerns. Here's the QP for both cases:
Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.
The QP suggests the Court overturn Chevron, but it also gives the Court room to clarify (and perhaps reorient) Chevron to focus on the delegation question–and to do so in a way that aligns nicely with the Court's recent major questions doctrine decisions. Specifically, the Court could emphasize that, before even considering whether to defer to an agency, they must first conclude that Congress delegated authority to the agency in question to resolve a policy issue with the force of law, and that when a statute is silent on the existence of agency of authority, courts should presume that such authority does not exist. Statutory silence is just that: Silence. It is not a delegation of power. (Admittedly, this is a position I have held for some time, and urged (unsuccessfully) in Arlington.)
As I see it, imposing this sort of limitation is the key step. Whether this is done by overturning Chevron, "Kisor-izing" Chevron, or merely adopting the Chief Justice's Arlington dissent is almost a stylistic choice. There is plenty in Chevron and subsequent cases to justify this outcome, even if it would overturn or repudiate some of the ways that Chevron has been applied.
Note that so long as the Court focuses on delegation as the source of agency authority, neither overturning nor modifying Chevron would limit the ability of Congress to entrust agencies with discrete policy questions in areas informed by agency expertise. As Chief Justice Roberts noted early in the Relentless argument, deferring to an agency on whether scientific or other evidence supports a particular conclusion is distinct from deferring to an agency's interpretation of statutory text. Indeed, even if the Court were to fully overturn Chevron in favor of a Skidmore-like regime, this need not foreclose reliance upon agency expertise, nor need it have any direct effect on how courts conduct arbitrary and capricious review and apply cases like State Farm.
This would suggest that some of the horror stories about a post-Chevron administrative state are quite overstated. The administrative state was able to operate before Chevron was decided (and before it was made the basis of a doctrine), and the administrative state will persist no matter how these cases are resolved.
The post Whether Chevron Stands or Falls, Any Deference Should Be Based Upon Delegation, Not Ambiguity appeared first on Reason.com.
https://reason.com/volokh/2024/02/03/whether-chevron-stands-or-falls-any-deference-should-be-based-upon-delegation-not-ambiguity/
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https://www.newsmax.com/newsmax-tv/donald-trump-presidential-immunity/2024/02/06/id/1152498/
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One less place where I have to worry about "printing."
https://justthenews.com/politics-policy/gun-rights/judge-rules-federal-law-banning-gun-possession-post-offices
https://justthenews.com/sites/default/files/2024-01/01122024ayala.pdf
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Rained all over 14th amendment argument re removing Trump from the CO ballot:
https://thefederalist.com/2024/02/08/colorado-lawyer-flails-as-clarence-thomas-calmly-destroys-his-trump-disqualification-argument/?fbclid=IwAR2g0tBqFnX-Zm32Qyk691Hl6bKvahZPyO9WjYmYj4sydbgSJHzwjJBD8Bk
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Paywall blocked, would like to read more of this. Is he wrong?
https://www.wsj.com/articles/impeaching-mayorkas-was-a-mistake-this-precedent-will-be-used-against-gop-d0bf4956
Why I Voted Against the Alejandro Mayorkas Impeachment
Ousting a cabinet secretary for ‘maladministration’ would have opened Pandora’s box. The real problem is Biden.
By Mike Gallagher
Feb. 6, 2024 10:08 pm ET
President Biden has created a disaster at our southern border. In his first 100 days in office, Mr. Biden halted border-wall construction, ended President Trump’s successful Remain in Mexico policy, and implemented a catch-and-release regime. Homeland Security Secretary Alejandro Mayorkas is faithfully implementing the president’s ruinous policies, which are contributing to immense human suffering, placing a massive financial burden on states and cities, and threatening our national security. His performance has been a disgrace.
But I disagree with my Republican colleagues who voted on Tuesday to impeach Mr. Mayorkas. Impeachment not only would fail to resolve Mr. Biden’s border crisis but would also set a dangerous new precedent that would be used against future Republican administrations.
The first article of impeachment lays out in grueling detail Mr. Mayorkas’s manifest incompetence. But incompetence doesn’t rise to the level of high crimes or misdemeanors. Proponents of impeachment concede the framers rejected the idea that policy disputes or “maladministration” constitute grounds for impeachment. They argue instead that Mr. Mayorkas’s underenforcement goes beyond maladministration, even though it doesn’t reach the level of a criminal offense.
Their primary evidence is a 2021 memo signed by Mr. Mayorkas ordering immigration officials to consider more than illegal aliens’ criminal history when determining which ones should be detained and removed. They cite district and circuit court decisions that the order contained in this memo was against the law, even though the Supreme Court reversed those rulings in U.S. v. Texas (2023). They cite Justice Samuel Alito’s dissent in that case to claim Mr. Mayorkas broke the law...
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Why I Voted Against the Alejandro Mayorkas Impeachment
Ousting a cabinet secretary for ‘maladministration’ would have opened Pandora’s box. The real problem is Biden.
By Mike Gallagher
Feb. 6, 2024 10:08 pm ET
President Biden has created a disaster at our southern border. In his first 100 days in office, Mr. Biden halted border-wall construction, ended President Trump’s successful Remain in Mexico policy, and implemented a catch-and-release regime. Homeland Security Secretary Alejandro Mayorkas is faithfully implementing the president’s ruinous policies, which are contributing to immense human suffering, placing a massive financial burden on states and cities, and threatening our national security. His performance has been a disgrace.
But I disagree with my Republican colleagues who voted on Tuesday to impeach Mr. Mayorkas. Impeachment not only would fail to resolve Mr. Biden’s border crisis but would also set a dangerous new precedent that would be used against future Republican administrations.
The first article of impeachment lays out in grueling detail Mr. Mayorkas’s manifest incompetence. But incompetence doesn’t rise to the level of high crimes or misdemeanors. Proponents of impeachment concede the framers rejected the idea that policy disputes or “maladministration” constitute grounds for impeachment. They argue instead that Mr. Mayorkas’s underenforcement goes beyond maladministration, even though it doesn’t reach the level of a criminal offense.
Their primary evidence is a 2021 memo signed by Mr. Mayorkas ordering immigration officials to consider more than illegal aliens’ criminal history when determining which ones should be detained and removed. They cite district and circuit court decisions that the order contained in this memo was against the law, even though the Supreme Court reversed those rulings in U.S. v. Texas (2023). They cite Justice Samuel Alito’s dissent in that case to claim Mr. Mayorkas broke the law.
But overturned and dissenting decisions have no legal force. Further, the majority in Texas affirms the longstanding precedent that the president and homeland security secretary have great discretion in enforcing border laws. And if we are to make underenforcement of the law, even egregious underenforcement, impeachable, almost every cabinet secretary would be subject to impeachment. The Treasury and State departments’ nonenforcement of sanctions against Iran has emboldened a regime that is killing Americans in the Middle East. The defense secretary is clearly violating the Hyde Amendment by allowing defense travel funds to be used to facilitate abortions. These decisions—however reprehensible—aren’t high crimes or misdemeanors but would be impeachable under the new standard.
Perhaps this is why we have never impeached a cabinet secretary except for criminal behavior. The person chiefly responsible for the chaos and devastation that has unfolded at the border is Mr. Biden, not Mr. Mayorkas. If Mr. Mayorkas were removed, his replacement would also implement Mr. Biden’s disastrous border policies. If anything, impeaching Mr. Mayorkas would absolve Mr. Biden of blame for his own policies.
Proponents argue that impeachment is the only option Congress has left to hold the Biden administration accountable after U.S. v. Texas established that states don’t have standing to sue the federal government for nonenforcement of immigration laws. That isn’t true. The courts have signaled that through the legislative process, Congress can authorize states to sue.
The articles of impeachment even tacitly admit there are other options available to Congress. The first article quotes Justice Brett Kavanaugh’s majority opinion, which says there are political checks on the executive. Justice Kavanaugh conspicuously doesn’t list impeachment. Instead, he outlines other tools Congress has—a list the impeachment articles elide when quoting the opinion. Justice Kavanaugh’s list includes oversight, appropriations, lawmaking, Senate confirmations and the biggest political check of all: elections. Congress should exhaust all these options to secure the border, including defunding ridiculous Biden administration priorities and regulations until he changes his border policies.
The second article of impeachment accuses Mr. Mayorkas of failing to comply with multiple subpoenas and obstructing certain oversight efforts, actions that are shameful but not outside the norm for cabinet secretaries. House Democrats impeached Mr. Trump for the same actions. Unlike Democrats’ rushed process against Mr. Trump, we should take Mr. Mayorkas to court to produce any information he is withholding and hold him in criminal contempt of Congress if he further stonewalls legitimate oversight. If he continues to obstruct, we should reconsider impeachment under a more tailored version of the second article.
In 2019 and 2021, then-Speaker Nancy Pelosi and congressional Democrats used impeachment as a weapon against Mr. Trump, though they couldn’t produce evidence he had committed a crime. It was a rushed, hyperpartisan process that lowered the bar for what constitutes an impeachable offense. Republicans rightly railed against this effort and the dangers of a single-party impeachment, impeachment for unpopular decisions, impeachment for non-criminal acts, and impeachment for not complying with congressional subpoenas.
Republicans should reject the Pelosi precedent. Creating a new, lower standard for impeachment, one without any clear limiting principle, wouldn’t secure the border or hold Mr. Biden accountable. It would only pry open the Pandora’s box of perpetual impeachment.
Mr. Gallagher, a Republican, represents Wisconsin’s Eighth Congressional District and is chairman of the House Select Committee on Strategic Competition between the U.S. and the Chinese Communist Party.
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https://www.msn.com/en-us/news/opinion/a-state-supreme-court-just-issued-another-devastating-rebuke-of-the-u-s-supreme-court/ar-BB1i5YZ0?ocid=msedgntp&pc=DCTS&cvid=31d3ecc2a3c745679c4449464e606eae&ei=17
Is this possible?
lower judges don't have to follow SCOTUS?
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https://en.wikipedia.org/wiki/Seventh_Amendment_to_the_United_States_Constitution
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Long (hundred page) exploration of primarily federal abridgments of free speech, the mechanisms by which courts have allowed it originally, and the resulting trains the feds have driven through those loopholes. The intro is shown below, but those that don’t want to read the whole thing would do well to check out the conclusion, too. It does not bode well for free speech, particularly speech conducted on private platforms regulators can threaten by less than overt means:
COURTING CENSORSHIP
Philip Hamburger
Has Supreme Court doctrine invited censorship? Not deliberately, of course. Still, it must be asked whether current doctrine has courted censorship—in the same way one might speak of it courting disaster.
The Court has repeatedly declared its devotion to the freedom of speech, so the suggestion that its doctrines have failed to block censorship may seem surprising. The Court's precedents, however, have left room for government suppression, even to the point of seeming to legitimize it.
This Article is especially critical of the state action doctrine best known from Blum v. Yaretsky. That doctrine mistakenly elevates coercion as the archetype or model of constitutionally accountable government conduct. Even in suits against government, the Blum test normally requires plaintiffs to prove that private action has been coercively converted into government action. In such ways, the Blum state action doctrine is not merely erroneous, but has signaled to government that it can get away with censorship as long as it keeps most of it privatized and not overtly coercive.
When it comes to the First Amendment, this Article expresses concern about the doctrinal tendency to confuse "abridging" and "prohibiting." The First Amendment carefully distinguishes the two: It simultaneously bars abridging, or reducing, the freedom of speech, and forbids prohibiting the free exercise of religion. This isn't to say that much coercion is required for a free exercise violation. But the First Amendment at least reveals that it bars whatever merely diminishes the freedom of speech, without any need to show coercion or other prohibiting. Unfortunately, this important distinction between abridging and prohibiting has been lost, with the result that First Amendment doctrine seems to make coercion necessary for a speech violation. Once again, doctrine mistakenly suggests that government can censor Americans—at least if it avoids the most blatant sorts of coercion.
The Supreme Court needs to repudiate the judicial doctrines that invite censorship. When the censorship-justifying doctrines are put aside, and the First Amendment itself is examined, it becomes clear that the Amendment leaves no room for privatized and less-than-coercive evasions of its freedom of speech. This is not, moreover, an unrealistic ideal. The First Amendment itself contains hints as to how censorship can be barred without standing in the way of lawful executive persuasion.
[A.] The Problem
The problem that provokes this inquiry is massive government censorship. Federal censorship through the dominant social media platforms (the "Platforms") has been occurring since at least 2018 and on a vast scale since 2020. It has included the review of billions of posts; it has suppressed millions. It already has affected one presidential election, two cycles of congressional elections, much science and medicine, and cutting-edge social questions. Moreover, it has taken until 2023 for a court to issue an injunction against such government censorship—and even then, against only some of it and against only some of the relevant government officers. Much of the censorship continues.
One might have thought that judicial doctrine would have nipped any such federal suppression in the bud. Yet apparently not. So it is necessary to ask, why not?
The inquiry is especially pressing because the current censorship dwarfs the censorship familiar from the 1798 and 1918 Sedition Acts. Rather than punish merely some authors, publishers, and activists, it has also suppressed vast numbers of ordinary Americans. This is censorship at a scale that lies far outside earlier American experience.
Of course, the censorship has been imposed primarily by the Platforms, not government. It therefore may seem misplaced to focus on the government's role. But just because the Platforms are so central in the censorship doesn't mean one can ignore the government's participation. It will be seen that the Platforms depend on government coordination to sustain much of even their private censorship, so government's role is crucial. Moreover, the Constitution limits government, not private parties. Therefore, both the censorship's realities and its interaction with the Constitution demand attention to the part played by government.
The Constitution should have stopped the current censorship scheme in its tracks. It will be seen that the Constitution is framed to prevent officials from even adopting suppressive policies, let alone carrying them out. This is essential because when government controls speech, it can subvert freedom at every level, including elections, rights, and even personal commitments to these constitutional foundations.
Judicial doctrine, however, has left room for censorship. Or perhaps more accurately, judicial doctrine has allowed government to imagine it has room for censorship.
Of course, the constitutional protections for speech have not been entirely erased. The remaining protections, although much worn down, have at least been sufficient (thus far) to support an injunction in Missouri v. Biden—now Murthy v. Missouri—against the most overt elements of the current censorship regime. So, even current doctrine has some value.
Existing doctrine, however, is not good enough. Under current judicial interpretations of the Constitution, it has taken half a decade just to get an initial injunction against the censorship. And the government evidently thought, and still thinks, that the suppression that it has orchestrated is not unconstitutional under prevailing doctrine. While purportedly protecting the freedom of speech, the Constitution has been interpreted in ways that open up pathways for evasion, very nearly authorizing what the First Amendment forbids.
[B.] This Article's Analysis
Part I examines federal power, arguing that judicial doctrine has eroded the Constitution's structural protections for speech. Commerce Clause doctrine seems to authorize federal regulation of speech—something the Clause once seemed to preclude. In the shadow of this legislative power over speech, the executive uses administrative and even sub-administrative processes to regulate speech, thus allowing it to circumvent both the front-end legislative protection and back-end judicial protection afforded by the Constitution. That is, government no longer must get the prior approval of the nation's elected representative legislature or the subsequent judgment of an independent judge and jury. Doctrine has thus dismantled the substantive and procedural protections that once provided structural safeguards for speech, leaving the federal government relatively free to impose censorship.
Part II shifts to rights, showing how Blum v. Yaretsky and allied cases have weakened the freedom of speech by subjecting it to an artificially narrow conception of state action—what this Article more accurately treats as government action. Blum elevates coercion as the prototypical way to violate rights and treats privately effectuated censorship as unconstitutional only if, paradoxically, the private action amounts to public action. The doctrine in Blum thereby leaves the impression that government can censor Americans through private entities as long as it is not too coercive. Indeed, the doctrine seems to suggest that, without traceable coercion, the censored lack standing to challenge their oppression.
In fact, as seen in Part III, the First Amendment more capaciously forbids any abridging, or reducing, of the freedom of speech—thus protecting that freedom without obviously opening up paths for evasion. If judicial doctrine and academic scholarship had lingered even briefly on the First Amendment's words, they would have recognized that although the Amendment bars "prohibiting" the free exercise of religion, it forbids "abridging" the freedom of speech. This distinction is crucial because government can work through private parties to abridge, or diminish, the freedom of speech without coercing anyone or otherwise prohibiting that freedom—in particular, without coercively transforming the private action into government action. The distinction thus shows that in speech suits against government, plaintiffs shouldn't have to jump through Blum's hoops.
First Amendment doctrine, however, confuses abridging and prohibiting. It thus aligns the Amendment with Blum's coercion-oriented vision of state action and, like that state action doctrine, invites government to assume it can get away with censorship as along as it is not too coercive.
Incidentally, it will also be seen in Part III that any law abridging the freedom of speech is rendered void ab initio by the First Amendment. Being barred from the outset, such a law is unconstitutional even if it has not yet caused any suppressive effect. Blum is therefore mistaken in requiring plaintiffs claiming unconstitutionality to show suppressive effects.
Although the Constitution's text may often seem to impede practicable approaches to contemporary problems, the First Amendment's text valuably suggests (as will be seen in Section III.D) how courts can apply the First Amendment's bar against government censorship without preventing lawful and useful government persuasion. The Amendment bars government from abridging the freedom of speech, thereby apparently leaving room for government to reduce speech—as long as it doesn't go so far as to diminish the freedom of speech. The Amendment, moreover, applies to law and, by extension, to executive policy (on the theory that policy must be authorized by law); it thus does not bar government action that doesn't amount to a law or policy. In such ways, the Amendment itself allows the government to engage in much persuasion about speech—for example, to ask a newspaper to consider dropping a particular story lest it damage national security. A seemingly intractable difficulty finds at least the beginnings of a sensible solution in the Amendment's text.
Part IV considers the Supreme Court's doctrine on government speech. Although the First Amendment guarantees the freedom of speech as a limit on government power, judicial doctrine seems to justify the executive in claiming a freedom of speech to suppress speech—indeed, without any First Amendment limitation.
Part V turns to qualified immunity. Instead of questioning the doctrine as a whole, this Article focuses on the categorical nature of its protection for officials who do not violate any "clearly established" right—that is, who act within a sphere of plausible ambiguity. The doctrine is categorical in the sense that within the range of ambiguity, it relieves all officials from paying damages for their unconstitutional actions—without considering the sort of power they were exercising or the opportunity they had to consult government lawyers. Such blanket or unqualified immunity, as long as there is some ambiguity, leads officials to believe they can get away with censorship.
Part VI notes the sobering dangers of the current censorship—for the human mind, for elections, for science, and for the collapsing distinction between government and society. Finally, Part VII contrasts two visions of constitutional law—one that is optimistic about human nature and another that is more pessimistic. The one is a constitution of hope, the other a constitution of fear. The U.S. Constitution combined optimism—in its broad grants of power—and pessimism in its limits on power, including its rights. Censorship is so serious a danger that it needs to be stopped in its tracks. Judicial doctrine therefore should have been more attentive to how the Constitution's limits on power are framed in response to fears about human nature, not hope.
Along the way, this Article more broadly questions some fundamentals of twentieth-century constitutional jurisprudence. The Article challenges the need for any generic state action doctrine that is independent of the particular rights at stake. It also contests the coercion model—the archetypical measure of forbidden government severity—that runs through Supreme Court doctrine on state action, constitutional rights, and even governmental structure. Under the influence of these misguided meta-doctrines on state action and coercion, judges and scholars have done much doctrinal damage. Most centrally, in embracing overarching generalities about state action and coercion, judicial doctrine has failed to recognize the First Amendment's distinction between "abridging" and "prohibiting." In such ways, doctrine has endangered freedom of speech and all that depends on it.
The courts, of course, never intended to abandon our constitutional protections; nor did they intend to subject us to censorship. Their doctrines, however, have courted this disaster. Painful as it is to contemplate, judicial doctrine has long been framed in ways that create opportunities for censorship.
Unfortunately, it is doubtful whether the Supreme Court will, or even can, recalibrate these doctrines in time to end the censorship. The Constitution's crucial protections for speech have been altered by twentieth-century doctrine in ways that permit evasion, and the government has taken full advantage of the invitation. It has institutionalized censorship mechanisms that are likely to survive any judicial injunction or other interference. It is therefore not clear how the judiciary can undo the enduring damage.
https://www.journaloffreespeechlaw.org/hamburger.pdf
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And herewith the Conclusion:
=====================
VII. A CONSTITUTION OF HOPE OR OF FEAR?
What sort of constitutional law is necessary to protect constitutional rights? A
constitutional jurisprudence that allows officials to get away with censorship for
years, and perhaps never face personal accountability, is not good enough. What is
needed is a jurisprudence that will stop officials from even beginning such a project.335
Consider two very different visions of constitutional law. One takes an optimistic view of human nature, anticipating that government needs broad power and will
exercise it responsibly. Another takes a more pessimistic view of human nature,
imposing hard limits on power to protect against its predictable abuse.
334 NetChoice, LLC v. Paxton, 49 F.4th 439 (5th Cir. 2022), cert. granted, No. 22-555, 2023 WL
6319650 (2023).
335 Vincent Blasi has written:
n adjudicating first amendment disputes and fashioning first amendment doctrines,
courts ought to adopt what might be termed the pathological perspective. That is, the overriding objective at all times should be to equip the first amendment to do maximum service in those historical periods when intolerance of unorthodox ideas is most prevalent
and when governments are most able and most likely to stifle dissent systematically. The
first amendment, in other words, should be targeted for the worst of times.
Vincent A. Blasi, The Pathological Perspective and the First Amendment, 85 COLUM. L. REV. 449,
449–50 (1985).
4:195] Courting Censorship 293
The Constitution balances these visions to get the best of both. It grants broad
legislative powers to Congress, but also imposes hard limits—giving only limited
powers, funneling legislative power through Congress and judicial power through
the courts, and confining all power with rights. In this way, it optimistically authorizes a powerful federal government while protecting Americans from the misuse of
that power.
Judicial doctrine, however, has eroded these limits. While doctrine still bars
censorship, it no longer does so with the clarity and efficacy needed to prevent officials from thinking they might get away with it.
Justice is slow, and the officials have sedulously kept much of their censorship
secret. They have thereby delayed a judicial reckoning for half a decade and two
election cycles, and they may still be hoping to delay until they can secure a change
in the Supreme Court’s personnel.
By allowing officials to get away with this, the current style of jurisprudence has
done profound damage. It has left room for efforts that may, perhaps for the foreseeable future, cripple free speech in this country. Already, the censorship and allied developments are subverting popular attachments to free speech and independent thought, inculcating in their place, it seems, a reliance on authority and a
disgust for dissent. The censorship is thus part of a revolution in personal and public ideals that may yet remake the nation, its intellectual foundations, and its freedoms—a transformation that may render constitutional claims an exercise in futility and the Supreme Court merely decorative.
The Court therefore needs to think very seriously about the Constitution as it
ought to be understood—a constitution that simultaneously establishes great
power and sufficiently constrains it. As things stand, judicial doctrine seems to invite evasions of the Constitution’s limits, including the First Amendment.
CONCLUSION
Whether on commerce, administrative and sub-administrative power, state action, abridging the freedom of speech, government speech, or qualified immunity,
the Supreme Court’s doctrines are, at best, a disappointment. Far from preventing
censorship, they have invited it, leaving room for government to evade the Constitution’s protections for speech. Americans are therefore now subject to massive
censorship, which threatens to subject a free people and their republic to a new regime based on the centralized manipulation of their thought.
294 Journal of Free Speech Law [2024
First, the Constitution’s structural protections for speech have been severely
undermined. Commerce doctrine has given the federal government a regulatory
control over speech that the Constitution was expressly understood not to have
granted. Although Congress’s enumerated powers once marginally included some
authority over speech and communication, now the commerce power apparently
includes unlimited regulatory authority over such things. This is especially sobering for speech-oriented entities, such as the Platforms, which are singularly vulnerable to speech regulation.
Adding to the danger is administrative and sub-administrative regulation in
the shadow of congressional regulation. Whereas regulation once had to run
through elected representatives in Congress and then through independent judges
and juries in the courts, it now can administratively evade these process protections—mostly completely when sub-administrative regulation escapes even prior
congressional authorization and subsequent judicial review. The combination of
congressional power over speech in Section 230336 and sub-administrative regulation in the shadow of that power has been one of the foundations of the federal
censorship.
Second, current state action doctrine, typified by Blum, asks for proof that the
government has converted private action into government action, archetypically by
coercion. State action doctrine thus lets government evade the freedom of speech
by acting through private cutouts and avoiding overt coercion. It is doubtful
whether there should be any government or “state” action doctrine apart from what
is required by different rights. Regardless, there is no justification for state action
doctrine to subject plaintiffs to a narrower hoop than is imposed by the substantive
right being enforced.
Third, the First Amendment distinguishes abridging the freedom of speech
from prohibitingthe free exercise of religion. The Amendment thus focuses on what
abridges, or reduces, the freedom of speech, not just that which coercively suppresses or otherwise prohibits speech. Judicial doctrine, however, ignores the difference between abridging and prohibiting, and emphasizes coercion. Once again,
doctrine invites the government to suppress speech through means that avoid overt
coercion.
336 47 U.S.C. § 230.
4:195] Courting Censorship 295
In barring the making of any law abridging the freedom of speech, the First
Amendment renders any such law or policy void ab initio. The government’s censorship policies are therefore immediately void, without any need to show that they
have had suppressive effects. Echoing Blum, however, many judges seem to think
that plaintiffs need to show suppressive effects. The government therefore assumes
it can get away with even a publicly announced suppressive policy—as long as it
can keep the suppressive mechanisms and effects relatively privatized and secret.
Under the current censorship, for example, the proof that the federal government
caused the privately enforced suppressive effects has been elusive and sometimes
even hidden, and it therefore has taken half a decade for suppressed speakers to
persuade a court, finally, to take the censorship seriously.
Incidentally, the First Amendment’s text offers valuable hints about the distinction between unconstitutional government censorship and lawful government
persuasion. Working from the word law and the phrase freedom of speech, courts
can simultaneously bar government evasion of the First Amendment and leave
room for government persuasion.
Fourth, the Supreme Court’s loosely framed government speech doctrine suggests to the executive that it has a freedom of speech—a freedom unconfined by the
people’s freedom of speech. This conclusion conflicts with almost everything that
is known about the Bill of Rights and the First Amendment.337 But judicial doctrine
on government speech is so open-ended that the government feels it has a speech
right that defeats our speech rights.
Fifth and finally, the unqualified character of qualified immunity has given officials courage that they will not have to pay damages for their misadventures in
censoring their fellow citizens—at least while they stay within the ambit of any ambiguity. Whatever the fate of qualified immunity, its categorial protection for officials—even when exercising sub-administrative power, even when seeking censorship, and even when there is time to get legal advice—has seemed to give officials
a safe harbor precisely when that does not make sense.
The second and third developments are especially sobering, as they reveal that
some supposed verities of twentieth-century constitutional jurisprudence have
done tremendous damage. State action doctrine has taken on a life of its own, independent of the particular rights in which the Constitution demarcates different
337 See supra Sections IV.C & D.
296 Journal of Free Speech Law [2024
degrees and even kinds of government action. Moreover, a simplistic coercion
model of constitutionally significant government action has infected doctrine on
state action, constitutional rights, and even governmental structure.338 Hence, our
current difficulties. Under the weight of the state action doctrine and the coercion
model, the First Amendment’s different rights get blurred together, without distinguishing abridging and prohibiting.
As it happens, much of the government’s censorship isn’t really justified by
Blum—as nearly admitted by the government when it repeatedly twists that precedent in Murthy v. Missouri. For example, in the government’s telling, Blum’s emphasis on “coercive power”339 becomes a “compulsion” test.340 Of course, coercion
(a type of wrongful threat or pressure) is not compulsion (the circumstances in
which one could not have done otherwise),341 and the Court has never self-consciously raised the bar so high. Nonetheless, on the basis of one casual use of the
word “compel” in Manhattan Community Access Corporation v. Halleck, the government quotes Blum to establish “this Court’s compulsion test for state action.”342
This is a warped version of Blum, not Blum itself.
Another governmental exaggeration of Blum is that a “particular act of enforcement” must be attributable to “particular conduct” by a “particular government
338 For an example of the doctrine on governmental structure, see Nat’l Fed’n of Indep. Bus. v.
Sebelius, 567 U.S. 519, 577 (2012) (requiring coercion and even compulsion for unconstitutional
federal commandeering of the states). But what is inaptly called “commandeering” is simply a deviation from the federal structure of American government under the Constitution, and departures
from the Constitution’s structures are unconstitutional on their own, without any requirement of
coercion. See HAMBURGER, PURCHASING SUBMISSION, supra note 13, at 136–37.
339 457 U.S. at 1004.
340 Brief for Petitioners, Murthy v. Missouri, supra note 2, at 14, 23, 25.
341 Mitchell N. Berman, Coercion, Compulsion, and the Medicaid Expansion: A Study in the
Doctrine of Unconstitutional Conditions, 91 TEX. L.REV. 1283, 1291–92 (2013). Although the notion
of compulsion is familiar from nineteenth-century ideas of duress in contracts, it is unclear why it
should have any role in constitutional law. See HAMBURGER, PURCHASING SUBMISSION, supra note
13, at 200.
342 Brief for Petitioners, Murthy v. Missouri, supra note 2, at 26 (quoting Blum, 457 U.S. at 1004,
which merely discusses “coercive power,” and citing Halleck, 139 S. Ct. at 1928, which reads Blum’s
coercive power in terms of when government “compels” a private entity). Note, moreover, that Halleck was just a case against a private defendant.
4:195] Courting Censorship 297
official.”343 Even Blum doesn’t set so persnickety a standard. But in requiring proof
of government responsibility for “specific conduct,”344 Blum leaves room for the
government to think it is justified in insisting on particularized causation.345
Such strained uses of caselaw confirm that existing doctrine does not justify as
much of the current censorship as the government claims. All the same, Blum and
the other precedents have opened up possibilities that the Justices never contemplated. They have encouraged the government to imagine it can get away with an
entire system of suppression.
If the judges are to redeem themselves—if they do not wish to be known for
courting the destruction of our freedom—they need to heed the lessons of their
failures. They need to reconsider their lax interpretation of federal powers, their
tolerance for sub-administrative power, their Blum misreading of state action in
terms of conversion and coercion, their confusion between abridging and prohibiting, their notions of government speech rights, and their unqualified grant of
qualified immunity.
Of course, it is improbable that the Court will, or even can, correct all these
doctrines at once. Even the bare minimum of doctrines—on state action, abridging,
and government speech—is probably beyond what the Court can promptly reconsider.
Even more sobering, the current censorship has had half a decade to become
deeply entrenched. In that time, government pressure, coordination, funding, and
personnel have created a censorship industrial complex—a whole regime of interlocking academic, nonprofit, and other private entities that by now act on their own
to coordinate the Platforms. So, notwithstanding the constitutional bar against government censorship, the government has already successfully launched this ship
into private waters. A judicial remedy may therefore already be too late. By using
secrecy and judicial doctrine to escape constitutional accountability for five years,
343 Brief for Petitioners, Murthy v. Missouri, supra note 2, at 18; see supra Section II.C.
344 Blum, 457 U.S. at 1004.
345 Of course, Blum is not the only precedent stretched by the government. For example, the
government deploys the chilled speech doctrine to complain that its speech is being chilled—while
saying nothing as to how its speech chills the speech of vast numbers of Americans. Seesupra Section
III.G.
298 Journal of Free Speech Law [2024
the government may have successfully subjected the Republic to censorship for the
indefinite future.
Nonetheless, the Justices need to rethink their doctrines—as soon as possible.
Their doctrines invited the censorship. So, not only the censorship but also the doctrines need to go
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Sorry bout the formatting! But not sorry enough to make the effort to clean it up haha.
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https://www.supremecourt.gov/opinions/18pdf/17-1091_5536.pdf
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… but only for Texas. At least for now, until other Repub states pile on:
https://thefederalist.com/2024/02/28/court-says-democrats-who-broke-quorum-rules-unconstitutionally-spent-1-7-trillion/?fbclid=IwAR0yzjw8ro_RdajY3NpX1yts6p5htli2ZLQEHfY97TI_op1RCBSvIvQ1rUQ
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Dershowitz to Newsmax: 'Divided Decision' Likely on Trump Immunity
https://www.newsmax.com/newsmax-tv/alan-dershowitz-supreme-court-donald-trump/2024/02/29/id/1155471/
"Meanwhile, the court's decision to hear the immunity case has come under fire by liberals, but Dershowitz said that is because the left has gotten too used to it ruling in their favor for years.
"If the Supreme Court doesn't rule the way they want it to rule they think it shouldn't rule at all," Dershowitz said. "Now that the Supreme Court is more conservative, these same scholars are saying, Well, the speaker should stay out of deciding cases. It's very hypocritical, and you shouldn't listen to academics, especially Harvard professors who clearly have an agenda here and who aren't interested in a neutral approach to Supreme Court adjudication."
He is talking about you Larry Tribe !
Kudos to Prof Dersh to call out the hypocracy of a partisan colleague in applying the law.
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https://www.cbsnews.com/news/supreme-court-trump-ballot-eligibility-colorado/
The ruling was 9-0.
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https://www.cbsnews.com/news/supreme-court-trump-ballot-eligibility-colorado/
The ruling was 9-0.
And the left is losing its mind….
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Kavanuagh accuser referred for prosecution for false allegations:
https://thebeltwayreport.com/2024/03/p6203/
"Progressives" should be indicted as co-conspirators for solciting these falsehoods.
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Ummm , , , I am missing something here? Where does she admit lying? All I'm seeing is Grasseley'e referall.
Click bait?
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Ummm , , , I am missing something here? Where does she admit lying? All I'm seeing is Grasseley'e referall.
Click bait?
Did you scroll through the Grassley referral, its attachments, and the related footnotes? Looks like fodder for a criminal referral to me.
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Agreed, but I'm still not seeing where she admitted lying.
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Agreed, but I'm still not seeing where she admitted lying.
2nd page, 4th para states she confessed. I’d cut and paste, but Scibd wants me to sign to do so.
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Noted. TY.
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23 states and DC support the Biden side of the argument in Missouri v. Biden:
https://www.thegatewaypundit.com/2024/03/23-democrat-states-district-columbia-file-amicus-briefs/?fbclid=IwAR0Ai7JkNWxx3eet_35nBjHG2vCKkmBH4JuPSAuaiiEoFGHNA0ku5MCruY8
Shameful, unconstitutional behavior.
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A case of primal importance.
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for being originalists instead of textualists.
(and of course, the Conservative justices :x :roll:)
from far far left wing rag DNYUZ:
https://dnyuz.com/2024/03/18/justice-breyer-off-the-bench-sounds-an-alarm-over-the-supreme-courts-direction/
yet, some interesting (to me who knows little about such matters) about textualism vs originalism
This also noteworthy:
"Justice Breyer retired a little reluctantly, under pressure from liberals who wanted to make sure that President Biden could appoint his successor and that the conservative supermajority on the court, currently at 6 to 3, would not get any more lopsided."
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District Court Judgment in 303 Creative v. Elenis (the Wedding Web Site Design Case)
The Volokh Conspiracy / by Eugene Volokh / Mar 28, 2024 at 5:45 PM
Following the Supreme Court's remand to the Tenth Circuit, which in turn led to the remand to district court, Chief Judge Philip Brimmer (D. Colo.) rendered the following order Tuesday:
It is ORDERED that plaintiffs are the prevailing parties in this action under 42 U.S.C. § 1988(b). Plaintiffs and their counsel are entitled to recover their reasonable attorney's fees, costs, and expenses for work related to litigation before the district court. It is further
ORDERED that the First Amendment's Free Speech Clause prohibits Colorado from enforcing the Accommodation Clause of Colorado's Anti-Discrimination Act ("CADA"), Colo. Rev. Stat. § 24-34-601(2)(a)), to compel plaintiffs to create custom websites celebrating or depicting same-sex weddings or otherwise create or depict original, expressive, graphic or website designs inconsistent with her beliefs regarding same-sex marriage. It is further
ORDERED that the First Amendment's Free Speech Clause prohibits Colorado from enforcing CADA's Communication Clause to prevent plaintiffs from posting the following statement on her website or from making materially similar statements on her website and directly to prospective clients:
I firmly believe that God is calling me to this work. Why? I am personally convicted that He wants me – during these uncertain times for those who believe in biblical marriage – to shine His light and not stay silent. He is calling me to stand up for my faith, to explain His true story about marriage, and to use the talents and business He gave me to publicly proclaim and celebrate His design for marriage as a life-long union between one man and one woman.
These same religious convictions that motivate me also prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs. So I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God's true story of marriage – the very story He is calling me to promote.
It is further ORDERED that defendants, their officers, agents, servants, employees, attorneys, and those acting in active concert or participation with them who receive actual notice of this order are permanently enjoined from enforcing:
[a.] CADA's Accommodations Clause to compel plaintiffs to create custom websites celebrating or depicting same-sex weddings or otherwise to create or depict original, expressive, graphic or website designs inconsistent with her beliefs regarding same-sex marriage; and
[b.] CADA's Communication Clause to prevent plaintiffs from posting the above statement on her website and from making materially similar statements on her website and directly to prospective clients….
For more on the reasoning, see the full order. The quick summary of the underlying factual dispute:
Plaintiff Lorie Smith, through her business, plaintiff 303 Creative LLC …, offers a variety of creative services, including website design, to the public. Ms. Smith intends to expand the scope of 303 Creative's services to include the design, creation, and publication of wedding websites. However, plaintiffs will decline any request to design, create, or promote content that promotes any conception of marriage other than marriage between one man and one woman. Plaintiffs have designed an addition to 303 Creative's website that includes a statement that they will not create websites "celebrating same-sex marriages or any other marriage that contradicts God's design for marriage."
The post District Court Judgment in 303 Creative v. Elenis (the Wedding Web Site Design Case) appeared first on Reason.com.
https://reason.com/volokh/2024/03/28/district-court-judgment-in-303-creative-v-elenis-the-wedding-web-site-design-case/
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https://www.cnn.com/2024/04/16/opinions/justice-sonia-sotomayor-retire-reyes/index.html
She's in her 60s (69). The President who would pick her replacement is in his 80s. Schumer and Durbin are nearly that. Her mom lived into her 90s. She lives with Type 1 diabetes. Minchin and Sinema are not reliable votes.
What part of lifetime appointment don't they understand.