A Stitch in Haste
http://kipesquire.powerblogs.com/
A collection of real-world libertarian, individualist and laissez-faire rants on policy, culture and other current events by an average, everyday lawyer & investment banker and part-time pop scholar.en-us2008-06-28T11:06+00:00Supreme Court Chips Away at McCain-Feingold
http://kipesquire.powerblogs.com/posts/1214587200.shtml
"Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name....Kip2008-06-27T17:06+00:00"Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives, and it is a dangerous business for Congress to use the election laws to influence the voters' choices."
--Davis v. Federal Election Commission
They weren't only equal before God and the law. They were equal every which way. Nobody was smarter than anybody else. Nobody was better looking than anybody else. Nobody was stronger or quicker than anybody else. All this equality was due to the 211th, 212th, and 213th Amendments to the Constitution, and to the unceasing vigilance of agents of the United States Handicapper General.
--Kurt Vonnegut, "Harrison Bergeron" (1961)
To review: The Supreme Court, in its schizophrenic campaign finance decision Buckley v. Valeo, 424 U.S. 1 (1976), held that it is constitutionally protected speech to spend money to get yourself elected to public office, but not to get someone else elected to that same public office. So, for example, Michael Bloomberg was able to spend $70 million to run for re-election as mayor of New York, but I was barred by law from donating 0.1% of that to his opponent's campaign.
This created a pesky problem for incumbent politicians: rich people might actually spend money to run against them. Unacceptable. So they enacted, in a patently self-serving maneuver, an exemption from the Bipartisan Campaign Reform Act (BCRA), a/k/a "McCain-Feingold." This exemption, generally called the "Millionaire's Amendment," allowed candidates to exceed McCain-Feingold's limits if their opponents (who, recall from Buckley, can always spend as much of their own money as they want) spent beyond a certain amount.
(My understanding, incidentally, is that the Millionaire's Amendment was forced upon John McCain as a take-it-or-leave-it ultimatum in order to secure enough votes to pass BCRA in the first place.)
Fast-forward to yesterday. The Supreme Court quite rightly struck down the Millionaire's Amendment as a violation of the First Amendment:
We have never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other, and we agree with Davis that this scheme impermissibly burdens his First Amendment right to spend his own money for campaign speech.
...
While BCRA does not impose a cap on a candidate's expenditure of personal funds, it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right. ... [A] candidate who wishes to exercise that right has two choices: abide by a limit on personal expenditures or endure the burden that is placed on that right by the activation of a scheme of discriminatory contribution limits.
In other words, there is no functional difference between forbidding you from spending your own money and "merely" penalizing you for it. Since the government cannot engage in the former, it ought not be able to engage in the latter. Hardly a controversial syllogism.
Meanwhile, since "campaign finance" jurisprudence is First Amendment jurisprudence, strict scrutiny applies: Is the restriction necessary to achieve a compelling government interest? Justice Alito holds no punches:
The burden imposed by §319(a) on the expenditure of personal funds is not justified by any governmental interest in eliminating corruption or the perception of corruption. The Buckley Court reasoned that reliance on personal funds reduces the threat of corruption, and therefore §319(a), by discouraging use of personal funds, disserves the anticorruption interest. [Bold added; underline in original.]
The Court also rejected "leveling the playing field" (i.e., restricting speech to equalize it) as a legitimate government interest. The Court saw the Millionaire's Amendment for what it was: Naked, brazen incumbent entrenchment.
There is a downside to the decision, however:
The advantage that wealthy candidates now enjoy and that §319(a) seeks to reduce is an advantage that flows directly from Buckley's disparate treatment of expenditures and contributions. If that approach is sound — and the Government does not urge us to hold otherwise — it is hard to see how undoing the consequences of that decision can be viewed as a compelling interest.
Translation: There appears to be no interest on the Court — or at least an insufficient number of votes — to revisit Buckley outright. That's unfortunate. (Justice Stevens, meanwhile, would resolve Buckley's schizophrenic holding by going in the "Harrison Bergeron" direction and allowing the government to restrict self-funded campaigns equally with contribution-funded campaigns — i.e., no First Amendment for anyone.)
(The Court also struck down a disclosure requirement associated with the Millionaire's Amendment on similar reasoning.)
The case is Davis v. Federal Election Commission, No. 07–320 (June 26, 2008) (PDF - 39 pages). The Millionaire's Amendment appears as an appendix in the decision. Note that Buckley v. Valeo is on my list of "Worst Supreme Court Cases."
---
Every campaign finance case is opportunity for libertarians to "stand above it all" and sigh with disappointment (disgust?). All sides in the debate seem to agree on one thing: The whole point of the exercise is to combat corruption in politics. Fair enough, and noble enough.
But it is the libertarians, and only the libertarians, who ask the precedent question of why we have so much corruption in politics. The answer is simple: Because government does so much that invites corruption, that caters to corruption and that perpetuates corruption. Things that have nothing to do with the core functions of government — the functions that the Framers did, and most people today do, associate with a free society. Things that are explicitly designed to benefit, not everyone equally or equitably, but some at the expense of others. From earmarks to tax breaks, from nanny statism to nanny subsidies, from oil wells to oil wars.
If the politicians didn't do so much that they were never meant to do, then no one would try to buy them. That would be the best "campaign finance reform" of all.]]>Supreme Court Chips Away at McCain-Feingold
http://kipesquire.powerblogs.com/posts/1214587200.shtml
"Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name....Kip2008-06-27T17:06+00:00"Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives, and it is a dangerous business for Congress to use the election laws to influence the voters' choices."
--Davis v. Federal Election Commission
They weren't only equal before God and the law. They were equal every which way. Nobody was smarter than anybody else. Nobody was better looking than anybody else. Nobody was stronger or quicker than anybody else. All this equality was due to the 211th, 212th, and 213th Amendments to the Constitution, and to the unceasing vigilance of agents of the United States Handicapper General.
--Kurt Vonnegut, "Harrison Bergeron" (1961)
To review: The Supreme Court, in its schizophrenic campaign finance decision Buckley v. Valeo, 424 U.S. 1 (1976), held that it is constitutionally protected speech to spend money to get yourself elected to public office, but not to get someone else elected to that same public office. So, for example, Michael Bloomberg was able to spend $70 million to run for re-election as mayor of New York, but I was barred by law from donating 0.1% of that to his opponent's campaign.
This created a pesky problem for incumbent politicians: rich people might actually spend money to run against them. Unacceptable. So they enacted, in a patently self-serving maneuver, an exemption from the Bipartisan Campaign Reform Act (BCRA), a/k/a "McCain-Feingold." This exemption, generally called the "Millionaire's Amendment," allowed candidates to exceed McCain-Feingold's limits if their opponents (who, recall from Buckley, can always spend as much of their own money as they want) spent beyond a certain amount.
(My understanding, incidentally, is that the Millionaire's Amendment was forced upon John McCain as a take-it-or-leave-it ultimatum in order to secure enough votes to pass BCRA in the first place.)
Fast-forward to yesterday. The Supreme Court quite rightly struck down the Millionaire's Amendment as a violation of the First Amendment:
We have never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other, and we agree with Davis that this scheme impermissibly burdens his First Amendment right to spend his own money for campaign speech.
...
While BCRA does not impose a cap on a candidate's expenditure of personal funds, it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right. ... [A] candidate who wishes to exercise that right has two choices: abide by a limit on personal expenditures or endure the burden that is placed on that right by the activation of a scheme of discriminatory contribution limits.
In other words, there is no functional difference between forbidding you from spending your own money and "merely" penalizing you for it. Since the government cannot engage in the former, it ought not be able to engage in the latter. Hardly a controversial syllogism.
Meanwhile, since "campaign finance" jurisprudence is First Amendment jurisprudence, strict scrutiny applies: Is the restriction necessary to achieve a compelling government interest? Justice Alito holds no punches:
The burden imposed by §319(a) on the expenditure of personal funds is not justified by any governmental interest in eliminating corruption or the perception of corruption. The Buckley Court reasoned that reliance on personal funds reduces the threat of corruption, and therefore §319(a), by discouraging use of personal funds, disserves the anticorruption interest. [Bold added; underline in original.]
The Court also rejected "leveling the playing field" (i.e., restricting speech to equalize it) as a legitimate government interest. The Court saw the Millionaire's Amendment for what it was: Naked, brazen incumbent entrenchment.
There is a downside to the decision, however:
The advantage that wealthy candidates now enjoy and that §319(a) seeks to reduce is an advantage that flows directly from Buckley's disparate treatment of expenditures and contributions. If that approach is sound — and the Government does not urge us to hold otherwise — it is hard to see how undoing the consequences of that decision can be viewed as a compelling interest.
Translation: There appears to be no interest on the Court — or at least an insufficient number of votes — to revisit Buckley outright. That's unfortunate. (Justice Stevens, meanwhile, would resolve Buckley's schizophrenic holding by going in the "Harrison Bergeron" direction and allowing the government to restrict self-funded campaigns equally with contribution-funded campaigns — i.e., no First Amendment for anyone.)
(The Court also struck down a disclosure requirement associated with the Millionaire's Amendment on similar reasoning.)
The case is Davis v. Federal Election Commission, No. 07–320 (June 26, 2008) (PDF - 39 pages). The Millionaire's Amendment appears as an appendix in the decision. Note that Buckley v. Valeo is on my list of "Worst Supreme Court Cases."
---
Every campaign finance case is opportunity for libertarians to "stand above it all" and sigh with disappointment (disgust?). All sides in the debate seem to agree on one thing: The whole point of the exercise is to combat corruption in politics. Fair enough, and noble enough.
But it is the libertarians, and only the libertarians, who ask the precedent question of why we have so much corruption in politics. The answer is simple: Because government does so much that invites corruption, that caters to corruption and that perpetuates corruption. Things that have nothing to do with the core functions of government — the functions that the Framers did, and most people today do, associate with a free society. Things that are explicitly designed to benefit, not everyone equally or equitably, but some at the expense of others. From earmarks to tax breaks, from nanny statism to nanny subsidies, from oil wells to oil wars.
If the politicians didn't do so much that they were never meant to do, then no one would try to buy them. That would be the best "campaign finance reform" of all.]]>Supreme Court Chips Away at McCain-Feingold
http://kipesquire.powerblogs.com/posts/1214587200.shtml
"Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name....Kip2008-06-27T17:06+00:00"Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives, and it is a dangerous business for Congress to use the election laws to influence the voters' choices."
--Davis v. Federal Election Commission
They weren't only equal before God and the law. They were equal every which way. Nobody was smarter than anybody else. Nobody was better looking than anybody else. Nobody was stronger or quicker than anybody else. All this equality was due to the 211th, 212th, and 213th Amendments to the Constitution, and to the unceasing vigilance of agents of the United States Handicapper General.
--Kurt Vonnegut, "Harrison Bergeron" (1961)
To review: The Supreme Court, in its schizophrenic campaign finance decision Buckley v. Valeo, 424 U.S. 1 (1976), held that it is constitutionally protected speech to spend money to get yourself elected to public office, but not to get someone else elected to that same public office. So, for example, Michael Bloomberg was able to spend $70 million to run for re-election as mayor of New York, but I was barred by law from donating 0.1% of that to his opponent's campaign.
This created a pesky problem for incumbent politicians: rich people might actually spend money to run against them. Unacceptable. So they enacted, in a patently self-serving maneuver, an exemption from the Bipartisan Campaign Reform Act (BCRA), a/k/a "McCain-Feingold." This exemption, generally called the "Millionaire's Amendment," allowed candidates to exceed McCain-Feingold's limits if their opponents (who, recall from Buckley, can always spend as much of their own money as they want) spent beyond a certain amount.
(My understanding, incidentally, is that the Millionaire's Amendment was forced upon John McCain as a take-it-or-leave-it ultimatum in order to secure enough votes to pass BCRA in the first place.)
Fast-forward to yesterday. The Supreme Court quite rightly struck down the Millionaire's Amendment as a violation of the First Amendment:
We have never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other, and we agree with Davis that this scheme impermissibly burdens his First Amendment right to spend his own money for campaign speech.
...
While BCRA does not impose a cap on a candidate's expenditure of personal funds, it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right. ... [A] candidate who wishes to exercise that right has two choices: abide by a limit on personal expenditures or endure the burden that is placed on that right by the activation of a scheme of discriminatory contribution limits.
In other words, there is no functional difference between forbidding you from spending your own money and "merely" penalizing you for it. Since the government cannot engage in the former, it ought not be able to engage in the latter. Hardly a controversial syllogism.
Meanwhile, since "campaign finance" jurisprudence is First Amendment jurisprudence, strict scrutiny applies: Is the restriction necessary to achieve a compelling government interest? Justice Alito holds no punches:
The burden imposed by §319(a) on the expenditure of personal funds is not justified by any governmental interest in eliminating corruption or the perception of corruption. The Buckley Court reasoned that reliance on personal funds reduces the threat of corruption, and therefore §319(a), by discouraging use of personal funds, disserves the anticorruption interest. [Bold added; underline in original.]
The Court also rejected "leveling the playing field" (i.e., restricting speech to equalize it) as a legitimate government interest. The Court saw the Millionaire's Amendment for what it was: Naked, brazen incumbent entrenchment.
There is a downside to the decision, however:
The advantage that wealthy candidates now enjoy and that §319(a) seeks to reduce is an advantage that flows directly from Buckley's disparate treatment of expenditures and contributions. If that approach is sound — and the Government does not urge us to hold otherwise — it is hard to see how undoing the consequences of that decision can be viewed as a compelling interest.
Translation: There appears to be no interest on the Court — or at least an insufficient number of votes — to revisit Buckley outright. That's unfortunate. (Justice Stevens, meanwhile, would resolve Buckley's schizophrenic holding by going in the "Harrison Bergeron" direction and allowing the government to restrict self-funded campaigns equally with contribution-funded campaigns — i.e., no First Amendment for anyone.)
(The Court also struck down a disclosure requirement associated with the Millionaire's Amendment on similar reasoning.)
The case is Davis v. Federal Election Commission, No. 07–320 (June 26, 2008) (PDF - 39 pages). The Millionaire's Amendment appears as an appendix in the decision. Note that Buckley v. Valeo is on my list of "Worst Supreme Court Cases."
---
Every campaign finance case is opportunity for libertarians to "stand above it all" and sigh with disappointment (disgust?). All sides in the debate seem to agree on one thing: The whole point of the exercise is to combat corruption in politics. Fair enough, and noble enough.
But it is the libertarians, and only the libertarians, who ask the precedent question of why we have so much corruption in politics. The answer is simple: Because government does so much that invites corruption, that caters to corruption and that perpetuates corruption. Things that have nothing to do with the core functions of government — the functions that the Framers did, and most people today do, associate with a free society. Things that are explicitly designed to benefit, not everyone equally or equitably, but some at the expense of others. From earmarks to tax breaks, from nanny statism to nanny subsidies, from oil wells to oil wars.
If the politicians didn't do so much that they were never meant to do, then no one would try to buy them. That would be the best "campaign finance reform" of all.]]>Supreme Court Chips Away at McCain-Feingold
http://kipesquire.powerblogs.com/posts/1214587200.shtml
"Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name....Kip2008-06-27T17:06+00:00"Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives, and it is a dangerous business for Congress to use the election laws to influence the voters' choices."
--Davis v. Federal Election Commission
They weren't only equal before God and the law. They were equal every which way. Nobody was smarter than anybody else. Nobody was better looking than anybody else. Nobody was stronger or quicker than anybody else. All this equality was due to the 211th, 212th, and 213th Amendments to the Constitution, and to the unceasing vigilance of agents of the United States Handicapper General.
--Kurt Vonnegut, "Harrison Bergeron" (1961)
To review: The Supreme Court, in its schizophrenic campaign finance decision Buckley v. Valeo, 424 U.S. 1 (1976), held that it is constitutionally protected speech to spend money to get yourself elected to public office, but not to get someone else elected to that same public office. So, for example, Michael Bloomberg was able to spend $70 million to run for re-election as mayor of New York, but I was barred by law from donating 0.1% of that to his opponent's campaign.
This created a pesky problem for incumbent politicians: rich people might actually spend money to run against them. Unacceptable. So they enacted, in a patently self-serving maneuver, an exemption from the Bipartisan Campaign Reform Act (BCRA), a/k/a "McCain-Feingold." This exemption, generally called the "Millionaire's Amendment," allowed candidates to exceed McCain-Feingold's limits if their opponents (who, recall from Buckley, can always spend as much of their own money as they want) spent beyond a certain amount.
(My understanding, incidentally, is that the Millionaire's Amendment was forced upon John McCain as a take-it-or-leave-it ultimatum in order to secure enough votes to pass BCRA in the first place.)
Fast-forward to yesterday. The Supreme Court quite rightly struck down the Millionaire's Amendment as a violation of the First Amendment:
We have never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other, and we agree with Davis that this scheme impermissibly burdens his First Amendment right to spend his own money for campaign speech.
...
While BCRA does not impose a cap on a candidate's expenditure of personal funds, it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right. ... [A] candidate who wishes to exercise that right has two choices: abide by a limit on personal expenditures or endure the burden that is placed on that right by the activation of a scheme of discriminatory contribution limits.
In other words, there is no functional difference between forbidding you from spending your own money and "merely" penalizing you for it. Since the government cannot engage in the former, it ought not be able to engage in the latter. Hardly a controversial syllogism.
Meanwhile, since "campaign finance" jurisprudence is First Amendment jurisprudence, strict scrutiny applies: Is the restriction necessary to achieve a compelling government interest? Justice Alito holds no punches:
The burden imposed by §319(a) on the expenditure of personal funds is not justified by any governmental interest in eliminating corruption or the perception of corruption. The Buckley Court reasoned that reliance on personal funds reduces the threat of corruption, and therefore §319(a), by discouraging use of personal funds, disserves the anticorruption interest. [Bold added; underline in original.]
The Court also rejected "leveling the playing field" (i.e., restricting speech to equalize it) as a legitimate government interest. The Court saw the Millionaire's Amendment for what it was: Naked, brazen incumbent entrenchment.
There is a downside to the decision, however:
The advantage that wealthy candidates now enjoy and that §319(a) seeks to reduce is an advantage that flows directly from Buckley's disparate treatment of expenditures and contributions. If that approach is sound — and the Government does not urge us to hold otherwise — it is hard to see how undoing the consequences of that decision can be viewed as a compelling interest.
Translation: There appears to be no interest on the Court — or at least an insufficient number of votes — to revisit Buckley outright. That's unfortunate. (Justice Stevens, meanwhile, would resolve Buckley's schizophrenic holding by going in the "Harrison Bergeron" direction and allowing the government to restrict self-funded campaigns equally with contribution-funded campaigns — i.e., no First Amendment for anyone.)
(The Court also struck down a disclosure requirement associated with the Millionaire's Amendment on similar reasoning.)
The case is Davis v. Federal Election Commission, No. 07–320 (June 26, 2008) (PDF - 39 pages). The Millionaire's Amendment appears as an appendix in the decision. Note that Buckley v. Valeo is on my list of "Worst Supreme Court Cases."
---
Every campaign finance case is opportunity for libertarians to "stand above it all" and sigh with disappointment (disgust?). All sides in the debate seem to agree on one thing: The whole point of the exercise is to combat corruption in politics. Fair enough, and noble enough.
But it is the libertarians, and only the libertarians, who ask the precedent question of why we have so much corruption in politics. The answer is simple: Because government does so much that invites corruption, that caters to corruption and that perpetuates corruption. Things that have nothing to do with the core functions of government — the functions that the Framers did, and most people today do, associate with a free society. Things that are explicitly designed to benefit, not everyone equally or equitably, but some at the expense of others. From earmarks to tax breaks, from nanny statism to nanny subsidies, from oil wells to oil wars.
If the politicians didn't do so much that they were never meant to do, then no one would try to buy them. That would be the best "campaign finance reform" of all.]]>Thoughts on <i>Heller</i>
http://kipesquire.powerblogs.com/posts/1214527395.shtml
"Let's be honest about it. This is an actual, enumerated right in the Constitution."...Kip2008-06-27T00:06+00:00"Let's be honest about it. This is an actual, enumerated right in the Constitution."
--Orrin Hatch
You can get the straight reporting elsewhere. I will stick to items within my sphere of influence.
Two preliminaries:
1. The biggest story was not so much the adoption of the individual rights view of the Second Amendment; that was widely expected. What was surprising was that the Court did not establish a standard of review, nor did it directly address the question of incorporation to the states. More on both below.
2. In my opinion the objective (i.e., non-interpretative) elements of Justice Scalia's opinion -- especially the historical and the linguistic analyses -- are unassailable. He quite frankly cleaned Justice Stevens' clock.
[I]t would be absurd to suggest that, e.g., the First or Fourth Amendments did not guarantee individual rights but rather some contorted "collective right," which is exactly what opponents of the Second Amendment try to do. "The people" means, well, the people! Persons, individuals. Freedom of speech for persons. Freedom from unreasonable searches and seizures for persons. Freedom to bear arms for persons. Not states -- persons!
Justice Scalia writes:
The unamended Constitution and the Bill of Rights use the phrase "right of the people" two other times, in the First Amendment's Assembly-and-Petition Clause and in the Fourth Amendment's Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"). All three of these instances unambiguously refer to individual rights, not "collective" rights, or rights that may be exercised only through participation in some corporate body.
So Justice Scalia is willing, when it suits him, to acknowledge that the Ninth Amendment actually exists? Go figure.
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way.
Oh really? We do not interpret constitutional rights that way? That seems odd coming from Justice Scalia, who repeatedly insists that "of course" state governments can (among many other things): ban abortion, criminalize homosexual sodomy, employ chaplains and execute the incompetent, simply because they had such authority "in the 18th century."
It is true that Justice Scalia has previously been amenable to "modernizing" some rights, as he seems to be here. Kyllo v. U.S., 533 U.S. 27 (2001), is the classic example. I am not accusing him of being inconsistent in that regard. I am merely accusing him of being schizophrenic in his peculiar form of "originalism," since he appears to be amenable to allowing the Constitution to evolve where technology is concerned, but not where morality or societal norms are concerned. I simply don't see why the distinction is robust.
[I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it "shall not be infringed."
True that. But would Justice Scalia be so kind as to explain why one cannot replace the word "Second" with the word "Ninth" without losing any legitimacy? As I said above: "willing, when it suits him."
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons."
Here's that bizarre "technology exception" to Scalian originalism again. The "original meaning" of the Second Amendment can't possibly suggest, Scalia insists, that "arms" only means what it meant in 1791 (e.g., muskets and hunting knives). But Scalia is infamous for insisting that "due process" -- or "establishment of religion" or "cruel and unusual punishment" -- can't possibly mean anything other than what they meant in 1791 (or 1868). I just don't get it.
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding "interest-balancing" approach. The very enumeration of the right takes out of the hands of government -- even the Third Branch of Government -- the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all.
I couldn't agree more. So why do we allow such "case-by-case bases" in matters such as defining "public use" under the Fifth Amendment or "reasonable" under the Fourth Amendment? (Note: I am directing that question into the ether and not to Justice Scalia, who voted correctly on both Kelo and Kyllo.
---
As I mentioned above, two huge questions remain unanswered:
--Incorporation to the states. Tim Sandefur has some interesting thoughts; see also SCOTUSblog. My thoughts are as follows: The two famous exceptions to incorporation (under modern due process jurisprudence) -- the entire Seventh Amendment and the right to a grand jury indictment in the Fifth Amendment -- were both special cases that involved complicated questions that are simply not relevant to the Second Amendment. Footnote 23 of the decision, meanwhile, strongly hints that the pre-modern cases holding against Second Amendment incorporation are no longer good law. Expect incorporation to flow quickly from future litigation.
--Standard of review. I wonder whether the reason no standard was declared was because the five Justices in the majority couldn't agree on one. In any event, I have no doubt that strict scrutiny will not be the standard eventually crafted (the decision already crafts out too many exceptions for strict scrutiny to be the standard). Rational basis, meanwhile, is rejected wholesale in Footnote 27. I hope that something more exacting than mere reasonableness comparable to the Fourth Amendment obtains (or, worse, the de facto absolute deference standard of Kelo). Justice Scalia's dismissal of the "interest-balancing" quoted above is a good sign. Stay tuned...
---
The case is District of Columbia v. Heller, No. 07-290 (June 26, 2008) (PDF - 157 pages)]]>Supreme Court Rules No Death Penalty for Child Rape
http://kipesquire.powerblogs.com/posts/1214440242.shtml
The decision was a pure 4+1 to 4 partisan split, with Justice Kennedy again positioning himself into the controlling vote and thereby serving as the opinion's author....Kip2008-06-26T00:06+00:00
My previous post on the subject here. My thoughts on Justice Kennedy as the "swing vote" here.
Some highlights:
--The "evolving standards of decency" rule for capital punishment analysis continues to guide.
--The death penalty is still not per se unconstitutional.
--The distinction between capital punishment in this case (rape of a child) and Coker v. Georgia, 433 U.S. 584 (1977) (rape of an adult woman) remains robust; today's holding does not flow automatically from Coker, but rather from general Eighth Amendment and capital offense jurisprudence.
--Money quote:
It must be acknowledged that there are moral grounds to question a rule barring capital punishment for a crime against an individual that did not result in death. These facts illustrate the point. Here the victim's fright, the sense of betrayal, and the nature of her injuries caused more prolonged physical and mental suffering than, say, a sudden killing by an unseen assassin. The attack was not just on her but on her childhood.
...
It does not follow, though, that capital punishment is a proportionate penalty for the crime. The constitutional prohibition against excessive or cruel and unusual punishments mandates that the State's power to punish "be exercised within the limits of civilized standards." Evolving standards of decency that mark the progress of a maturing society counsel us to be most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty, a hesitation that has special force where no life was taken in the commission of the crime. It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment.
Wouldn't it be nice, meanwhile, if "respect for the individual" moderated or restrained the application of all criminal law and not just capital punishment? (Compare, e.g., Lawrence v. Texas with the War on Drugs.)
--Interesting:
We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State.
Putting aside the precedent question of whether anything can ever truly be an "offense against the State," I am utterly dumbfounded as to how "drug kingpin activity" ranks on a par with "treason, espionage [and] terrorism." (Note: Justice Alito shares my befuddlement in his dissent.)
--As I and others noted, elevating child rape to a capital offense makes it far more likely that the perpetrator will kill the victim, since there is no logical reason not to. The Court embraced that reasoning:
Assuming the offender behaves in a rational way, as one must to justify the penalty on grounds of deterrence, the penalty in some respects gives less protection, not more, to the victim, who is often the sole witness to the crime. It might be argued that, even if the death penalty results in a marginal increase in the incentive to kill, this is counterbalanced by a marginally increased deterrent to commit the crime at all. Whatever balance the legislature strikes, however, uncertainty on the point makes the argument for the penalty less compelling than for homicide crimes. [Citations omitted.]
--The Alito dissent basically rejects the assertion that there is a national consensus on the issue and blames Coker for instead creating a national confusion on the issue -- one that caused state legislators to give up trying to enact capital punishment for child rape in the first place. He rejects the "they may kill the child argument" as irrelevant to the underlying question of, "Is it cruel or unusual punishment?" He points out that the majority is not "declining to extend the death penalty" but rather "choosing to curtail the death penalty" (i.e., since such a capital crime statute as this had never been found unconstitutional before). Finally:
With respect to the question of the harm caused by the rape of child in relation to the harm caused by murder, it is certainly true that the loss of human life represents a unique harm, but that does not explain why other grievous harms are insufficient to permit a death sentence. And the Court does not take the position that no harm other than the loss of life is sufficient.
---
Bottom line, we still have the death penalty and we still don't have a bright-line rule that it can only be applied to first-degree murder, or even only to homicide generally. I guess we'll have to wait for our national standards of decency to evolve some more.
---
The case is Kennedy v. Louisiana, No. 07–343 (June 25, 2008) (PDF - 65 pages)]]>"Comment Left Elsewhere" of the Day
http://kipesquire.powerblogs.com/posts/1214216117.shtml
(Why aren't you reading this at the new website?)...Kip2008-06-23T10:06+00:00(Why aren't you reading this at the new website?)
---
Professional bigot Maggie Gallagher continues to weave her web of anti-gay lies and illogic:
She said the government regulates such religious authorities' ability to perform marriages because the state didn't create marriage and doesn't create marriages. Rather, legal authorities merely recognize and regulate an institution that already exists and is rooted deeply in the society's history and traditions.
Of course, the ancient Romans and other heathens got married and understood marriage to be a legal status long before there was even such as thing as "Christian" marriage (or Christians, for that matter). In fact, it was the ancient Romans who invented the metallic wedding ring.
Government is in the marriage business because encouraging the best environment for raising and protecting children is a benefit to society at large, Gallagher noted. That's why the institution has special legal privileges and responsibilities attached to it that aren't given to other intimate adult relationships.
"There's a reason the government has always been involved in marriage but not in baptism or my priest's vow of celibacy," Gallagher, who describes herself as an "orthodox Catholic," said. "Marriage is not a sacrament that has only religious implications, like baptism."
Put aside Gallagher's unethical and anti-intellectual regurgitation of the malicious "kid's do best" lie. Note instead the precedent lie, the deliberate (and laughable) suggestion that it was the church that invented "marriage" in the first place. That marriage was originally and always conceived strictly as a religious sacrament. And that it was only after the "social" benefits (including, apparently, coverture and spousal rape) of church-crafted "traditional" marriage were realized that the government then decided — "for the children" — to get in on the act.
A facially absurd thesis contradicted by both ancient and modern history. A purported model that is the exact opposite of current practice. All neatly packaged and peddled to redneck illiterates for the sake of rationalizing their backward beliefs.
---
Oh, sorry, I still owe you a "comment left elsewhere," don't I?
Oddly, I could be persuaded to support this idea. If the government were to allow churches to define marriage and then recognized and enforced those religiously distinctive marriage contracts, gay people could marry in every state of the union and in any nearly every city that had a Unitarian Universalist fellowship, a Quaker meeting, or a United Church of Christ congregation.
To which I commented:
Of course, one could just as easily turn around and say that the government will issue marriage licenses to all, but let the religious groups craft a new, additional and exclusive status just for themselves.
Call it "holy matrimony," "covenant wedding," "sacramental union" or "zoop-de-do." Whatever you like. And they can have it all to themselves. But marriage stays a government institution subject to constitutional standards of equal protection and due process.
Think Gallagher would go for that?
Me neither.
Because when they say it's "all about marriage," they lie. When they say it's "all about the children," they lie. Whenever they insist it's about anything other than un-Christian hatred of others, they lie.]]>Is "Chavez Insurance" A Legitimate Public Good?
http://kipesquire.powerblogs.com/posts/1213961818.shtml
Apparently the federal government thinks so:...Kip2008-06-20T11:06+00:00thinks so:
The Overseas Private Investment Corporation (OPIC) was established in 1969 and began operations in 1971 to promote and assist U.S. business investment in developing nations. OPIC is a U.S. government agency that provides project financing, investment insurance, and other services for U.S. businesses in 154 developing nations and emerging economies.
...
OPIC political risk insurance is available to U.S. citizens, U.S. firms, or to the foreign subsidiaries of U.S. firms[.] This insurance covers three broad areas of political risk: currency inconvertibility, expropriation, and political violence.
Too bad OPIC's expropriation insurance only applies to "developing nations and emerging economies" and not the United States Congress.
Kidding aside, besides the pesky fact that, by definition, no insurance can ever be a public good (private party + private party = private contract; the word "public" is simply not part of the equation), there is already a robust, global, private insurance market for natural catastrophes (except where the government pre-empts it, such as with flood insurance). So why can't there be a similar private market for political catastrophes?
Perhaps the problem is that such a "political catastrophe" insurance market could never be profitable and therefore would never be introduced by the private sector?
Structured like a private corporation, OPIC operates on a self-sustaining basis and has recorded a positive net income for every year of operation, with reserves now totaling more than $3 billion.
The government is profiting from doing business with companies like Exxon? Go figure (literally).
The fact that OPIC can perform this function profitably (though it admittedly does so armed with vast, if thus far unused, borrowing capacity from the Treasury) shows precisely that it should not be a government agency in the first place. It is never, ever, a proper function of government to make a profit. Any service that can be provided profitably can be provided privately. Stated differently, you cannot have "market failure" without the "failure" part. And without market failure, there is no justification for public provision.
It's like the Amtrak Paradox -- its apologists insist that the unprofitable (i.e., unwanted) lines need taxpayer subsidies because private railroads wouldn't offer them, but simultaneously insist that the profitable lines should also receive subsidies precisely because they're so popular. Either-or, just so long as they get their billion, right?
The resolution of the paradox in the case of OPIC, meanwhile, is not hard to deduce:
Much of the rationale for OPIC relates to U.S. foreign policy goals, a premise that is being questioned by Members of Congress in a number of ways.
Obviously. OPIC is not about correcting a market failure but rather about pushing a policy agenda in spite of, not inspired by, market forces. Cf., "ethanol."
Keep in mind also that just because OPIC itself is profitable does not mean it does not have negative side effects:
Economists generally oppose the use of subsidized credits to promote trade or investment abroad. They believe such subsidies tend to distort the flow of capital and resources away from the most efficient uses. They also believe that by promoting investment abroad, OPIC may be crowding out, and thereby reducing, some domestic investment. As long as OPIC's non-federal collections -- or the fees it charges the public for its services -- are sufficient to cover all of its credit and non-credit activities (as indicated by some estimates), it may not have a negative impact on the federal government's budget. OPIC's impact on U.S. capital and resource markets, however, may well be negative due to the distortionary effects of subsidized credits.
But economists are all "elitists" anyway, so who cares what they think, right?]]>Another "Just Testing" Emotional Distress Incident
http://kipesquire.powerblogs.com/posts/1213823295.shtml
For those who were righteously indignant after reading my recent post about an incident involving some California educrats and law enforcement officials maliciously tormenting students by falsely informing them that...Kip2008-06-18T21:06+00:00my recent post about an incident involving some California educrats and law enforcement officials maliciously tormenting students by falsely informing them that their classmates had been killed in DUI accidents ("we want them to be traumatized"), may I offer you a denouement?
An unsuspecting mother was accused by hospital staff taking part in a security exercise of stealing a baby from a ward as she left the building with her new daughter.
Clare Bowker, 37, was confronted by staff as she got into her car outside Good Hope Hospital in Sutton Coldfield, West Midlands [U.K.]. She was asked to accompany them to the maternity unit with Hannah, her seven-week-old baby, and her other daughter Holly, then four, where she was told a baby had been snatched. Mrs Bowker was questioned by police and her bag searched to verify her identity.
...
A distressed Mrs Bowker was allowed to leave the hospital after 40 minutes, still believing the situation was real.
...
The Good Hope Hospital Trust has agreed to pay her undisclosed compensation, believed to be a five-figure sum, to cover her suffering and loss of earnings.
It would tempting to simply observe, without elaboration, that this was a British socialized medicine facility and be done with it. But correlation does not imply causation. It's also not clear why the December 2005 incident is only being reported now. One should also note that the hospital in question is now managed by a different NHS trust that insists it was simply a case of mistaken identity (i.e., they thought the mother was a willing participant in the exercise). As if the difference between "intentional" and "negligent" were equivalent to the difference between "reasonable" and "outrageous."
Meanwhile, and more akin to the DUI hoax: Is it fair to the staff (the target of the ruse) to stage such exercises, even when executed as planned (i.e., without cases of mistaken identity)? When my employer runs a fire drill, we're told it's a fire drill, not a fire. Why traumatize the staff by lying about a baby-snatching -- is the added panic-induced adrenaline (not to mention tears) somehow helpful?
(And does the expression "boy who cried wolf" mean anything to these bureaucrats?)
One tangential observation that I also take away from these incidents is the fallacy that local decision-making tends to be better. Utter nonsense. Local authorities are far more likely to make decisions in a vacuum and to be staffed with incompetents (because the less-incompetent have moved on to higher positions).
Moreover, the smaller the group, the easier it becomes for a potentially tyrannical majority to arise within the group (e.g., it is far easier for a theocrat to insist that "this is a Christian town" than "this is a Christian nation"). Better for the sheep to be a minority in the zoo generally than in the wolf den specifically.
In any case, let's hope that such incidents of idiocy remain isolated and newsworthy rather than business as usual.
(Via Socialized Medicine.)]]>Another "Just Testing" Emotional Distress Incident
http://kipesquire.powerblogs.com/posts/1213823295.shtml
For those who were righteously indignant after reading my recent post about an incident involving some California educrats and law enforcement officials maliciously tormenting students by falsely informing them that...Kip2008-06-18T21:06+00:00my recent post about an incident involving some California educrats and law enforcement officials maliciously tormenting students by falsely informing them that their classmates had been killed in DUI accidents ("we want them to be traumatized"), may I offer you a denouement?
An unsuspecting mother was accused by hospital staff taking part in a security exercise of stealing a baby from a ward as she left the building with her new daughter.
Clare Bowker, 37, was confronted by staff as she got into her car outside Good Hope Hospital in Sutton Coldfield, West Midlands [U.K.]. She was asked to accompany them to the maternity unit with Hannah, her seven-week-old baby, and her other daughter Holly, then four, where she was told a baby had been snatched. Mrs Bowker was questioned by police and her bag searched to verify her identity.
...
A distressed Mrs Bowker was allowed to leave the hospital after 40 minutes, still believing the situation was real.
...
The Good Hope Hospital Trust has agreed to pay her undisclosed compensation, believed to be a five-figure sum, to cover her suffering and loss of earnings.
It would tempting to simply observe, without elaboration, that this was a British socialized medicine facility and be done with it. But correlation does not imply causation. It's also not clear why the December 2005 incident is only being reported now. One should also note that the hospital in question is now managed by a different NHS trust that insists it was simply a case of mistaken identity (i.e., they thought the mother was a willing participant in the exercise). As if the difference between "intentional" and "negligent" were equivalent to the difference between "reasonable" and "outrageous."
Meanwhile, and more akin to the DUI hoax: Is it fair to the staff (the target of the ruse) to stage such exercises, even when executed as planned (i.e., without cases of mistaken identity)? When my employer runs a fire drill, we're told it's a fire drill, not a fire. Why traumatize the staff by lying about a baby-snatching -- is the added panic-induced adrenaline (not to mention tears) somehow helpful?
(And does the expression "boy who cried wolf" mean anything to these bureaucrats?)
One tangential observation that I also take away from these incidents is the fallacy that local decision-making tends to be better. Utter nonsense. Local authorities are far more likely to make decisions in a vacuum and to be staffed with incompetents (because the less-incompetent have moved on to higher positions).
Moreover, the smaller the group, the easier it becomes for a potentially tyrannical majority to arise within the group (e.g., it is far easier for a theocrat to insist that "this is a Christian town" than "this is a Christian nation"). Better for the sheep to be a minority in the zoo generally than in the wolf den specifically.
In any case, let's hope that such incidents of idiocy remain isolated and newsworthy rather than business as usual.
(Via Socialized Medicine.)]]>On the "AP versus Bloggers" Kerfuffle
http://kipesquire.powerblogs.com/posts/1213657456.shtml
It's quite simple really: If the Associated Press wants me never to link to their material, then I'm more than willing to oblige. I have other options....Kip2008-06-16T23:06+00:00link to their material, then I'm more than willing to oblige. I have other options.
But I never link directly to AP anyway. I link to sites that may or not be using AP material. So if, for example, I link to the Deseret News, then I will only acknowledge requests or demands from the Deseret News. I do not recognize AP's standing to ask or demand anything from me one way or the other.
And I wouldn't have bothered pointing that out, or blogging about this story in any way, until I saw this:
[An A.P. executive] said the company was going to meet with representatives of the Media Bloggers Association, a trade group, and others.
Maybe the AP should do some investigative journalism about that.
(Via The Crossed Pond.)]]>The Supreme Court and the Dueling Senators
http://kipesquire.powerblogs.com/posts/1213455741.shtml
If you didn't already know (and you probably do), would you be able to match the senator with the quote?...Kip2008-06-14T15:06+00:00
One recent quote:
It is one of the worst decisions in the history of this country. Our first obligation is the safety and security of this nation and the men and women who defend it. This decision will harm our ability to do that. ... I argue against it and will do what I can to at least narrow down some of the wide open aspects of this Supreme Court decision.
Another recent quote:
Congress has passed laws to protect Americans in these areas, but in case after case, the Supreme Court has ignored the intent of Congress in passing these measures, oftentimes turning these laws on their heads[.]
One quote was of course from Republican John McCain prattling about that pesky Suspension Clause; the other was from Democrat Pat Leahy prattling about that pesky Supremacy Clause.
And both were, of course, also prattling about those pesky "judicial activists" on the Supreme Court.
Consistent, Constitution-respecting, freedom-celebrating jurisprudence is non-partisan. Inconsistent, Constitution-trampling, freedom-infringing jurisprudence is bipartisan. Note the subtle, but all-important, distinction: "Non-partisan" is not the same as "bipartisan."
The only reality-based definition of "activist judge" is "a judge who disagrees with me." It's also the most mockworthy definition.]]>The Supreme Court and the Dueling Senators
http://kipesquire.powerblogs.com/posts/1213455741.shtml
If you didn't already know (and you probably do), would you be able to match the senator with the quote?...Kip2008-06-14T15:06+00:00
One recent quote:
It is one of the worst decisions in the history of this country. Our first obligation is the safety and security of this nation and the men and women who defend it. This decision will harm our ability to do that. ... I argue against it and will do what I can to at least narrow down some of the wide open aspects of this Supreme Court decision.
Another recent quote:
Congress has passed laws to protect Americans in these areas, but in case after case, the Supreme Court has ignored the intent of Congress in passing these measures, oftentimes turning these laws on their heads[.]
One quote was of course from Republican John McCain prattling about that pesky Suspension Clause; the other was from Democrat Pat Leahy prattling about that pesky Supremacy Clause.
And both were, of course, also prattling about those pesky "judicial activists" on the Supreme Court.
Consistent, Constitution-respecting, freedom-celebrating jurisprudence is non-partisan. Inconsistent, Constitution-trampling, freedom-infringing jurisprudence is bipartisan. Note the subtle, but all-important, distinction: "Non-partisan" is not the same as "bipartisan."
The only reality-based definition of "activist judge" is "a judge who disagrees with me." It's also the most mockworthy definition.]]>The Supreme Court and the Dueling Senators
http://kipesquire.powerblogs.com/posts/1213455741.shtml
If you didn't already know (and you probably do), would you be able to match the senator with the quote?...Kip2008-06-14T15:06+00:00
One recent quote:
It is one of the worst decisions in the history of this country. Our first obligation is the safety and security of this nation and the men and women who defend it. This decision will harm our ability to do that. ... I argue against it and will do what I can to at least narrow down some of the wide open aspects of this Supreme Court decision.
Another recent quote:
Congress has passed laws to protect Americans in these areas, but in case after case, the Supreme Court has ignored the intent of Congress in passing these measures, oftentimes turning these laws on their heads[.]
One quote was of course from Republican John McCain prattling about that pesky Suspension Clause; the other was from Democrat Pat Leahy prattling about that pesky Supremacy Clause.
And both were, of course, also prattling about those pesky "judicial activists" on the Supreme Court.
Consistent, Constitution-respecting, freedom-celebrating jurisprudence is non-partisan. Inconsistent, Constitution-trampling, freedom-infringing jurisprudence is bipartisan. Note the subtle, but all-important, distinction: "Non-partisan" is not the same as "bipartisan."
The only reality-based definition of "activist judge" is "a judge who disagrees with me." It's also the most mockworthy definition.]]>A New Kind of "Schoolhouse Gate" Infringement
http://kipesquire.powerblogs.com/posts/1213412495.shtml
"The knowledge that loved ones are safe and whole is the deepest wellspring of emotional welfare ... No loss is greater than the loss of a loved one, and no tragedy...Kip2008-06-14T14:06+00:00"The knowledge that loved ones are safe and whole is the deepest wellspring of emotional welfare ... No loss is greater than the loss of a loved one, and no tragedy is more wrenching than the helpless apprehension of the death or serious injury of one whose very existence is a precious treasure. The law should find more than pity for one who is stricken by seeing that a loved one has been critically injured or killed."
--Portee v. Jaffee, 417 A.2d 521 (N.J., 1980) (landmark emotional distress case)
When we invoke the famous judicial quote that "children do not shed their rights at the schoolhouse gate," we generally mean their constitutional rights — freedom of speech, freedom of and from religion, freedom from unreasonable searches, etc.
But we should also step back every so often and recall that there are other rights, more basic rights, that schoolchildren, like adults, maintain besides "higher" constitutional rights. The right not to be physically assaulted by a teacher, for example, or the right not be sexually molested by a principal.
On a Monday morning last month, [California] highway patrol officers visited 20 classrooms at El Camino High School to announce some horrible news: Several students had been killed in car wrecks over the weekend.
Classmates wept. Some became hysterical.
A few hours and many tears later, though, the pain turned to fury when the teenagers learned that it was all a hoax, a scared-straight exercise designed by school officials to dramatize the consequences of drinking and driving.
...
"They were traumatized, but we wanted them to be traumatized," said guidance counselor Lori Tauber, who helped organize the shocking exercise and got dozens of students to participate.
Could you imagine if, instead of the students, this "exercise" were performed on their parents — with the highway patrol ringing doorbells at 3am to "inform" them that their children had been killed in DUI accidents, only to disclose later that no, it was all just a hoax meant to inform them of the importance of talking to their children about drinking and driving?
From a legal standpoint, there is no legitimate difference.
I can't speak to the specifics of California law, but under the common law even negligently misinforming someone that a loved one has died can be an actionable "emotional distress" tort. Intentionally doing so would unarguably also warrant liability — including punitive damages. See generally, Restatement (Second) of Torts, Section 46.
And let's keep in mind that "I meant well" is never a defense to anything. The single best "good deed" a moron can perform is to accept the fact that he is indeed a moron, and restrict his "urge to act" accordingly.
Stepping back from tort law: How do hopeless reprobates like this disturbed, masochistic guidance counselor and her co-conspirator teachers: (a) get on public school faculties in the first place, and (b) get free rein to psychologically experiment on students without (presumably — the article is unclear) any authorization or supervision from senior administrators (or, for that matter, the parents — who probably could not give valid consent anyway)?
And, as I often ask whenever local hack politicians and bureaucrats go off-leash: aren't there any lawyers on the public payroll, who could be consulted as to the potential blow-back (in terms of liability or unconstitutionality) from "innovative" programs that, golly gee, seemed like such a smart idea at the time?
In any event, it's quite — well, "distressing" — to see the schoolhouse gate turned into the asylum cell.
(Via Freespace.)]]>"I Know It When I See It" Quote of the Day
http://kipesquire.powerblogs.com/posts/1213412027.shtml
"There are two Lady Godivas, two women on horses with no shirt on and long hair."...Kip2008-06-14T02:06+00:00"There are two Lady Godivas, two women on horses with no shirt on and long hair."
--Republican delegate Robert Hurt of Texas
Actually, they are classical sculptures about war — one called Valor, depicting a male equestrian and a female with a shield, and Sacrifice, a female accompanying the rider Mars.
The statutes — on the Arlington Memorial Bridge in Washington — are apparently of great concern to Mr. Hurt:
Of all the evils in Washington that the Texas GOP took aim at this week, removing art with naked people from public view was high on the list for Mr. Hurt, a delegate from Kerrville.
...
Mr. Hurt offered statistics: He'd heard that 20 percent of the art in the National Gallery of Art is of nudes.
...
Ridding Washington of naked art didn't make [the GOP platform].
Neither, apparently, did banning the Bible — which has far more sex (not to mention rape and incest) than the Arlington Memorial Bridge. Go figure.
So what did make it into the Republican platform?
In this, a presidential year, it advocates prayer in school[,] teaching intelligent design with evolution in science classes [and] calls homosexuality contrary to "the unchanging truths" ordained by God. It opposes gay marriage, civil unions and the custody of children by gays.
And John McCain will come riding in, like Valor atop his steed, to take up this proud conservative banner into political combat, right?
There's a call to repeal the McCain-Feingold campaign finance law, sponsored by the party's presidential nominee[.]
Ouch. Anyone know of any comparable divergence between the Democratic platform and Obama's record or stated agenda?
]]>The Constitution "Cannot Be Contracted Away Like This"
http://kipesquire.powerblogs.com/posts/1213303388.shtml
As President, John McCain will take it as his most sacred responsibility to keep America free, safe, and strong -- an abiding beacon of freedom and hope to the world....Kip2008-06-12T20:06+00:00As President, John McCain will take it as his most sacred responsibility to keep America free, safe, and strong -- an abiding beacon of freedom and hope to the world.
--McCain campaign website
The creation of crimes after the commission of the fact ... and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.
--Federalist #84
To claim that Guantanamo, with all its military accoutrements -- its guns, cells, guns, barbed-wire fences, guns, guard dogs, guns, etc. -- is not "United States territory" is such a joke as to bring into doubt the competence of the judges concluding as much. It boggles the mind.
The Supreme Court ruled:
The United States has maintained complete and uninterrupted control of the bay for over 100 years. ... Yet the Government's view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint. Our basic charter cannot be contracted away like this.
In a famous case, the Supreme Court once declared that the Fourth Amendment "protects people, not places." Today the Court made the uncontroversial observation that, at least to some extent, so too does the Suspension Clause. May all the Constitution one day be given likewise deference.
If you are a textualist (like me), then the [MCA's] revocation of habeas corpus is patently unconstitutional[.] No amount of sophistry can change the fact that we do not currently face "rebellion or invasion." Even 9/11 was not an "invasion." The Wars in Iraq and Afghanistan are not "invasions." This is not a difficult concept.
The Court ruled:
Historically, Congress has taken care to avoid suspensions of the writ. ... In contrast, Congress intended the DTA and the MCA to circumscribe habeas review, as is evident from the unequivocal nature of MCA §7's jurisdiction-stripping language, from the DTA's text limiting the Court of Appeals' jurisdiction to assessing whether the CSRT complied with the "standards and procedures specified by the Secretary of Defense," ... and from the absence of a saving clause in either Act.
Congress tried to pretend that it didn't really suspend habeas corpus when it passed the Military Commissions Act and the Detainee Treatment Act. Today the Court made the uncontroversial observation that of course Congress suspended habeas corpus when it passed the MCA -- thanks in large part to John McCain, who conned the Senate, and the American people, into thinking that he was somehow defending the Geneva Conventions when in fact he was gleefully capitulating to the Bush Administration and embracing the law's most draconian provisions:
It immunizes government officials for past war crimes; it cuts the United States off from its obligations under the Geneva Conventions; and it all but eliminates access to civilian courts for non-citizens -- including permanent residents whose children are citizens -- that the government, in its nearly unreviewable discretion, determines to be unlawful enemy combatants.
That last part was the topic of today's monumental ruling.
And, in case you forgot, John McCain sponsored the Detainee Treatment Act himself, complete with its unconstitutional suspension of habeas corpus.
It will be interesting to see how the "straight-talking maverick" tries to spin the Court's decision, which is as much a repudiation of his dangerous theory of constitutional war powers as of President Bush's.
The case is Boumediene v. Bush, No. 06-1195 (June 12, 2008) (PDF - 134 pages). Timeline of the Guantanamo cases here.]]>The Constitution "Cannot Be Contracted Away Like This"
http://kipesquire.powerblogs.com/posts/1213303388.shtml
As President, John McCain will take it as his most sacred responsibility to keep America free, safe, and strong -- an abiding beacon of freedom and hope to the world....Kip2008-06-12T20:06+00:00As President, John McCain will take it as his most sacred responsibility to keep America free, safe, and strong -- an abiding beacon of freedom and hope to the world.
--McCain campaign website
The creation of crimes after the commission of the fact ... and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.
--Federalist #84
To claim that Guantanamo, with all its military accoutrements -- its guns, cells, guns, barbed-wire fences, guns, guard dogs, guns, etc. -- is not "United States territory" is such a joke as to bring into doubt the competence of the judges concluding as much. It boggles the mind.
The Supreme Court ruled:
The United States has maintained complete and uninterrupted control of the bay for over 100 years. ... Yet the Government's view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint. Our basic charter cannot be contracted away like this.
In a famous case, the Supreme Court once declared that the Fourth Amendment "protects people, not places." Today the Court made the uncontroversial observation that, at least to some extent, so too does the Suspension Clause. May all the Constitution one day be given likewise deference.
If you are a textualist (like me), then the [MCA's] revocation of habeas corpus is patently unconstitutional[.] No amount of sophistry can change the fact that we do not currently face "rebellion or invasion." Even 9/11 was not an "invasion." The Wars in Iraq and Afghanistan are not "invasions." This is not a difficult concept.
The Court ruled:
Historically, Congress has taken care to avoid suspensions of the writ. ... In contrast, Congress intended the DTA and the MCA to circumscribe habeas review, as is evident from the unequivocal nature of MCA §7's jurisdiction-stripping language, from the DTA's text limiting the Court of Appeals' jurisdiction to assessing whether the CSRT complied with the "standards and procedures specified by the Secretary of Defense," ... and from the absence of a saving clause in either Act.
Congress tried to pretend that it didn't really suspend habeas corpus when it passed the Military Commissions Act and the Detainee Treatment Act. Today the Court made the uncontroversial observation that of course Congress suspended habeas corpus when it passed the MCA -- thanks in large part to John McCain, who conned the Senate, and the American people, into thinking that he was somehow defending the Geneva Conventions when in fact he was gleefully capitulating to the Bush Administration and embracing the law's most draconian provisions:
It immunizes government officials for past war crimes; it cuts the United States off from its obligations under the Geneva Conventions; and it all but eliminates access to civilian courts for non-citizens -- including permanent residents whose children are citizens -- that the government, in its nearly unreviewable discretion, determines to be unlawful enemy combatants.
That last part was the topic of today's monumental ruling.
And, in case you forgot, John McCain sponsored the Detainee Treatment Act himself, complete with its unconstitutional suspension of habeas corpus.
It will be interesting to see how the "straight-talking maverick" tries to spin the Court's decision, which is as much a repudiation of his dangerous theory of constitutional war powers as of President Bush's.
The case is Boumediene v. Bush, No. 06-1195 (June 12, 2008) (PDF - 134 pages). Timeline of the Guantanamo cases here.]]>The Constitution "Cannot Be Contracted Away Like This"
http://kipesquire.powerblogs.com/posts/1213303388.shtml
As President, John McCain will take it as his most sacred responsibility to keep America free, safe, and strong -- an abiding beacon of freedom and hope to the world....Kip2008-06-12T20:06+00:00As President, John McCain will take it as his most sacred responsibility to keep America free, safe, and strong -- an abiding beacon of freedom and hope to the world.
--McCain campaign website
The creation of crimes after the commission of the fact ... and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.
--Federalist #84
To claim that Guantanamo, with all its military accoutrements -- its guns, cells, guns, barbed-wire fences, guns, guard dogs, guns, etc. -- is not "United States territory" is such a joke as to bring into doubt the competence of the judges concluding as much. It boggles the mind.
The Supreme Court ruled:
The United States has maintained complete and uninterrupted control of the bay for over 100 years. ... Yet the Government's view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint. Our basic charter cannot be contracted away like this.
In a famous case, the Supreme Court once declared that the Fourth Amendment "protects people, not places." Today the Court made the uncontroversial observation that, at least to some extent, so too does the Suspension Clause. May all the Constitution one day be given likewise deference.
If you are a textualist (like me), then the [MCA's] revocation of habeas corpus is patently unconstitutional[.] No amount of sophistry can change the fact that we do not currently face "rebellion or invasion." Even 9/11 was not an "invasion." The Wars in Iraq and Afghanistan are not "invasions." This is not a difficult concept.
The Court ruled:
Historically, Congress has taken care to avoid suspensions of the writ. ... In contrast, Congress intended the DTA and the MCA to circumscribe habeas review, as is evident from the unequivocal nature of MCA §7's jurisdiction-stripping language, from the DTA's text limiting the Court of Appeals' jurisdiction to assessing whether the CSRT complied with the "standards and procedures specified by the Secretary of Defense," ... and from the absence of a saving clause in either Act.
Congress tried to pretend that it didn't really suspend habeas corpus when it passed the Military Commissions Act and the Detainee Treatment Act. Today the Court made the uncontroversial observation that of course Congress suspended habeas corpus when it passed the MCA -- thanks in large part to John McCain, who conned the Senate, and the American people, into thinking that he was somehow defending the Geneva Conventions when in fact he was gleefully capitulating to the Bush Administration and embracing the law's most draconian provisions:
It immunizes government officials for past war crimes; it cuts the United States off from its obligations under the Geneva Conventions; and it all but eliminates access to civilian courts for non-citizens -- including permanent residents whose children are citizens -- that the government, in its nearly unreviewable discretion, determines to be unlawful enemy combatants.
That last part was the topic of today's monumental ruling.
And, in case you forgot, John McCain sponsored the Detainee Treatment Act himself, complete with its unconstitutional suspension of habeas corpus.
It will be interesting to see how the "straight-talking maverick" tries to spin the Court's decision, which is as much a repudiation of his dangerous theory of constitutional war powers as of President Bush's.
The case is Boumediene v. Bush, No. 06-1195 (June 12, 2008) (PDF - 134 pages). Timeline of the Guantanamo cases here.]]>The Constitution "Cannot Be Contracted Away Like This"
http://kipesquire.powerblogs.com/posts/1213303388.shtml
As President, John McCain will take it as his most sacred responsibility to keep America free, safe, and strong -- an abiding beacon of freedom and hope to the world....Kip2008-06-12T20:06+00:00As President, John McCain will take it as his most sacred responsibility to keep America free, safe, and strong -- an abiding beacon of freedom and hope to the world.
--McCain campaign website
The creation of crimes after the commission of the fact ... and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.
--Federalist #84
To claim that Guantanamo, with all its military accoutrements -- its guns, cells, guns, barbed-wire fences, guns, guard dogs, guns, etc. -- is not "United States territory" is such a joke as to bring into doubt the competence of the judges concluding as much. It boggles the mind.
The Supreme Court ruled:
The United States has maintained complete and uninterrupted control of the bay for over 100 years. ... Yet the Government's view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint. Our basic charter cannot be contracted away like this.
In a famous case, the Supreme Court once declared that the Fourth Amendment "protects people, not places." Today the Court made the uncontroversial observation that, at least to some extent, so too does the Suspension Clause. May all the Constitution one day be given likewise deference.
If you are a textualist (like me), then the [MCA's] revocation of habeas corpus is patently unconstitutional[.] No amount of sophistry can change the fact that we do not currently face "rebellion or invasion." Even 9/11 was not an "invasion." The Wars in Iraq and Afghanistan are not "invasions." This is not a difficult concept.
The Court ruled:
Historically, Congress has taken care to avoid suspensions of the writ. ... In contrast, Congress intended the DTA and the MCA to circumscribe habeas review, as is evident from the unequivocal nature of MCA §7's jurisdiction-stripping language, from the DTA's text limiting the Court of Appeals' jurisdiction to assessing whether the CSRT complied with the "standards and procedures specified by the Secretary of Defense," ... and from the absence of a saving clause in either Act.
Congress tried to pretend that it didn't really suspend habeas corpus when it passed the Military Commissions Act and the Detainee Treatment Act. Today the Court made the uncontroversial observation that of course Congress suspended habeas corpus when it passed the MCA -- thanks in large part to John McCain, who conned the Senate, and the American people, into thinking that he was somehow defending the Geneva Conventions when in fact he was gleefully capitulating to the Bush Administration and embracing the law's most draconian provisions:
It immunizes government officials for past war crimes; it cuts the United States off from its obligations under the Geneva Conventions; and it all but eliminates access to civilian courts for non-citizens -- including permanent residents whose children are citizens -- that the government, in its nearly unreviewable discretion, determines to be unlawful enemy combatants.
That last part was the topic of today's monumental ruling.
And, in case you forgot, John McCain sponsored the Detainee Treatment Act himself, complete with its unconstitutional suspension of habeas corpus.
It will be interesting to see how the "straight-talking maverick" tries to spin the Court's decision, which is as much a repudiation of his dangerous theory of constitutional war powers as of President Bush's.
The case is Boumediene v. Bush, No. 06-1195 (June 12, 2008) (PDF - 134 pages). Timeline of the Guantanamo cases here.]]>
