Modern political discourse

It is easy to dismiss people who disagree with you as unreasonable, hateful bigots. All you have to do is ignore the rational arguments that they use to support their positions. Once having dismissed them as unreasonable, hateful bigots, one is obviously under no obligation to actually address their arguments...

Decision Day

Sometime shortly after 10:00 this morning, the Supreme Court will announce its decision on the constitutionality of ObamaCare. Here's Amy Howe's preview at the SCOTUSblog. Lyle Denniston has a reader's guide. And they will be live-streaming commentary as the time approaches. Obviously, I've already made my decision, long ago. I'm cautiously optimistic that the mandate goes out, at least, but since I so profoundly desire that, I can't be sure whether or not that optimism is based on wishful thinking. But by 11:00 this morning, we will either still live a nation of limited and enumerated powers, or we'll live in a country in which there are no practical limits to Congress' authority.

Is today the day?

This has got to be the week that the "Obamacare" decision comes down. Does it come down today?

SCOTUSblog will be live-blogging the results...

Around the web

A few pieces of collected commentary on the President's constitutional commentary of the other day, from people who know more than I...

Thom Lambert:

Imagine if you picked up your morning paper to read that one of your astronomy professors had publicly questioned whether the earth, in fact, revolves around the sun. Or suppose that one of your economics professors was quoted as saying that consumers would purchase more gasoline if the price would simply rise. Or maybe your high school math teacher was publicly insisting that 2 + 2 = 5. You’d be a little embarrassed, right? You’d worry that your colleagues and friends might begin to question your astronomical, economic, or mathematical literacy.

Now you know how I felt this morning when I read in the Wall Street Journal that my own constitutional law professor had stated that it would be “an unprecedented, extraordinary step” for the Supreme Court to “overturn[] a law [i.e., the Affordable Care Act] that was passed by a strong majority of a democratically elected Congress.” Putting aside the “strong majority” nonsense (the deeply unpopular Affordable Care Act got through the Senate with the minimum number of votes needed to survive a filibuster and passed 219-212 in the House), saying that it would be “unprecedented” and “extraordinary” for the Supreme Court to strike down a law that violates the Constitution is like saying that Kansas City is the capital of Kansas.

Steven Hayward

I’ve been growing weary of hearing people mention that he’s a “constitutional scholar,” since he never published a single thing on the subject either as editor of the Harvard Law Review or as a member of the faculty at the University of Chicago Law School.  But hey—he taught constitutional law, didn’t he?

Not really.

John Hinderaker

Yesterday Barack Obama launched an attack on the Supreme Court that bordered on the bizarre…

Putting aside the fact that Obamacare passed with anything but a “strong majority” of Congress, the concept of judicial review has been established for over 200 years; for a president not to understand this displays shocking ignorance. Not to mention the fact that most of the liberals’ favorite Supreme Court decisions involved overturning laws that were enacted by democratically elected Congresses or legislatures, e.g., Roe v. Wade, Lawrence v. Texas and many more.

Aaron Worthing

The point is that it is fundamentally dishonest for a liberal to complain about judicial activism.  That’s not to say that true judicial activism isn't a problem.  After all, suppose that secretly behind closed doors the outcome of Bush v. Gore was really about which candidate they preferred?  Then that is a problem, isn’t it?  I mean every justice, as an American citizen, has a right to vote for President, but this would give their vote infinitely more power than any ordinary citizen, if they choose election law cases based on who they want to win.  So much for one person, one vote, right?  I don’t think that is what they did, but I would be the first to denounce it if that is what I believed.

And put aside the reality behind Bush v. Gore, the case also shows how inherently dangerous it is to have a large portion of the population believe that the Supreme Court is more or less corrupt.  I mean that is what activism is, really: corruption.  It is justices disregarding their oaths of office and exercising power not granted to them.  And the problem is that when many people believe that the Supreme Court is corrupt, that they let their politics rather than the law guide their decisions, then it means that we have no neutral umpire in our government.  There is no neutral party that the other branches can go to for fair arbitration. 

James Taranto

We were half-joking yesterday when we asked if Barack Obama slept through his Harvard Law class on Marbury v. Madison, the 1803 case in which the U.S. Supreme Court first asserted its power to strike down unconstitutional laws. It turns out it's no joke: The president is stunningly ignorant about constitutional law.

Quite a performance...

Yesterday, at a Joint Press Conference with the President of Mexico and the Prime Minister of Canada, President Obama was asked about the arguments at the Supreme Court over the constitutionality of Obamacare. While acknowledging that politicians make political statements, there's a lot to dislike in this one...

Thank you, Mr. President. After last week’s arguments at the Supreme Court, many experts believe that there could be a majority, a five-member majority, to strike down the individual mandate. And if that were to happen, if it were to be ruled unconstitutional, how would you still guarantee health care to the uninsured and those Americans who've become insured as a result of the law?

It's hardly worth mentioning the unstated assumptions of the question, that it's the responsibility of the President to "guarantee health care to the uninsured."

PRESIDENT OBAMA: With respect to health care, I’m actually -- continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there,

There is no precedent. Congress has never before passed a law requiring any citizen to purchase a specific product, or to specifically engage in any specific economic activity. There is certainly no Supreme Court precedent establishing that as a Federal power.

it’s constitutional. That's not just my opinion, by the way; that's the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn’t even a close case.

Logical fallacy - Argument from authority. And ignores the appellate court justices who have already ruled that it is unconstitutional. When the authorities are split, the argument from authority is a particularly weak fallacy.

I think it’s important -- because I watched some of the commentary last week -- to remind people that this is not an abstract argument. People’s lives are affected by the lack of availability of health care, the inaffordability of health care, their inability to get health care because of preexisting conditions.

Not germane to the question of constitutionality. Nor is it responsive to the actual question, "how would you still..."

The law that's already in place has already given 2.5 million young people health care that wouldn’t otherwise have it.

Not germane to the question of constitutionality. Nor is it responsive to the actual question, "how would you still..."

There are tens of thousands of adults with preexisting conditions who have health care right now because of this law.

Not germane to the question of constitutionality. Nor is it responsive to the actual question, "how would you still..."

Parents don't have to worry about their children not being able to get health care because they can't be prevented from getting health care as a consequence of a preexisting condition.

Not germane to the question of constitutionality. Nor is it responsive to the actual question, "how would you still..."

That's part of this law.

Millions of seniors are paying less for prescription drugs because of this law.

Not germane to the question of constitutionality. Nor is it responsive to the actual question, "how would you still..."

Americans all across the country have greater rights and protections with respect to their insurance companies and are getting preventive care because of this law.

Not germane to the question of constitutionality. Nor is it responsive to the actual question, "how would you still..."

So that’s just the part that's already been implemented. That doesn’t even speak to the 30 million people who stand to gain coverage once it’s fully implemented in 2014.

Not germane to the question of constitutionality. Nor is it responsive to the actual question, "how would you still..."

And I think it’s important, and I think the American people understand, and the I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care. So there’s not only a economic element to this, and a legal element to this, but there’s a human element to this. And I hope that’s not forgotten in this political debate.

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented,

False statement. There are many precedents for the Supreme Court to declare laws unconstitutional.

extraordinary

That's what the Supreme Court does, and has ever since Marbury v. Madison. It would, therefore, be very ordinary.

step of overturning a law that was passed by a strong majority

I’d contest that description – it took a byzantine process of extraordinary compulsion to pass the Senate with 0 Republican votes and no margin, and a byzantine process of extraordinary compulsion to pass the House by 6 votes.

of a democratically elected Congress.

Irrelevant. Congress is always "democratically elected." That does nothing to forward the case that this law is constitutional. All unconstitutional laws are enacted by "democratically elected Congresses."

And I'd just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint -- that an unelected group of people

Ad hominem attack on their legitimacy. The Supreme Courts that passed Brown vs. Board of Education and Roe vs. Wade were also unelected. Does anyone think that this President considers those decisions illegitimate?

This is extremely inappropriate. He was elected President, not emperor, not king. He doesn't get his way just because he wants it. This is how the system works - the Congress enacts laws, the President, if he chooses, signs them, and the Court, as the third co-equal branch of government, may decide that they aren't constitutional.

would somehow overturn a duly constituted and passed law

Which is their job to do, and they’ve done many times over the past 200 years. And every law that they've overturned, every one of them, was "duly constituted and passed" - if it weren't, it wouldn't get to the Supreme Court.

Well, this is a good example. And I’m pretty confident

If he were really that confident, would he be pre-emptively attacking the credibility and legitimacy of the Court?

that this Court will recognize that and not take that step.

Q You say it's not an abstract conversation. Do you have contingency plans?

PRESIDENT OBAMA: I'm sorry. As I said, we are confident that this will be over -- that this will be upheld. I’m confident that this will be upheld because it should be upheld. And, again, that’s not just my opinion; that’s the opinion of a whole lot of constitutional law professors and academics and judges and lawyers who have examined this law,

Logical fallacy - Argument from authority. Which fails even on its own terms, because there are also "a whole lot of constitutional law professors and academics and judges and lawyers" who think that it's not constitutional.

even if they're not particularly sympathetic to this particular piece of legislation or my presidency.

I know - it's a political statement, not an argument. But does he have to be that disingenuous, that dishonest, all the time?

The bad guys win, and that's ... good...

This is what it means to have a nation of laws, not men¹. A nation in which the rules protect even those who espouse different viewpoints. There may not be a more unlikeable, loathsome group than Fred Phelps and his "flock" at the Westboro (KA) Baptist (not really, because Baptists are Christians and these people aren't) (not-really-a) Church but free speech is free speech. As the SCOTUS ruled...

The First Amendment protects hateful protests at military funerals, the Supreme Court ruled on Wednesday in an 8-to-1 decision.

“Speech is powerful,” Chief Justice John G. Roberts Jr. wrote for the majority. “It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain.”

But under the First Amendment, he went on, “we cannot react to that pain by punishing the speaker.” Instead, the national commitment to free speech, he said, requires protection of “even hurtful speech on public issues to ensure that we do not stifle public debate.”

If the first amendment doesn't serve to protect unpopular (in this case, utterly loathsome) speech from unpopular (despicable, heinous, irresponsible, vile) people, then it really doesn't serve much of a purpose. There's no cost to protecting, or even need to protect, popular speech. The Fred Phelps traveling road show is obviously an abomination, but as long as it sticks to speech, it's a constitutionally protected abomination. The court got this one right, even if no one likes this outcome.


¹ - A title that we, unfortunately, far too seldom live up to.

Kagan’s Abortion Distortion

Kagan’s Abortion Distortion - Shannen W. Coffin - National Review Online
Is this a "smoking gun"? Even if it is, does it matter with 59 Democratic Senators?

Court Overrules Racist Legislation - Democrats and Liberals Enraged

OK, that's not exactly what happened. The court did not overturn the Tillman Act, which banned corporate contributions to federal candidates in 1907, though from the outcry against the Citizen's United decision, many on the left thought that they did. If they had, then the President's comments about "100 years of precedent" being overturned would have been correct. And the title of this post would have correct also. As it is, the title's fake but accurate. And therefore, by the standards of the left, fine to be going on with.

So why, exactly, was the Tillman act passed in the first place? Here's Justice Thomas:

“Go back and read why Tillman introduced that legislation,” Justice Thomas said, referring to Senator Benjamin Tillman. “Tillman was from South Carolina, and as I hear the story he was concerned that the corporations, Republican corporations, were favorable toward blacks and he felt that there was a need to regulate them.”

It is thus a mistake, the justice said, to applaud the regulation of corporate speech as “some sort of beatific action.”

Hmmm...


The justice was speaking to a group of students at a law school in Florida, and had some other interesting things to say about Citizen's United.

“I found it fascinating that the people who were editorializing against it were The New York Times Company and The Washington Post Company,” Justice Thomas said. “These are corporations.”

The part of the McCain-Feingold law struck down in Citizens United contained an exemption for news reports, commentaries and editorials. But Justice Thomas said that reflected a legislative choice rather than a constitutional principle.

...

Justice Thomas said the First Amendment’s protections applied regardless of how people chose to assemble to participate in the political process.

“If 10 of you got together and decided to speak, just as a group, you’d say you have First Amendment rights to speak and the First Amendment right of association,” he said. “If you all then formed a partnership to speak, you’d say we still have that First Amendment right to speak and of association.”

“But what if you put yourself in a corporate form?” Justice Thomas asked, suggesting that the answer must be the same.

Asked about his attitude toward the two decisions overruled in Citizens United, he said, “If it’s wrong, the ultimate precedent is the Constitution.”

I always enjoy reading Justice Thomas' opinions and comments. He's a brilliant guy...

One more Citizen's United comment

I want to make one addition to my earlier comments on the Supreme Court's Citizen's United decision. One of the things that the Times editorial implied, and I scoffed at, was the idea that this decision is great for Republicans. I hadn't considered that aspect of it at all, and can think of no obvious reasons why that would be the case. There are as many Democrats running corporations as Republicans - indeed, if I'm not mistaken, big corporate executives have disproporionately supported Democrats, in which case Republicans should be opposed to this decision.

I don't care whether it helps Republicans and hurts Democrats, or helps Democrats and hurts Republicans. I haven't spent a single second thinking about that aspect, but a little bit of surfing shows me that others have. Again, I don't care. What I care about is that the Supreme Court of the United States follows the Constitution in evaluating laws. So I don't know which party wins and which party loses, if either party wins or loses, but I believe that all Americans are winners, because the Supreme Court said, "the Constitution matters."

Citizen's United vs. The New York Times

The New York Times doesn't agree with the Supreme Court's decision in Citizens United v. Federal Election Commission. "Doesn't agree" being, in this case, synonomous with acting like a proper Victorian lady getting the vapours at the sight of some unseemly display of a bared calf.

The Court’s Blow to Democracy

With a single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the 19th century.

It's good to start with some dispassionate rationality, isn't it?

Disingenuously waving the flag of the First Amendment,

According to the OED, "disingenuous" means "lacking in candour or frankness, insincere, morally fraudulent." How the majority's references to the First Amendment, which is, after all, the key to understanding and resolving this issue, is "insincere" or "morally fraudulent" is apparently so obvious that they don't need to explain it. In any event, the assumption of insincerity is made with no explanation forthcoming. One suspects that they would struggle to find a justifiable reason for using that particular adverb, but it's good and nasty and pejorative, so in it goes.

the court’s conservative majority has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding.

Corporations like, say, the New York Times Corporation? Oh, wait. They could already do that. In fact, they've spent much of the 150 years of their existence attempting to do exactly that.

Hmm...

Congress must act immediately to limit the damage of this radical decision, which strikes at the heart of democracy.

What form, exactly, does this "strike at the heart of democracy" take? Are they taking away the vote from citizens? Changing the rules about who wins and loses elections? No, they're saying that "Congress shall make no law...abridging the freedom of speech or of the press." That doesn't sound like much of a "strike at the heart of democracy" to me.

As a result of Thursday’s ruling, corporations have been unleashed from the longstanding ban against their spending directly on political campaigns and will be free to spend as much money as they want to elect and defeat candidates.

Corporations like the New York Times?

If a member of Congress tries to stand up to a wealthy special interest, its lobbyists can credibly threaten: We’ll spend whatever it takes to defeat you.

Which never, ever happens now. No sirree. The NRA or NARAL or the SEIU or the UAW or the Sierra Club or the NAACP or PFAW never, ever exert influence over political candidates. And the New York Times and Washington Post and CBS and NBC, corporations all, never attempt to influence the results of elections either.

The ruling in Citizens United v. Federal Election Commission radically reverses well-established law and erodes a wall that has stood for a century between corporations and electoral politics.

It doesn't just reverse the law, it "radically" reverses it. They don't just object to this decision, they "strenuously object."

(The ruling also frees up labor unions to spend, though they have far less money at their disposal.)

Really? "Far less money?" Do all unions have "far less money" than all corporations? If not, should wealthy unions, say the Major League Baseball Playerrs Association, also be banned from speaking as a group about electoral issues?

And if this ruling frees them up to spend, what were they doing previously? Is the New York Times seriously arguing here that labor unions haven't advertised in the past in the attempt to affect elections? If I had a nickel for every ad that the Massachusetts Teachers Association had run over the past five years, I'd be a much, much wealthier man.

The founders of this nation warned about the dangers of corporate influence.

This is the kind of comment that would be interesting to see them try to justify with citations. I don't remember any warnings of the dangers of corporate influence from the founders, but I haven't read everything they wrote, either. In any event, none of those warnings were written into the constitution as restrictions on corporations.

The Constitution they wrote mentions many things and assigns them rights and protections — the people, militias, the press, religions. But it does not mention corporations.

True. It also doesn't mention universities, teacher's unions, glee clubs, professional sports leagues, church choirs and garden clubs. Does that mean that that Congress can establish laws abridging freedom of speech for those groups, too?

In 1907, as corporations reached new heights of wealth and power, Congress made its views of the relationship between corporations and campaigning clear: It banned them from contributing to candidates. At midcentury, it enacted the broader ban on spending that was repeatedly reaffirmed over the decades until it was struck down on Thursday.

True. True. And True.

So what? Congress also enacted fugitive slave laws which were reaffirmed by the courts. Just because someone made a mistake in the past isn't a reason for repeating the mistake.

This issue should never have been before the court.

Absolutely true.

The justices overreached and seized on a case involving a narrower, technical question involving the broadcast of a movie that attacked Hillary Rodham Clinton during the 2008 campaign.

No, it shouldn't have been before the court, because the laws shouldn't have been passed in the first place, and they shouldn't have been signed into law by past Presidents. The first amendment (if I may refer to it in a hopefully non-disingenuous fashion) says that "Congress shall make no law...abridging the freedom of speech or of the press." What exactly is the law that was struck down if not a law abridging the freedom of speech?

The court elevated that case to a forum for striking down the entire ban on corporate spending and then rushed the process of hearing the case at breakneck speed. It gave lawyers a month to prepare briefs on an issue of enormous complexity, and it scheduled arguments during its vacation.

How unreasonable of them. It isn't like there's a major biannual election cycle starting in, oh, right about now, for which people need to understand the rules.

Oh, wait. Yes, there is.

Chief Justice John Roberts Jr., no doubt aware of how sharply these actions clash with his confirmation-time vow to be judicially modest and simply “call balls and strikes,” wrote a separate opinion trying to excuse the shameless judicial overreaching.

This is just embarassing. How is it not "call[ing] balls and strikes" to look at a law and determine that, yes, this law is not allowed by the text and meaning of the constitution? They didn't make anything up. They didn't create a new right out of "emanations and penumbras." They looked at the constitution, saw that "congress shall make no law...abridging the freedom of speech," they looked at the law, saw that it, in fact, "abridg[ed] freedom of speech," and said, "hey, that's not constitutional." The only possible definition of "overreach" under which this would qualify is "decision with which the New York Times does not agree."

And the Chief Justice's opinion does nothing whatsoever to "excuse...shameless judicial overreaching." It does, however, explain very clearly and concisely precisely why this decision represents no such thing.

It should go without saying, however, that we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right. Thus while it is true that “[i]f it is not necessary to decide more, it is necessary not to decide more,” sometimes it is necessary to decide more. There is a difference between judicial restraint and judicial abdication. When constitutional questions are “indispensably necessary” to resolving the case at hand, “the court must meet and decide them.”

Citizens United has standing—it is being injured by the Government’s enforcement of the Act. Citizens United has a constitutional claim—the Act violates the First Amendment, because it prohibits political speech. The Government has a defense—the Act may be enforced, consistent with the First Amendment, against corporations. Whether the claim or the defense prevails is the question before us.

Any further questions? Any of that sound tortured or sophistic or difficult?

Yeah, I thought not.

The majority is deeply wrong on the law.

Argument by assertion. If you're going to say something like that, you need to specify how, exactly, the majority is "deeply wrong on the law." Lamentably for those of us they hope to educate, such specificity fails to appear.

Most wrongheaded of all is its insistence that corporations are just like people and entitled to the same First Amendment rights. It is an odd claim since companies are creations of the state that exist to make money. They are given special privileges, including different tax rates, to do just that. It was a fundamental misreading of the Constitution to say that these artificial legal constructs have the same right to spend money on politics as ordinary Americans have to speak out in support of a candidate.

And here's the nub of the argument, the place where the New York Times is most deeply, fundamentally wrong.

The Constitution does not exist to grant rights to anyone. It exists to limit the power of the government. The first amendments does not say, "Congress shall protect the right of people to engage in freedom of speech" - it says "Congress shall make no law abridging freedom of speech."

Period.

It is inarguable that this law, which the Supreme Court has correctly overturned, abridged freedom of speech. Even the Times isn't arguing that it doesn't - they're arguing that corporations have no right to freedom of speech. (Well, they're arguing that some corporations have no right to freedom of speech. They're quite happy excersizing their own, and one can just imagine the editorials were Congress to extend the ban on corporate speech to media companies issuing editorials.)

The majority also makes the nonsensical claim that, unlike campaign contributions, which are still prohibited, independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” If Wall Street bankers told members of Congress that they would spend millions of dollars to defeat anyone who opposed their bailout, and then did so, it would certainly look corrupt.

Wall Street bankers can already do that. But they hide the fact by doing it through bundled contributions and political action committees with pretty names. It's hard to imagine that out in the open politicking would result in a system more corrupt than the one which we've currently got.

After the court heard the case, Senator John McCain told reporters that he was troubled by the “extreme naïveté” some of the justices showed about the role of special-interest money in Congressional lawmaking.

And I'm troubled by the extreme contempt for the constitution that Senator McCain demonstrates every time this topic comes up.

In dissent, Justice John Paul Stevens warned that the ruling not only threatens democracy but “will, I fear, do damage to this institution.”

Still waiting for an explanation of how this "threatens democracy?" Yup, me too.

History is, indeed, likely to look harshly not only on the decision but the court that delivered it. The Citizens United ruling is likely to be viewed as a shameful bookend to Bush v. Gore. With one 5-to-4 decision, the court’s conservative majority stopped valid votes from being counted to ensure the election of a conservative president. Now a similar conservative majority has distorted the political system to ensure that Republican candidates will be at an enormous advantage in future elections.

Evidence came there none. Except yet another piece of evidence that the editorial board of the New York Times lives in a fantasy world, where evil corporations ally with evil Republicans to the detriment of everyone else. For an elite that prides themselves on nuance and decries the black-and-white world of George W. Bush, this is a pretty strong us-vs.-them attitude on display.

Congress and members of the public who care about fair elections and clean government need to mobilize right away, a cause President Obama has said he would join.

Mobilize how, exactly? Pass another law to re-implement the same restrictions that the Court has just determined to be unconstitutional? Amend the constitution? Kill one of the five so the President can change the balance? What's the end-game here?

Congress should repair the presidential public finance system

With the help of the same President that promised to abide by it last time and then changed his mind when he saw that it was advantageous?

and create another one for Congressional elections to help ordinary Americans contribute to campaigns.

Because, as Senator-elect Brown knows, there's no way for ordinary Americans to contribute now.

Or not.

It should also enact a law requiring publicly traded corporations to get the approval of their shareholders before spending on political campaigns.

I'll have to think on that. Despite the fact that it's coming from the Times editorial board, it's not obviously insane. But the source suggests that it may be. This requires carefull consideration.

These would be important steps, but they would not be enough. The real solution lies in getting the court’s ruling overturned.

Because, Supreme Court precendents, so vital and precious and important five paragraphs back, should definitely be overturned if we don't like them.

The four dissenters made an eloquent case for why the decision was wrong on the law and dangerous. With one more vote, they could rescue democracy.

This threat to democracy which is so apparent to them continues to escape me. It would have been nice, I think, if they'd devoted a couple of words to why this is a threat to democracy, or why this is an incorrect decision. I don't see either of those things, just a paranoid temper tantrum that someone's taken away their monopoly on corporations influencing elections.

Kelo revisited

Like many others, I ranted and raved about the Supreme Court's judicial obscenity decision in Kelo vs. New London. It was an offense to the Constitution and everything for which it should stand.

Well, the whole process has become, if possible, even more obscene.

...four years after that decision gave Susette Kelo's land to private developers for a project including a hotel and offices intended to enhance Pfizer Inc.'s nearby corporate facility, the pharmaceutical giant has announced it will close its research and development headquarters in New London, Connecticut...While Ms. Kelo and her neighbors lost their homes, the city and the state spent some $78 million to bulldoze private property for high-end condos and other "desirable" elements. Instead, the wrecked and condemned neighborhood still stands vacant, without any of the touted tax benefits or job creation.

So the Supreme Court gave the city of New London authority and permission to take non-blighted houses from law-abiding citizens in order to give the land to a wealthy corporation. They went ahead and took the houses. They destroyed them. And now the whole area is sitting vacant, because business conditions change, and that wealthy corporation, for whom the city raped and plundered the property of law-abiding taxpayers, has decided that they're not only not going to expand, they're actually leaving the area.

When he got to where he was going, Ted Kennedy¹ had a lot to answer for...



¹ - Ted Kennedy was essentially single-handedly responsible for defeating the nomination to the Supreme Court of Robert Bork. That spot ended up going to Anthony (no relation) Kennedy, who provided the fifth and deciding vote to legalize theft and destruction against the good people of New London.

Early (pre-judicial) restraint from the CJ

I said that I'd have nothing more to say about Michael Jackson, and that's basically true. Let me just say, though, that this story does nothing but increase my affection for Chief Justice Roberts...

Mr. Jackson had visited the White House on May 16, 1984, and appeared with Mr. Reagan at an event on efforts against drunken driving...A correspondence aide at the White House, James K. Coyne, drafted a somewhat goofy letter that he proposed having Mr. Reagan sign....

Mr. Roberts expressed acid disapproval in a June 22, 1984, memorandum to Mr. Fielding:

I recognize that I am something of a vox clamans in terris in this area, but enough is enough. The Office of Presidential Correspondence is not yet an adjunct of Michael Jackson’s PR firm. “Billboard” can quite adequately cover the event by reproducing the award citation and/or reporting the President’s remarks. (As you know, there is very little to report about Mr. Jackson’s remarks.)

"the administration has decided to move forward..."

The Competitive Enterprise Institute has been watching this story play out...


The National Council on Environmental Economics has examined the Environmental Protection Agency's Draft Technical Support Document for Endangerment Analysis for Greenhouse Gas Emissions under the Clean Air Act. (As we all remember, the Supreme Court decided that the EPA should regulate carbon dioxide as a pollutant, and the EPA promptly decided to regulate carbon dioxide and methane.) So the EPA is preparing an "endangerment" analysis on how Americans are "endangered" by carbon dioxide and methane, and getting ready to propose new regulations.

Of course, you can't do things like that without some analysis of the impact, of the costs and the benefits. so the NCEE has reviewed the draft proposal, and has some comments. But they aren't being released - the EPA is trying to suppress the analysis. Why is that? Well, as the Director of the National Center for Environmental Economics Al McGartland wrote to Alan Carlin, the NCEE scientist who prepared the review:

The time for such discussion of fundamental issues has passed for this round. The administrator and the administration has [sic] decided to move forward on endangerment, and your comments do not help the legal or policy case for this decision...I can only see one impact of your comment given where we are in the process, and that would be a very negative impact on our office.

And the comments that would have such a negative impact?

The current Draft TSB is based largely on the IPCC AR4 report, which is at best three years out of date in a rapidly changing field...
- Global temperatures have declined - extending the current downtrend to 11 years...at the same time atmospheric CO2 levels have continued to increase and CO2 emissions have accelerated...
- The idea that warming temperatures will cause Greenland to rapidly shed its ice has been greatly diminished by new results indicating little evidence for the operation of such processes...
- A new 2009 paper finds that the cruial assumption in the GCM models used by the IPCC concerning strongly positive feedback from water vapor is not supported by empirical evidence and the feedback is actually negative...
- A new 2009 paper...suggests that solar variability could account for up to 68% of the increase in Earth's global temperatures...
...these are just a few of the new developments since 2006...the extensive portions of the EPA's Endangerment TSD which are based upon the old science are no longer appropriate and need to be revised...

But the science doesn't really matter - "the administration has decided to move forward on endangerment..."

"They lined up the wrong way..."

Great piece from former congressman J.C. Watts on the Sotomayor nomination and the hypocrisy of the Democrats.

Judging from the accolades showered on Sotomayor over the past several weeks, you would think that coming from humble beginnings is the benchmark for the Supreme Court.

Well, if that's the case, recall how Clarence Thomas was treated in his confirmation process. I guarantee you'll not find more humble beginnings than his birthplace in Pin Point, Ga.

...

Think of Miguel Estrada, the 2001 circuit judge nominee whose confirmation was filibustered by Democrats to where Estrada withdrew. He came from humble beginnings in Honduras and arrived in the United States as a teenager with limited knowledge of English.

Think of Janice Rogers Brown's nomination to the District of Columbia Court of Appeals. She took her seat only after two years of procedural delays. And you can't find more humble beginnings than being the daughter of sharecroppers who attended segregated schools in Alabama.

...

The people who put these three nominees through their living hell somehow failed to slobber all over themselves concerning their paths from the valley to the mountaintops.

...

The reason these three minority candidates got no credit for their individual journeys is due to the fact they lined up the wrong way on the Second Amendment -- the right to keep and bear arms. They lined up the wrong way on when life begins -- at the time of conception. They lined up wrong on how to make policy. They believe our nation creates policy through legislation -- not through the courts, as Judge Sotomayor and President Obama seem to believe.

Is 46 the new 34?

Hey, if we're going to "interpret" the Constitution as a living document, if the "emanations and penumbras" are more important than the actual words, then I think that this is a great argument to make...

Barack Obama is too young to be president. Yes I know he is 46 and the Constitution sets the presidential age qualification at 35 or higher, but Obama has said that we ought not to interpret the Constitution woodenly and formalistically. Perhaps we should look deeper at the presidential age limit. If we do, we will find that Obama really is too young to be president.

Many on the legal left these days advocate purposive, pragmatic interpretation of the Constitution. The idea is you look behind the text to see what function it played for the framers and you then translate the text so it will play that same function for us today. What does this mean for the presidential age qualification?

In 1789, the average life expectancy of a newborn was about 40 years, compared with about 78 today. A lot of this was because of infant mortality, but in 1789, even the average life expectancy of every man who reached age 18 was only about 47. This suggests that at best a 35-year-old age limit in 1789 might have functioned then about the way a 55- or 60-year-old age qualification would function today. On this account Obama may be old enough to drive and buy a glass of white wine, but he has a way to go before he can run for president.

How could you argue with that?

Campaign 2008. SCOTUS. Absolutely an issue...

I saw some analysis yesterday which suggested that Heller actually removed the Supreme Court as an issue in the 2008 campaign. I completely disagree. As I noted yesterday, we were perilously close to losing the second amendment, and that's on the heel of several other egregious, or at least questionable, decisions from the court over the past couple of years, decisions that indicate that the Constitution apparently says whatever Anthony Kennedy thinks it says. I think that the court is a significant campaign issue, and one of the three or four top reasons to prefer McCain over Obama. As Jim Geraghty so aptly put it,

four of the justices ruled that a state cannot sentence a child rapist to the death penalty, but that state can deny almost all of its citizens the right to own a gun. And when asked for his model justices, Obama listed three of those four...

District of Columbia v. Heller

In deciding the long-awaited Heller case, the Supreme Court today decided that "the right of the people to keep and bear Arms, shall not be infringed." means that people actually have a right to keep and bear arms. That's a good thing, I suppose, though it's sad that it was only a 5-4 decision. And it is very likely that, had President Kerry appointed the last two Justices rather than President Bush, the decision would have come down the other way. So it's good that the second amendment lived to fight another day, but frightening to consider that 60,000 changed votes in Ohio, just over 1% of the electorate, would have likely resulted in its evisceration. That's not a good thing, and it is scary to watch the decisions continue to come down.

In any event, one of the things that leaps out of the decision is a comment from Justice Stevens' dissent, a comment that I've seen quoted approvingly in some of the less-conservative corners of the blogosphere (if the blogosphere can be said to have corners...) Writing for the minority, and joined by Justices Souter, Ginsburg and Breyer, Stevens noted that

The Court properly disclaims any interest in evaluating the wisdom of the specific policy choice challenged in this case, but it fails to pay heed to a far more important policy choice—the choice made by the Framers themselves. The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice.

I included the whole paragraph for context, but want to consider, for the moment, just that highlighted phrase.

The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons...

What are some of the tools that might be useful to "elected officials wishing to regulate civilian uses of weapons?"

• The ability to commit "unreasonable searches and seizures" might be a "useful tool" but unfortunately (from the minority's point-of-view) the fourth amendment provides a "limit [on] the tools..."


• If the well-meaning "elected officials" were to have soldiers "in time of peace be quartered in any house, without the consent of the Owner," that could be a very useful tool, but alas, that pesky third amendment gets in the way.


• If "excessive bail" could be required, or "excessive fines imposed," or "cruel and unusual punishments inflicted," well, those would all be enormously useful tools in the hands of a group of "elected officials" trying to "regulate civilian uses of weapons" - or do anything else, for that matter. But those damned Framers lacked the foresight to leave out the eighth amendment.


• Hey, what if people could be held without "presentment or indictment of a Grand Jury?" Or "compelled in any criminal case to be a witness against [themselves]?" Or "be deprived of life, liberty, or property, without due process of law?" One could easily picture those being super-"useful tools" in the "regulat[ion of] civilian uses of weapons." But no, the Framers were not as enlightened as Justices Stevens, Souter, Ginsburg and Breyer, and they foolishly "made a choice to limit the tools available to elected officials" by including the fifth amendment.

One could go on, of course, but what's the point? The minority embarrasses itself by including that rationale for gutting the second amendment. Of course the Framers “made a choice to limit the tools available to elected officials” – that is why the United States Constitution exists in the first place. Its entire purpose is to limit elected officials, to limit the power of the government. The fact that these four Justices want to ignore those limits in this case doesn’t change the fact that the limits exist. There are any number of tools that elected officials are not constitutionally allowed to use, and outright banning of handgun ownership is clearly one of them.

Kennedy v. Louisiana

Once again, we see how much was lost by the failure to confirm Robert Bork. Justice Kennedy, siding again with the liberal four, has penned the decision in Kennedy v. Louisiana which now deems unconstitutional the imposition of the death penalty for raping a child. They have done this by the simple expedient of reading the public mood, by methods which are unscientific at best, and determining that the United States is now a country in which imposing the death penalty for this particular case would violate "currently prevail[ing] norms¹."

The Eighth Amendment...provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The Amendment proscribes “all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive.” Atkins, 536 U. S., at 311, n. 7.
...
Whether this requirement has been fulfilled is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that “currently prevail.” Atkins, supra, at 311. The Amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion).
...
Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule.

The decision walks through the cultural history of "evolving standards of decency," outlining the path by which the majority has determined that application of the death penalty in this case would be "cruel and unusual." A disturbing number of the milestones on that path happen not to be societal changes where elected bodies do away with potential death penalty causes, but judicial changes where non-elected judges determine that the laws enacted by the elected representatives of the people don't accurately reflect the "evolving standards of decency that mark the progress of a maturing society²."

Frankly, the majority gives the game away in the penultimate paragraph of the decision. This decision is based on their personal animus toward the death penalty, not any constitutional requirement. And they admit it.

In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.

Indeed, it is not at all difficult to imagine the current court, with one of the conservative justices replaced by another liberal, invalidating all death penalty statutes. Again.



¹ - I rather suspect that, if given the facts and allowed to vote, an actual majority would think that lethal injection in this case would be, not "cruel and unusual" but actually too good for the perpetrator. As Justice Kennedy and his cohorts apparently believe that their role is to act as a national moral weathervane (albeit one with the authority to do whatever the hell they feel like doing), I wonder if they'd be willing to put it to the test...

² - For example, "[i]n 1972, Furman invalidated most of the state statutes authorizing the death penalty for the crime of rape; and in Furman’s aftermath only six States reenacted their capital rape provisions...All six statutes were later invalidated under state or federal law...In 1981, however, the Supreme Court of Florida held the death penalty for child sexual assault to be unconstitutional."


UPDATE: More here...

Well, as long as five Justices count the votes, what are you going to do about it? The majority expressly rejects the idea that the messy business of finding consensuses should be left to the representatives of the people whose "consensus" is being announced, and instead announces a default presumption against the death penalty wherever a clear national consensus does not exist in its favor

It matters who wins elections - part 79,521

Once again, a slim majority of the Supreme Court justices has decided that the Constitution and precedent are not enough to prevent them from enacting their own personal policy preferences. And, once again, we recognize that it matters who wins elections. While Republican Presidents have given us some mediocre (Kennedy) to bad (Souter) justices, the fact is that the originalist justices ONLY come from Republican Presidents. Are Justice Stephens and Justice Ginsburg still going to be on the bench in 2012? I'd wager that one or both will be gone before then. It matters who wins elections...

A couple of relevant quotes from the MASSACHUSETTS ET AL. v. ENVIRONMENTAL PROTECTION AGENCY ET AL. decision...

Petitioners’ difficulty in demonstrating causation and redressability is not surprising given the evident mismatch between the source of their alleged injury — catastrophic global warming — and the narrow subject matter of the Clean Air Act provision at issue in this suit. The mismatch suggests that petitioners’ true goal for this litigation may be more symbolic than anything else. The constitutional role of the courts, however, is to decide concrete cases — not to serve as a convenient forum for policy debates.

- Chief Justice Roberts

The Court’s alarm over global warming may or may not be justified, but it ought not distort the outcome of this litigation. This is a straightforward administrative-law case, in which Congress has passed a malleable statute giving broad discretion, not to us but to an executive agency. No matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency.

- Justice Scalia

Republican Presidents have given us disappointing justices, but Democratic Presidents never give us justices like these. I'll happily take the .600 batting averages of Reagan, Bush and Bush over the .000 batting average of Carter and Clinton. It matters who wins elections...