June 2010 Archives

There was a lot of talk today from the Democrats accusing the conservative justices of "judicial activism." What they really mean, of course, is that the justices come up with decisions the Democrats dislike.

The Lily Ledbetter case, for example: one Senator today opined, "what should Lily Ledbetter have done?" She was implicitly arguing that the Court ignore the law and let Ledbetter sue: but the job of the court is to apply the law. To allow Ledbetter to sue would have been activist: it would have been ignoring the law and doing what you think is best instead of following the law.

Senator Franken and others attacked the "activism" of the Citizens United case, which essentially ruled only that government cannot restrict free political speech just because of who is saying it. This is "activist"? To them, yes, it is, because they believe strongly in the obligation of government to restrict speech they dislike: Franken went so far as to argue that without government censorship, we wouldn't have the Clean Air Act or seatbelt laws. Putting aside the question of whether that's accurate, it certainly doesn't make the censorship justified, not in a free country. Down that path necessarily leads to government doing literally whatever it wishes, without any restrictions whatsoever, if it believes it is doing it in the best interests of the country (including torture, warrantless wiretapping, withholding habeas corpus, and so on).

But the most remarkable thing about today, for my money, is that Justice Stevens gave us -- in one of his last opinions, the dissent on McDonald v. Chicago, the gun case -- showed us what actual judicial activism looks like.

Stevens says that the 14th Amendment protects liberty, ensuring that "a measure of dignity and self-rule will be afforded to all persons," and gives some examples: Planned Parenthood v. Casey, Griswold, and so on. He also notes that "perfect state/federal congruence" is only required on matters "at the core" of the relevant constitutional guarantee.

Whether or not our liberty to use contraception or have abortions is protected in the states by the 14th Amendment, what is critical to note is that he sees these things -- which everyone agrees are not in the Constitution -- are "at the core" of constitutional guarantees, but the Second Amendment -- which is actually in the Constitution -- is not. He says, "firearms have a fundamentally ambivalent relationship to liberty," ignoring the fact that keep and bearing them is a liberty itself, and never explaining why the fact that guns -- like speech and religion and, dare I say it?, abortion -- can cause harm has any bearing on the case before him.

Stevens notes, "Recognizing a new liberty right is a momentous step. ... Sometimes that momentous step must be taken; some fundamental aspects of personhood, dignity, and the like do not vary from State to State, and demand a baseline level of protection." But how seriously can we take him when he denies a baseline level of protection for an existing liberty right? Not at all. He adds, "... sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society provides an important tool for guiding judicial discretion."

And there you have it, folks. Ignore every other damned thing Stevens said in his dissent. He couldn't care less about any of it. All that matters to him is allowing government to ban guns, because he thinks that is a good thing. He goes into some detail about why the right to keep and bear arms is "different," but never says how they are legally or constitutionally different, although we know the answer: it's different because Stevens likes the rights to abortion and speech, but not the right to guns. He says owning a handgun is not "critical to leading a life of autonomy, dignity, or political equality." But my copy of the Constitution says it is an essential and guaranteed liberty, and damn Justice Stevens if he tries to take it away from me.

Literally, nothing else Stevens says in his dissent matters, because at the end of the day, no matter what the facts of the case, he would be "sensitive" to "political realities of contemporary society" and rule that States are allowed to ban handguns, simply because he doesn't care about protecting that particular right.

This is what true judicial activism looks like: flat-out ignoring the law, your own stated political philosophies and precedents, and common sense, and coming up with completely extra-legal ways to disallow someone from doing what the law clearly says they can do.

Judicial activism is, at essence, ignoring the law and replacing its guidance with your own opinion. Judicial activism is hatred of the rule of law, which "limits" us too much. Far better, in their opinion, to let some people in robes be "sensitive" to "reality" and determine what the law should be on the fly, instead of following the protections we've had in place (and ignored) for hundreds of years.

Not to criticize any justices in particular -- because I understand the culture and processes of the Supreme Court -- but it is shameful of our system that we could only get a single Supreme Court Justice to agree that "the Second Amendment is ... fully applicable to the States ... because the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship."

As I guessed, the Supreme Court held that the Second Amendment applies to the states, but through "due process" instead of "privileges or immunities."

Of course, what's even more amazing is that a fundamental right of the people of the United States was found not to be a fundamental right by four of the nine justices. This position is only possible to hold -- if you understand the law -- by denying the Heller decision, or by denying the selective incorporation precedent through which rights are "incoporated" to the states by due process.

Either way, it amounts to the same old song: the liberals on the Court hate the rule of law. They care only about their chosen outcomes. The caselaw is absolutely, utterly, undeniably, clear: we have a fundamental federal right to keep and bear arms (Heller), and such fundamental rights, through due process, are applied to the states. There's nothing more to it. You have to deny those settled principles of law to dissent in this case. You have to be a consequentialist who hates the rule of law, setting it aside whenever you don't like its outcome.

That's what these four justices are. Sotomayor has proven herself now, as Stevens, Ginsburg, and Breyer did before her. To wit, Justice Stevens, in his dissent, actually argued against the Second Amendment itself, calling it an "injustice," comparing it to slavery and the subjugation of women: we can't just willy-nilly grant historical rights through the 14th Amendment, because look at these other EVIL historical rights we used to have (implying, of course, that gun rights are also evil).

I don't think more needs to be said than this. On the one side we have people standing up for what the Constitution actually says and means, and on the other, we have people denying our fundamental constitutional rights just because they don't like them.

Thankfully, liberty prevailed and the Second Amendment has taken its proper role as applying to the states, even though it's nearly a century-and-a-half since the 14th Amendment was ratified with that explicit intent.

The Supreme Court held, 8-1 (only Thomas dissenting) that disclosure of referendum petitions, in general, does not violate the First Amendment. The door is left open to further litigation to see if a narrower case may find in their favor.

There's seven opinions from the nine justices and I've not read them yet. I'm sure the folks behind R-71 aren't happy, but it's not over for them yet.

I was listening to Obama tonight. He said, “Because there’s never been a leak this size at this depth, stopping it has tested the limits of human technology.” I thought, What about alien technology? He continued: “That’s why, just after the rig sank ...” You contacted aliens? “... I assembled a team of ...” Aliens?! “... our nation’s ...” Secret alien contacts?!? “... best scientists and engineers. ...” Dang.

In attacking Sarah Palin's endorsment of challenger John Koster (R), incumbent WA-2 Congressman Rick Larsen (D) said, "A Palin endorsement means John Koster is opening his campaign war chest to a potential landslide of out-of-state contributions; contributions that will fund his campaign to eliminate the help seniors are getting to pay for prescription drugs, privatize Social Security, and protect the lax regulations that led to the BP oil spill." (emphasis added)

Those sure sound like awful things, even if his misrepresentations of Koster's campaign were true. But as Jerry Cornfield at The Herald points out, 65 percent of Larsen's contributions come from PACs, most of which are out of state, and has received several thousand from oil companies. Only three percent of Koster's money has come from PACs (in fact, Koster's raised more money from individual contributions than Larsen, since his announcement in January), and of that PAC money, none of it is associated with the oil industry.

I guess Larsen is just trying to use fiery rhetoric to prevent Koster from becoming more like Larsen himself.

Larsen also accused Palin of doing something wrong by using the extremely common "target" rhetoric regarding political races: "She even uses crosshairs in her literature, upping the rhetoric and literally taking aim."

Wow! She EVEN used CROSSHAIRS! LITERALLY taking aim! Shocking, especially since on Larsen's campaign web site, he links to a Seattle P-I article titled "Larsen: Big turnout for House target," without implying there's anything wrong with the former newspaper's use of the word.

I demand that Rick Larsen condemn the Seattle P-I for upping the rhetoric with its use of a word that has been commonly used in political races since before anyone of us was born! And then I demand that Rick Larsen condemn himself for putting such vile rhetoric on his campaign home page. Despicable.

No, not Brian Baird, Bryan Baird.

At the state GOP convention last Friday, people were abuzz with news that the incumbent Democrat might have reneged on his promise to not seek another term, and had filed as an independent. Alas, it had not happened: instead, a 24-year-old kid filed, even though he would not turn the constitutionally mandated age of 25 until next March (which means, of course, that he'd likely have been eligible to run if not for the Twentieth Amendment ... yet again, the Constitution disenfranchises a minority).

Baird filed, and then the Secretary of State's office returned his fee, having been told they couldn't legally accept his filing.

It makes me wonder why there isn't an automated system for catching that sort of thing. The candidates file by computer, and all the State has to do is check the birthdate, and automatically reject a filing by someone who doesn't meet the age requirement. It's not hard.

But then again, Secretary Sam Reed's office still refuses to do this basic, simple, obvious, automatic check for voter registrations, too, which is why we've had underage children voting in recent years.

His name is Bob Etheridge, a Democratic* Congressman from North Carolina. After being asked a simple (though perhaps loaded) question on a sidewalk, the Democratic* Congressman -- in the words of the NRCC -- "lost it" and assaulted the questioner: an unnamed, self-professed, college student. The Democratic* Congressman grabbed the person on the wrist, and later on the neck; he repeatedly asked, "who are you;" and then he lied that he had a "right to know" who the student is.

Frankly, I am more disturbed by the lie than by the physical assault. The physical assault, while disturbing, was a one-time incident, resulting in only a temporary loss of liberty to the victim. Such a lie, though, from an elected official of the federal government -- a Democratic* Congressman -- could be used to permanently deprive someone of his First Amendment rights.

Thinking more about it, though, I wouldn't be surprised that a Democratic* Congressman didn't know that we have a First Amendment right to anonymity, since the Democratic* Party has spent so much time in the last couple years assaulting our First Amendment rights (saying groups of people lose their right to speech when they exercise their right to associate, for example).

OK, maybe that was overly partisan. It's not like some Republican politicians don't have First Amendment problems too (John McCain did help author the bill I am referring to, after all). But I get really angry about government assaults on liberty, whether corporate assaults on corporate liberty (lockstep Democratic* opposition to the rights of filmmakers), or individual assaults on individual liberty (a Democratic* Congressman assaulting an individual on a sidewalk).

I agree with some of the commenters I've seen that the Democratic* Congressman should be removed from office as soon as possible. Practically speaking, that may mean just waiting until November, of course. It's notable that currently, Democratic* Congressman Bob Etheridge's election web site is not responding.

*Note that I used the proper form of the party name here. As an adjective, the word is "Democratic," not "Democrat." I took great pains to make sure everyone knows that this is a "Democratic" official, not merely a "Democrat" official: that he is, in fact, an elected member of Congress that belongs to the Democratic Party. (You're welcome!)

I was visiting some friends in Portland, Oregon, and I was told about an incident at the local Red and Black Cafe, in which a police officer was asked to leave because their customers (sorry, "collective members") do not feel safe around police.

Said the co-owner (which I assume, as this IWW closed shop is "worker-owned" and "collectively managed," is simply one of the baristas) said, "If there's a police officer there, I wouldn't feel safe in that situation. I would feel worried that the officer might Tase the person or potentially shoot them for having a mental health issue."

I suggest they add "wearing a law enforcement uniform non-ironically" to their list of prohibited behviors ... as long as "fostering inane and irrational paranoia" is still protected.

Regardless, what's clear is that they agree with Rand Paul that the right of private discrimination, while often an abomination, is protected by our Constitution. And because that view is "inherently racist," well ... I regret to report that these lovely people in Portland are racists.

Tomorrow I will be going to the WSRP Convention and at 3 p.m. there's a Consitution and Policy Workshop and a Citizen-Journalism Workshop.

The former's description reads:

This workshop is tailored to individuals wishing to learn more about constitutional principles. Listen to experts on our U.S. and state constitutions, discuss our founding documents, and learn how to analyze the constitutionality of proposed laws.

Tired of not seeing topics you care about reported? Do you want to develop better writing and research skills? Learn how to do just that from top bloggers, political commentators, and newsmakers in the region.

I don't know which to go to. (I signed up for both.)