Monthly Archives: June 2007

Ladies And Gentleman, We Have A Winner

The state receiving the award for the dumbest new law taking effect on July 1st is Tennessee:

NASHVILLE, Tenn. –Comer Wilson hasn’t had to show his ID to buy beer in a while. Maybe it’s the 66-year-old man’s long white beard.

Starting Sunday, gray hair won’t be good enough. Wilson and everyone else will be required to show identification before buying beer in Tennessee stores – no matter how old the buyer appears.

“It’s the stupidest law I ever heard of,” Wilson said. “You can see I’m over 21.”

Tennessee is the first state to make universal carding mandatory, says the National Alcohol Beverage Control Association. However, the law does not apply to beer sales in bars and restaurants, and it does not cover wine and liquor.

Supporters say it keeps grocery store and convenience store clerks from having to guess a customer’s age.

Because you never know when a bunch of Sixth graders who look remarkably like Korean War Veterans will walk into the local 7-11 and try to buy a six-pack of Budweiser.

As dumb as the law is, though, this comment from Tennessee’s Governor is even dumber:

Democratic Gov. Phil Bredesen said it’s a good way to address the problems of underage drinking.

And the 63-year-old governor said he personally won’t mind the extra effort to buy beer.

“I’ll be very pleased when I’m carded, and in my mind I’ll just imagine it’s because I look so young,” he said.

Yea, you go with that Governor.

H/T: The Irish Trojan and Hit & Run

N.M. Gearing Up To Face Drug Police On Federalism

New Mexico has voted to legalize medical marijuana. Starting tomorrow, they’re raising the bar: the state will make sure a safe and legal distribution system in created:

New Mexico has a new medical marijuana law with a twist: It requires the state to grow its own.

The law, effective Sunday, not only protects medical marijuana users from prosecution — as 11 other states do — but requires New Mexico to oversee a production and distribution system for the drug.

“The long-term goal is that the patients will have a safe, secure supply that doesn’t mean drug dealers, that doesn’t mean growing their own,” said Reena Szczepanski, director of Drug Policy Alliance New Mexico.

The state Department of Health must issue rules by Oct. 1 for the licensing of marijuana producers and in-state, secured facilities, and for developing a distribution system.

There’s a bit of a thorny issue, in that I don’t the state should be in business regulating and distributing narcotics. But I’m going to set that aside at this point, because the situation they’re setting up is a better deal that what New Mexico currently has in place.

The really interesting thing, though, is that they’re throwing down a bit of a gauntlet here. And I’m guessing Alberto Gonzales, or whoever succeeds him as AG, is going to pick it up.

The distribution and use of marijuana are illegal under federal law, and the U.S. Supreme Court ruled in 2005 in a California case that medical marijuana users can be prosecuted.

Faced with that dilemma, the health department has asked state Attorney General Gary King whether its employees could be federally prosecuted for running the medical marijuana registry and identification card program, and whether the agency can license marijuana producers and facilities.

Unfortunately for anyone licensed by New Mexico, the Department of Justice doesn’t care about your silly state laws. Marijuana is a dangerous gateway drug, leading our children down a path of failure and ruin. Didn’t you see Reefer Madness?

How do I know they’ll trump state laws? Well, if Raich isn’t enough, you can go one step farther and look at the Ed Rosenthal case. A man specifically deputized by the city of Oakland to grow marijuana for medical marijuana patients was federally prosecuted, and for an added kicker, couldn’t reveal to the jury that what he was doing was specifically approved by the city government.

n 2002, federal agents arrested Ed, even though he had been deputized by the City of Oakland to grow marijuana for medical use. In a stunning setback for the federal government, he was sentenced to only one day in prison. In 2006 the 9th Circuit Appeals Court overthrew Rosenthal’s conviction. Several months later the US Federal Attorney’s office re-indicted him. A new trial commenced on 14 May 2007.

On May 31 2007, it was announced that Ed had been convicted again for three of the five charges against him: one conspiracy count; one count of growing, intending to distribute and distributing marijuana; and one count of using a commercial building as a site for growing and distributing marijuana. He was acquitted of growing and distributing marijuana at the Harm Reduction Center medical-marijuana club in San Francisco. The jury reached a deadlock on whether he had conspired to grow and distribute at the Harm Reduction Center. U.S. District Court Judge Charles Breyer once again prohibited Ed’s lawyers from telling the jury that his work was sanctioned by Oakland government officials, a main point of contention for the jurors of Ed’s first trial. Ed will see no more jail time and will, of course, appeal.

I’m sure the people setting up the licensing system won’t face any prosecution. They may survive under sovereign immunity. But I’d warn anyone considering applying for a state license to remain on guard. The feds don’t care about state law, and they don’t care about the 9th or 10th Amendment. They’ll fight the Drug War ruthlessly, regardless of what the American people or the government of New Mexico have to say about it.

The Reality Of “Predatory” Lending

Over at my personal blog, I wrote earlier today about a Washington Post article about the rising number of foreclosures in the D.C. Metropolitan area. Along those same lines, Tim Cavanaugh writes in the July issue of Reason Magazine about the current focus on so-called predatory lending and its connection to the state of the real estate market.

As Tim points out, there was once a time when it was difficult for people to get loans, and that was considered a crisis too:

The conventional wisdom used to say the poor didn’t have enough access to debt. One of the earliest products of Franklin Roosevelt’s New Deal was the Home Owners Refinancing Act, which provided mortgage money to more than a million borrowers over a three-year period. Harry Truman’s record shows a consistent effort to expand the amount of debt available to willing borrowers.

My favorite artifact of the period’s pro-lending mood is Fredric March’s great “collateral” speech from the 1946 film The Best Years of Our Lives. March, playing a rising bank middle manager who has just returned to his job after serving as an Army NCO in the Pacific, reads a rambling riot act to a banquet of porcine small-town bankers who have criticized him for providing loans to bad-credit-risk veterans. If we’d fought like bankers, seeking collateral for every risk and a guarantee on every expenditure, we’d have lost the war, he argues.

We can dispute the wisdom of federally guaranteed loans and mortgage purchasing, but it’s notable that the new economy March wanted helped to create one of the greatest booms in the country’s history: the postwar suburbanization of America, which is now derided by our own bien pensant classes, who claim there’s too much ready credit out there. The difference now is that it’s coming from the market rather than a package of government guarantees, from an industry that expanded to fill a demand and is now contracting as the demand shrinks.

Which is, when you think about it, how it should be. You can question the wisdom of some of the decisions that people made in going with unconventional mortgages, but the truth of the matter is that without these types of financing options that the market created, most of those people never would have been able to obtain a mortgage to begin with. They’d still be renting, or living with family, and the idea of the home of their own would be nothing but a dream that would probably never be fulfilled.

Did some lenders make the mistake of lending to bad credit risks ? They probably did that too. But they have learned the lesson of those mistakes as well. That’s what the market is about.

Besides, as Tim points out, things aren’t nearly as bad as the politicians would have you believe:

In a sane world, we’d say this is a market behaving as it should, and marvel at an economy where so many people who were once locked into the renters market have gotten a chance at homeownership. Some of them have blown their chance by exhibiting the same kind of behavior that made them bad credit risks in the first place. But most have not. In fact, about nine out of every 10 sub-prime borrowers are still making their payments.

Sounds like mostly a success story to me.

Originally posted at Below The Beltway

New Laws Coming On Sunday

I just came across a story with a headline about “Hundreds” of new laws that will be taking effect in various states on July 1. Most of them are fairly innocuous attacks on liberty, that will stagnate economies and generally raise consumer prices, like most of government:

Among them are new efforts to encourage alternative energy in Nevada and Minnesota, tougher rules against illegal immigrants in Georgia and Idaho, and a higher minimum wage in several states.

Encourage? Yeah, they encourage by regulating or taxing, not calm persuasion. And I’m sure the immigration rules in Georgia and Idaho, and the higher minimum wages, will just do wonders for the economies of those states…

But one bit caught my ire, in only the way that seat belt and helmet laws can. And like those laws, this one will be cheered from the rooftops about how wonderful government legislation can be:

- As a deadly tornado bore down on southwestern Indiana in 2005, the National Weather Service issued a radio warning urging people in the twister’s path to seek shelter. But many of the most vulnerable residents didn’t hear the alert because they had no radios equipped to receive it. That will change Sunday when Indiana enacts a law requiring mobile homes to have weather radios.

“My family would be here had I known that weather radios existed,” said Kathryn Martin, who pushed heavily for the reform after the tornado shattered the Eastbrook Mobile Home Park and killed dozens of people, including three of her relatives.

Bruce Savage, an institute spokesman, said tornadoes do not discriminate between buildings.

“They certainly could have benefited from a weather radio,” Savage said of the students who died. “So why not make the bill really cover and provide adequate warning to everybody?”

Martin said she doesn’t understand resistance to making weather radios a requirement. “You have to know that the storm is coming,” she said.

Like seat belts and helmets, I’ve got nothing against weather radios. And if I lived a mobile home, I’d gladly trade the paltry $30 for a radio. But I’m not willing to trade freedom for that radio.

The fact that Kathryn Martin can’t understand why there’s resistance to making this a requirement speaks a lot to what our kids are being taught in public schools. And it sure isn’t a good story.

The Battle Against The Fairness Doctrine Continues

Captain Ed is reporting that Congressman Mike Pence’s amendment blocking the FCC from reinstating the Fairness Doctrine will be introduced in the Senate by Senators Norm Coleman and John Thune:

In an effort to prevent Democrats from suppressing the right to free speech for talk radio and other broadcasters, Senators Norm Coleman (R-MN), Jim DeMint (R-SC) and John Thune (R-SD) today introduced the Broadcaster Freedom Act of 2007 (S.1748). The bill would prevent the Federal Communications Commission (FCC) from reinstituting the Fairness Doctrine, which would require the government to monitor political views and decide what constitutes fair political discourse. Identical legislation was also introduced by Congressman Mike Pence (R-IN) in the House of the Representatives.

“At its core, this is about the right to free speech. Our founders put the first amendment first for a reason. It protects all Americans’ right to free speech, regardless of political affiliation or views. The Democrats’ attempt to regulate and stifle ideas is a grave threat our liberties,” said Senator Coleman. “Since the repeal of the Fairness Doctrine, talk radio has flourished due to free market ideas. We mustn’t put the government in control over the political views expressed on the public airwaves. I applaud Congressman Pence for being a leader on this issue. Senators DeMint, Thune and I will continue working with our colleagues in the Senate to pass this critical legislation.”

“Here they go again. Democrats showed in the immigration debate they will once again try resurrect the so-called ‘Fairness Doctrine’, which is nothing more than an attempt to muzzle the free speech of conservative Americans. If liberals had their way, this unfair doctrine would give the heavy hand of government control over talk radio. We must act now to preserve all American’s first amendment rights,” said Senator DeMint.

This isn’t about Republicans and Democrats, or Rush Limbaugh, or even conservative talk radio. It’s about freedom of speech. Passage of this bill should become a priority.

Supreme Court Agrees To Hear Guantanamo Detainee Cases

This could potentially be a very significant legal development:

The Supreme Court said today that it would review the rights of Guantanamo Bay detainees to challenge their confinements in federal court, reversing a decision in April not to take up that issue.


The court will hear two cases that challenge the Bush administration’s position that the fates of hundreds of detainees held at the U.S. naval base in Cuba as alleged terrorists is best handled by military tribunals rather than the U.S. courts.

Last February, the U.S. Court of Appeals for the D.C. Circuit upheld a key provision of the Military Commissions Act, approved by Congress last year, that took away federal court jurisdiction to hear challenges from the detainees about their confinement. That is the decision the court earlier decided not to hear, but revived today.

The court consolidated two cases, Boumediene v. Bush and Al Odah v. U.S., and will hear them together sometime after its new term begins next October. In addition, the court said it would consult the findings of the D.C. circuit appeals court in two other pending cases in which detainees challenge the judgment of the military tribunals that determined them to be enemy combatants.

What makes this significant is the fact that the Bush Administration has not fared well when the Court has reviewed its detainee policies in the past:

The court has considered the rights of detainees twice in the last three years, ruling both times against the administration.

And the decision will be released right in the middle of a Presidential campaign.

Did A National ID Card Kill The Immigration Bill ?

Among the many provisions of the recently defeated immigration bill that most Americans didn’t know about was a massive expansion of the use of a National ID card. And it seems that those provisions may have ultimately been what killed the bill:

The U.S. Senate definitively rejected President George Bush’s immigration bill on Thursday, just hours after senators expressed deep misgivings with portions that would have expanded the use of a national ID card.

Because the procedural vote was 46 to 53, with 60 votes needed to advance the immigration legislation, the proposal is likely to remain dead for the rest of the year.

Privacy advocates were quick to claim that a vote against Real ID cards the previous evening doomed the bill.

Wednesday’s vote showed that senators were willing to delete the portion of the labyrinthine immigration bill that would require employers to demand the Real ID cards from new hires. Because some of the bill’s backers had insisted that the ID requirement remain in place–as a way to identify illegal immigrants–they were no longer as willing to support the overall bill.

“The proponents of national ID in the Senate weren’t getting what they wanted, so they backed away,” said Jim Harper, a policy analyst at the free-market Cato Institute who opposes Real ID. “It was a landmine that blew up in their faces.”

The American Civil Liberties Union, another longtime foe of Real ID, said the Real ID requirements were a “poison pill that derailed this bill, and any future legislation should be written knowing the American people won’t swallow it.” Another section of the immigration bill would have given $1.5 billion to state officials to pay for Real ID compliance.

Regardless of what you think of any other provisions of the immigration bill, the fact that yet another back door attempt to create a National ID card was defeated is good news. Of course, the fight’s not over yet:

Even if the immigration bill is goes nowhere, however, the Real ID Act is still in effect. It says that, starting on May 11, 2008, Americans will need a federally approved ID card to travel on an airplane, open a bank account, collect Social Security payments or take advantage of nearly any government service.

States must conduct checks of their citizens’ identification papers and driver’s licenses may have to be reissued to comply with Homeland Security requirements. (States that agree in advance to abide by the rules have until 2013 to comply.)

Let the fight continue.

Two Defeats For RealID In One Month

Yesterday, it was New Hampshire, the Live Free or Die State, that said no to the Real ID Law:

New Hampshire on Wednesday rejected the federal Real ID Act as tantamount to requiring a national ID card, joining five other states in opposing it.

South Carolina, Montana, Washington, Oklahoma and Maine also have rejected the federal act.

“Here in New Hampshire, we pride ourselves on being frugal, and here in New Hampshire, we pride ourselves on respecting the privacy of our neighbors,” Gov. John Lynch said at the bill signing.

And, earlier this month, South Carolina joined the growing chorus against Real ID:

Columbia, S.C. – June 13, 2007 – Gov. Mark Sanford today traveled to Greenville to sign S449, a bill that keeps South Carolina from participating in the costly federal mandate known as the REAL ID Act.

REAL ID is a federal initiative aimed at creating a national ID card. With the governor’s signature of the bill, South Carolina joined a growing number of other states that are declining to participate. If South Carolina were to participate in the ID program, the unfunded federal mandate would cost state taxpayers $25 million in startup costs and an additional $11 million on an annual basis. It would also increase DMV workloads by a projected 132 percent, pushing wait times to over an hour as every South Carolinian would be forced to get re-licensed in person under the new federal guidelines.

This is one of the times when I am happy that Federalism and state’s rights still mean something.

Update on the “Fairness Doctrine”

“We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.”John F. Kennedy

The United States House of Representatives has overwhelmingly voted against funding the Fairness Doctrine. This was presented as an amendment to the Financial Services and General Government Appropriations Act by Congressman Mike Pence.

Score another victory for the First Amendment.

Is There A Case For Impeaching Dick Cheney ?

Bruce Fein, a conservative who served as Deputy Attorney General under Ronald Reagan, and who has been associated with groups such as the American Enterprise Institute, makes the case at Slate:

Under Dick Cheney, the office of the vice president has been transformed from a tiny acorn into an unprecedented giant oak. In grasping and exercising presidential powers, Cheney has dulled political accountability and concocted theories for evading the law and Constitution that would have embarrassed King George III. The most recent invention we know of is the vice president’s insistence that an executive order governing the handling of classified information in the executive branch does not reach his office because he also serves as president of the Senate. In other words, the vice president is a unique legislative-executive creature standing above and beyond the Constitution. The House judiciary committee should commence an impeachment inquiry. As Alexander Hamilton advised in the Federalist Papers, an impeachable offense is a political crime against the nation. Cheney’s multiple crimes against the Constitution clearly qualify.

Fein then goes on to catalog what he thinks should be some of the areas of inquiry of a possible impeachment move:

The vice president asserted presidential power to create military commissions, which combine the functions of judge, jury, and prosecutor in the trial of war crimes. The Supreme Court rebuked Cheney in Hamdan v. Rumsfeld. Mr. Cheney claimed authority to detain American citizens as enemy combatants indefinitely at Guantanamo Bay on the president’s say-so alone, a frightening power indistinguishable from King Louis XVI’s execrated lettres de cachet that occasioned the storming of the Bastille. The Supreme Court repudiated Cheney in Hamdi v. Rumsfeld.

The vice president initiated kidnappings, secret detentions, and torture in Eastern European prisons of suspected international terrorists. This lawlessness has been answered in Germany and Italy with criminal charges against CIA operatives or agents. The legal precedent set by Cheney would justify a decision by Russian President Vladimir Putin to kidnap American tourists in Paris and to dispatch them to dungeons in Belarus if they were suspected of Chechen sympathies.


Mr. Cheney has championed a presidential power to torture in contravention of federal statutes and treaties.

He has advocated and authored signing statements that declare the president’s intent to disregard provisions of bills he has signed into law that he proclaims are unconstitutional, for example, a requirement to obtain a judicial warrant before opening mail or a prohibition on employing military force to fight narco-terrorists in Colombia.


The vice president has orchestrated the invocation of executive privilege to conceal from Congress secret spying programs to gather foreign intelligence, and their legal justifications. He has summoned the privilege to refuse to disclose his consulting of business executives in conjunction with his Energy Task Force, and to frustrate the testimonies of Karl Rove and Harriet Miers regarding the firings of U.S. attorneys.

These are all, I think, serious matters, and it’s encouraging to see conservatives like Fein recognizing and denouncing the legacy of the Bush-Cheney Administration, but I think there’s a serious question as to whether any of the things Fein mentions constitute impeachable offenses under the Constitution.

The Congressional impeachment power is set forth in Article II, Section 4 of the Constitution, which states:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Nothing that Fein mentions can be considered to constitute treason, which is the only crime defined in the Constitution, and there’s no evidence or allegation of bribery. So that leaves open the question of whether there are any high crimes or misdemeanors.

As much as a disagree with the Bush Administration, and as much as I think Cheney has done great harm to the Office of the Vice-President and the country, the fact remains that each one of the items that Fein cites in his article are, in the end, arguments over policy and the extent of Presidential power in a time of quasi-war. Unlike Watergate, where Richard Nixon at the very least participated in a conspiracy to obstruct justice, there’s no direct evidence of a crime having been committed. Even Clinton’s impeachment, which I think was a political mistake, involved commission of a crime, perjury under oath before a Federal Judge.

It’s clear that Fein, like many of us, disagrees with the Vice-President and thinks he went overboard in the years after 9/11. But that’s a policy disagreement, and that’s what elections are for.

I addressed this issue back in March when Chuck Hagel was speculating about President Bush’s impeachment, and this observation is equally applicable today:

Hagel’s comments also make it clear why the Founders limited the impeachment power the way that they did. If Congress had the authority to attempt to remove the President, Vice-President, or Justice of the Supreme Court at will, then separation of powers would become a meaningless concept, and the President would become a mere minister serving at the pleasure of whichever party has majority control of the Legislative Branch. That is what the Parlimentary system, which existed in England at the time the Constitution was written, is all about. Had the Founders wanted to mimic it, they very could have. The fact that they didn’t leads to the conclusion that they wanted co-equal branches of government for a reason.

The chance to deal with Dick Cheney was back in November 2004, but, thanks largely to the fact that Bush/Cheney was facing an incredible inept Democratic ticket, the Vice-President remained in office at the end of the day. Moreover, he’ll be out of office after noon on January 20, 2009. It’s not worth trashing the Constitution to get rid of him earlier.

Banning The Fairness Doctrine

Congressman Mike Pence has introduced a bill in the House of Representatives that would prevent the Federal Communications Commission from bringing back the so-called Fairness Doctrine without Congressional approval:

WASHINGTON – A Republican lawmaker wants to forestall any potential reversal of federal rules that allow talk radio to broadcast one side of an issue without an opposing viewpoint.

Rep. Mike Pence, R-Ind., announced Wednesday that he plans to introduce a bill Thursday that would prevent any future president or the Federal Communications Commission from reinstating the Fairness Doctrine, the FCC regulation that aimed to ensure that controversial issues broadcast on the airwaves were balanced and fair with contrasting points of view. The rule was revoked in 1985.

“There’s nothing fair about the Fairness Doctrine,” said Pence, a former syndicated talk radio host.

“Bringing back the Fairness Doctrine would amount to nothing more than government control over political views expressed on the public awareness and it must not be allowed to occur,” Pence said on the House floor.

Pence’s bill is meant as a pre-emptive strike against a growing backlash in Congress over the dominance of conservative hosts on talk radio. Some Democrats have expressed interest in reinstating the FCC requirement so as to force balance between conservative and liberal hosts on the airwaves.

Given what has been coming out of Washington lately, a law like this is long overdue:

The No. 2 Democrat in the Senate, Dick Durbin of Illinois, said he believes Americans want to hear opposing viewpoints.

“It’s time to reinstitute the Fairness Doctrine,” Durbin said in a report in The Hill newspaper. “I have this old-fashioned attitude that when Americans hear both sides of the story, they’re in a better position to make a decision.”

Sen. Dianne Feinstein told “FOX News Sunday” that she was reviewing the Fairness Doctrine because “talk radio is overwhelmingly one way.”

“In my view, talk radio tends to be one-sided. It also tends to be dwelling in hyperbole. It’s explosive. It pushes people to, I think, extreme views without a lot of information,” said Feinstein, D-Calif.

And there have been similar comments from John Kerry:

Senator John Kerry is calling for reimposition of the fairness doctrine.

In a radio interview on WNYC’s The Brian Lehrer Show, excerpted on YouTube , Senator Kerry said he thought the doctrine should return. Calling it one of the “most profound changes in the balance of the media,” he said conservatives have been able to “squeeze down and sqeeze out opinion of opposing views. I think it has been a very important transition in the imbalance of our public dialog,” he said.

Kerry joins what appears to be a growing Democratic push-back against conservative talk radio, which flowered after the FCC in 1987 declared that the doctrine was unconstitutional. Rep. Dennis Kucinich (D-Ohio) has called for the doctrine’s return, and Senator Diane Feinstein 9D-Calif,) says she is looking into it.

And here’s the YouTube piece:

Bush is a disaster, but thank God that guy never became President.

Supreme Court Severely Limits Affirmative Action

In two decisions today the Supreme Court severely limited the ability of public school systems to use race as a factor in assigning students to schools:

WASHINGTON — The Supreme Court on Thursday rejected integration plans in two major public school districts but left the door open for the limited use of race to achieve diversity in schools.

The decision in cases affecting how students are assigned to schools in Louisville, Ky., and Seattle could imperil similar plans in hundreds of districts nationwide, and it further restricted how public school systems may attain racial diversity.

The court split, 5-4, with Chief Justice John Roberts announcing the court’s judgment. The court’s four liberal justices dissented.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts said.

Yet Justice Anthony Kennedy would not go as far as the other four conservative justices, saying in a concurring opinion that race may be a component of school plans designed to achieve diversity.

To the extent that Roberts’ opinion could be interpreted to foreclose the use of race in any circumstance, Kennedy said, “I disagree with that reasoning.”

“A district may consider it a compelling interest to achieve a diverse student population,” Kennedy said. “Race may be one component of that diversity.”

He agreed with Roberts that the plans in Louisville and Seattle violated constitutional guarantees of equal protection

Because of Kennedy’s unwillingness to sign on to Roberts’ opinions, of course, the decisions do not go as far as they might have, but it is certainly a substantial step toward ending the idea that it is ever permissible for the government to discriminate on the basis of race.

Of course, not everyone on the Court felt the same way as Roberts, which led to an interesting little exchange between Justice Breyer and Justice Scalia on the legacy of the Court’s decision in Brown v. Board of Education:

Justice Stephen Breyer, in a dissent joined by the other liberals on the court, said Roberts’ opinion undermined the promise of integrated schools that the court laid out 53 years ago in its landmark decision in Brown v. Board of Education.

“To invalidate the plans under review is to threaten the promise of Brown,” Breyer said.

While Roberts said the court was being faithful to the Brown decision, Justice John Paul Stevens in a separate dissent called the chief justice’s reliance on Brown to rule against integration “a cruel irony.”

Justice Clarence Thomas, the court’s only black member, wrote a separate opinion endorsing the ruling and taking issue with the dissenters’ view of the Brown case.

“What was wrong in 1954 cannot be right today,” Thomas said. “The plans before us base school assignment decisions on students’ race. Because ‘our Constitution is colorblind, and neither knows nor tolerates classes among citizens,’ such race-based decisionmaking is unconstitutional.”

I think Thomas clearly has the better argument here. The reason that the Court’s decision in Brown was correct is because it was wrong from the Topeka Board of Education to discriminate against students based on their race. A plain reading of the 14th Amendment should have made that clear. Unfortunately, the Court’s opinion, along with decades of previous 14th Amendment case law, muddied the waters as much as it cleared them up because it relied more on social science studies of the detrimental impact of segregated schools on black children than it did on the plain fact of the matter that the 14th Amendment was clearly intended to make the Constitution colorblind.  We’ve been paying for the Court’s mistaken reasoning in that case ever since.

Genarlow Wilson Is Still In Jail

By now, Genarlow Wilson’s story should be familiar to everyone. At 17 he was convicted of having consenual oral sex with his fifteen year old girlfriend and, because of the absurdity of Georgia’s sex offender laws, he was sentenced to ten years in prison.

Earlier this month, the judge in charge of his case reduced Wilson’s conviction to his misdemeanor and ordered his immediate release. Wilson had already spent two years in prison, and that would’ve seemed to have been the end of it, except the Georgia Attorney General filed an appeal.

Yesterday, Wilson learned that he would not be released while that appeal is pending:

Genarlow Wilson, whose 10-year prison sentence for having consensual oral sex with a 15-year-old when he was 17 was voided by a judge earlier this month, is not eligible to be released on bail while the state appeals his sentence, a judge ruled today.

The ruling, which came just days after investors announced they’d post a $1 million bond for Wilson, likely means Wilson will remain in jail for several more months. The Georgia Supreme Court is scheduled to hear his case in October.

The order, issued by Douglas County Superior Court Judge David Emerson, canceled the bond hearing that he originally set for July 5.

In his Wednesday ruling, Emerson cited a Georgia law that prevents trial courts from granting bail to people convicted of certain crimes, including aggravated child molestation, when the original sentence exceeds five years, as is the case with Wilson.

“As the court has no authority to grant an appeal bond in this case, there is no need for an evidentiary hearing on the defendant’s eligibility for a bond,” Emerson wrote in a three-page order.

It would appear that the Judge didn’t do anything wrong here. He simply doesn’t have the authority to release Wilson on appeal because of the type of the crime he was convicted of committing. The fault lies with the Georgia legislature for writing an absurd law, and with a prosecutor who continues to pursue a case that really ought to be dropped by now.

H/T: Brendan Loy

Another Police Outrage Caught On YouTube

Go skateboarding in Little Rock, Arkansas and you run into the iron hand of the law:

LITTLE ROCK, Ark. — A police officer who appears to choke a skateboarder and put two others in a headlock in a video posted online has been put on administrative leave while police investigate, officials said.

Hot Springs Mayor Mike Bush said Tuesday that investigators have talked with witnesses who saw the officer, Joey Williams, stop the skateboarders on a downtown city sidewalk last Thursday. Skateboarding is banned in the area.

The video shows Williams apparently choking one of the skateboarders after forcing him to the ground, then later chasing and wrestling two others while holding them in a headlock.

“Unfortunately, the video shows it pretty good,” Bush said

Unfortunately ? Are you suggesting that it would’ve been better if the video didn’t exist, because then you wouldn’t have the inconvenient problem of evidence like this ?

H/T: Brendan Loy

Counterpoint: The “Living Constitution” Is The Road To Serfdom

In his opening post, our Guest Blogger Derek Hammer states that the United States Constitution is, and should be considered to be, a living document.

In at least one interpretation of that phrase, I agree with him.

As we sit here, less than three months shy of the 220th anniversary of the date that the Philadelphia Convention sent the Constitution to the States for ratification, it is clear that the document itself is alive and that, notwithstanding several decades of bad decisions by the Supreme Court and lower Federal Courts, the core protections of individual liberty that were created in Philadelphia in 1787 remain intact.

However, the debate over a “living Constitution” vs. strict constructionism is far more complicated than that.

Derek’s core argument, which I agree with on many levels is this:

The Constitution is a living document. However, I must stress that a living document does not mean that the government has free reign to do what it wishes! Instead, power must stay consolidated with the people, as was the intent of the Founders, and the people are the only ones that should be able to relinquish their power to the government. The government should not direct the lives of people nor should it abuse the flexibility of the Constitution. Instead, I believe that the Constitution’s flexibility should be considered minor leeway for the Congress instead of a free-ranging usurpation of power from the people. Major changes to the Constitution should not be, and cannot be, overruled by the laws of Congress. Instead, amendments should be made in order to change the Constitution itself.

Also, the Commerce Clause and the Elastic Clause are being abused by the Congress and the federal government. In the 9th and 10th amendments, the powers that are not enumerated to the Congress are reserved to the states and, ultimately, the people. Universal healthcare does not “promote the General Welfare,” it enforces it! Such a law would restrict the freedoms of the people–the very freedoms that are reserved to the people. Congress does not have the authority to do this even under a living Constitution.

This argument is not entirely unlike the argument that legal scholars like Randy Barnett have made in favor of what amounts to a libertarian version of judicial activism. Put a bunch of libertarians on the Supreme Court, give them the 9th and 10th Amendments to work worth, and let hell break loose.

The problem with that argument is that ignores political, and in some sense, legal, reality.

The natural tendency of the state is to expand it’s power.

This is not an original insight on my part, it’s been noted by classical liberal/libertarian thinkers since the Enlightenment. A legal theory that asserts that the founding document of the nation, in this case the U.S. Constitution, is open to interpretation based on contemporary standards, is an open invitation to the expansion of state authority over the individual.

Quite honestly, this isn’t even a matter of academic argument. It’s a matter of what has actually happened. Beginning even with Marbury v. Madison, the case that established the Supreme Court’s authority to declare a law passed by Congress unconstitutional despite the fact that no such authority was granted by the Constitution itself, the process of removing the reality of authority in the United States from what the Constitution actually said had begun. The process continued with cased like Dred Scott and Plessy v. Ferguson and then reached their height in the New Deal era when the Supreme Court, temporarily at least, had the audacity to tell Franklin Roosevelt that he didn’t have the authority to turn the United States into a semi-socialist state. And then, he challenged them, and though he failed, they caved and the result is history.

I could go on, but the point is this. The history of the idea of the “Living Constitution” is a history of the expansion of the power of the state and the shrinking of individual liberty and autonomy.

And, to paraphrase William F. Buckley, Jr., I’d rather be governed by the words written 220 years ago by a group of American Patriots than by the whims of several hundred Federal Judges.

Point: The Constitution Is A Living Document

In the United States, a document–the Constitution of the United States, the Supreme Law of the Land–binds us, the people, when we are granted citizenship. By becoming citizens of this great nation, we assure ourselves the protections outlined by this document. Unfortunately, many citizens forget these inalienable rights.

However, there are some that have not. There are still many scholars of the Constitution and between these informed citizens there is a debate that has raged since the days after the Civil War. This debate–the debate over the elasticity of the Constitution–is a healthy discourse that defines the heart of the American philosophy. On one side of the debate, there are scholars that declare that the Constitution is rigid, that only a strict interpretation of the Constitution is acceptable. Supreme Court justices such as the late Chief Justice Rehnquist and constitutional scholar Ron Paul support this argument. On the other side, though, many scholars also say that the Constitution is a “living document” that has a certain amount of elasticity to it. Again, several Supreme Court Justices and constitutional scholars agree with this point of view. So, who is right?

While the “strict interpretation” argument has several solid points, I believe that the evidence falls heavily in the favor of the “living document” argument. The legal system in the colonies, the words of the framers, the fears of the Constitution’s opponents, the Supreme Court’s solidification of its own power and even the framework of the Constitution all point to a “living document.”

However, before I delve into details about each one of those evidence points, I must point out that “living document” is unjustly correlated with “judicial activism.” Judicial activism is a situation where a judge tries to impose his own political views into a ruling–usually by completely disregarding any acceptable ruling logic. Thus, any judge, whether she has a “strict constructionist” or “living document” view, can be a “judicial activist.”

The first point to be made to support the living constitution rhetoric is that the colonies all had legal systems that were similar to the Great Britain legal system. In Great Britain, citizens were protected under the Magna Carta. This British “bill of rights” was a document that is not unlike our own Bill of Rights, though it was less extensive and less restrictive on the British government. However, there was a practice in Great Britain that was called “Common Law.” This law was flexible law that was aggregated by using all of the court cases to determine what is lawful and what is not. The Founders practiced this sort of flexible law in the colonies and, afterward, in the states. It is reasonable to say that they expected the Federal government’s legal system to act in much of the same way.

The Framers are also on record describing the powers of the judicial branch. Alexander Hamilton wrote in Federalist No.78 that “exercise of judicial discretion” is the “province of the courts” of which he gave a specific example of “two contradictory laws” where the courts have the power “to liquidate and fix their meaning and operation.” This “province of the courts” to “exercise judicial discretion” sounds familiar to the Common Law practices of the colonies and Britain, as discussed before.

The opponents of the Constitution wrote a series of letters that are now in a collection called the “Antifederalist Papers.” These letters were written to oppose the Constitution and are useful in attempting to discover what the Founders feared about the Constitution and government in general. It can also be used to determine the intent of the Constitution, as the arguments written in these letters elaborate on each part of the Constitution more than the Constitution does itself! In Brutus 5, one of the opponents of the Constitution declared:

    In the 1st article, 8th section, it is declared, “that Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts, and provide for the common defence, and general welfare of the United States.” In the preamble, the intent of the constitution, among other things, is declared to be to provide for the common defence, and promote the general welfare, and in this clause the power is in express words given to Congress “to provide for the common defence, and general welfare.” — And in the last paragraph of the same section there is an express authority to make all laws which shall be necessary and proper for carrying into execution this power. It is therefore evident, that the legislature under this constitution may pass any law which they may think proper.

He argued that the Congress would have power to do what it wished with the elastic clause (which, sadly, has not been restricted and Brutus has been proven correct). This is evidence that the founders intended for the document to have some elasticity.

In 1801, John Marshall was appointed Chief Justice of the Supreme Court. Before his appointment and during his first two years as the nation’s top Justice, the Court had no real power. The Court’s decisions reached no further than the individual cases which were brought before it. However, Chief Justice Marshall changed that in Marbury v. Madison, 1803. In this case, Marshall declared that the judiciary branch has the power of judicial review–the same concept that was exercised in state judiciaries as well as in the judiciaries of the colonies. This power was not directly outlined by the Constitution but it was declared shortly after the Constitution was ratified and it was during the times of the founders. To my knowledge, not one of the Founders criticized the decision (though, Jefferson was angry. But, it was for different reasons other than Constitutionality).

For my final point of evidence, the framework of the Constitution itself creates an aura of openness and flexibility. The words of the Constitution are very vague. In some instances, certain powers are left open to interpretation–the judicial branch had nearly no direction from the Constitution! Also, the Bill of Rights weren’t properly ratified and added to the Constitution until 1791! The vagueness of the Constitution can be seen when compared to other constitutions. For example, the length of the Constitution, in words, is 4,543. By comparison, the South African Constitution has over 50,000 words! By all counts, the South African constitution is specific while the United States Constitution is vague. The vagueness of the United States Constitution leaves for flexibility in the government.

The Constitution is a living document. However, I must stress that a living document does not mean that the government has free reign to do what it wishes! Instead, power must stay consolidated with the people, as was the intent of the Founders, and the people are the only ones that should be able to relinquish their power to the government. The government should not direct the lives of people nor should it abuse the flexibility of the Constitution. Instead, I believe that the Constitution’s flexibility should be considered minor leeway for the Congress instead of a free-ranging usurpation of power from the people. Major changes to the Constitution should not be, and cannot be, overruled by the laws of Congress. Instead, amendments should be made in order to change the Constitution itself.

Also, the Commerce Clause and the Elastic Clause are being abused by the Congress and the federal government. In the 9th and 10th amendments, the powers that are not enumerated to the Congress are reserved to the states and, ultimately, the people. Universal healthcare does not “promote the General Welfare,” it enforces it! Such a law would restrict the freedoms of the people–the very freedoms that are reserved to the people. Congress does not have the authority to do this even under a living Constitution.
As one last point, whether the Constitution is a living document or not is a great argument to research and learn about. Many scholars would disagree with me on my stance that the Constitution is a living document. In fact, most of my conservative friends would completely disagree with me. However you feel, though, I think that promoting such a discussion is beneficial for all. No matter whom is right, we all win; we win back the defining principle that makes Americans uniquely American: public discourse. If we don’t fight for our Constitution, living or dead, it will slowly disappear into oblivion. None of us want that.

From Guest Blogger Derek Hammer

Dick Cheney Rejoins The Executive Branch

Compelled perhaps by the rather creative proposal by Congressman Rahm Emanuel to cut off funding for the Office of the Vice-President based on assertions that the Veep is not part of the Executive Branch of Government, Vice-President Cheney has now apparently decided to rejoin the Executive Branch of the Federal Government:

Dick Cheney’s office is abandoning a justification for keeping the vice president’s secret papers out of the hands of the National Archives, while asserting a new argument for withholding them.

Officials working for Cheney had tried to claim he is separate from the executive branch, but they will no longer pursue that defense, senior administration officials tell The Politico.

The decision follows a threat by Rep. Rahm Emanuel (Ill.), the No. 3 House Democrat, to try to cut off the office’s $4.8 million in executive-branch funding, and a letter from Sen. John F. Kerry (D-Mass.) asking for the reasoning behind the argument.

Welcome back to the United States, Mr. Vice-President. But what’s this about a new argument for withholding secret documents ?

David S. Addington, Cheney’s chief of staff and counsel, wrote in a three-paragraph response to Kerry on Tuesday that the executive order on classified national security information does not give the archivists authority over the president or vice president.

Addington said that therefore it “is not necessary in these circumstances to address the subject of any alternative reasoning.”

In other words, we’re still not going to comply with the law and we’re not going to tell you why.

Audacity Defined: Congress Gives Itself A Pay Raise

Notwithstanding record low approval ratings, it appears that the members of the House of Representatives think they’re entitled to a pay raise:

WASHINGTON (Map, News) – Despite record-low approval ratings, House lawmakers Wednesday voted to accept an approximately $4,400 pay raise that will increase their salaries to almost $170,000.

The cost-of-living raise gets lawmakers back on track for automatic pay raises after a fight between Democrats and Republicans last year and again in January killed the pay hike due this year. That was the first interruption of the annual congressional pay hike in seven years.

The blowup came after Democrats last year fulfilled a campaign promise to deny themselves a pay hike until Congress raised the minimum wage. Delays in the minimum wage bill cost every lawmaker about $3,100 this year.

On a 244-181 vote Wednesday, Democrats and Republicans alike killed a bid by Reps. Jim Matheson, D-Utah, and Lee Terry, R-Neb., to get a direct vote to block the COLA, which is automatically awarded unless lawmakers vote to block it. The Senate has not indicated when it will deal with a similar measure.

Unlike those lucky folks on Capitol Hill and the rest of the people who work for, or receive benefits from, the Federal Government, most of us aren’t entitled to a pay raise just because the “cost of living” has increased.

But, of course, we’re the little people. And they deserve it.

Right ?

PETA Swerves Into the Truth

Even organizations as wrongheaded and extreme as PETA can swerve into the truth on occasion. PETA’s president and founder Ingrid E. Newkirk wrote a letter to Michael Moore (the Fat Ass from Flint) in response to Moore’s upcoming crockumentary SiCKO; a film which advocates socialized healthcare and criticizes America’s current healthcare system. So what is PETA’s beef (pardon the pun) with the Fat Ass’s movie? The beef is that, due to his weight, he apparently eats a lot of beef.

Dear Mike,

Congratulations from PETA on your reviews for SiCKO. Although we think that your film could actually help reform America’s sorely inadequate health care system, there’s an elephant in the room, and it is you. With all due respect, no one can help but notice that a weighty health issue is affecting you personally. We’d like to help you fix that. Going vegetarian is an easy and life-saving step that people of all economic backgrounds can take in order to become less reliant on the government’s shoddy healthcare system, and it’s something that you and all Americans can benefit from personally…


Yes, America’s healthcare system needs to be fixed, but personal responsibility is a big part of why people look and feel as ill as they do.

Obliviously, PETA has an agenda here trying to convince the Fat Ass to become a vegetarian; I wouldn’t begrudge the Fat Ass his steak and eggs (as I would not give up my right to eat tasty animals) but rather encourage moderation of diet (though I am not the best person to preach such a message either. I could stand to lose a few pounds too). What Newkirk writes toward the end of her letter is very interesting, however. About the last thing I would expect to hear from a leftist is anything having to do with “personal responsibility.”

I do not believe that Newkirk’s point was that the U.S. should adopt more of a free market approach to healthcare opposed to the Fat Ass’s socialist/Hillary Clinton model but may have inadvertently helped make such an argument. Under socialist and communist systems, there are few rewards for individuals making good choices. Those who make very poor choices strain the system yet they receive the same benefits as those who have made better choices. Shouldn’t we be moving away from this sort of system and instead see what the free market has to offer?

I cannot for the life of me understand why health insurance operates so differently from virtually every other kind of insurance. The auto insurance industry charges lower premiums for drivers who have better driving records than those with wrecks and tickets. Home owner policies are less for people who choose to live closer to a fire station. Life insurance companies give better rates to those who are at or close to their ideal weight, don’t smoke, don’t drink excessively, or otherwise live a life of minimal risk. It seems to me that if the health insurance industry followed the same model, healthcare would be much less expensive and the healthcare providers and health insurers would make more profit than they do now.

Even more than the free market reasons for opposing socialized medicine, there is also a moral argument to consider. We simply cannot demand freedom if we are not willing to accept responsibility. We cannot oppose the war on (some) drugs on moral grounds if we are not willing to tell those who wish to harm their bodies that they should also be responsible for their own trip to the hospital (and all other expenses they incur from making a bad choice). Those of us who choose not to smoke, drink excessively, or overeat should not be expected to pay more for those who do. Living in a free society means taking responsibility for your own choices.

Rahm Emanuel — Cheney Can’t Get Funding From Executive Branch

Dick Cheney dropped an odd proclamation last week. It appears that he doesn’t believe he’s part of the Executive Branch, and thus is not subject to their rules regarding disclosure. He’s playing with fire, because if he’s outside the Executive Branch, it’s unclear whose rules he falls under. Cheney is hoping that means he’s not under anyone’s rules, but that’s a tenuous assertion to make.

Now, Rahm Emanuel is going to try to call his bluff. Since Cheney doesn’t believe he’s part of the Executive, Emanuel is going to try to make sure his office— and home— aren’t funded as part of the Executive:

Responding to claims by Vice President Dick Cheney that his office is exempt from disclosing information about what it has classified as secret, Rep. Rahm Emanuel (D-Ill.) said Tuesday he will try to cut off the $4.8 million needed annually to run Cheney’s office and home.

Last week, Cheney claimed he is not bound to disclose some national security requirements because, as president of the Senate, he is not part of the executive branch.

Emanuel’s proposal would be attached as an amendment to a spending bill that includes funding of the executive branch and which is expected to be considered by the House as early as Wednesday night. The amendment proposes that no executive funds be used for the vice president’s office, including any money for Cheney’s vice presidential residence.

“He’s not part of the executive branch. We’re not going to fund something that doesn’t exist,” said Emanuel, who is also the House Democratic Caucus chairman. “I’m following through on the vice president’s logic, no matter how ludicrous it might be.”

Seems like a pretty clear interpretation of Cheney’s illogic to me. Of course, Cheney’s office responded with a standard retort:

Cheney spokeswoman Megan McGinn retorted, “I think it is sad that Congressman Emanuel would rather focus on partisan politics than the serious issues facing our country.”

What, because the Constitution, separation of powers, and the ability of “we the people” to engage in oversight aren’t serious issues? Yes, Emanuel’s playing politics. But Cheney’s just trying to make himself above the law. I consider the former a justifiable tactic against the latter.

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