Saturday, July 3, 2010
Friday, July 2, 2010
Clinton Defends Byrd's KKK Ties: "He Was Trying To Get Elected"
To view the video visit http://www.realclearpolitics.com/video/2010/07/02/clinton_defends_byrds_kkk_ties_he_was_trying_to_get_elected.html.
Just wondering, would the media or liberal elites generally be as gracious upon the death of a long serving conservative Senator by generally ignoring something like this in a Republican Senator's past? Furthermore, it is not quite accurate for Clinton to call his association with the Klan "fleeting." The truth is that Byrd joined the KKK in 1942 and was a leader of his chapter. He wrote a letter praising the KKK in 1947 and defended the Klan in his Senate run in 1958. He voted against both Thurgood Marshall and Clarence Thomas and he filibustered the 1964 Civil Rights Act.
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Thugs From Jimmy Kimmel Show "Torture" Pro-Life Activist With Hot Spotlight, Man Attempting To Turn The Light Away Gets Arrested
On June 25th, a pro-life group wasw peacefully protesting outside of Grauman’s Chinese Theatre in Hollywood. A crew from the Jimmy Kimmel Show arrived to do some filming and the pro-life youth activists were not in the film crew’s way. The sadistic crew that obviously had ideological differences with the protest turned a hot spotlight on Ryan Bueler, a young protester. Bueler refused to move for 15 minutes and stood under the light hot enough to partially melt a bracelet he was wearing. A citizen then attempts to turn the light off or away from the activist himself, and is subsequently arrested by the police. This is shocking and inexcusable behavior from the police and the crew of that late night show. The police siding with those using tactics to shut down a lawful and peaceful person holding a sign is inexcusable, if not against the spirit of the First Amendment itself. Jimmy Kimmel should immediately fire everyone in that crew, and the police should immediately issue a public apology to the man they arrested and to all of Los Angeles for their utter and complete incompetence in dealing with the situation appropriately.
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Thursday, July 1, 2010
Hugh Hewitt: "NRA Blew It On Disclose Act"
As usual, Hugh Hewitt, no doubt the smartest of the talk show hosts out there today, who happens to be a current Constitutional law professor and practicing attorney, is right on target. Here he explains why the NRA should be ashamed of itself for the special deal it made sure to get in the Disclose Act in exchange for not opposing it: http://www.washingtonexaminer.com/opinion/columns/NRA-blew-it-big-time-on-Disclose-Act-97269394.html. Tweet
Allan Meltzer: "Why Obamanomics Has Failed"
Mr. Meltzer is a professor of economics at Carnegie Mellon University, a visiting scholar at the American Enterprise Institute, and the author of "A History of the Federal Reserve." To read his analysis in which he states that "uncertainty about future taxes and regulations is enemy no. 1 of economic growth," visit http://online.wsj.com/article/SB10001424052748704629804575325233508651458.html?mod=ITP_opinion_0. Tweet
Biden Compares Republicans To Nazis By Claiming There Is A GOP "Blittzkrieg"
The NY Post reports:
"Comparing GOP tactics to the fast-striking forces of Nazi Germany, Biden warns in a message sent by the DCCC today: 'As things heat up, you can expect House Democrats will be hit with a GOP blitzkrieg of vicious Swift-Boat-style attack ads, Karl Rove-inspired knockout tactics, thinly veiled attempts at character assassination and tea party disruptions.' And while the GOP is mounting a blitzkrieg, Democrats are the allies. 'Our Democratic allies in the House need your help, and the President and I hope we can count on you to come to their defense so we can hold onto our Democratic Majority and continue moving American forward in a new direction,' Biden writes in the appeal."
Kevin Smith, spokesman for Minority Leader John Boehner, e-mailed a comment that seems sure to get under Democrats’ skins: “When will Democrats learn that invoking the Nazis’ crimes against humanity in a political debate is simply inappropriate?”
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Wisconsin Supreme Court Unanimously Uphold State Constitution Defining Marriage As Between One Man And One Woman
The AP reports that the "Wisconsin Supreme Court has upheld the state's constitutional ban on gay marriage and civil unions. In a 7-0 ruling, the court on Wednesday ruled that the 2006 constitutional amendment was properly put to voters in a statewide referendum. The court rejected a lawsuit that claimed the amendment violated a rule that limits referendum questions to a single subject. The lawsuit, filed by a voter opposed to the amendment, argued that gay marriage and civil unions were two different subjects."
Justice Michael Gableman says both sentences "carry out the same general purpose of preserving the legal status of marriage in Wisconsin as between only one man and one woman."
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Supreme Court Case Of Christian Legal Society v. Martinez Already Cited In Case By Plaintiffs Attempting To Overturn Prop 8 In Federal Court
The recent deeply troubling decision by the Supreme Court in Christian Legal Society v. Martinez is already being used in the lawsuit against California's Proposition 8 in which a federal court is soon to rule on whether Proposition 8 violates "equal protection of the laws" demanded by the 14th Amendment to the US Constitution.
As Law.com reports, "Plaintiffs challenging Proposition 8 think they might have found treasure buried deep in Monday's U.S. Supreme Court ruling on the discrimination policy at San Francisco's Hastings College of the Law. Lawyers for same-sex marriage proponents told the judge in the Prop 8 trial Tuesday that the five-justice majority in Christian Legal Society v. Martinez acknowledged that gays are a protected class."
"In Christian Legal Society, the Supreme Court definitively held that sexual orientation is not merely behavioral, but rather, that gay and lesbian individuals are an identifiable class," wrote Gibson, Dunn & Crutcher partner Theodore Boutrous Jr., a lawyer representing those attempting to overturn Proposition 8, in a letter to Chief Judge Vaughn Walker. The single sentence from Christian Legal Society v. Martinez cited to support their desired outcome was apparently when Justice Ruth Bader Ginsburg wrote for the majority, "Our decisions have declined to distinguish between status and conduct in this context." They are trying to use this sentence to solidify their argument that homosexuality is an immutable characteristic with no relation to behavior as the Supreme Court refused to "distinguish between status and conduct." They think this one line helps bolster their Equal Protection claims as "immutable characteristic" is one of the factors according to Supreme Court precedent for recognizing a class for purposes of that provision of the Constitution. However, the fact that the lawyers turned to this one sentence itself shows how much they must feel their own arguments are strained and that Supreme Court precedent does not back up their claims. This is because that one sentence itself is limited to "this context," and not to the context surrounding Proposition 8 which is quite different.
But even if that one sentence was applicable, it is irrelevant anyway because the issue is simply whether the people of California have the right to maintain what is the traditional definition of marriage, or whether the Equal Protection Clause of the US Constitution demands a fundamental redefinition of the institution. When framed properly in this way, I think the answer should be rather obvious even to the "living constitutionalists," but certainly to all originalists. In fact, as a simple textual matter, marriage as traditionally defined is equally available to all in the State of California (anybody, regardless of race, nationality, creed, religion, and even sexual orientation is allowed to get married to a person of the opposite sex), so it really should not be an Equal Protection case at all.
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Wednesday, June 30, 2010
Senator Wastes Time By Asking Supreme Court Nominee About "Twilight"
This is not to say that the rest of the hearings are not a waste of time. Since Judge Robert Bork was honest in expressing his opinions to the Senate Judiciary Committee and was then maligned and then blocked by the Democrats from getting on the Supreme Court, the hearings have become a complete charade in which nothing is actually accomplished, and the Supreme Court nominee never answers any important questions. Either this Senator realizes this and figures she might as well talk about the most senseless and irrelevant topics anyway, or more likely this Senator is pretty stupid herself and part of the reason these hearings are a joke to begin with.
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Shannen W. Coffin: "How The Supreme Court Nominee Manipulated The Statement Of A Medical Organization To Protect Partial-Birth Abortion"
To read the article in National Review Online entitled "Kagan's Abortion Distortion" visit http://article.nationalreview.com/437296/kagans-abortion-distortion/shannen-w-coffin. Tweet
Tuesday, June 29, 2010
Supreme Court Upholds UC Hastings Law School's Decision Not To Recognize Or Fund Christian Legal Society Because Of Their Membership Policy
The Supreme Court in the 5-4 decision of Christian Legal Society v. Martinez was not stupid enough to simply actually say that UC Hastings School of Law has a right to discriminate against the Christian Legal Society ("CLS") because of that group's viewpoint. The law school group passed a resolution that refused to allow as members that who led “a sexually immoral lifestyle,” which in CLS's view, included engaging in “acts of sexual conduct outside of God’s design for marriage between one man and one woman.” The focus of the membership policy by the media has been that it excludes open homesexuals, but technically it also excludes anyone who engages in pre-marital sex. What the Court did rule was that a public school's "all-comers" policy is Constitutional according to the First Amendment's guarantee of free speech. An "all-comers" policy is one that says that any school group must admit any student that wishes to be a member. This is considered to be more viewpoint neutral than a non-discrimination policy that would specifically refuse to recognize or fund a student group like all other student groups are because the group refuses to admit open homosexuals as members. The Supreme Court ruled in an opinion by Justice Ginsburg that "compliance with Hastings’ all-comers policy, we conclude, is a reasonable, viewpoint-neutral condition on access to the student-organization forum."
However, Justice Samuel Alito's dissent, points out some very obvious flaws with the Court's analysis. For one, the law school's original and expressly stated reason for treating CLS different than any other group was because the school said it violated their non-discrimination policy. The "all-comers" policy justification was picked up later, after it had appeard in a deposition, and only because the school realized that the Supreme Court would likely reject the refusal to recognize CLS if that was the basis. In other words, it was a sham from the start, a contrived legal pretext, which the Supreme Court has now allowed to provide Hastings with cover for there mistreatment of CLS because the school disagreed with conservative Christian religious views. As Alito explains, the Court simply freed itself "from the difficult task of defending the constitutionality of either the policy that Hastings actually—and repeatedly—invoked when it denied registration, i.e. , the school’s written Nondiscrimination Policy, or the policy that Hastings belatedly unveiled when it filed its brief in this Court." This was despite "[o]verwhelming evidence" showing "that Hastings denied CLS’s application pursuant to the Nondiscrimination Policy and that the accept-all-comers policy was nowhere to be found until it was mentioned by a former dean in a deposition taken well after this case began." The law school knew all too well that Supreme Court precedent states that a public "university must maintain strict viewpoint neutrality" and that this "requirement of viewpoint neutrality extends to the expression of religious viewpoints."
The dissent however even takes on the majority on its ground and persuasively points out why the all-comers policy should not have been upheld. As Alito explains, "[t]he adoption of a facially neutral policy for the purpose of suppressing the expression of a particular viewpoint is viewpoint discrimination." In this case "CLS has made a strong showing that Hastings’ sudden adoption and selective application of its accept-all-comers policy was a pretext for the law school’s unlawful denial of CLS’s registration application under the Nondiscrimination Policy."
Justice Alito also puts forward a common sense argument that Ginsburg simply ignores. He writes, "One final aspect of the Court’s decision warrants comment. In response to the argument that the accept-all-comers-policy would permit a small and unpopular group to be taken over by students who wish to silence its mes-sage, the Court states that the policy would permit a registered group to impose membership requirements 'designed to ensure that students join because of their commitment to a group’s vitality, not its demise.' Ante, at 27. With this concession, the Court tacitly recognizes that Hastings does not really have an accept-all-comers policy—it has an accept-some-dissident-comers policy—and the line between members who merely seek to change a group’s message (who apparently must be admitted) and those who seek a group’s 'demise' (who may be kept out) is hopelessly vague… The possibility of such takeovers, however, is by no means the most important effect of the Court’s holding. There are religious groups that cannot in good conscience agree in their bylaws that they will admit persons who do not share their faith, and for these groups, the consequence of an accept-all-comers policy is marginalization. See Brief for Evangelical Scholars (Officers and 24 Former Presidents of the Evangelical Theological Society) et al. as Amici Curiae 19 (affirmance in this case 'will allow every public college and university in the United States to exclude all evangelical Christian organizations'); Brief for Agudath Israel of America as Amicus Curiae 3, 8 (affirmance would 'point a judicial dagger at the heart of the Orthodox Jewish community in the United States' and permit that community to be relegated to the status of 'a second-class group'); Brief for Union of Orthodox Jewish Congregations of America as Amicus Curiae 3 (affirmance 'could significantly affect the ability of [affiliated] student clubs and youth movements … to prescribe requirements for their membership and leaders based on religious beliefs and commitments'). This is where the Court’s decision leads. "
Alito is correct when he states, "I do not think it is an exaggeration to say that today’s decision is a serious setback for freedom of expression in this country... Even those who find CLS’s views objectionable should be concerned about the way the group has been treated—by Hastings, the Court of Appeals, and now this Court. I can only hope that this decision will turn out to be an aberration."
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11 Arrested For Spying On U.S. For Russia, But Doing So Very Poorly
The New York Times reports that the "suspected Russian spy ring rolled up by the F.B.I. this week had everything it needed for world-class espionage: excellent training, cutting-edge gadgetry, deep knowledge of American culture and meticulously constructed cover stories. The only things missing in more than a decade of operation were actual secrets to send home to Moscow. The assignments, described in secret instructions intercepted by the F.B.I., were to collect routine political gossip and policy talk that might have been more efficiently gathered by surfing the Web. And none of the 11 people accused in the case face charges of espionage, because in all those years they were never caught sending classified information back to Moscow, American officials said." Tweet
Elena Kagan Refuses To Say That A Federal Law Mandating What Citizens Must Eat Would Be An Abuse Of The Constitution's Commerce Clause
It's a dumb law, but you also have a to be a pretty dumb legal thinker to not believe that the Commerce Clause certainly could not have given the federal government this kind of power. I am not sure idiotic legislation is any worse than a potential Supreme Court Justice that won't even say that a law mandating what an American citizen must eat every day is clearly unconstitutional. Unlike most members of Congress that cannot today be trusted to take their oath to uphold the Constitution very seriously, you would hope that the body known as the Supreme Court whose members have life tenure and specifically the power of judicial review would know better.
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Elena Kagan: "Justice Leahy,... Those [Constitutional] Provisions Were Meant To Be Interpreted Over Time"
The statements by Elena Kagan are nothing more than utter and complete bunk. Of course the Constitution is "interpreted over time," but what she is getting at is that the Constitution in a living document that can change over time. Those the adopted the Constitution did not in any way intend for it to have a meaning that could easily change over time. To believe that is to believe they thought what they were doing in writing a Constitution was essentially pointless. Why would they commit a constitution to writing, and include in Article V the specific and only means by which the Constitution can be amended, if the Constitution could be changed constantly and inconsistently by unelected federal judges? Those who drafted and adopted the Constitution believed that the only legitimate method of Constitutional interpretation was to look to the original meaning of the words in the Constitution.
James Madison, the "Father of the Constitution" who played one of the most significant roles in the drafting and ratification of all of the Constitution's earliest provisions, wrote to Henry Lee in 1824, "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense." This is but one of many quotations from the Founding Fathers that clearly indicates that the original meaning of a provision of the Constitution is the meaning that was intended to be given to the provision. They never thought that it would be in the hands of judges to alone have the power to change the Constitution at their own whim as they saw fit over time. To propound such a ridiculous theory in the Senate Judiciary Committee as a nominee to the Supreme Court is to make a mockery of the Constitution.
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Monday, June 28, 2010
Supreme Court Incorporates Second Amendment To The States
Georgetown Law Professor Randy Barnett writes in the Wall Street Journal that there "is a remarkable academic consensus that the original meaning of the 14th Amendment protected an individual right to keep and bear arms against interference by state governments. Yesterday's Supreme Court decision in McDonald v. Chicago affirmed that this is indeed the case. It is, therefore, a great victory for enforcing the original meaning of the Constitution. Thankfully for the rights of Americans, the Chicago gun ban at issue will soon be consigned to the dust bin of history." The AP reports that by "a 5-4 vote, the justices cast doubt on handgun bans in the Chicago area, but signaled that some limitations on the Constitution's 'right to keep and bear arms' could survive legal challenges... Monday's decision did not explicitly strike down the Chicago area laws. Instead, it ordered a federal appeals court to reconsider its ruling. But it left little doubt that the statutes eventually would fall."
Professor Barnett explains the importance of this decision and how it reaches beyond just the Second Amendment as a matter of Constitutional law. Barnett writes that since "the Supreme Court acknowledged in D.C. v. Heller (2008) that the Second Amendment protects an individual right to arms, it was expected that it would eventually enforce that right against state interference. The big debate among observers was how the court would do so. Would it use the 14th Amendment's Privileges or Immunities Clause that says: 'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States'? Or would it use the Amendment's Due Process Clause that says: 'nor shall any state deprive any person of life, liberty, or property, without due process of law'? The Privileges or Immunities Clause has been virtually a dead letter since 1873, when the court in The Slaughter-House Cases limited its scope to rights of a purely national scope, such as the right to access a foreign embassy or to be protected when traveling on the high seas. It was a preposterous interpretation—these were hardly the rights congressional Republicans in the aftermath of the Civil War were most concerned to protect in the wake of the terrible abuses of free blacks and white unionists by Southern states... But this too should be a headline of McDonald: Only a plurality of the Court relied on the Due Process Clause. The deciding vote was cast by Justice Clarence Thomas, whose concurring opinion rested solely on the Privileges or Immunities Clause. While agreeing 'with the Court that the Second Amendment is fully applicable to the States,' he did so 'because the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship.'... Justice Thomas's analysis summarizes and reflects a consensus of legal scholarship that the Privileges or Immunities Clause does protect at least the rights enumerated in the Bill of Rights against state interference. Because his interpretation of the clause was necessary to reach the outcome in McDonald v. Chicago, it is now very much alive. Put another way, there is no longer a majority of the court willing to use the Due Process Clause in a case in which the Privileges or Immunities Clause is the right clause on which to rest its decision... By declining to take issue with Justice Thomas's impressive 56-page originalist analysis, the other justices in effect conceded what legal scholars have for some time maintained—that the court's cramped reading of the clause in 1873 was inconsistent with its original meaning. Yesterday the lost Privileges or Immunities Clause was suddenly found. And some day it may be fully restored to its proper place as the means by which fundamental individual rights are protected under the Constitution against abuses by states. "
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Senator Dick Durbin Accuses Justices Roberts And Alito Of Lying Under Oath
What Senator Dick Durbin does not recognize is that originalists define "judicial activism" as Supreme Court decisions that are made in spite of the Constitution. If the Supreme Court overturns a Congressional statute because the law violates the original meaning of the Constitution, that is not activism but applying the Constitution loyally. If the Supreme Court upholds a government action because it violates no provision of the Constitution as originally understood, that is also not activism but faithfully applying the Constitution. Judicial activism is seen in the many cases which are primarily outcome oriented, which desire a result and reach that result by twisting and bending the Constitution to mean what it never was intended to mean. Judicial activism, be it overturning Constitutional laws or legislating from the bench with no Constitutional backing, is defined as abusing the Constitution. It is not simply the act of overturning Congress for passing laws in violation of the Constitution, as Durbin's thoughtless comments would imply.
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