Setting the Record Straight

November 16, 2008

Candidate for AG?

Specterlation About DOJsr-specterjpeg1

     This site did not intend to join all of the speculation about whom Barack Obama would or should choose to serve in his Cabinet, but we find one somewhat intriguing. It needs a lot of thought because it is fraught with danger, but it would be a twofer, perhaps a threefer.
     Largely overlooked in the heat of the presidential campaign was the extremely important need to retrieve the U.S. Constitution from the Bush administration’s shredder and begin pasting it back together.
     There are some who justifiably claim this is a matter so urgent and important, it should be at the top of Obama’s agenda instead of the economy or Iraq.

sr-spectergonzalesnprjpeg1     To bring the United States back under the aegis of the Constitution, Obama needs a dedicated attorney general already on record as one of the harshest critics of the Bush administration and its disastrous toady in the job, Alberto Gonzales, when it comes to constitutional matters.
     The selection we are talking about is Sen. Arlen Specter, R-Pa. He has been livid and unstinting in his criticism of the administration’s use of the Justice Department to run roughshod on the rights not only of detainees alleged to be terrorists, but also on its own citizens in the name of fighting terrorism.

     As a Republican, his appointment also would serve to provide someone who could act somewhat as an ombudsman to the White House to make sure it did not try to keep all the extralegal powers Bush grabbed for himself, a grab likely to be exposed when the details of all of his secret executive orders are learned. That would be Specter’s second value as the next AG.
     His third contribution would be to give up a Republican seat in the Senate and let a Democratic governor, Ed Rendell, appoint the next senator from Pennsylvania, possibly putting the Democratic majority in the Senate over the magic 60-vote line without needing turncoat Joe Lieberman to remain in the party.
     That is the positive side of this nomination. The negative is that Specter is as unpredictable as earthquakes and can sometimes go off on some gawdawful quests, none more so than his vicious behavior in the Judiciary Committee’s hearings on the Clarence Thomas nomination to the Supreme Court, who himself was a pitiful selection for the job. We don’t mean to be equally vicious here, but as a saving grace, that did occur before Specter’s brain cancer was discovered and treated.




October 28, 2008

Stevens to ACLU: Help?

Ted Stevens and His Ironic Conundrum

     For some of us, there are few things more pleasurable than watching irony play out. The example here is that Sen. Ted Stevens may not be able to vote for himself in his reelection bid Nov. 4 in Alaska, said to be a tight one even before his conviction on seven felony counts.
     As a Republican, his savior may be an organization his fellow conservatives have always referred in vitriolic tones and as evil incarnate—the American Civil Liberties Union.
     It seems that Alaska is one of 20 states that bar felons from voting until they have completed their sentences. That might present Stevens with a technicality he can squeeze through and vote. He has only just been convicted and will not be sentenced until after the new year, much less have a chance to complete his sentence.
     Why would the ACLU be interested? The 15th Amendment, ratified in 1870 in the wake of freeing slaves and intended to block state efforts to keep them from being able to vote, states:
Section 1.
   The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.
Section 2.
   The Congress shall have power to enforce this article by appropriate legislation.
     The 13th Amendment, ratified at the end of the Civil War, had already defined “servitude” as it applies to convicts by stating: neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” The key words are: “servitude, except as a punishment for crime.” It also gives Congress the power to enforce the amendment.
     But Congress rarely has tried and the fact remains only two states, Maine and Vermont, allow felons to vote without some conditions. Two, Kentucky and Virginia, flat-out deny felons the right to vote, eight allow some convicted of felony to vote and the rest allow only prisoners, probationers or parolees to vote.


     Some estimates put the number of people denied the right to vote because of felony convictions at 5 million, and half of them are blacks. That is more than enough to affect a presidential election, let alone a state outcome.

     The U.S. Supreme Court has ducked the issue. The last court to kick the issue away, in 2004 and 2005, was the same court that appointed George W. Bush as president.
     The court seems to uphold disenfranchisement of felons based on a provision of the 14th Amendment, which seems to condone the denial of a vote to people guilty of “participation in rebellion or other crime.” The trouble with that view is that the 15th Amendment ratified two years later would trump the 14th, stating clearly felons cannot be denied the vote. (There also is the argument that “other crime” has to mean something at the level of rebellion, or why even mention rebellion. A similar argument was involved in the Nixon impeachment proceedings when a committee wrestled with whether “high crimes and misdemeanors” meant misdemeanors also had to be “high [or major] misdemeanors.”)
     The last time Congress made an attempt to use its 15th Amendment powers was in 2002, when the Senate killed a Democrat-led bill to enforce it, 31-63, with all Republicans voting against it. Joe Biden joined John McCain in voting against it. Stevens was among six senators, all Republicans, who did not cast a vote.


July 9, 2008

Tongue-Tripping Candidates II

What Did That Bill Say? 

          And that brings us to authorship of legislation. At all levels of legislative candidacy–federal, state and municipal level–claims are made of “my bill” or “his bill.”
         The public’s ignorance of what this claim is all about was no more obvious than during the 2004 presidential election when the Democrats’ presidential candidate, John Kerry, said in a statement that would forever damn his chances because the public did not understand the process, that he voted for a piece of legislation to add funds to the war effort in Afghanistan and Iraq “before I voted against it.“
         That statement became the equal to the “swift-boat” campaign that added to the type of electoral ammunition Obama is about to face and that eventually doomed Kerry and the nation to another four years of George W. Bush.
         As inartful as Kerry’s statement may have been, he was simply being accurate.
         At all electoral levels, incumbents and those who run against them are going to be citing legislation, bills, proposals, measures, and all the other nouns used to describe them, that they authored, sponsored, co-sponsored, voted for, backed, whatever.
         There is safe haven in most of those words. The bill may have turned out to be junk, but if you think the result will win you votes, you can say you supported it. If you think it will lose you votes, you can say you were against it. How? Because no, or at least precious few, pieces of legislation make it through the mill without being altered.
         For example, members of Congress regularly put out press releases about bills they “co-sponsored.” Most of these are nice-sounding bills with even greater-sounding titles, such as Rep. A’s bill: “The Apple Pie and Motherhood Act of 2008,” but which might contain a hidden Jesse Helms provision. Rep. B either is an ideological ally of Rep. A, or more likely, Rep. B wants support for his “Motherhood and Apple Pie Act of Infinity and Beyond,” so he signs on as a co-sponsor of Rep. A’s bill with the expectation Rep. B will sign onto his.
         The bill is introduced with whatever number of clueless cosponsors and is referred to a committee. The committee refers it to a subcommittee. Depending on the chairmanship of the full committee, the bill receives attention or it does not.
         If the bill is among the small minority that gets any attention at all, it would receive a hearing at the subcommittee level and that panel would work its will on the piece of legislation, perhaps even, for the sake of this example, changing the title to the “Mother Pie and Apple Hood Act of Our Grandchildren.” The original author did not have that in mind, so, if he is a member of the committee, or even the subcommittee, he naturally votes against the bill. If he is not on the panel to which the legislation was referred, chances are it would not have been brought up in the first place, at least not in his name.
         That, or something more similar than you would like to know, is what was behind a presidency-losing Kerry statement: “actually, I did vote for the $87 billion before I voted against it.”
         The simple-minded explanation of the tabloid-cable types and thus the thinking of more than half of the American electorate: “flip-flop.” Result: four more years of George W. Bush, four more years of Iraq, four and more thousand Americans dead, four more years of……………….”
         Who can say what the outcome of that election might have been if Kerry had explained, and the electorate understood, “I strongly supported that proposal early in the process, but when it got chopped up and distorted beyond all recognition, I could not support it any more.” Obama already is discovering the need for artful language with his shift that was is not a shift on the Iraq war issue.
         And finally, a word on another legislative item bandied about during campaigns. The outs always accuse the ins of voting for a bill they never read. You should hope your incumbent is not wasting time reading, or trying to read, bills.
         Bills, the proposals that become laws if they garner enough support, are written by lawyers according to a carefully designed legal procedure. Most proposals are attempts to change or add to existing law, so the bills actually refer to specific clauses, lines, paragraphs or sections of the U.S. Code or some other law. Reading a bill usually requires sitting down with the dozens of volumes of the U.S. Code at hand as a cross-check.
         What incumbents actually should read are the explanations prepared by able staff or their party leaders who lay out in fine detail what the bill is all about and what it would or would not do according to the preferred interpretation.
         This lesson was intended to be a primer on how voters should follow what is said in political campaigns, but with the ubiquitous presence of tabloid cable screamers, YouTube and the rest of the Internet, candidates themselves might want to avail themselves of a similar primer and alter their tendency to speak in shorthand.  
         Even a fairy dreamed up by Shakespeare half a millennium ago could say, “Lord, what fools these mortals be.”



June 26, 2008

Scalia’s Pretzels for Guns

 Scalia’s Gun-Control Vote

          The next time you hear Justice Antonin Scalia call himself a constitutional “originalist,” laugh out loud. As we suggested in the previous piece he might, Scalia tortured the words, twisting them this way and that to make them support an ideologue’s view of the Second Amendment. That four others followed him down that road is a shame that has resulted in nothing but turning the Constitution into a pretzel.
          The nation’s gun nuts, and their few rational supporters, are celebrating the decision, but they don’t realize that lower courts are going to be hard put to make any sense of it. Those courts’ conclusions are likely to be in such disagreement with each other, the issue may be back before the Supreme Court in much less than the nearly 70 years it took to review the issue this time.

          One of the first such questions raised by the ruling is its application beyond the District of Columbia, whose laws are within federal grounds, not a state’s. On its face, the ruling applies only there and nowhere else, but similar laws exist in other cities. Does the tortured Scalia explanation justifying the ruling actually have any impact on other jurisdictions? The lower courts will have to sort that out. 
          An originalist view, as we said earlier, would read the same nexus between a right to bear arms and a state-run militia, as all the court’s precedents have read. An originalist view would hold the Constitution to mean only what it meant to the authors at the time they wrote it, with any other interpretation to be embodied only in changes in constitutionally allowed law or changes in the Constitution itself.
          In his majority opinion, as we suggested he might, Scalia has thrown all of that out the window, or as in today’s tabloid-cable vernacular, under the bus. And, as we suggested he might, Scalia has twisted words into pretzels to make them fit his ideology.
          He refers to the opening clause of the Second Amendment as “prefatory” and then ignores its existence, leaving an unrestricted right to bear arms. But with his pretzel words, he then suggests that well, this isn’t actually an unlimited right, that governments can still restrict some gun ownership, but not others, with no support for that conclusion, leaving it to the lower courts to figure out, court by court by court.
This is the muddied opinion.  For better writing and better judgment on this issue, we recommend the dissenting opinions of Justices Stevens and Breyer at the end.

Scalia: Activist Justice

          Antonin Scalia calls himself an originalist to explain the reasoning behind his Supreme Court votes. In truth, Scalia is one of the most activist of the justices, a term applied to justices they don’t like by most originalists.
          Being an originalist would be consistent with being a political conservative. Both ideologies reflect a preference that time never change, that everything stay the same, like the Amish attempt to freeze time at the end of the 1600s. Similarly, a U.S. Constitution originalist would freeze time to a point a few decades later, to 1787.
          That view of the Constitution says the document refers only to the situation that existed at the time it was written, 1787. Whatever the Constitution says, it means only what it meant to the authors at the time and has no application to anything that comes later. If society changes after that and changes in law need to be made, then the Constitution needs to be changed to apply to that new situation, and the Constitution itself says how that is to be done.
          That interpretation is somewhat weird, because why would the Constitution have been written in the manner than it was, without references to the present, i.e., 1787 or the situation that was in place at that time. Everything about the Constitution suggests it was intended to be relevant forever, or at least forever as it applies to the existence of the nascent nation.
          Activists are considered those with an opposite view of the Constitution, that the Constitution itself established the Supreme Court to interpret the laws and actions of American governments and whether they comply with the restrictions or powers granted by the Constitution. The term “activists” applies to conservative as well as liberals, but it most often is intended by conservatives as a scurrilous description of a liberal.
          The most activist a justice can be is in overturning a precedent of the court, as in overturning the court’s long-held decision in 1939 interpreting the 2nd Amendment’s right to bear arms as meaning that right exists as part of a militia and that state and local governments are free to control or ban any other type of gun use.
          But let us let Scalia have his weird originalist view of the Constitution and assume it is a reasonable one. If one has a philosophy as well thought out as Scalia at least pretends his to be, then one would expect him to be consistent about it and to take that view down the line.
          Anyone who has watched Scalia during dozens of
oral arguments before the court or has read dozens of his opinions for the court, his agreements with the majority and his dissents with the majority, one knows Scalia is anything but consistent. Where he is consistent is in his arrogance, in hogging the hour-long proceeding, sometimes interrupting his fellow justices, and often bullying the lawyers before him.
          His inconsistency is in his choice of words. He twists them like pretzels to make them appear to mean what he would prefer them to mean so they can support the viewpoint he wants to make fit into his originalist theory. He did the same in the oral arguments in D.C. vs. Heller, probably the most important 2nd amendment case to be decided by the court in more than half a century.
          It is not a stretch to say the justices should, in interpreting a part of the Constitution, should see it only as a part and should interpret that part in relationship to the rest of what the Constitution says.
          The 2nd Amendment at the core of the gun-control issue states: “A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
          The 10th Amendment has a bearing because it says that whatever is not restricted by the Constitution, a state is free to restrict if it wishes and if it does not, the people are free to do whatever is not restricted, the idea at the very core of democracy: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
          The militia also comes up early on in the Constitution, in Article I laying out the powers of the legislative branch. It says Congress has the power “to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; to pro- vide for organizing, arming and disciplining the militia and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers and the authority of training the militia according to the discipline prescribed by Congress.”
          Anyone who has read a newspaper or caught broadcast news has seen all of those actions carried out by an armed force controlled by the states. Those armed entities are universally called the National Guard.
          Since those opposed to gun control do so by rejecting the need, or even the existence of a militia these modern days, another section of the main body of the Constitution, the part laying out the powers of the executive branch, i.e., the president is relevant.
          Article II, Section 2: “The president shall be commander-in- chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States.”
          The current president relied on that specific provision to order the various National Guards of the states to the war in Iraq, sealing the fact state militias do exist today in the form of the National Guard.
          Thus, Scalia brought his originalist view to bear in the oral arguments in D.C. v Heller when he said to one of the lawyers he did not believe there was a contradiction between the personal guarantee of the 2nd amendment and its reference to a militia. But then he ignores the reference in Article II, Section 2 by saying, “not necessarily a state-managed militia because the militia that resisted the British was not state-managed.”
          In his pretzel-word way, Scalia then adds, “But why isn’t it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people’s weapons—that was the way militias were destroyed. The two clauses go together beautifully: since we need a militia, the right of the people to keep and bear arms shall not be infringed.” He’s trying to say it is not the militia’s needs that guarantees the right to bear arms, but the need of someone who might have to be a member of a militia even if one does not exist.
          Elsewhere in the argument, Scalia said, “The principal purpose here is the militia, but the—but the second clause goes beyond the militia and says the right of the people to keep and bear arms.” He then suggests the second clause is broader than the first.
          In truth, the sentence that is the 2nd Amendment is not written that way. Any grammarian can tell you the clauses are tied and are not separate, that the second one relies on the first. The first clause sets up the second and is not even a complete sentence on its own.
          Thus, Scalia faced a conundrum of his own making when he voted in the D.C. v Heller gun-control case. As an originalist, he had to vote for the ability of a government to restrict gun possession, but as a right-wing conservative, he had to vote against any bans on the individual right to bear arms.
          Thus, Scalia faced a conundrum of his own making when he voted in the D.C. v Heller gun-control case. As an originalist, he had to vote for the ability of a government to restrict gun possession, but as a right-wing conservative, he had to vote against any bans on the individual right to bear arms.



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