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Sittin’ Courtside, Breyer & Scalia Give Me Hi-Fives

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One of these is a Pussycat Burglar

Due to work-related travel, and the insanity that goes into buying a house in under a month, posting has not been a top priority recently. However, I thought I would give a quick update on a rather nerdcore political event I participated in yesterday: sitting in on oral arguments at the Supreme Court. While this is a certain type of break from my recent Tea Party observations, it is relevant in so far as it does have to do with our government. And its “goodness.”

So, a few observations:

1) If you go to hear the Court, you’ve got to get up early. Only the first 50 people in-line to hear the argument are guaranteed a spot to get in, so staking a claim is important. I got in line by 5:20 AM and was awarded place-holder #26 for the arguments that begin at 10:00 AM. And this card was not given to me by a guard until 7:45 AM. So it was a long, cold wait.

2) I did get to chat with line leader Mike Sacks, Georgetown 3L (in)famously known for First One @ One First, an absolute must-read for anyone planning on visiting the Court or interested in contemporary constitutional law. It was great to learn he was a fellow Duke grad and had enjoyed quite a few shows at Chapel Hill’s Cat’s Cradle, indie rock central for the Triangle.

3) In our pre-dawn discussion, Mike voiced his love of The Brethren, an Armstrong and Woodward SCOTUS tell-all that caused much controversy when it was published in the ‘late 70s with its inside look at the Burger Court and which I tried to read in high school and now need to re-read. Anyway, he made an interesting case for Potter Stewart as being the last “pure judge” on the Court, meaning, I think, that he was appointed outside of the ideological box that has been present in judicial discourse since the late ’70s. One could make the case that Stevens also fits this bill, at least at his appointment, though he has drifted further and further to the left in reaction to the Rehnquist/Scalia conservatism that emerged in the late ’80s, a conservatism which now generally wins if the current Court splits 5-4 (see Citizens United). I’d like to look into this more, but my initial thought is that Roe might be responsible for this divide, much in the same way as West Coast Hotel v. Parrish could be seen as the dividing line for the modern interpretation of the Commerce Clause. In other words, judges appointed after Roe have the ideological boxes of the culture wars to deal with before they get on the Court just as judges after West Coast Hotel had the necessity of having a robust interpretation of the Commerce Clause as requisite for getting on the Court. But maybe that’s a bit of a convoluted analogy. A way to say it simpler might be: Roe v. Wade has been the benchmark case since 1973 for determining who gets on the Supreme Court (either supportive or against), and Stewart didn’t have to deal with that hanging over his confirmation. Interesting discussion, anyway.

4) Once I got into the Courtroom, roughly 5 hours after getting there, I got to hear two opinions announced, one read by Scalia and one by Stevens. Given that this is probably Stevens’ last term on the Court, I thought that was pretty awesome.

5) Justices Thomas and Scalia no doubt vie for largest Justice, with Ginsburg clearly the smallest. Whereas Scalia and Thomas like to rock back in their chairs and share notes during the arguments (which I swear at one point was probably an internet forward judging by Scalia’s reaction), Ginsburg often slumps over in her chair. I was unsure whether she was taking notes, about to go to sleep, or furiously texting Sandra Day. Given her age and health, it’s probably the middle of these two.

6) Justice Breyer, who is probably my favorite Justice on the court, is like a cartoon character in-person. He annunciates his questions with a professorial affectation, often puts his hands to his face, leans over the microphone and clearly enjoys “cutting-up,” to some degree. My two favorite moments of his came when he 1) referred to a prior case by saying: “Yes, I’m familiar with the argument, I mean I’ve written several opinions on this issue, some even in the majority!” (which caused courtroom laughter), and 2) when he prefaced a hypothetical example of how a statute could be interpreted by saying: “You have heard of cat burglars. Well, this gentleman is called the pussycat burglar because he never harmed a soul.” The turn of phrase seemed more appropriate for use alongside a “Heavens to Murgatroid!,” and served as yet another example that most of the Supreme Court Justices are culturally far out of date. But it was funny on multiple levels.

7) In the second case heard yesterday, Solicitor General Elena Kagan argued as an amicus counsel for the government. While her argument was brief, it was noteworthy for a bit of a confrontation with Scalia. After repeatedly having her submissions for whom a plaintiff should actually represent in a hypothetical situation nixed by Scalia, Kagan paused for a moment before asking, “Who would you have, Justice Scalia?” The direct question caused courtroom laughter, and a briefly flustered Scalia, who responded a bit lamely: “Well, I’m not the one making the argument!” What makes this exchange even more interesting is the fact that most everyone puts Kagan on the top of Obama’s short-list to replace Stevens. So, I could have seen the next Supreme Court Justice spar with the second-most senior Justice. For what it’s worth.

So, those are my thoughts from an exciting, albeit exhausting, morning at the Court. Now, I promise my next post will return to my Glenn Beck dissection or some other fun libertarian treat. Hopefully.

A longer sentence brings no more, than one I had said before

Written by lefttowrite

April 1, 2010 at 1:55 pm

Posted in Constitutional Law

States Suit-Suit-Suidio

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Killing the Bill Constitutionally, with his song

So, a moment of triumph for proponents of health care reform and for all those that feel access to health insurance is a human right. Exhale. Now, on to the inevitable court challenges.

CNN reports that at least 10 states’ Attorney Generals plan to file suit over the constitutionality of the health care reform bill. Bill McCollum, the AG of Florida pictured above who is leading the charge, says the reform act violates the 9th and 10th Amendments. While these are the classic go-to Amendments for states-righters, the history of modern American jurisprudence has consistently ruled that the Supremacy Clause of Article IV of the Constitution trumps these Amendments, in so far as the laws of Congress “shall be the supreme law of the land.” Additionally, the power which Congress has used since the New Deal to enact much modern legislation, the Commerce Clause, has also consistently, with few exceptions, been ruled as constitutional by the Supreme Court. Thus, between the power of the Commerce Clause and the Supremacy Clause, SCOTUS jurisprudence has consistently found practically all Congressional laws as constitutionally sound since 1937’s West Coast Hotel v. Parrish.

Following in this vein of whether or not the bill is constitutional, Balkinization‘s Jack Balkin of Yale has an excellent reply to Georgetown’s Libertarian prof Randy Barnett’s op-ed in the Post from Sunday. Barnett points out his arguments for repealing the legislation in the courts, mainly again focucing on the Tenth Amendment or challenges to the Commerce Clause, but ends up saying:

Ultimately, there are three ways to think about whether a law is constitutional: Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument? Although the first three of the potential constitutional challenges to health-care reform have a sound basis in the text of the Constitution, and no Supreme Court precedents clearly bar their success, the smart money says there won’t be five votes to thwart the popular will to enact comprehensive health insurance reform.

Interestingly, Barnett ends his analysis with vote counting – it’s not a matter of the merits of the case, but if 5 Justices would vote to overturn the legislation (a little bit of proof, I think, for the fact that Barnett knows his argument does not gel with the constitutional logic of the last 70 years). Balkin’s response to each of Barnett’s points is much more thorough in its analysis of the bill and its purported constitutional challenges, and is a must-read in so far as Balkin unequivocally refutes each challenge. My favorite is below:

The most likely constitutional challenge will be that the individual mandate to purchase health insurance is unconstitutional because it forces people to buy insurance. Barnett omits to mention in his op-ed that the mandate is actually structured as a tax: if you don’t buy insurance, you are assessed a tax for each month you fail to pay premiums. Barnett argues that individual mandate must be unconstitutional because the government can’t require people to do anything; however, the government can make you pay taxes. It does so every year. Congress pretty clearly has the power to pass such a tax under its powers to tax and spend for the general welfare. This is an easy case for constitutionality.

So if you live in a mostly Red State, an AG may soon be wasting your money in filing a lawsuit against the Federal Government in Federal Court about legislation that is about as constitutional sounds as something can be post-1937. But you can’t blame the haters for trying.

He wrote a pocket novel called: The state that I am in

Written by lefttowrite

March 23, 2010 at 2:18 am

The Tyranny of “Tyranny”

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Yet another Tea Party anachronism

I hope to talk more about this in the future, but it’s worth taking a look at this interesting piece from Andrew Cohen of The Atlantic on the en vogue use of the phrase “tyranny” by Tea Party conservatives. As I have touched on briefly before, I think the utilization of the term “tyranny” as an epithet by a group that demands ideological purity is ironic to say the least. Cohen brings Timothy McVeigh and Ginni Thomas (mentioned earlier) into the mix (you’ll have to read it to see the connection), but I thought these questions, posed to potential Tyrannist interlocutors, to be right on target:

Indeed, who exactly are the government tyrants against us? What is the bill of particulars against them? Do local bureaucrats morph into “tyrants” just because they want to change the contents of textbooks? Are officials in Washington leading us toward tyranny because of bank bailouts or health care? Really? But how can the federal government be at once tyrannical and inept? Aren’t the two mutually exclusive? If Barack Obama were as malevolent as the Tyrannists claim he is, then why hasn’t he been more successful? And where were these emergent tribunes of tyranny when Bush-era officials were grabbing for all the executive branch power of which they could conceive?

But he don’t know what it means

Written by lefttowrite

March 18, 2010 at 8:48 pm

Posted in Tea Party

Tagged with ,

Virginia is for (Tea) Lovers

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Don't raise your hand if you're in to teabagging

The recent revelation that Virigina “Ginni” Thomas, wife of Supreme Court Milford Man Clarence Thomas, has founded a nonprofit lobbying and political-organizing group in bed with the Tea Party movement, called Liberty Central, has been blowing up the lawgosphere. While many have cried conflict of interest (cf. the possibility that Citizens United will funnel money directly into Liberty’s pockets, for instance), that doesn’t concern me as much. Thomas is hardly a “swing justice,” and he has solidly been the most conservative justice on the Court for some time. Yes, it seems wrong to have a supposedly neutral justice’s wife claiming on Liberty Central’s bio page that she is:

a fan of Rush Limbaugh, Mark Levin and Laura Ingraham and other talk radio hosts. She is intrigued by Glenn Beck and listening carefully. She also enjoys motor homing and watching “24”.*

But the truth is, the true wrong is assuming a SCOTUS justice is “neutral” to begin with. Chief Justice Roberts, and many on the conservative side of the court, love to throw around the “justice-as-umpire” idea, in which justices merely call balls and strikes and are guided by very clear rules. The way Citizens United panned out, however, Roberts’ hypocrisy is now no secret. After all, when a case has a very particular question to be answered and then you ask the petitioners to expand the purview of that question in order to bring a larger question to the attention of a court which you know will vote in a certain way, well, that’s hardly neutral. That’s like an ump saying to a batter arguing a call: “Hold on. You say that last pitch was too high to be a strike. Well, I think now you should argue to me the reasons the strike zone should be completely redrawn.”

So my two cents: who cares if Ginni Thomas wants to read Mark Levin and raise money with Donald Rumsfeld’s approval? I agree with libertarian legal commentator Eugene Volokh’s piece detailing the fact that politically-active judicial significant others is hardly something new. Suffice it to say, though, that there better not be any bitching when Sotomayor ends up dating the next president of the Black Panthers.

Oh Virginia, no one can warn you

*I love how the image of the Thomas’ riding across country in a motor home, with Jack Bauer torturing a suspected terrorist on the in-home TV and Mark Levin on the bookshelf, seems like a perfect example of the kind of conception of freedom that is at the heart of the Tea Party movement. “Don’t Tread on Me” mudflaps optional.

Written by lefttowrite

March 18, 2010 at 8:03 pm

9/12 Principle #1: America is Good

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Don't Tread on These

1. America is Good.

Let me start with arguing what I think Beck means by this generic statement. First, I believe he wants to say that Americans, for whatever reason, have lost faith in the moral rightness of their country. Instead of believing in the fundamental goodness of the nation’s founding principles, the majority of Americans have fallen away from this belief, becoming confused by the complexities of big government programs and ubiquitous liberal media criticism of American actions. It seems a sure bet that Beck would say that the liberal media and state-run education outlets continual talk about the evils of our country’s historical involvement in slavery, Native American massacre and mistreatment, oppression toward gays and women, environmental destruction and immoral wars in Southeast Asia, among other things, have contributed to the shaking of the surety that America is fundamentally right.

Secondly, I believe Beck wants to say that ontologically, at the very essence of its being, America is good. With a nod to Plato, we could argue that the Form of goodness is, actually, America. In other words, the problem is not just a loss of faith, but a loss of definition: Americans should believe America is good because it is actually, by definition, good. After all, Beck claims on his website that:

At the origin of America, our Founding Fathers built this country on 28 powerful principles. These principles were culled from all over the world and from centuries of great thinkers. We have distilled the original 28 down to the 9 basic principles.

So the history of the greatest thinkers in the world culminated in Beck’s 9 principles, of which this is the first. So the idea that “America is good” is the culminating principle of the greatest thinkers in the world’s history. Wow. How can I even begin to argue with this?

Let me tell you. To begin, I’d like to say that I don’t think it is logically wrong or ideologically harmful to believe that your cause is good. In fact, moral certainty is crucial to the process of any true political change (cf. American Revolution, civil rights movements, women’s suffrage, etc.). The issue, however, comes in the morality of that for which you are morally certain.

Following Beck’s logic here, being certain that America is good, fundamentally and at its center, cannot be without caveat. After all, if America was, in fact, fundamentally good, why would we need to follow 9 principles to change it? Put another way, why can’t things just continue as they are if, in fact, America is good? Beck would hardly agree to this – yet this principle does more than imply this: it states it outright. This is perhaps the greatest problem with this sentence’s logic, as I understand Beck: even restoration means change of some sort, which itself must rest on criticism. Therefore, if Beck can criticize America, if America is capable of being criticized (meaning that it is somehow fallible), how could America then also, by its very definiton, be good?

What Beck should have said to avoid this illogic was something more like: “A belief in America’s goodness is crucial to restore our country’s greatness.” (Look at me, making one of the 9 principles more robust. Perhaps I’m one of the greatest thinkers in the world!) The crux of the matter here is faith, I think, which will dove-tail nicely into principle #2 when we get there. For now, suffice it to say that Beck wants desperately to overcome the notion nagging the common man, defeatist for his desire to restore the greatness of the Founding Fathers’ vision, that somehow America can have moral failure, that it can be ethically culpable.

One of the true dangers in this aspect of principle #1 is that of idolatry. Believing that America is fundamentally good, that it is god-like in its perfection, means being unwilling to recognize its moral missteps. I’m not really certain how this ideological slavishness to the ontological goodness of America can really fit with Beck’s “Don’t Tread on Me” persona – to me, the demand for a rigid, unquestioning belief seems the greatest form of tyranny (it also doesn’t jive well with his own principle #8 – more on that later). After all, you can change the body, but not the mind, right? Wrong. It seems clear Beck wants your mind-grapes squeezed in the vise of principle #1.

Calling into question the statement that “America is good” doesn’t mean I hate my country or that I think America is “evil.” After all, saying “America is evil” is the logical equivalent of saying “America is good” (LOGICAL equivalent, not moral equivalent). What I’d like to say instead of this principle is something like: “America is what its people are. Its true moral worth is the sum of the actions of its parts.” And, ultimately, that’s a hard arithmetic for one person to work out. But, then again, I’m just one, and Beck has centuries of the world’s greatest thinkers behind his “common sense.”

Look inside America, she’s all right

Written by lefttowrite

March 14, 2010 at 3:17 pm

Posted in Glenn Beck Project

Tagged with ,

9/12 Principles: An Introduction

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Freedom from tyranny means you get two options

I didn’t know what the 9/12 Project was until I happened to leaf through Glenn Beck’s Common Sense at a Borders a few weeks ago. For those that don’t know what it is, let’s let the 9/12 website define itself for us:

The 9-12 Project is designed to bring us all back to the place we were on September 12, 2001. The day after America was attacked we were not obsessed with Red States, Blue States or political parties. We were united as Americans, standing together to protect the greatest nation ever created.
That same feeling – that commitment to country is what we are hoping to foster with this idea. We want to get everyone thinking like it is September 12th, 2001 again.
Ask yourself these questions:
* Do you watch the direction that America is being taken in and feel powerless to stop it?
* Do you believe that your voice isn’t loud enough to be heard above the noise anymore?
* Do you read the headlines everyday and feel an empty pit in your stomach… as if you’re completely alone?
If you’ve answered YES, then you’ve fallen for the Wizard of Oz lie. While the voices you hear in the distance may sound intimidating, as if they surround us from all sides—the reality is very different. Once you pull back the curtain, you realize that there are only a few people pressing the buttons, and their voices are weak. The truth is that they don’t surround us at all.
We surround them.
At the origin of America, our Founding Fathers built this country on 28 powerful principles. These principles were culled from all over the world and from centuries of great thinkers. We have distilled the original 28 down to the 9 basic principles.
So, how do we show America what’s really behind the curtain? Read The 9 Principles . If you believe in at least seven of them, then we have something in common.

So the 9/12 Project wants to restore the unity of purpose immediately after 9/11, a purpose that is defined by Beck through a clever 9 Principles/12 Values breakdown (get the double-meaning here? Deep!). Evidently, these 9 Principles are derived from these 28 Principles, which evidently have something to do with a 5,000 Year Miracle. What I like about this is that there’s a clear definition here of where these Principles came from, who distilled them and why they can be expurgated. Oh wait, strike that. The story here strikes me as akin to one I heard once about reading the truth on golden plates.

Moving on for now, what are these 9 Principles that are “really behind the curtain?” Behold:

1. America Is Good.
2. I believe in God and He is the Center of my Life.
3. I must always try to be a more honest person than I was yesterday.
4. The family is sacred. My spouse and I are the ultimate authority, not the government.
5. If you break the law you pay the penalty. Justice is blind and no one is above it.
6. I have a right to life, liberty and pursuit of happiness, but there is no guarantee of equal results.
7. I work hard for what I have and I will share it with who I want to. Government cannot force me to be charitable.
8. It is not un-American for me to disagree with authority or to share my personal opinion.
9. The government works for me. I do not answer to them, they answer to me.

As for the values, there’s not much to say about them. It’s really just a laundry list of self-reliant virtues. These virtues are really meaningless without some definition and context from the 9 Principles, so that’s where I will begin my investigation. If there are literally hundreds of thousands of people uniting behind these principles, we have to take them seriously. At least at first.

If you made them, and they made you…then who made who?

Written by lefttowrite

March 14, 2010 at 3:15 pm

Thomas Aquinas: American Revolutionary

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That's a copy of the Declaration of Independence on the right

With all the issues with public education, it’s good to know Texas has their priorities straight:

After three days of turbulent meetings, the Texas Board of Education on Friday approved a social studies curriculum that will put a conservative stamp on history and economics textbooks, stressing the superiority of American capitalism, questioning the Founding Fathers’ commitment to a purely secular government and presenting Republican political philosophies in a more positive light.

Finally, educational reform that matters. Making sure to change mentions of “capitalism” to “free-enterprise” in textbooks, as well as mention Milton Friedman and von Hayek alongside Smith, Marx, and Keynes, should help with those math and science scores, not to mention teacher salaries!

Here’s a couple of choice quotes:

“I reject the notion by the left of a constitutional separation of church and state,” said David Bradley, a conservative from Beaumont who works in real estate. “I have $1,000 for the charity of your choice if you can find it in the Constitution.”

Cynthia Dunbar, a lawyer from Richmond who is a strict constitutionalist and thinks the nation was founded on Christian beliefs, managed to cut Thomas Jefferson from a list of figures whose writings inspired revolutions in the late 18th century and 19th century, replacing him with St. Thomas Aquinas, John Calvin and William Blackstone. (Jefferson is not well liked among conservatives on the board because he coined the term “separation between church and state.”) The Enlightenment was not the only philosophy on which these revolutions were based,” Ms. Dunbar said.

To David Bradley: I’ll give $1,000 to the charity of your choice if you can show me the unity of church and state in the Constitution. Or just anything that mentions Christianity, really.

To Cynthia Dunbar: Thanks for finally replacing Thomas Jefferson with Thomas Aquinas. The strong Medieval Catholic theology that informed our nation’s founding will finally get its due in textbooks now!

A final note: Dunbar’s point that “the Enlightenment was not the only philosophy on which these revolutions were based” is, actually, an observation of paramount importance to the debate about the ideas behind America’s founding. An acknowledgment of the diversity of views of America’s founding leaders and thinkers is exactly what is needed in this debate. The problem lies in taking an “all-Founding Fathers were deists” or “all-Founding Fathers loved Jesus” position – by precluding the complexities that abounded at the nation’s founding with a single vision, you lose sight of the real agonism that drove the creation of the American constitution. It wasn’t a monolithic movement, but one filled with argument, struggle and disagreement. In fact, the democratic basis of our government insures that this discussion and political struggle can continue today (this is a fundamental strength of American government, but that’s a discussion for another day. Or month). Suffice it to say, I find it ironic that such an acknowledgment comes from someone who would claim that the Constitution was based solely on Christian principles.

You’re as big as Texas

Written by lefttowrite

March 14, 2010 at 2:16 pm


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