From today’s NRO editorial:

A bill expected to pass the House today with overwhelming Democratic support would accomplish something peculiar for a liberal republic in the 21st century: It would partly disenfranchise a portion of one state’s residents, create a parallel government for those meeting a legislated criterion of ethnic purity, and would portend the transfer of public assets, land, and political power from those who fail to satisfy the standard of ethnic purity to those who do. For these reasons and many more, the Native Hawaiian Government Reorganization Act richly deserves opposition.

“To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.” ~ Justice Scalia

While I’m not arguing for secession, since when did a war “resolve” a constitutional question?

More here.

After the State of the Union, a question hung out there: how would the supreme Court respond to President Obama. Well, they wouldn’t. They couldn’t. They shouldn’t. Though we have checks and balances, our branches are not co-equal. The President’s bully pulpit and executive authority truly is checked only by Congress. To any supreme Court decision the President may (and has in the past said…), “they have their decision, let them enforce it.” Thus the judges show deferential silence. That does not mean, however, a Justice cannot make a rather smart, off-the-cuff comment in rebuttal. Here’s what Clarence Thomas said yesterday to a group of law students concerning Citizens United: (more…)

Mr. Obama has his opinion; now let him render it.

“Education, after all, is typically described as a core, and possibly the core, state responsibility . . . Homeschooling is now such an entrenched practice, recriminalization is not a viable option in any event.” ~ Robin L. West, Georgetown University Law Center

Not a “viable option?” Well at least I can rest peacefully tonight knowing that jack-booted thugs won’t be knocking my daughter’s door down any time soon to arrest her for teaching “the state’s children.” (My daughter would want to know where the state was when she was going through those labor pains to deliver “their” children. By the way Professor, the youngest one has something stinky in her diaper – could you lend a hand here?) Professor West thinks that more government regulation of homeschooling is a good idea:

As the political philosopher and homeschool critic Robert Reich has persuasively argued, curricular review would give the state a way to ensure that the academic content is such as to protect the children’s interest in both acquiring the necessary skills for active, autonomous, and responsible citizenship in adulthood, and in being exposed to diverse and more liberal ways.

Well, gee whiz, that approach certainly has worked wonders in the public schools, hasn’t it? Diverse and more liberal – that’s what this is really all about. Professor West doesn’t like the fact that “the state” is losing the opportunity to indoctrinate OUR children.  Maybe she’s bucking for Secretary of Education in the Obama administration. More here.

I just got back from my sister’s where she had the long-form of the census sitting on her countertop. It included, I think, well-over twenty pages. The questions covered everything from who lived in her house to examinations on income, education, etc. So, I broke out my constitution and read the Census clause:

“[An] Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.”

It seems to me that the only thing the constitution expressly authorizes Congress to legislate on is an “enumeration” that is a head count of people. No questions about income. Or education. Or pets in the house. Nothing. Just “how many people live at this address” and whatever information is reasonably necessary to prevent double counting (like the names of those people, sex and DOB). When I asked my sister what she thought of this she said, “well, how would the departments of commerce, labor, health and human services and all those other places be able to do their job without all this information?” Exactly.

Here’s a right of privacy I can get behind: the government can’t find out anything more about me in its census precisely because it doesn’t have the power to do so. Nothing in that clause gives it the power. The “in such a manner as they shall by law” refers to Congress deciding how and in what manner to undertake the “enumeration” and an “enumeration” most plainly and simply (and narrowly construed) means “1, 2, 3….350 million…”. That’s it. Why the left (from a Civil Liberties perspective) and the right (from a limited government/starve the leviathan goal) don’t both get behind this, I don’t understand…

…oh wait, yes I do: It’s all about the Benjamin’s Baby. Money for Congress to dole out and the Executive branch to play with…

There is nothing more distasteful, I find, than a sobriety checkpoint. The police have zero probable cause for creating a long-line on the road and detaining me for an hour or more just to ask if I have been drinking. The argument is basically this. You are driving. It is late. People like to drink late at night. Those who like to drink late at night sometimes also like to drive after they drink. Ergo, it is possible that you because you are out late at night and are driving,  you may be drinking and driving. The logic is faulty on a number of levels, not the least of which that drinking and driving are of course not legally wrong, but only drinking too much according to the standard set by the law (and even then, one might be legally drunk but perfectly capable of driving a car neither recklessly nor negligently). But say you are just out. What gives the police the right to stop you to ask if you’ve been drinking and driving? Under normal circumstances, the police need some sort of suspicious behavior or infraction (even if your taillight is out, that is enough). But here it is only because you belong to a potential class of people. Thus, based on a theory that everyone out that night is potentially a member of that class, you can be stopped. BUT FOR my driving, I wouldn’t be out that night. Is that really enough?

Well, thanks to Google Scholar, the following case is free and very readily accessible online: Michigan v. Sitz, 1990, US Supreme Court. In it, Rehnquist says it is a reasonable interest of the state to conduct such a search, notwithstanding the 4th Amendment, because drunk driving is a real problem. The dissents aren’t very helpful because the dissenters get into “effectiveness” of the stop rather than the logic that just by-passes the 4th amendments requirements for probable cause.

License and registration please!

Via DrewM. over at Ace of Spades, we are provided with another gleaming example of David Frum’s genius. David Frum is the self-styled intellectual leader of the conservative movement who regularly insults conservatives and conservative ideas.

In a recent article Mr. Frum attempts to correct the misguided idea among many on the right that Obamacare might be constitutionally defective. However, Mr. Frum’s period of instruction might have been more convincing had he actually read the Constitution first. Check out this example of keen constitutional analysis:

DeMint’s and Ensign’s argument against the constitutionality of the Obama-Reid health reform rests upon the ancient theory of enumerated powers. Under this theory, Congress may do only what the Constitution specifically authorizes Congress to do. Since (for example) the Constitution speaks only of a Supreme Court, Congress has no power to create lower federal courts. Since the Constitution does not mention a national bank, Congress may not charter banks.

Wow! According to Section 1, Article III of my Constitution Congress DOES have the enumerated power to create lower courts.

At any rate, the rest of the article mistakenly conflates Medicare and Social Security with Obamacare’s requirement that individual’s buy a product (insurance) from a private company.

I did find Frum’s equation of small government conservatives with the jurisprudence of Roger Taney more humorous than insulting. Taney was the author of the Dred Scott decision, a decision in which an arm of the federal government (the Supreme Court) stripped individual states of the power to define what was property within their borders or who could be a citizen. According to Taney, the citizens of Illinois, or any other state, lacked the authority to decide that a black man was more than just an article of private property. It is impossible to imagine a decision more antithetical to small government conservatism than Dred Scott. However, you would have to know something about both the constitution and conservatism to understand that point, something Mr. Frum apparently lacks.

If you want to read an intelligent constitutional take down of Obamacare then you should read this article from Richard Epstein.

With the Senate poised to ram through a horrendous, arguably unconstitutional piece of legislation that will do irrevocable harm to our country if eventually signed into law, it might seem a bit odd to muse on the success of Framers’ constitutional design.  But when you take a step back, you realize that the intent of the Framers to slow down the machinery of government continues to thrive today.

A year ago Barack Obama was elected president.  He has complete control of the Executive branch of government.  Democrats widened their majority in the House, and obtained a super majority in the Senate, ending up with a filibuster proof majority by the middle of this year.  Meanwhile, the federal judiciary remains somewhat divided as our Supreme Court is essentially a 4-4 split with the Nation’s legal balance at the mercy of Anthony Kennedy’s mood.

So the Democrats have complete control of two of the three branches of the federal government, along with control of a majority of state governments.  Yet this year they have accomplished little in the way of meaningful long-term legislation.  They rammed through a stimulus package that costs taxpayers near a trillion dollars and expanded our federal debt without doing much in the way of actual stimulus.  But this was a one-time only piece of legislation that does not create a new federal entitlement program.  Meanwhile, cap-and-trade legislation passed the House of Representatives, but it is stalled in the Senate, and it is fairly unlikely that any substantial bill will ultimately get passed (though the EPA could act).  And despite huge legislative majorities and a seemingly favorable political mood for reform, at least at the beginning of the year, Democrats have only managed to get some kind of reform near passage through heavy compromise, cajoling, and outright bribery, and it’s still only a 50/50 proposition that President Obama will ever get any legislation to sign.

So despite this considerable numerical advantage, Democrats have not been able to enact the sort of radical “reforms” their supporters believed were imminently on the horizon.  There are numerous factors – the economy made environmental reform less palatable, significant public support for health care reform never materialized, Blue Dog Democrats remained reluctant to sign on to change – but, ultimately, we can thank the constitutional design of the Framers for making radical innovation difficult to achieve.  The Framers did not intend to make change impossible – that would have been manifestly wrong – but they did seek to create a system that limited the power of the government to act swiftly thanks to mechanisms such as checks and balances and the separation of powers. The country has changed in myriad ways, and the constitutional system has been altered considerably especially over the past 80 years.  But the Constitution still has a strong heartbeat, one that is stronger than even the more pessimistic among us realize.

That’s what I’m rooting for. Honorary coaches for the coin flip: Barry Lynn (Patriots) and Jay Sekula (Saints). No matter what the toss’s result, Lynn attributes it to the laws of physics while Sekula credits providence (though, as a Thomist, I think they’re both right!)

According to Yeshiva University law professor, Marci Hamilton, the Stupak Amendment is unconstitutional because its supporters are motivated by religion. It’s not clear how Professor Hamilton knows the motivations of every single person who supports the amendment. But setting that question aside, why should “religious motivation” matter to the legitimacy of a citizen’s participation in the public conversation on an issue over which citizens from a wide variety of traditions disagree? Apparently, according to Professor Hamilton, a citizen who takes his or her religious beliefs seriously is the proper subject of civic disenfranchisement. As I write in an article I published in the Hastings Constitutional Law Quarterly in 2006 (“The Court of Disbelief: The Constitution’s Article VI Religious Test Prohibition and the Judiciary’s Religious Motive Analysis”)
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Before looking at Federalists 18, 19, and 20, I note that there’s some dispute about the authorship of these three.  Madison is universally credited with being at least the co-author of all three essays, and many sources give sole credit to him.  The Benjamin Wright edition that I use lists Madison singly as the author, but the website where I am linking to cites Madison and Hamilton as co-authors.  My own sense after closely reading them is that there is at least a trace of Alexander Hamilton present, especially in numbers 19 and 20.  At any rate, I’ll simply refer to the author as Publius for this group of papers.

Publius gives a bit of a history lesson in Federalists 18-20.  He traces the history of ancient confederacies and analyzes the causes of their collective failures.  He starts out in number 18 by taking a look at the Greek confederacies and observes that they all retained their independence and sovereignty. (more…)

Alexander Hamilton commences his discussion of the deficiencies of confederacy with Federalist 15.  Publius has alluded to this throughout the first 14 papers, but now he undertakes a concerted effort to demonstrate the insufficiency of the confederate form of government.  This particular essay is even more polemical than is usual for Hamilton.  So convinced is he that the confederacy falls short of meeting the needs of the Nation, he asserts that it is beyond debate.

In pursuance of the plan which I have laid down for the discussion of the subject, the point next in order to be examined is the insufficiency of the present Confederation to the preservation of the Union. It may perhaps be asked what need there is of reasoning or proof to illustrate a position which is not either controverted or doubted, to which the understandings and feelings of all classes of men assent, and which in substance is admitted by the opponents as well as by the friends of the new Constitution. It must in truth be acknowledged that, however these may differ in other respects, they in general appear to harmonize in this sentiment, at least, that there are material imperfections in our national system, and that something is necessary to be done to rescue us from impending anarchy. The facts that support this opinion are no longer objects of speculation. They have forced themselves upon the sensibility of the people at large, and have at length extorted from those, whose mistaken policy has had the principal share in precipitating the extremity at which we are arrived, a reluctant confession of the reality of those defects in the scheme of our federal government, which have been long pointed out and regretted by the intelligent friends of the Union. (more…)

In November 2004 the board of the Dover Area School District of Pennsylvania formulated and promulgated a policy that required Dover High School ninth grade biology teachers to read in class a series of brief paragraphs:

The Pennsylvania Academic Standards require students to learn about Darwin’s Theory of Evolution and eventually to take a standardized test of which evolution is a part.

Because Darwin’s Theory is a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations.

Intelligent Design is an explanation of the origin of life that differs from Darwin’s view. The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves.

With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the Origins of Life to individual students and their families. As a Standards-driven district, class instruction focuses upon preparing students to achieve proficiency on Standards-based assessments.

The policy never took effect. Soon after the school board’s action, several parents of Dover school children, assisted by attorneys from the American Civil Liberties Union of Pennsylvania, brought suit against the school district. These citizens argued that the policy violated the establishment clause of the Constitution’s First Amendment. Federal Districtt Court Judge E. Jones, III, agreed, and ruled in their favor.

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One story not yet getting play in “Nobelgate” is that the committee that selects the Nobel Peace Prize is based out of Norway—and selected by the Parliament of Norway—but Sweden-based committees formed from the various Swedish academies select all the other prizes. The bottom line? Talking to a few of my relatives this morning who live in Sweden (and these are left-of-center relatives) they together with most of Sweden are livid at Norway for letting such a folly and scandal happen because it lowers the prestige of the Swedish-based awards. My relatives said that in Sweden, Obama’s failure to decline the award has lowered his prestige there because they see it as a “no-brainer” that he should recognize that he has done nothing to merit the award. It really calls into question why exactly they gave Obama the award: Do they think the prize will somehow sway his actions in Iran and Afghanistan? Is it just a slap at eight years of Bush? Or, do they just not think at all?

One additional aside: this blog raises the question as to whether the emoluments clause (Article II, Section 9) requires Congressional authorization in order for a sitting-President to accept the award. For what it is worth, Teddy Roosevelt and Wilson did not get Congressional authorization, but that still doesn’t mean it’s right. One commenter to this post suggests that Congress’s own statutes pre-authorize the reception of this type of gift. Have at it.

Alexander Hamilton takes up his quill again to pen the next four Federalist Papers.  The underlying theme is still the importance of a united Nation, but now Hamilton discusses the discord that will arise between the states if they form rival confederacies.

At the start of the sixth paper, Hamilton touches upon a subject which will be the point of emphasis for James Madison down the line. (more…)

I have started a series on my personal blog where I take a look at each of the Federalist Papers.  Here is one, two, and three-five.  I will be cross-posting here as well from now on.

via Big Government

Rep. Nadler (D-NY) claimed today that the Republican-led initiative to defund ACORN is an unconstitutional bill of attainder. I am no expert on bills of attainder but this does not seem like one. Rather than a punishment for past action without trial (i.e. a bill of attainder), voting to cease funding ACORN is more of a decision that the appalling, systemic flaws present in the organization make it unfit to continue receiving federal funds. I would think there is a key distinction between discontinuing funding and a punishment that requires ACORN to do something.

Any thoughts on this?

(Cross-posted on Underdog Soldier)

There are A LOT of good, good polices officers out there. But this officer (in a rather calm and matter-of-fact manner) basically abuses this man’s free speech by forcing him to take down a sign he was holding up at last week’s town hall meeting with Representative Jim Moran in Virginia. Do I think the sign is particularly effective or in good taste? No. But I don’t think the officer had any right to actually ask this man to take the sign down or leave or even threaten arrest. My only sympathy is that the officer was just “doing his job as he was told.” But that still ain’t mean what he does is right:

There is a proposal kicking around the Senate to ban texting while driving.  Michael Denton disapproves, and I agree with him up to a point.  It is difficult – okay, frankly impossible – to see how the federal government has any power to implement this ban.  I dislike the method by which Congress gets around its lack of constitutional lack of authority: namely, withholding federal highway funds if the state refuses to comply with the federal mandate.  This is tantamount to legal extortion.  There is at best a tenuous connection to interstate commerce, though I suppose there have been worse applications in the past.

And then there’s the fact that Chuck Schumer is one of the people who introduced the ban.  Anything that Chuck Schumer proposes is automatically suspect.

All that being said, this is one of those rare instances where the government does possess reasonable justification in acting.  Studies, common sense, and lived experience all demonstrate that driving while texting is incredibly dangerous.  One would think you wouldn’t need to actually write a law to prevent people doing something so manifestly stupid and dangerous.  Furthermore, a texting driver is putting other lives at danger.  If government exists for any reason at all it is to prevent citizens from being able to kill other citizens.  This is kind of basic.

We’re not talking about something that is merely stupid.  There is barely any difference from driving while texting and driving while drunk.  Both activities severely impair one’s driving abilities to the point where you are a menace to other people on the road.  On the talk shows and other blogs I keep hearing the slippery slope argument.  “Well, if they can ban this, why not fiddling with the radio, eating, or picking one’s nose?”  While I am sympathetic to slippery slope arguments and do believe that every expansion of the government’s powers makes the next extension more feasible, we could make such arguments about practically anything the government does.  At some point we should be able to employ common sense and distinguish between rational and irrational uses of government power.  Texting while driving is clearly something different than just tuning the radio – though indeed the latter can be dangerous if one becomes too engrossed.  But I think pushing the up channel button involves a little less brain power than typing out a text message on one’s phone.

I have no problem with such bans.  Just let the 40 or so states that don’t already have such bans get around to it on their own.

(Cross-posted at CC)

I had been meaning to dig deeper into the issue of Senatorial deference for the President’s Supreme Court nominations, but I simply do not have the time to do a research paper on such a mundane issue.  Long story short, though, I agree with Mike Rappaport , Randy Barnett, and Ramesh Ponnuru.

First Rappaport addresses the question, “Is the President entitled to deference on Supreme Court nominations?” (more…)

It’s always amusing to see pro-aborts get caught expressing their unfiltered thoughts.  Here is Justice Ginsburg, in an interview with the New York Slimes.

Q: If you were a lawyer again, what would you want to accomplish as a future feminist legal agenda?

JUSTICE GINSBURG: Reproductive choice has to be straightened out. There will never be a woman of means without choice anymore. That just seems to me so obvious. The states that had changed their abortion laws before Roe [to make abortion legal] are not going to change back. So we have a policy that affects only poor women, and it can never be otherwise, and I don’t know why this hasn’t been said more often.

Q: Are you talking about the distances women have to travel because in parts of the country, abortion is essentially unavailable, because there are so few doctors and clinics that do the procedure? And also, the lack of Medicaid for abortions for poor women?

JUSTICE GINSBURG: Yes, the ruling about that surprised me. [Harris v. McRae — in 1980 the court upheld the Hyde Amendment, which forbids the use of Medicaid for abortions.] Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

We’ll leave aside for now the constitutional ignorance of a sitting Supreme Court Justice and focus on this particular comment: “there was concern about population growth and particularly growth in populations that we don’t want to have too many of.”

First of all, let’s put to rest right now the predictable retort – no, there is no “context” in which this comment can be explained away, so don’t even try it.

Second of all, there is no way to charitably interpret this comment away.  She is, at a minimum, talking about poor people.  Extrapolating from the fact that a substantial percentage of the poor are black, she could be talking about the black population.  But we’ll be “charitable” here and infer that Justice Ginsburg is merely stating that the poor are a population that we don’t want to have too many of.  But it seems to me that the more humane way to achieve a reduction in the number of people in poverty is to create economic opportunities, not to promote genocide.

I’m starting to think that her middle name is just a typo away from indicating her true personality.

During the Bush administration, it was not unusual to hear constitutionally illiterate folks screaming about Bush’s ideas on the “unitary executive.”  The term does not mean what those people thought it meant, but it didn’t stop them from acting as though Bush was gently preparing the way for an autocratic regime.

Enter Barack Obama, and suddenly we find ourselves governed by a president who does seem to think he shouldn’t be bothered by pesky little contirvances such as “checks and balances.”

With the clock running out on a new US-Russian arms treaty before the previous Strategic Arms Reduction Treaty, or START, expires on December 5, a senior White House official said Sunday said that the difficulty of the task might mean temporarily bypassing the Senate’s constitutional role in ratifying treaties by enforcing certain aspects of a new deal on an executive levels and a “provisional basis” until the Senate ratifies the treaty.

“The most ideal situation would be to finish it in time that it could be submitted to the Senate so that it can be ratified,” said White House Coordinator for Weapons of Mass Destruction, Security and Arms Control Gary Samore. “If we’re not able to do that, we’ll have to look at arrangements to continue some of the inspection provisions, keep them enforced in a provisional basis, while the Senate considers the treaty.”

Samore said administration lawyers are exploring the “different options that are available. One option is that both sides could agree to continue the inspections by executive agreement; that would work on our side. On the Russian side, as I understand it, that would require Duma approval.”

As Captain Ed points out, Obama has a 60-seat Democrat majority, and it shouldn’t be difficult to get 6 more Republicans to sign onto a reasonable treaty.  But the current administration doesn’t like all those petty constitutional annoyances designed to slow down the machinery of government, so they will overlook all those niceties like Senate approval of a treaty and keep on trucking.

(Cross-posted at Crankycon)

Ramesh Ponnuru has an op-ed in the New York Times today in which he criticizes conservatives for having a blind spot with respect to judicial activism involving racial issues.  I disagree with many of his arguments. However, I’ll set aside, for the moment, the propriety of conservatives using the New York Times to argue with their own, and move on to a good ol’ fashioned fisking:

[W]hen it comes to the race cases before the Supreme Court, too many conservatives abandon both originalism and judicial restraint.

The Voting Rights Act decision was a case in point. Eight justices avoided weighing in on the constitutionality of the law’s requirement that certain jurisdictions, mostly in the South, get Justice Department permission before making any changes to election procedures. Instead they ruled that a utility district in Texas that wanted to be freed from the provision should have an opportunity to try.

But Justice Clarence Thomas went further, declaring the provision unconstitutional. Congress, he argued, was justified in the 1960s in responding to the denial of the voting rights guaranteed by the 15th Amendment, but things have changed and the provision is no longer needed.

Justice Thomas is, in my view, right to consider the law outdated. But is that really for him to say? Congress is the proper body to make that judgment. In 2006, it decided to renew the law for 25 years. Its determination that the law was still necessary may have been mistaken, but it is not clear that the Constitution authorizes judges to second-guess it.

Well, if one believes in judicial review, the Court will always have the authority to “second guess” laws when it believes they potentially conflict with any provision of the Constitution. Treating a subset of states according to different, more onerous standards is at least dubious under basic principles of federalism. I’m not entirely familiar with the jurisprudence or the history with respect to the federal governmnent discriminating against certain states, but I’d wager it’s a great deal more complex and more enlightening to this discussion than Ponnuru lets on. (more…)

Newsweek has an interesting Q&A with Robert Bork regarding Judge Sotomayor’s nomination to the Supreme Court.

Here are some of the questions and answers I found interesting:

Newsweek: Is there a principled definition of what judicial activism is?

Bork: Sure. A judge is an activist when he announces principles or reaches results that cannot plausibly be related to the actual Constitution.

…

Newsweek: Your own confirmation hearing in 1987 is often called a watershed for the process.

Bork: It wouldn’t have been but for the fact that I looked like the fifth vote to overrule Roe v. Wade. And in modern politics, that is a subject that raises hysteria.

Newsweek: Would you have been the fifth vote to overturn Roe v. Wade?

Bork: Oh, of course. It’s one of the most corrupt decisions I’ve ever seen.

Newsweek: Was it your view that the law on abortion should be left totally to the democratic process?

Bork: I oppose abortion. But an amazing number of people thought that I would outlaw abortion. They didn’t understand that not only did I have no desire to do that, but I had no power to do it. If you overrule Roe v. Wade, abortion does not become illegal. State legislatures take on the subject. The abortion issue has produced divisions and bitterness in our politics that countries don’t have where abortion is decided by legislatures. And both sides go home, after a compromise, and attempt to try again next year. And as a result, it’s not nearly the explosive issue as it is here where the court has grabbed it and taken it away from the voters.

It is really a shame this man is not on the Supreme Court.

The United States Supreme Court has just released its opinion in Northwest Austin Municipal Utility District Number One v. Holder.  At issue was whether Section 5 of the Voting Rights Act of 1965 is constitutional.  The Court, while acknowledging that there are “serious constitutional concerns” regarding the Act, chose instead to rule that the Utility District could “bail out of the Act” (a lengthy process whereby the political entity establishes that it doesn’t discriminate and should not longer have to seek pre-clearance from the Justice Department before it any changes to any election procedure) thereby avoiding the question of whether Section 5 is constitutional.

I have not read the decision but I am disappointed that the Court did not take this opportunity to rule on Section 5 constitutionality.  While the Act has had a significant positive impact in the states to which it applies (it doesn’t apply to all of the states), I have long thought that there were constitutional and practical problems with the Act. 

If you want to move a polling place because the current location was destroyed by a tornado, you have to make a lengthy submission to the Dept. of Justice to get that approved.   In Alabama, there were changes made to the section of the Alabama Code which dealt with the conduct of elections.  It was cleaning up wording, making grammatical changes, etc.  The bill passed both the Alabama Senate and the Alabama House without a single dissenting vote.  The filing to the Department of Justice weighed over 50 lbs.  All of this for a bill which did not have a single dissenting vote.  It is incidences like this which highlight that there are significant problems regarding the current application of the Act in 2009.

(Posted on What’s Wrong With the World)

“The ink is black, the page is white
Together we learn to read and write
A child is black, a child is white
The whole world looks upon the sight
A beautiful sight.

And now a child can understand
That this is the law of all the land
All the land.

The world is black, the world is white
It turns by day, and then by night
A child is black, a child is white
Together they grow to see the light
To see the light.

And now at last, they plainly see
They’ll have a dance of liberty, liberty.”

–David Arkin and Earl Robinson (recorded by Three Dog Night)

Consider two cases about two tests. The first, Bartlett v. the New York State Board of Law Examiners, is from 1997. The other, Ricci v. DeStefano, is presently on appeal before the U. S. Supreme Court, which will issue its opinion sometime soon. In the first case, the jurist who issued the ruling was Judge Sonia Sotomayor when she served on the bench of the Federal District Court of the Southern District of New York. In the latter case, the Supreme Court will be assessing a Second Circuit Court of Appeals ruling in which Judge Sonia Sotomayor participated.

What follows is a summary of the first case, found in the article authored by Ruth Shalit, “Defining Disability Down,” published in the August 25, 1997 issue of The New Republic:
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The Cato Institute has a great video critiquing the infuriating and unconstitutional objectives of campaign finance reform:

Hat tip: John Schwenkler

It’s really not that much fun anymore to pick on E.J. Dionne. He’s been heading down the road to irrelevancy for so long that it’s almost not worth the effort.

Of course that’s not going to stop me from highlighting his latest bit of hackery. (more…)