Two Views on Constitutionality of Health Insurance Mandate

Gene Healy writing in the Washington Examiner on the unconstitutionality of the health insurance mandate.

In its "Findings" section, Reid's bill hits all the jurisprudential buzzwords: The individual mandate "substantially affects interstate commerce," and regulates "activity that is commercial and economic in nature." Activity like standing around without health insurance? Apparently so.
Yet, as the Congressional Budget Office noted in a 1994 evaluation of Clintoncare, an individual mandate would be "unprecedented. ... The government has never required people to buy any good or service as a condition of lawful residence in the United States."
Even the Supreme Court ought to recognize the "you exist, therefore you're regulated" rationale as a bridge too far.

The opposite view comes via Ruth Marcus in the Washington Post.

Granted, there is a difference between regulating an activity that an individual chooses to engage in and requiring an individual to purchase a good or service. Granted, too, there is a difference between making automobile insurance compulsory, as a condition of the privilege to drive a car, and making health insurance compulsory, whether an individual wants it or not.

But the individual mandate is central to the larger effort to reform the insurance market. Congress may not be empowered to order everyone to go shopping to boost the economy. Yet health insurance is so central to health care, and the individual mandate so entwined with the effort to reform the system, that this seems like a different, perhaps unique, case.

I think Marcus oversimplifies this point. If the government can regulate your activity just because you are alive then they can regulate anything and everything. This is far different from the regulation involved in Filburn, which involved the voluntary practice of growing wheat. Being alive is not similarly voluntary. My faith in the Court to strike it down may not be as strong as I would like, but I am heartened by justice Marshall's words in Marbury v. Madison where he wrote, ‘‘the powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.’’ If the Court doesn't strike the mandate down any idea that our government is one of limited powers becomes not only dead, as it is now, but dead and buried.

ABA Backs Federal Court Trials of Alleged 9/11 Plotters

If you needed any more proof that the ABA only represents liberals, here it is.

There are at least two very good reasons to oppose these trials that don't require one to be a conservative or anywhere close to the right.

1) They are nothing more than show trials.
2) They will likely make very bad law for future criminal defendants.

(note the above links are to those bastions of conservatism Salon and Slate)

Apparently these reasons aren't even enough for the ABA. At least they are showing their true colors.

CFJ Files Brief in Gun Case Before High Court

Yesterday, the Committee for Justice submitted an amicus (friend of the court) brief in McDonald v. Chicago, the landmark Second Amendment case in which the Supreme Court will decide whether the right to keep and bear arms applies to state and local gun laws. District of Columbia v. Heller, the High Court’s 2008 decision recognizing the Second Amendment as an individual right, left the question of incorporation to the states unaddressed. The Family Research Council, the American Civil Rights Union, and Let Freedom Ring are also amici on the brief, written primarily by Kenneth Klukowski.

Regarding CFJ’s interest in the case, the brief explains that

“At the core of CFJ’s mission is the need for objective judicial interpretation of the United States Constitution, based on the document’s text and original meaning rather than on the political ideology, feelings, and life experiences of judges. Accordingly, CFJ believes that the Second Amendment right to keep and bear arms must be afforded the same protection, at all levels of government, as the other fundamental rights in the Bill of Rights.”

If the Court decides to apply the Second Amendment to the states, as CFJ urges, it will have to decide whether to incorporate it via the Fourteenth Amendment’s Due Process Clause or Privileges or Immunities Clause. CFJ argues that the Privileges or Immunities Clause is the most appropriate vehicle in light of the original meaning and text of the Second and Fourteenth Amendments.

Among the reasons why Privileges or Immunities is most appropriate is the Clause’s explicit limitation to “the privileges or immunities of citizens of the United States” (the Due Process Clause has no such limitation). That the Founding Fathers intended the same limit on the Second Amendment is demonstrated both by its reference to “the right of the people” – Supreme Court precedent demonstrates that constitutional references to “the people” refer to the citizenry – and the Amendment’s dual purpose as both an individual and political right. In addition to ensuring a personal right to self-defense, the Second Amendment guarantees the people’s political right to hold government accountable through the latent deterrent of armed resistance – a “safeguard against tyranny” as the Court noted in Heller. Political rights are extended only to United States citizens – the right to vote being the most famous example.

CFJ’s brief adds that, in the absence of constitutional protection for aliens’ right to bear arms, “states should enact statutory entitlements to enable law-abiding aliens access to firearms for self defense.”

While arguing that incorporating the Second Amendment through Privileges or Immunities is the most principled approach, CFJ’s brief notes that there is abundant Supreme Court precedent supporting incorporation through the Due Process Clause, despite the lack of originalist or textual support for the latter approach:

“If the Court chooses not to rely on the Privileges or Immunities Clause, those [Due Process] precedents undoubtedly dictate incorporation because the right to arms is ‘fundamental’ under any of the tests this Court has articulated. … The choice of incorporating the right to bear arms through Privileges or Immunities versus Due Process is partially a choice between first principles and past practice.”

Appellant Otis McDonald argues that the Supreme Court’s landmark 1873 decision in the Slaughter-House Cases, restricting the scope of the Privileges or Immunities Clause, should be overruled to pave the way for incorporation of the Second Amendment. However, CFJ’s brief argues that overturning the Slaughter-House precedent is not only unnecessary but also unwise, because “doing so would render the Privileges or Immunities Clause a tabula rasa.” As a result,

“Privileges or Immunities could become a cornucopia of myriad entitlements, such as a constitutional right to healthcare, higher education, a ‘living wage,’ ‘decent’ housing, and a clean environment. ... such policy questions are better decided by the people’s elected representatives than the federal judiciary. … By limiting the Privileges or Immunities Clause to rights that have a textual basis in the Constitution, … Slaughter-House constrains this scenario of judicial activism run amok.”

An Emerging Consensus on the Right that the Criminal Justice System is an Aspect of Big Government that Must be Contained

The New York Times has an interesting article about the emerging right-left consensus on criminal justice.

“The problem of overcriminalization is truly one of those issues upon which a wide variety of constituencies can agree,” Mr. Thornburgh said. “Witness the broad and strong support from such varied groups as the Heritage Foundation, the Washington Legal Foundation, the National Association of Criminal Defense Lawyers, the A.B.A., the Cato Institute, the Federalist Society and the A.C.L.U.”

In an interview at the Heritage Foundation, a conservative research group where he is a fellow, Mr. Meese said the “liberal ideas of extending the power of the state” were to blame for an out-of-control criminal justice system. “Our tradition has always been,” he said, “to construe criminal laws narrowly to protect people from the power of the state.”

There are, the foundation says, more than 4,400 criminal offenses in the federal code, many of them lacking a requirement that prosecutors prove traditional kinds of criminal intent.

“It’s a violation of federal law to give a false weather report,” Mr. Meese said. “People get put in jail for importing lobsters.”

The Heritage Foundation runs a blog on this topic at overcriminalized.com

More McDonald Briefs

The Cato Institute and Pacific Legal Foundation

The Congressional Brief Joined by 58 Senators (including 19 Democrats) and 251 U.S. Representatives (including 78 Democrats).


Academics for the Second Amendment.

UPDATE: You can find a roundup of all the briefs here.

Following Gun Laws is for the Little People

As the case of McDonald v. Chicago gets set to be argued before the Supreme Court, Steve Chapman takes a look at gun laws in Chicago and finds they are only for the little people.

Chicago politicians are zealously committed to gun control in law, but fairly relaxed about it in practice.

In 1994, state Sen. Rickey Hendon, D-Chicago, had an unregistered handgun stolen from his home in a burglary, and he didn't feign contrition about his disregard of the ordinance.

"I have a right to protect myself," he declared, noting that he had been burglarized before -- and forgetting that the state legislature of which he is a member allows Illinois cities to deprive their citizens of that right. Asked if he would replace the lost piece, Hendon said, "No comment." The police were kind enough not to charge him.

U.S. Sen. Roland Burris, another Chicagoan, has endorsed a nationwide ban on handguns and, in 1993, organized Chicago's first Gun Turn-in Day. But the following year, while running unsuccessfully for governor, he admitted he owned a handgun -- "for protection," he explained -- and hadn't seen fit to turn it in along with those other firearms. Lesser mortals apparently can protect themselves with forks and spoons.

But why risk the chance of prosecution when you can just exempt yourself from the laws?

Under a state law dating back to 1872, mayors and aldermen are designated peace officers. And, conveniently, peace officers are permitted to not only own but carry handguns.

That makes aldermen a special class in Illinois, one of only two states with an almost complete ban on the carrying of concealed handguns. In most places, an adult with no criminal record or history of psychiatric commitment can get a concealed-carry license after taking a training class.

But here, we have a unique system. You want to be able to pack a weapon in public for your safety? Fine. All you have to do is 1) run for the City Council and 2) win.

Hidden Cost to KSM Trial for Future Criminal Defendants

The saying goes, "bad facts make bad law." As far as criminal trials and Constitutional rights go, the KSM trial has some pretty bad facts, such as harsh interrogation and prolonged detention. David Feige lays out how these cases are likely to make bad law for future criminal defendants, and in doing so makes the case for military tribunals.

All of these motions and three dozen more will be either denied or denuded of any significant impact on the disposition of the case. The speedy-trial argument will fail. Important documents will be scrubbed and redacted to the point of unintelligibility or will be ruled irrelevant. The motions to dismiss will all be denied. And though some of KSM's statements will be suppressed in order to preserve the appearance of impartiality and integrity, plenty of the most damming ones will remain admissible. While condemning in stern language the terrible treatment of KSM and denouncing water-boarding as beneath the high standards of our justice system, the trial judge will nonetheless admit into evidence statements made by KSM in subsequent military tribunals, along with those made to a so-called "clean team" of interrogators, rendering all the suppressed evidence utterly insignificant.

In an idealized view, our judicial system is insulated from the ribald passions of politics. In reality, those passions suffuse the criminal justice system, and no matter how compelling the case for suppressing evidence that would actually effect the trial might be, given the politics at play, there is no judge in the country who will seriously endanger the prosecution. Instead, with the defense motions duly denied, the case will proceed to trial, and then (as no jury in the country is going to acquit KSM) to conviction and a series of appeals. And that's where the ultimate effect of a vigorous defense of KSM gets really grim.

At each stage of the appellate process, a higher court will countenance the cowardly decisions made by the trial judge, ennobling them with the unfortunate force of precedent. The judicial refusal to consider KSM's years of quasi-legal military detention as a violation of his right to a speedy trial will erode that already crippled constitutional concept. The denial of the venue motion will raise the bar even higher for defendants looking to escape from damning pretrial publicity. Ever deferential to the trial court, the U.S. Court of Appeals for the Second Circuit will affirm dozens of decisions that redact and restrict the disclosure of secret documents, prompting the government to be ever more expansive in invoking claims of national security and emboldening other judges to withhold critical evidence from future defendants. Finally, the twisted logic required to disentangle KSM's initial torture from his subsequent "clean team" statements will provide a blueprint for the government, giving them the prize they've been after all this time—a legal way both to torture and to prosecute.

'Post-Racial' Myth

Liberals are always talking about a post-racial America, but when it comes to their actions, i.e. nominating Justice Sotomayor, they don't seem very interested in actually getting beyond race and identity politics. The Wall Street Journal documents the latest example in today's editorial.

Mr. Davis was the only black Member to oppose the legislation, and his vote earned him a rebuke from Jesse Jackson at a Congressional Black Caucus Foundation reception Wednesday night. "We even have blacks voting against the health-care bill," said Mr. Jackson. "You can't vote against health care and call yourself a black man." ...

Liberals insist that America still isn't "post-racial," notwithstanding the election of President Obama. But when a politician's skin color is gratuitously invoked in a debate about whether the government should have more control of health care, you have to wonder if the political left has any serious interest in a color-blind society. Former President Jimmy Carter suggests that whites who oppose the President's policies are racists; Mr. Jackson says blacks who oppose them are betraying their race.

Even in the age of a black President, too many liberals still believe they have more to gain from identity politics than from a post-racial America.

It brings to mind the old adage: do as I say, not as I do.

Why Should the GOP Unilaterally Disarm in the Fight Over Judicial Nominees

There has been a lot in the media about the Republican flip-flop over the use of the filibuster in relation to judicial nominees. Dana Milbank's WaPo piece today pretty well sums up the charge. My question is why should the GOP unilaterally disarm themselves? The Democrats certainly did not feel the need to limit their options during the Bush Administration, going so far as to oppose Miguel Estrada solely because he was Hispanic. The media was a lot less concerned then about the pace of nominations or the use of parliamentary tactics to stall. Does anyone honestly believe that it will have any effect on the Democrats next time they are out of power if the GOP sticks with principles and leads by example? Yeah, me neither. I agree with Jonathan Adler who writes:

The strongest argument in favor of a filibuster is that Republican Senators are unwilling to engage in unilateral disarmament in fights over judicial nominations. Under this reasoning, the attempted use of the filibuster would be justified as a retaliatory measure until such time as both parties could agree to forswear future reliance upon it. I have yet to read of any Republican Senator justifying an attempted filibuster on this basis, however.

How Many Votes To Overrule The Slaughterhouse Cases?

I linked the Petitioner's brief in McDonald as well as the NRA brief. Orin Kerr follows up with a bit of nose counting as to the Court's willingness to embrace the original meaning of P or I by overturning The Slaughterhouse Cases. He sees Justice Thomas as Alan Gura's only vote.

1) Justice Thomas. I suspect Justice Thomas is Gura’s only vote. Justice Thomas more or less took Gura’s position in his dissent in Saenz v. Roe a decade ago. He’s likely on board today.

2) Justice Scalia. In contrast to Justice Thomas, Justice Scalia probably won’t agree with the Gura brief in light of stare decisis. In speeches about originalism and stare decisis, Scalia often uses the 14th Amendment incorporation doctrine as an example of a line of cases that he thinks was wrong but that he won’t overrule because of all the reliance interests built up around it over the years. ...

3) Chief Justice Roberts and Justice Alito. Chief Justice Roberts and Justice Alito are also sympathetic to originalism, and may harbor the sense that Slaughterhouse and the incorporation cases were both wrong as an original matter. But I don’t think they’re revolutionaries, and the brief calls for a revolution. ...

4) Justice Kennedy. Justice Kennedy is not an originalist, and he basically likes the Court’s existing Due Process jurisprudence. I think he’s a solid vote for incorporation via Due Process, but I don’t see him wanting to change the law in such a radical and far-reaching way under the P or I clause. It’s just not his style.

5) Justices Stevens, Ginsburg, Breyer, and Sotomayor. I suspect the Justices on the more liberal half will read the Gura brief and conclude it’s just trying to resurrect Lochner. The Gura brief envisions a Privileges or Immunities Clause that would include “the right to contract,” the right “to take, hold and dispose of property, either real or personal,” and the right to “an exemption from higher taxes or impositions than are paid by the other citizens of the state.” That sounds like Lochner, which to them is the very epitome of a wrong turn in constitutional law. Plus, they presumably realize that overturning Slaughterhouse is a major goal of libertarian legal activists like the folks at the Institute for Justice who want to resurrect P or I as a way to attack the modern regulatory state. I don’t expect them to help.

I think Lochner is the Elephant in the room (I have posted about those hoping that the very economic liberty in Lochner will now be back on the table). Both sides have accused the other side of resurrecting Lochner as if it were a scarlet letter. Resurrecting the P or I clause could indeed open a Pandora's Box of rights as Kerr points out in his post. It will be interesting to see whether the court tries to do both, resurrect P or I and keep the lid on Pandora's Box, or whether it opts to incorporate via Due Process.

NRA Brief in McDonald v. Chicago

The NRA filed its brief yesterday in the case of McDonald v. Chicago. The NRA brief is much more conservative than the Petitioner's brief that I linked below. The NRA is arguing for incorporation under the Due Process Clause of the Fourteenth Amendment, which is how other rights have been incorporated, not the Priviledges and Immunities.

Abortion & Government-run Health Care

An article posted today on Forbes.com looks to further address why the current health care legislation working its way through the Senate should not include federal dollars to cover abortions – as the House bill did with the addition of the Stupak Amendment.

In addition to providing an overview of the history of abortion law, the author goes on to explain the legal basis for the Hyde Amendment which established Congress as the official entity that would decide whether or not to use federal monies to fund abortions – so far Congress has been successful in avoiding pressure from pro-abortion groups to do so. Of course, this is why forces on the left would like to see this debate head back into the courts and out of the halls of Congress – which is probably where they would take the health care debate as well if they could. After all, why should the American people have a say in a piece of legislation that is going to substantially affect the quality of life - indeed even life itself.

Senator Orrin Hatch Responds to Professor Carl Tobias on Judicial Nominations

Senator Hatch responded to an Op-Ed by University of Richmond law professor Carl Tobias yesterday on FindLaw:

Professor Tobias claimed that Senate Majority Leader Harry Reid "took the unusual step of invoking cloture to secure a floor vote on Southern District of West Virginia Judge Irene Berger. She is the third uncontroversial judicial nominee on whom Reid has been forced to seek cloture." In fact, Senator Reid did not file cloture on Judge Berger's nomination, or on any previous judicial nomination. It simply did not happen. Though his claim is false, Professor Tobias is not the only one to repeat it. ...

Speaking of the August recess, if Republicans had really wanted to obstruct the confirmation process, we might have followed the Democrats' playbook from 2001. Under Senate rules, pending nominations expire and are returned to the President whenever the Senate recesses or adjourns for more than 30 days. In the past, the Senate routinely waived this rule to carry pending nominees over the August recess. On August 3, 2001, however, Democrats objected to this traditional practice so that 45 judicial nominees were sent back to President Bush and had to be re-nominated. Some had been sent to the Senate only one day earlier and the group included nominees to not only life-tenured federal judgeships but also to term-limited courts such as the Court of Federal Claims and the District of Columbia Superior Court.

Professor Tobias is part of the liberal chorus criticizing Republicans for ensuring that the Senate actually votes on judicial nominees. Many Americans probably think that voting is one of the things that Senators are elected to do. But the practice of demanding roll call votes on uncontroversial nominees was already established, and not by Republicans. The percentage of district court nominees confirmed by roll call vote during the Bush administration was 25 times higher than during the previous 50 years. You read that right, 25 times higher. And the percentage of roll call votes without any opposition also skyrocketed during the Bush administration. Democrats apparently saw no problem with this practice when they changed the confirmation ground rules.

It’s Not Just Arguing for a Win: It’s Arguing for a Revolution

That his how Orin Kerr describes the Petitioner's brief in McDonald v. City of Chicago. I had the chance to see Petitioner's Counsel, Alan Gura, speak last week about McDonald and the Privileges or Immunities clause of the Fourteenth Amendment, and if he is successful, we could indeed be in for an Originalist Revolution. Gura's brief can be found here.

Ilya Shapiro, of the Cato Institute, has more here. SCOTUSblog has a long write-up on the brief as well, here.

Judge Hamilton & Nidal Hasan – PC Run Amok

This week, the Senate votes on President Obama’s nomination of District Court Judge David Hamilton to the Seventh Circuit. Because of Hamilton’s fundraising activities for ACORN, his leadership positions with the Indiana branch of the ACLU, his statements supporting judicial activism, and most importantly, his rulings putting liberal ideology above the rule of law, he is the first and only Obama circuit nominee to draw heated opposition.

There are many examples of Judge Hamilton’s tendency towards liberal judicial activism (see letter from Sen. Sessions). However, the most bizarre and controversial instance is Hamilton’s 2005 ruling prohibiting prayers that mention Jesus Christ in the Indiana House of Representatives, but allowing prayers that mention Allah. While troubling in any context, the religious double standard in Hamilton’s ruling is particularly deserving of close scrutiny in light of Major Nidal Hasan’s recent shooting rampage at Fort Hood.

The warning signs preceding the rampage and ignored by the Army are many and well documented. Hasan’s business cards listing his affiliation as “SoA” – the jihadist acronym for Soldier of Allah – and his Walter Reed Army Hospital PowerPoint presentation ending with "We love death more then [sic] you love life!" are just two examples. Although there is some debate about the motivation for Hasan’s murderous rampage, there is also a growing consensus that political correctness played at least some role in the Army’s failure to follow up on the warning signs.

Put simply, pressure to be politically correct prevented Army personnel from properly investigating and perhaps disciplining a Muslim officer. As many have pointed out, a Christian officer who displayed equally troubling behavior is unlikely to have received the same hands-off response.

The tragedy at Fort Hood has raised awareness and concern about a religious double standard that pervades the American establishment, from military bases to legal theory, and subjects minority religions – particularly Islam of late – to less scrutiny than Christianity. That new awareness demands that the Senate take a closer look at Judge Hamilton's differential treatment of Islam and Christianity in his 2005 ruling in Hinrichs v. Bosma.

In Hinrichs, the ACLU – whose board Hamilton had served on – sued the Speaker of the Indiana House on behalf of several taxpayers, claiming that most of the prayers that opened House sessions were “sectarian Christian prayers” in violation of the Constitution’s Establishment Clause. Judge Hamilton agreed and prohibited prayers that “use Christ's name or title.” However, at the same time, he saw no problem with prayers mentioning Allah.

In fact, Judge Hamilton bent over backwards to justify this distinction by pretending that “Allah” is used in Muslim prayer only to refer to a non-sectarian, generic deity. Here, Hamilton explains why “a Muslim imam may offer a prayer addressed to ‘Allah’” in the Indiana House:

“The Arabic word ‘Allah’ is used for ‘God’ in Arabic translations of Jewish and Christian scriptures. If those offering prayers in the Indiana House of Representatives choose to use the Arabic Allah, the Spanish Dios, … or any other language's terms in addressing the God who is the focus of the non-sectarian prayers …, the court sees little risk that the choice of language would advance a particular religion or disparage others.”

On the surface, Judge Hamilton’s ruling has nothing to do with Nidal Hasan’s violent rampage. But neither could have taken place without a religious double standard borne of political correctness. Even before the tragedy at Fort Hood, Judge Hamilton’s background and record of judicial activism distinguished him as Obama’s most radical appeals court nominee and demanded a thorough debate of his record on the Senate floor. In the wake of the Army’s failure to prevent the tragedy, the need for debate is only heightened.

Unfortunately, Senate Majority Leader Reid’s cloture motion, to be voted on tomorrow, aims to prevent careful debate of the Hamilton nomination. Senators on both sides of the aisle need to be reminded that a vote for cloture is a vote against debate. Senators who are serious about examining the causes and consequences of the religious double standard at work in Hinrichs and at Fort Hood, or who are concerned about other aspects of Hamilton’s activist record, must vote no on closure tomorrow to ensure a thorough debate. Only after such a debate, can senators make an intelligent decision about whether to promote Judge Hamilton to the Seventh Circuit.

At some point, senators opposed to Hamilton may have to decide whether to attempt a filibuster to prevent a confirmation vote (CFJ Executive Director Curt Levey addresses that issue in a Hill article). But tomorrow, the issue before senators is only whether to allow a through debate of Judge Hamilton’s record.

Guns, God and Gays: Public Opinion on Gun Rights, Abortion and Same-Sex Marriage

Prof. Nathaniel Persily of Columbia Law School will be guest-blogging at the Volokh Conspiracy this coming week about new work that he, Harvard Government Professor Stephen Ansolabehere, and fellow Columbia Law School professor Jamal Greene have been doing related to public opinion on various constitutional issues.

Here is an excerpt from his first post:

First, guns: It is well known that support for stricter gun laws has been going down for some time. See http://www.gallup.com/poll/123596/In-U.S.-Record-Low-Support-Stricter-Gun-Laws.aspx . Our survey included the question: “In general, do you agree or disagree that an individual should have a right to have a registered handgun at home?” 52% strongly agreed, 30% agreed somewhat, 10% disagreed somewhat, and 7% strongly disagreed. This is also consistent with polls concerning views of the Second Amendment, where over 70 percent view gun ownership as an individual right. See http://www.gallup.com/poll/105721/Public-Believes-Americans-Right-Own-Guns.aspx. It appears that support for gun rights has increased during Obama’s first year in office, although the trajectory seems to be a continuation of a trend that began during the last years of the Bush Administration. See http://www.pollingreport.com/guns.htm

Dem Admits Constitution Doesn't Authorize Individual Mandate

But it's okay because they are trying to help people. Who really cares about the Constitution when you are trying to help people? At least he's honest, I guess.

Who Bears Legal Responsibility for Major Hasan’s Acts?

In an attempt to avoid labeling Hassan’s murderous rampage an act of terror, some in the media are describing it as your standard variety workplace violence perpetrated by a disgruntled employee against an unjust employer. In light of this position, it’s worth asking then who bears responsibility for Hasan’s actions – the Army?

The essential problem with this argument is that the Constitution requires civilian control of our military – this would then suggest that the Federal Government is the more appropriate target for any libelous action. However, in light of recent revelations of Hasan’s activities leading up to the shooting, a clearer picture of a disturbed and radicalized individual is revealed that necessarily refutes arguments posing the Fort Hood atrocities as mere workplace violence.

Naturally, calling it terrorism would then lead to a closer examination of the policies coming down from the heights of the federal government that dismisses any criticisms of Muslims or Islam as being intolerant at best and racist at worst. These policies, based upon our government’s incessant need to constantly be politically correct, point the finger of blame directly at the federal government for dropping the ball and failing to protect those Soldiers who put their lives on the line to protect this country.

Liveblogging the Federalist Society National Lawyers Convention

This weekend the Federalist Society is hosting its annual convention in D.C. The schedule is here. Josh Blackmun will be live blogging here.

The Folly of Unilateral Disarmament

The Supreme Court did not reach the Second Amendment issue in Lopez because it struck the statute down on Commerce Clause grounds. But as Jacob Sullum notes at Townhall, the Ft. Hood killings illustrate the folly of "gun free zones" and unilateral disarmament.

Also note the breathtaking inanity of Helmke's assurance that "more guns" are not "the solution to gun violence." In this case, they assuredly were.

The first people with guns to confront Hasan, two local police officers, were the ones who put a stop to his rampage. And while Sgt. Kim Munley and Sgt. Mark Todd acted heroically, they did not arrive on the scene until a crucial 10 minutes or so had elapsed and Hasan had fired more than 100 rounds.

If someone else at the processing center had a gun when Hasan started shooting, it seems likely that fewer people would have been killed or injured. Furthermore, the knowledge that some of his victims would be armed might have led him to choose a different, softer target in order to maximize the impact of his attack.

I linked this article on my Facebook and some responded that guns in everyones hands is not he solution. I think this is a misreading of Sullum's column. He is careful to qualify his assertions. Obviously not everyone will have a gun, but assuming you are of a certain age and meet legitimate competency requirements having a gun can act as a deterrent. It can hardly be said that the soldiers at ft. hood were not of age or competent to carry a gun. I don't think this means he is arguing that we should arm everyone. Just that unilaterally disarming everyone does not make us safer. In fact, it may make us targets.

Affirmative Action for Males?

Curt is infinitely more knowledgeable about Title IX so, I am sure if this case ever reached the Court, he would have much more insight than I can present. That being said, we may be looking at the next big area of affirmative action: giving preference to male students in college admissions to level the playing field. Ronald Bailey has the story:

[T]he U.S. Commission on Civil Rights is beginning an investigation into claims that colleges are favoring the admission of less qualified males over more qualified women. Today women earn about 60 percent of all bachelor's degrees. The concern is that some colleges are so worried about becoming overwhelmingly female that they are discriminating against qualified women and choosing less qualifed males. The story quotes an analyst who suggests that male students do worse academically when they attend schools whose student bodies are composed of more than two-thirds women. One Commission member notes that any such admissions policy would violate Title 9 which prohibits gender discrimination in college education programs. ...

One further observation: If it's OK to discriminate in order to enhance racial and ethnic diversity, why is it wrong to discriminate in order to enhance gender diversity?

The Slippery Slope of Political Correctness

As the country tries to cope with the murder of some of our best and brightest at Fort Hood, Texas by Major Nidal Malik Hasan, the magnitude of just how much political correctness has infected our armed forces is being examined and better understood. To what extent should diversity be accepted into the ranks of the military before it begins to undermine discipline?

The Supreme Court visited this very question in 1986 in Goldman v. Weinberger when it upheld military regulations barring Jews from wearing yarmulkes while in uniform. This decision revealed that not only is the military governed by different rules than civilian institutions, but moreover, that the rights and freedoms guaranteed to every US citizen under the Constitution are secondary to military conventions.

The case of Hasan, along with others seeking special accommodations based upon religious grounds, represents the difficulties faced by the Army in an age of political correctness where pressures shape military culture, the soundness of leadership principles, and may even breed resentment among the ranks.

The Fate of Health Care in the Senate

The Stupak/Pitts Amendment to the health care bill that just passed through the House denies access to federal dollars to fund abortion – a provision vehemently opposed by several pro-choice coalitions that are now taking aim at the Senate version of the bill.

As the Senate looks to move forward in developing and passing health care legislation, it is likely that groups such as NARAL and other pro-choice forces in the Senate will have a heavy hand in crafting that legislation. Both Senators Boxer (CA) and Baucus (MT) are in agreement that an amendment similar to Stupak/Pitts is doubtful to pass through the Senate.

And herein lies the problem with Senate passage of the bill – pro-lifers, such as Senator Ben Nelson (NE), has adamantly stated that he is indeed in favor of the protections against abortions offered in an amendment like Stupak/Pitts. Nelson and his brethren have already decided that they are “highly unlikely” to vote for any legislation unless it includes language that would essentially prohibit federal funding to be used for abortion procedures.

So it seems that the battle lines have already been drawn for a bill that while barely passing in the House, will no doubt face many more obstacles in the Senate. Don't expect this mêlée to be resolved until after the first of the year…

Pfizer Abandons Kelo Site

In one of the worst opinions in Supreme Court history, the four liberal Justices joined by Kennedy found that it was a permissible "public use" to allow governments to transfer private property from one individual to another to further economic development. The case was a huge blow to property rights that saw a resulting backlash across the country, where people enacted state and local laws to overturn Kelo. Well, four years after that disatrous decision, Pfizer, whom the property was transferred to, has decided to abandon the site.

UPDATE: More reactions here, here (fitting title: "Taking Land for Public Uselessness), and here.

The Bureaucracy of Health Care Reform

As part of the overall health care reform plan, Senate Democrats are proposing a new level of bureaucracy, controlled by the Executive Branch, that looks to amend Medicare with the creation of the Medicare Payment Advisory Commission (MedPac). Among other authorities created under the new act, MedPac would also determine payment rates and services, and would direct future research dollars by advising the Secretary of Health and Human Services.

Because MedPac will not be subject to any kind of deliberative process that the legislative branch would naturally impose, its creation as part of the Executive Branch by the Dems is yet another intentional federal power grab that will no doubt affect the everyday lives of Americans – moving us further away from government of the people, by the people, and for the people.

Buy Government Approved Health Insurance or...

... go to jail. Is this what they meant by "audacity?"

Democrats Have Short Memory on Judges

From the AP:

Ten months into Barack Obama's presidency, Democrats are accusing Republicans of creating "a dark mark on the Senate" by delaying confirmation of his federal court nominees.

The mark might not be as dark as Democrats make it seem.

Of the 27 judicial nominations Obama has made so far, all five brought up for votes in the Senate have won relatively quick confirmations, including new Supreme Court Justice Sonia Sotomayor.

And about that "dark mark on the Senate"...

It's primarily two federal judges - one from Indiana, the other Maryland - who've been waiting five months for Senate Majority Leader Harry Reid, D-Nev., to bring their nominations for appeals court promotions to the Senate floor.

Free Speech or an Invasion of Privacy?

On Wednesday, the New Hampshire Supreme Court heard arguments regarding a case that calls into question whether or not online commentators are protected by the First Amendment. The case of course has much wider implications involving what constitutes a viable media entity covered by the freedoms afforded under the First Amendment – even if that media entity is an anonymous pajama-clad blogger sitting in his/her basement churning out opinion columns.

The case focuses on a mortgage lender that was being investigated for such things as fraud and forgery and the online mortgage watchdog group that posted confidential financial information about the lender, as it protected the source of that confidential information. A lower court ordered the online mortgage watchdog group to reveal its source prompting the website to appeal the decision to the New Hampshire Supreme Court. While both parties may agree that this is a First Amendment issue, further speculation about how a Supreme Court decision will impact current media protections differ.

It may be true that there have been times in the past where traditional media outlets have been forced to disclose confidential sources for the purpose of revealing essential information, but the potential threat to online commentators could be great. Depending upon how the court decides, will online bloggers still be able to protect their own identity and the identity of their sources while publishing confidential documents? No matter the decision of the New Hampshire Supreme Court you can bet that this case will eventually land in the Supreme Court of the United States.

Southern White Males Need Not Apply to Circuit Courts?

Yesterday, President Obama nominated Albert Diaz and James A. Wynn of North Carolina to the Fourth Circuit of the second highest court in the land, the United States Court of Appeals. Their nominations raise two interesting questions:

1) Do Democrats view southern white men as unfit for the U.S. Court of Appeals?

In June of 2007, as Senate Democrats attempted to block Fifth Circuit nominee Leslie Southwick of Mississippi – with Sen. Barack Obama leading the way – Committee for Justice executive director Curt Levey noted that Southwick’s biggest problem was being a southern white male:

“Seven times President Bush has nominated a southern white male to the appeals courts, and seven times Senate Democrats have tried to block the nomination. Worse yet, each of the seven have been subjected to a campaign of personal destruction. With one exception … the attacks focus on charges that the nominee is insensitive to the rights of minorities, women, gays, and/or the disabled. Democrats and their allies cynically play to the stereotype that southerners are racist or otherwise bigoted.”

Several months later, as the end of the Bush Presidency drew closer, Senate Judiciary Chairman Patrick Leahy began to block nearly all circuit court nominees by denying them hearings, thus ending the debate over whether Democrats were singling out southern white males for disfavor. However, yesterday’s nomination of Wynn and Diaz once again puts a spotlight on the issue.

Their nominations bring to six the number of U.S. Court of Appeals nominees President Obama has named to the southern circuits – the Fourth, Fifth, and Eleventh – and to the handful of southern seats outside those circuits (note that circuit nominees virtually always hail from the state to which the corresponding circuit seat is informally assigned). None of these six southerners is a white male. So once again we have to wonder whether a Democratic bias against southern white men serving on the federal appeals courts is at work. (In addition to Diaz and Wynn, the six include Andre M. Davis, Barbara Milano Keenan, Beverly Baldwin Martin, and Jane Branstetter Stranch).

Does President Obama or his advisors believe that southern white men are likely to be bigoted, making them unfit to serve on the second most powerful court in the land? We hope not and readily concede that it is difficult to know if any such stereotype lurks in the White House. The absence of southern white male circuit nominees could, instead, be an innocent coincidence or the not-so-innocent byproduct of a judicial selection process dominated by racial and gender preferences.

But regardless of the reason for the pattern we noted in 2007 and again now, even the appearance that Democrats are biased against southern white men is a potential problem for the party generally, and for President Obama’s goal of transcending old racial divisions. At the very least, the pattern merits further thought and discussion, both outside and inside the White House.

2) Should the GOP apply a tougher standard to an Obama judicial nominees when the vacancy resulted from Democrats’ obstruction of Bush nominees?

President Obama’s four nominations to the 15-seat Fourth Circuit – with more to follow – will soon transform this reliably conservative circuit into a solidly liberal one. The game-changing opportunity presented by five Fourth Circuit vacancies is a direct result of Senate Democrats focusing their obstruction of President Bush’s appellate nominees on this circuit more than any other.

In 2001, George W. Bush nominated U.S. District Judge Terrence Boyle to one of the North Carolina Fourth Circuit seats filled yesterday by Obama. Boyle’s nomination languished for more than five years, while Senate Democrats successfully prevented him from ever getting an up-or-down vote. Another Bush nominee to the Fourth Circuit, William Haynes of Virginia, languished similarly for more than three years. And three of President Bush’s 2007 nominees to the circuit – Rod Rosenstein, Bob Conrad, and Steve Matthews – had yet to be given a hearing by Chairman Leahy when the President left office in January 2009.

Recall that in the first year of his Administration, George W. Bush successfully nominated two former Clinton nominees – Roger Gregory and Barrington Parker – to the appeals courts in an effort to set a bipartisan tone. Obama could have returned the favor by re-nominating one or more of the five highly qualified Fourth Circuit nominees mentioned above. Instead, he has chosen to maximize the partisan rewards reaped from the Democrats’ obstruction of Fourth Circuit nominees.

As a result, Senate Republicans have to ask themselves a question. Should they ratify the Democrats’ cynical power grab in the Fourth Circuit, or should they do everything in their power to slow it down?

We think the answer depends on whether the GOP’s opposition to Fourth Circuit nominees is principled. Republicans should not engage in the politics of personal destruction that reached its zenith with Senate Democrats’ treatment of Fourth Circuit nominees. More generally, the GOP should not block these nominees simply to prove they can be as obstructionist as the Democrats.

Instead, Senate Republicans should subject Obama’s Fourth Circuit nominees to tougher, more thorough and more time-consuming scrutiny only to the extent that it sends a useful message – namely that neither party should be allowed to cynically and easily reap the rewards of its own obstruction. If consistently delivered over the long term, it’s a message that could help to tone down some of the hyper-partisanship that has infected the judicial confirmation process.

Abortion Provision May Doom Democrats’ Health Care Overhaul

Perhaps the most divisive social issue of our time, abortion is also becoming the central issue in the debate over health care reform. Just as moderate, Blue Dog Democrats vie to oppose any bill containing federal dollars that would go towards funding abortion, strong forces on the left, namely NARAL, a pro-abortion activist group, accuses the Blue Dogs of “spreading lies” and imperiling the right of women to choose.

The proposed Democrat-backed health care legislation would provide for federal subsidies to be used to cover abortions through the much debated public-option provision that is currently included in the House version of the bill. Democrat house leaders have included the provision for federal subsidies in spite of the fact that since 1976, federal subsidies to fund abortion have been banned except in cases of rape or incest.

The rift developing on the left between the more moderates in the party versus their radical counterparts over the abortion issue is likely not to subside and has a real chance of endangering the success of the health care bill altogether. Currently there does not seem to be a compromise that both sides could reasonably live with – the Blue Dogs, politically speaking, cannot afford to include the provision while the NARAL folks will not consider any bill that excludes abortion coverage because for them it is THE social issue of our time and their very existence is dependent upon it.

Big Win Last Night For Gun Rights

At The Volokh Consipiracy, blogger and Second Amendment scholar David Kopel rounds up the evidence from last night's elections.

Virginia: Either Deeds (B rating) or McDonnell (A) were sure to be a big improvement over outgoing Governor Kaine. Deeds lost the NRA endorsement by supporting closing of the (non-existent) “gun show loophole.” In the Attorney General race, Republican Ken Cuccinelli (A+) handily defeated a D-rated Democrat who advertised very aggressively on the gun show issue. Incumbent Lt. Gov. Bill Bolling (A+) trounced an F-rated challenger. ...

By far the most prominent gun control advocate on the ballot this year was Jon Corzine (F). This summer, Corzine twisted lots of legislative arms to win enactment of gun rationing (“one-handgun-a-month”), a silly law that is even sillier in New Jersey, where every handgun purchase requires advance permission from the local police chief. With Christie replacing Corzine, New Jersey gun owners can hope for benign neglect rather than active hostility. The New Jersey Assembly appears to be unchanged.

In sum: A bad night for advocates of gun show restrictions.

Other politicians should take notice. With the upcoming McDonald case and the NRA having entered the field of Supreme Court nominees the issue is sure to remain at the forefront for the foreseeable future.

UPDATE: After last night’s results came in, Bloomberg’s anti-gun group is down another 16 mayors in Pennsylvania – and that’s the minimum number.

The Unconstitutionality of Pelosi's Health Care Reform

So it does seem that the proposed health care reform legislation currently being considered in the House is at the very least a federal power grab that would ensure control over the lives of many Americans, but may it also be unconstitutional? The discussions are beginning that challenge the legitimacy of the health care overhaul bill based upon the grounds that it offends the US Constitution, and more specifically, the Tenth Amendment.

According to constitutional mandates not only does the bill usurp State’s rights in favor of broadening federal powers, it also threatens individual liberty, delegates authority to the executive branch that is solely granted to Congress through the “enumerated powers” clause, and offends the Supreme Court’s Substantive Due Process rules that were implemented in order to protect individual freedoms.

Now is the time to stop this obscene over-reach by the federal government into the lives of Americans that threatens to undo for years to come the freedoms that have been granted under the Constitution “to the people.”

Hatch on Constitutionality of Health Insurance Mandate

At least someone on the Judiciary Committee is taking this unprecedented assault on individual liberty seriously. Chairman Leahy surely isn't.



The transcript can be found here.

Resolution in Honduras

Stepping back from previous pronouncements of support for deposed Honduran president Manuel Zelaya, representatives from the US and the Organization for American States (OAS) have agreed to let Hondurans decide who will run their country. This is of course a win for those who believe in the rights of sovereign nation-states to act independently of the international community in recognizing such things as constitutional law – and this is precisely what the Honduran Supreme Court did when they tossed Zelaya out of office.

While he was president, Zelaya proposed to amend his country’s constitution to put an end to presidential term limits thereby assuring himself the position for countless years into the future. But it was because of Honduran institutions, the Congress and it’s Supreme Court, that Zelaya’s constitutional make-over was halted and democracy in Honduras was salvaged. Read here about how institutional capacity has promoted the sovereign rights of Honduras allowing for Hondurans, not the international elites, to decide the fate of Honduras.