Archive for the 'Supreme Court' Category

Forget taxing the rich - Obama will extract from us our most basic liberties as the price for his vision

Subtitled: How the Marxist freak show known as Barack Obama will turn this country into a communistic hell-hole in less time than it takes to let the survivor of an abortion die on an operating room table.

I’m assuming y’all have seen this, but, if not, check out The Obamessiah’s radio speech in 2001:

(Hat tip: Michelle Malkin.)

Ann Althouse declares that this is just normal constitutional law prof talk.  With all respect for Prof. Althouse, the quote in question says:

“Says what the Federal government can’t do to you, but doesn’t say what the Federal government or State government must do on your behalf, and that hasn’t shifted and one of the, I think, tragedies of the civil rights movement was, um, because the civil rights movement became so court focused I think there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalition of powers through which you bring about redistributive change. In some ways we still suffer from that.”

While one could interpret this to mean that the “tragedy” of the civil rights movement is that the movers and shakers focused more on the Supreme Court and less upon traditional political processes, the more natural reading of the statement is that “tragedy” is connected to what comes immediately before it (i.e. no radical reshaping of our Constitutional framework); the words after them indicate other means to bring about “redistributive change.”  The only way that Prof. Althouse’s interpretation works is if Obama has the mental focus of a hummingbird on crack, flitting from the non-radicalism of the Warren Court to the tragedy of the lack of community organising and then straight back to “redistributive change.”

While Obama’s candence and discussion of negative rights make this whole thing sound like the legal version of quantum mechanics, this is actually an issue that affects Americans in the most fundamental way.  A negative right is the right to be left alone, to make one’s own decisions, determine the course of one’s own life - in short, to give the government the middle finger.  (This is a right that liberals only believe in when it comes to pregnancy.) When we subtitute negative rights - for example, the right to decide where to live without the government interfering - for positive rights - e.g. the right to have the government give you a home - we lose the corresponding negative right.  We cannot retain the right to non-interference when we give the government a carte blance to tell us how to run our lives.

Snark about Obama’s opposition to protecting newborns aside, it is nothing short of amazing that the same people who believe that the government has no place in abortion - in which two human beings are involved, and only one is capable of making a choice - believe that government ought to run our health care system.  For those opposed to 24-hour waiting periods for abortion, why would you beg for a system that would place waiting periods on every single aspect of medical treatment, from ultrasounds to visits with specialists?   At least now, people with lousy health insurance can pay out of pocket; those who are unfairly denied coverage can sue; and those who want better care can find a health plan which will give it to them.  If the government runs most health care, access to that which is not run by the government will be almost non-existent, and available only to the rich; lawsuits against the government for failure to pay will be barred by sovereign immunity; and people will lack any other options for improved care.  It is every caricatured daemon of the conservative movement that liberals use to frighten others, but brought to you by progressives - the very same people who have made a fortune off of suinig doctors and health insurance companies.

The mindlessness does not end with socialised health care.  As anyone who has read Anthem or The Handmaid’s Tale, has a passing knowledge of the events leading up to WWII in Europe, or has seen the destruction in Russia following the imposition of communism can tell you, the greatest harm to society often arises out of an attempt to create a utopia. In the cost-benefit analysis, utopists forget the costs - the loss of negative rights being the easiest to ignore and the most frightening in reality.  This business of wanting to state that the Constitution should guarantee a home, a job, and health care eviscerates our most fundamental freedoms.  As James Madison said,

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

The government is not one of angels, and no amounts of PhotoShopped halos above Obama’s head will change that reality.  (One wonders how someone who calls himself a Christian is not ashamed and humiliated by such treatment.)  Government is neither beneficient nor omniscient; at best, it can stop other countries from harming us, and police our actions internally.  (Heaven knows that governments, and the people who run them, have enough problems sticking within those parameters as it is.)  There is no reason to think that government - run by human beings - will suddenly turn into Cinderella’s fairy godmother if we put the right person in the White House, close the right “tax loopholes,” or redistribute wealth just a little bit more.  Far more likely is a descent back into oppression and tyranny - the default government of human existence.  America - and other free countries - do not exist as a matter of right or of the course of nature, but by terrific struggle against oppressive regimes.  Begging for oppression in the name of “redistributive justice” is madness.

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(Anthony) Kennedy v. Louisiana

The Supreme Court released its decision in Kennedy v. Louisiana today. The majority opinion (written by Justice Kennedy, who was joined by the four other liberal justices) stated that Louisiana cannot constitutionally execute a child rapist (even in the case of aggravated rape), as that would be “cruel and unusual punishment.”

Justice Alito, who was joined by CJ Roberts, Justice Thomas, and Justice Scalia, wrote a spirited, tough, and intellectual dissent.

Very quick analysis:

  • When the Eighth Amendment was written, rape was a capital crime. If the Framers meant to permit only the death penalty for murder, they would have done so.
  • The Fifth Amendment mentions “capital crime” once, and mentions “depriv[ation] of life” twice. Obviously, the Constitution clearly contemplates a legal death penalty.
  • The liberals on the Supreme Court use various tests to show that their policy decisions are correct, with little regard for the underlying logic, consistency, or appropriateness of using those tests. Six states (of the 36 that have the death penalty) permit the execution of child rapists. States cannot, as per the 1977 Coker decision, execute those who rape adult women. It is illogical to declare that a substantial minority constitutes something so unusual as to be outlawed. Furthermore, states have begun to consider expanding the death penalty to encompass crimes that do not involve murder, which would show that our all-important “evolving standards of decency” are moving in the direction of greater protection of our children and a greater awareness of the horrors of rape. (Oddly, liberals have just written a Supreme Court opinion which is the jurisprudential equivalent of “If rape is inevitable, lie back and enjoy it.”)
  • States are meant to be laboratories of experimentation. Policy questions - and empirical questions - about the validity of capital punishment for heinous crimes that do not result in death, or about the deterrent effect of capital punishment - are those best left to the states. We cannot know whether or not the death penalty for child rape will have the desired effect of reducing child molestation, or will have the undesired effect of ensuring that the perpetrator kills the child. We can never find out, however, until such laws are put into place.
  • Embezzlers, drug users, robbers, prostitutes, johns, and arsonists all believe that child rape is such a horrible crime that it is worthy of death. If those among us who are the least likely to view the strong arm of the law as valid also cry for the strongest possible punishment for this crime, a very clear, universal revulsion of this crime has been established.
  • It is legal to use deadly force to protect yourself against both murder and rape. While there is always a fundamental distinction between individual and state action, it is ridiculous to state that a governmental body may not impose the death penalty upon rapists, as such is “cruel and unusual,” but that same governmental body ought to allow individuals to protect themselves from rape by using deadly force.
  • As an aside: conservatives ought to bring this up when told that we only care about children who are in the womb.
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The Next Supreme Court Vacancy

From Edward Whelan at the National Review Online,
The Next Supreme Court Vacancy: There’s plenty of room to confirm another strong justice.”

If a Supreme Court vacancy unexpectedly develops this summer, the conventional wisdom is that President Bush will find it extremely difficult or impossible to get a strong proponent of judicial restraint confirmed by the Senate. Now that Senate Democrats are in the majority, the thinking goes, they can easily defeat any judicial conservative, especially if the nominee is replacing one of the five justices who are consistent (Stevens, Souter, Ginsburg, Breyer) or frequent (Kennedy) votes for liberal judicial activism. Look, after all, at how they’re now able to block the President’s lower-court nominees whenever they want to.

This conventional wisdom is unsound. Briefly put: Under long-established Senate practice, every Supreme Court nominee is afforded an up-or-down vote on the Senate floor. A departure from that practice would threaten to impose severe political costs on Senate Democrats. In a competently run confirmation campaign, a strong proponent of judicial restraint will win majority approval in the Senate, with votes to spare.

Now for the extended version…

I highly recommend reading the entire article if you are at all interested in the future of the Supreme Court. Obviously, this is all hypothetical. There is no guarantee that Bush will get the chance to replace another Supreme Court justice, but it is definitely worth considering now rather than being caught off guard in the future.

I do like Whelan’s logic, overall. Unless the Democrats want to commit political suicide for 2008, they will have to send Bush’s nominee before the entire Senate for an up or down vote.

Ironically, success in filibustering a nominee would probably produce the riskiest situation for Democrats, especially if President Bush steadfastly stood by an appealing nominee. Going into the 2008 election year, Democrats would be foolish to highlight the gulf between the parties, and between their presidential candidates, on the proper role of the Supreme Court.

My only problem with this article is that the author began by assuming the Bush administration would not only run a confirmation campaign competently, but also nominate a strong strict constructionist to begin with — a bit of a stretch after the Harriet Meiers debacle. However, his pessimism (a true sign of a Bush-era conservative) shines through in the end:

To be sure, there will be plenty of timid voices counseling President Bush to go wobbly. A number of Republican senators, for example — including some conservatives — will encourage the hopeless illusion of a consensus pick. Confident that they will win an issueless reelection campaign, they would prefer to avoid the controversy of a contentious confirmation fight, even if that controversy will most likely redound to their benefit. Why, they ask themselves, incur even a small downside risk? Some White House advisers may fear that political capital will be diverted from their own favored priorities, and others may believe that the benchmark of a successful nomination is a quick and quiet confirmation, rather than the appointment of a quality justice.

President Bush’s appointments of Chief Justice Roberts and Justice Alito are perhaps his greatest domestic achievements. If another vacancy develops, President Bush can enrich his legacy with another outstanding appointment or jeopardize it by an inferior selection. The choice will be his, and no one should mistakenly believe that the bare Democratic majority in the Senate prevents him from selecting another strong proponent of judicial restraint.

Food for thought, eh?

Check out the article for the rest of Whelan’s extended version.

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