To Rand Paul, Cruz is Toast, But Wimp Republicans Should Grab Their Bao and Get Out

So Ted Cruz is not the TOAST of the Senate, but, instead, is TOAST in the Senate.

At least, that is the take on the situation as seen by Senator Rand Paul, the junior Senator from the Commonwealth of Kentucky. He made those observations in an interview carried on Fox News Radio (hat tip to Rollcall.com). In Rand's view:

Ted has chosen to make this really personal and chosen to call people dishonest in leadership and call them names, which really goes against the decorum and also against the rules of the Senate, and as a consequence, he can’t get anything done legislatively. He is pretty much done for and stifled and it’s really because of personal relationships, or lack of personal relationships, and it is a problem.

I lived in Kentucky for a couple years. I am, in fact, a member of the Kentucky Bar Association. I have family there. One might say our family's ancestral lands include a broad swath of Eastern Kentucky, since our long grand grand sire, John Beckley, a friend of Thomas Jefferson, held land patents for large tracts in what would become the Commonwealth.

As a public service, I am providing the following translation of Rand's observations, so that you can understand what Rand actually said:

Ted Cruz has exposed Mitch McConnell as a liar, and several of his republican colleagues as political eunuchs who talk an interesting game but consistently walk down Capitol Hill with their balls in a jar answering the taunts and jeers of BarryO the Boyking with servile kowtows. A man who does such things makes the public wonder why the eunuchs willingly allowed their own castration.

In turn, that makes the decision to be a ball less, unmanly, vigor-free, political courtesan one that even the eunuchs question within themselves. Such questioning makes their own hearts and minds burn with shame. Of course they hate Cruz. Of course they will refuse to work with him. His manly firmness in the fight, his willingness to stand on principal, these things expose them as what they are: neither man, nor woman, neither clever nor skilled.

Later this month, for the first time since the Last Emperor of China discharged the imperial eunuchs, the United States will witness a courtesan eunuch leaving Capitol Hill, when John Boehner makes good on his hissy fit and departs the Speaker's Chair in the House. Rumors already are running rampant that the skulduggery among Republican courtesan eunuchs is not yet complete: it appears that party leadership is also urging Mitch McConnell to grab his bao and go.

Court Rejects Once-a-Month Bill of Rights

Eric Segall has an article on the Daily Beast that seems to suggest that, given the chance, the Supreme Court would reverse a decision out of the US Court of Appeals in Washington. The DC Circuit, in a split 2-1 vote, struck down DC's “one gun a month registration rule.” Limiting gun registration to one a month effectively limits additions to an individual's gun safe to one a month, because such guns have to be registered.

The recent decision reflects the continued battle by Dick Heller to vindicate his rights under the Second Amendment. While the three judge panel upheld six gun regulations in what was, once, the Murder Capitol of the United States, the Court struck down a rule that only one gun a month could be registered with the City.

Taking cases to the Supreme Court is what attorneys do ... when they are paid well, or when they work on hotly contested issues of public policy.

I know.

I did exactly that for twenty five years, including twenty one years as Senior Counsel with the American Center for Law and Justice. Still, a good attorney knows when to call it quits, when not to suggest that his client spend money that will, essentially, be wasted. Segall apparently thinks an attempt at Supreme Court review would not waste the time and money expended.

One of the tasks of attorneys that regularly practice before the Supreme Court – a task I undertook many times for my employer – is to evaluate the facts of a case, the condition of the law on a subject, and the opinions and decisions of the justices of the Supreme Court, so that a client has the most well-informed basis on which to decide whether to pursue review of their case at the Supreme Court. That kind of consideration makes lots of sense, just given the costliness of seeking Supreme Court review. Depending on legal fees and the costs of printing and service of legal documents, a request to the Supreme Court to review a case can cost into the six figures. Just the preliminary stage of asking for review can run that high.

Obviously, issue organizations, the one I worked for, and others, like the ACLU, the NRA, the NAACP, raise significant funds to carry such cases to the Court, and carefully select cases for the purpose of winning strategic decisions from the Court. Segall’s post urges the District of Columbia and gun control advocates to go all in on this particular case. His advice rests on two principal points.

First, in his view, the temper of the times is quite different today than nearly a decade ago when the Supreme Court issued its decision confirming that the Second Amendment protects an individual right to keep and bear arms. Segall’s post suggests that the school and public shootings and the public temper resulting from them puts the Court in a different position than when the Court decided Heller. Until District of Columbia v. Heller, gun control advocates persistently claimed that cities, States, and the federal government had a free hand in regulating, restricting, even prohibiting gun ownership, because, as they saw the matter, the Second Amendment only protected the right of States, rather than the rights of individuals. Heller rejected that view.

Second, Segall asserts, because the restriction that the DC Circuit struck down only regulated the pace of gun purchasing and accession to a private owner’s “armory,” it is different in its essential character. On that point, of course, he is not entirely wrong. There is a none-too-subtle difference between telling a man he cannot own a single weapon and telling him that he may only register one gun a month with the District. If that rule had been in place since the day the first Heller decision came down, and a gun enthusiast had wanted to do so, he could have added nearly 75 handguns to his Washington, DC, based collection in the intervening period. So, sure, there is a difference between restricting and forbidding.

The judges that struck down the one a month rule explained their decision as follows:

The District has not presented substantial evidence to support the conclusion that its prohibition on the registration of “more than one pistol per registrant during any 30-day period,” D.C. Code § 7-2502.03(e), “promotes a substantial governmental interest that would be achieved less effectively absent the regulation.” []

It is therefore unconstitutional.

The District argues that the limitation could reduce gun trafficking and that it would further promote public safety by limiting the number of guns in circulation, as the District “could reasonably conclude that more guns lead to more gun theft, more gun accidents, more gun suicides, and more gun crimes.” 

As for the District's first argument, what little expert testimony it presented indeed indicates that limiting gun purchases in turn might limit trafficking in weapons. The experts' conclusion that limiting gun registrations would likewise reduce trafficking is, however, unsupported by the evidence.  For example, Chief Lanier stated "[s]tudies have shown that laws restricting the registration or purchase of multiple firearms in a given period are effective in disrupting illegal
interstate trafficking of firearms."  Yet the only study she and the District's other witnesses cited has nothing to do with "laws restricting registration[.]"

One of the experts also testified from his own observation that w hen Virginia limited firearm purchases to one every 30 days, fewer guns bought in Virginia were used in crimes committed in the District; traffickers , he observed, instead sourced more guns through straw purchasers in Maryland. But even if this is true, t he suggestion that a gun trafficker would bring fewer guns into the District because he could not register more than one per month there lacks the support of experience and of common sense . Indeed, as Heller notes, even Chief Lanier acknowledged that the efficacy of purchasing limitations in preventing trafficking may have little bearing upon the efficacy of registration limitations in doing so. 

As for the District's second argument, one of its experts testified that, in his opinion, "the most effective method of limiting misuse of firearms, including homicide, suicide, and accidental injuries, is to limit the number of firearms present in a home."  Accepting that as true, however, it does not justify restricting an individual's undoubted constitutional right to keep arms (plural) in his or her home, whether for self - defense or hunting or just collecting, be cause, taken to its logical conclusion, that reasoning would justify a total ban on firearms kept in the home.

Now as to the temper of the times being different today, Segall forgets, or ignores, that the Supreme Court decided Heller in 2008. The case was briefed by the parties, the case was argued before the Court, the justices conferenced their views, and the Court issued its decision in the immediate aftermath of the 2007 mass shooting at Virginia Tech. The shadow of Columbine stretched out too, though it was nine years since that shooting. The immediacy of the Virginia Tech shooting, however, belies the notion that more recent shootings make for a different social construct today.

Against the DC Circuit’s reasoning, Segall contends that now is the time to act, to pursue review in the Supreme Court, and to do so with his seeming expectation that the Court would overturn the decision of the DC Circuit and affirm the power of municipalities like DC and, presumably, States, to restrict the pace of gun purchasing by individual gun owners.

Segall expressly invokes a notion popularized by Mark Tushnet, a professor of constitutional law, about the kinds decisions one is likely to see issued by the Supreme Court. Tushnet’s view, simplified, is that, if you cannot imagine a New York Times headline reporting the outcome of a Supreme Court case, then it is likely the Court would not issue the decision.

Tushnet’s theorem, however, is not so nearly helpful a tool as Segall believes.

A few examples suffice to show what is wrong with the theorem. Remember that the notion is, if you cannot imagine the decision of the Supreme Court as a headline on the New York Times, then it is unlikely the Court would render the decision.

Yet, the Supreme Court struck down the laws of virtually every State in the Nation, and its first decision on the topic of abortion, created a legal vacuum in which women were free to have an abortion at anytime during the ninth months of gestation, and for any reason at all, or for no reason whatever.

Could you picture, back in time, the New York Times publishing the headline:

“Supreme Court Greenlights Killing Babies Day Before Scheduled Delivery”

or

“Constitution Guarantees Right of Women to Murder Children”

Well, no, you probably could not. 

Travel back to the eve of the last century. We are in an era following a bloody civil war that cost nearly half a million lives and, in today’s value, Eighty Billion Dollars in plundered wealth. The war ended, the Nation undertook its long, slow healing, beginning with the addition of three amendments to the Constitution. One of those amendments, the Fourteenth, contains the first, and only, express requirement that governments must guarantee to all their citizens the equal protection of the law. In that clime, how likely would you consider a headline such as this one:

“Negro Complaints Over Segregated Train Cars Have No Merit, Supreme Court Rules”

or

“In 9-1 Decision, Court Holds Equal Protection Does Not Require Equal Treatment”

Although the “Greatest Generation” is fading into memory by the minute, could men and women that lived alongside, worked with, did business with, Americans of Japanese descent imagine a headline such as this:

“No Harm, No Foul: Locking Up Japs Without Due Process A Necessary Tool In War Time.”

Of course, in these cases, and in most every one that the Court ever decides, there is more than one way to describe what it is that the Court is doing. For example, in the Roe v. Wade case, it could be easily imagined that the New York Times might run a headline such as this one:

“Abortion Ban Denies Women Due Process of Law.”

Or, in the era of Jim Crow laws, one could imagine a headline saying,

“Constitution Does Not Prohibit States From Regulating Private Contractual Relationships.”

Or, in the aftermath of Pearl Harbor, one could easily picture a headline such as this one:

“Temporary Relocation Protects Japanese Americans From Danger, Provides Port Security.”

You see, I think, the problem with a tool like Tushnet’s. Every circumstance in life can be described in more ways than one. If one version of a story makes a plausible headline, then the Court might take a case that produces such a headline? There are better ways to predict what cases the Supreme Court will take to review. Imaginary headlining is not typically a line item in a lawyer’s billing to his client.

So, in this case, Segall says, “Strike now, while the iron might be hot.” Perhaps he correctly reads the temper of the Court. Perhaps a petition from review, asking the Court whether a government can legitimately restrict a citizen to the exercise of a constitutionally protected right to a periodic occurrence of one time a month. Perhaps the Court would uphold a City ordinance limiting demonstrators to one protest a month. Perhaps the Court would uphold a federal statute guaranteeing an accused to representation by counsel once a month. Perhaps the Supreme Court would sustain a state law limiting the New York Times to a schedule of once a month publication.

Yes, guns are different.

Yet, a persons rights with respect to guns, their ownership, and their availability to them as a tool of political participation, are full partners in the Bill of Rights, and in the essential rights of man.

Segall can imagine the Court taking a case in which it would affirm limits on the periodic addition of weapons to one’s personal armory. I can too. But only because I do not find it difficult to imagine a Supreme Court unhinged from the Constitution, unconnected to the natural law that the Bill of Rights respects, and too full of its purpose and mission to realize how its aberrations of law foment political and social instability.

A World Wide Safari: Hunting Hillary's Elusive Accomplishments

A friend posted this Hillary Clinton salute from AddictingInfo.com. I will respond to several of the points below.

Before getting to the post, perhaps these posts, the one saluting Clinton, this one showing why much of that content of the post is drivel, or worse, are pointless exercises. Folks who have taken a view of things are often unwilling to consider other possibilities. So, critiquing a post, as I am about to do, will help my friend who brought it to my attention, but I doubt I could ever convince the post’s original author. Just as you can “lead a horse to water, but you can’t make them drink,” you can lead a poster to fodder, but you can’t make them think.

To help you identify the Hillary salute post, because it is not always quoted with a link to its source, you may recognize these opening words from the post:

You don’t have to like Hillary Clinton or her ideas. I get it. She’s a Democrat, a progressive (in most eyes), and conservatives don’t like that. However, you cannot say she does not have any accomplishments.

As I said, I am going to respond to the post’s attribution of “accomplishments” to Hillary. In doing so, I will begin by examining the support offered by the post for each claim. The post’s author helpfully linked from each claim to a site on the Internet, apparently to prove the claim. Then, with each point, I will evaluate whether the “accomplishment” is something of which one should justifiably be proud.

Here we go:

Even though her major initiative, the Clinton healthcare plan, failed (due to Republican obstruction), you cannot deny that it laid ground for what we have today, the Affordable Healthcare Act, something Clinton supports and would continue.

During the early days of Bill Clinton’s administration, Hillary played several roles. She vetted potential nominees for Attorney General, including Zoe Baird, Kimba Wood, and Janet Reno (you may not recall Baird and Wood, their names were withdrawn by Bill after each was revealed to have violated US labor laws by hiring illegal aliens). Clinton, at Bill’s request, also led the hunt for a new head for the US Commission on Civil Rights, producing a nominee, Lani Guanier, whose so-radical views resulted in Bill withdrawing her name from consideration.

But then came Hillary’s moment. A White House confab on health care reform directed and moderated by the First Lady would begin the process of moving America toward socialist medical reforms. Remember, this took place while Bill held the White House, and while Democrats controlled BOTH the House and the Senate. But Hillary’s abrasive character, the refusal to consider an approach that targeted specific “defects” of the laws at the time (laws that resulted in lack of portability of coverage, that denied coverage for exclusionary periods after acquiring coverage, and that limited coverage for certain categories of the chronically ill), and the risk then, as in 2009, that what was sought was control over a substantial segment of the domestic economy all combined to result in the collapse of Clinton’s efforts, all in one year’s time, and all while the Democrats controlled both of the political branches.

So let’s lose the worn out trope that her reforms failed due to Republican obstruction. Yes, of course Republicans obstructed her bad ideas. Just as a “Bridge Out” sign obstructs the bad idea of continuing to drive at great speed toward a no longer standing bridge obstructs that effort.

Did Clinton’s efforts lay the groundwork for the socialist take over of health care insurance fifteen years later?

Of course that is a possibility.

But others, including Newt Gingrich, had advocated the major and broadly accepted aspects of health insurance reform, including portability, exclusionary periods, and lifetime limits. To credit Hillary with the ideas of others who advocated reforms in these areas is an unjustified feathering of her dismal cap.

Then, the paean extends its unsound praises to its assertion that Hillary is committed to carrying Obamacare forward.

Well enough. Seven million Americans who have gained insurance because, with State expansions of Medicaid, they have now become eligible for MEDICAID coverage, is the essential gain of Obamacare.

But at what cost? Millions have been pushed into part time work status as companies that provided health insurance coverage faced the prospect of having to upgrade coverage to government-dictated levels and reaches of coverage. Cheaper to move individuals to part-time status and thus, beyond the employer mandates for coverage, Walgreen's, Home Depot, Walmart, and many other major American employers did exactly as economic self-interests dictated. My son, a long-time employee at a popular, niche, grocery store, saw this exact reaction from his employer, and though he was able to rise above that development by moving upward into a management mode, many others simply found themselves without insurance.

So you go ahead and describe Clinton’s failure, at the hands of a Democratic Party controlled Congress, to accomplish meaningful and viable health insurance reform as an accomplishment. I will continue to categorize that accomplishment with similar ones, such as the Titanic making a voyage halfway across the Atlantic Ocean.

She played a leading role in the development of State Children’s Health Insurance Program, which provides the much-needed state support for children whose parents cannot afford nor provide them with adequate healthcare coverage.

Along the way in this evaluation, some general comments cannot be avoided.

If you are a purist, you may never have owned a CD player. You may have tenderly and carefully shepherded a flock of Album music on vinyl. You, if that is you, will smirk when you see how the untrained ear misses the missing fullness of your favorite artists and their music when reproduced digitally. I am not that person. I enjoy music, but my hearing is not so refined, and, frankly, I have never invested in the kinds of stereo equipment that reward such purism.

Now we can argue all day: digital vs. vinyl. At the end of the day, I can keep all my music on a hard drive the size of a hard bound summer novel. You can keep all your music in a room the size of my breakfast nook. Is one of us right, one of us wrong?

Actually, yes. You are right that the audio quality will always be better on vinyl with the correct equipment.

In the same way, I am right when I assert that that taxation is just theft, group organized and approved, but nothing more. The CHIP program was derived from the decision to impose an additional tax on tobacco products and to segregate those funds generated by the tax for use in funding health insurance for children in a peculiar margin. CHIP provides health insurance coverage to children whose parents earn TOO much money to be eligible for Medicaid insurance, but not enough money to afford private coverages.

You celebrate the decision to tax tobacco. You do that because you consider tobacco an intrinsically evil product, its manufacturers to be intrinsically evil people, and because you think that with sufficiently burdensome taxation, smokers with a marginal commitment to their habit will eventually give up the habit. You also celebrate the decision to tax tobacco for this particular purpose because you think there is a moral good in taking the earnings of one person and using them for the benefit of another, and in doing so without their consent.

I disagree with you.

Taxation is theft. Nothing else. Just theft. If I am robbed at gunpoint tomorrow, and the thief takes my money and buys canned goods for the poor, am I less robbed? Less injured? Less stripped of my economic liberty? No.

Now, as to the attribution to Hillary of the CHIP program as a success, I think you must see that this assertion is a gross overstep.

CHIP became law under a Republican Congress, not a Democratic one, like the one that rejected Hillary’s earlier plan. More to the point, CHIP was, by all available information, a nationwide roll out of a previous Massachusetts program like it. (Just as Obamacare essentially consisted of a nationwide roll out of Romneycare.) The link provided with the Hillary paean fails to acknowledge that role of the Republican Congress. Yet, if you search the legislative history, you find that Ted Kennedy, who sponsored the bill, sought and got the valuable (as he described it) co-sponsorship of the legislation by Republican Senator Orrin Hatch. True, Kennedy shared the credit with Bill and Hillary Clinton. But if one praises Hillary for fostering CHIP into existence, then one must praise Hatch for doing so, and the Republican Congress for doing so.

She was also instrumental in the creation of the Adoption and Safe Families Act and the Foster Care Independence Act.

These are interesting claims.

Suppose I told you that, while serving as the anchor of the NBC evening news, I was flying in a helicopter in a war zone and that our helicopter was forced to make an emergency landing after taking incoming enemy fire. You might wonder when I became Brian Williams. Then you might wonder why I exaggerated the danger that I experienced as Brian Williams, when just being on press duty in a war zone speaks sufficiently about a reporter’s intrepid pursuit of news.

Why bring up Brian Williams in the face of this congratulatory salute entry?

Frankly, because, having reviewed the links associated with these two claims, I see that Clinton is credited with the adoption of two pieces of legislation passed by a Republican House and Senate. In fact, Clinton is being credited in this claim for the enactment by a Republican House and Senate of legislation sponsored by Republicans in Congress. That hardly seems the basis for engraving Hillary’s name on the walls at Boys Town USA.

In fact, in reviewing how the media describes the circumstances, I found this interesting explanation of Hillary’s role: “Mrs. Clinton has said she was a driving engine for measures like increased funding for youth leaving foster care and health care coverage for uninsured children[.]” OHHHHHH, Hillary said she was the driving engine for these measures. Well, then, it certainly must be so. Just as dodging bullets with Chelsea in war torn southern European countries must be true ... even when they are not.

Perhaps Hillary played an important lobbying role. But again, if you find the legislation praise-worthy, how does this praiseworthy package not accrue to the benefit of the party that passed it?

Successfully fought to increase research funding for prostate cancer and asthma at the National Institute of Health (NIH).

I guess you have us men by the short hairs there. We have to love Hillary because she fought for increased funding for prostate cancer. You’ve got others by the weak lungs so I guess they’ll have to love Hillary for fighting for asthma research funding increases.

Yet, when I examine the link “supporting” this claim, I find that it is to Hillary’s “resume” on the FirstLadies.org web page, with no further supporting documents. A further bit of digging, however, reveals that the “war on cancer,” declared by Democratic President Richard Nixon (oh wait, he was a Republican) had been funded for nearly twenty years at aggressive levels before Bill Clinton was elected. In fact, Hamilton Jordan (Jimmy Carter’s Chief of Staff) warned the Clinton administration that the facts would make it difficult to portray Republicans as seeking to cut cancer research funding. Finally, as with other legislative initiatives for which the Addicting.info paean wants to shower Hillary with praise, the increase of funding to which the paean points, and over which Hillary’s resume, rooster-like, crows happened during a Republican Congress.

Again, praise Hillary, if you must,  for reasons not justified in the “supporting” links. But when you do, why doesn’t elemental fairness require you to remember that Republican Congressmen and Senators approved the funding increases to which you point, and thus, require you to sing their praises as well?

She spearheaded investigations into mental illness plaguing veterans of the Gulf War; we now have a term for it – Gulf War Syndrome.

The tedium of this exercise is taxing.

To support the assertion that Clinton “spearheaded investigations” into the mysterious “Gulf War Syndrome,” for which, presumably, somehow thanks to Hillary, we now have a name, a medical taxonomic designation, the paean points to a New York Times article reporting on a meeting of the President’s Advisory Committee on Gulf War Veterans’ Illnesses. The news report stated, “Mrs. Clinton has taken an interest in the issue since she received complaints from veterans during her work on health care last year, and the commission invited her to speak.”

Hmmmmmmm.

“Has taken an interest in . . . .”

“Spearheaded investigations . . . .”

Again, while the assertion that she “spearheaded investigations” might be true, this article does not support the assertion. Rather, the article points to the preexisting concerns, expressed by the Institute of Medicine, as the responsible engine for pushing forward the relevant research:

[T]he Institute of Medicine, a not-for-profit research group affiliated with the National Academy of Sciences, issued a report saying the Defense Department had not adequately explained its conclusion that the illnesses did not constitute a definable syndrome unique to Persian Gulf veterans.

The Institute of Medicine report said the Pentagon had "made conscientious efforts" to evaluate the health of 10,020 American veterans of the gulf who complained of unusual illnesses. But the report went on to say that the Pentagon had failed to support its preliminary conclusion that there was no single syndrome but rather a variety of illnesses.

Moreover, the report said, it appears likely that some patients "have developed illnesses that are directly related to their Persian Gulf service," including psychological stress and infectious diseases that are rare outside the Middle East.

The Institute of Medicine report said the Pentagon's study did not adequately discuss such possible links between the veterans' health problems and their service in the gulf.

This particular point does have that odd phrasing, “We now have a term for it–Gulf War Syndrome.” The juxtaposition of that observation with the unsupported praise to Hillary leaves one with the impression, almost, that perhaps in her ineffable wisdom, Hillary coined the name of the disorder. Perhaps she even wrote the diagnostic differentials for the disorder? This claim is worse than just fluff, because, at least, with fluff you get, well, fluff. But this claim brings NOTHING of substance with it.

At the Department of Justice, she helped create the office on Violence Against Women.

Well, perhaps.

Or, at least as far as the Department of Justice’s Office on Violence Against Women is concerned, perhaps not. This description appears on the Office on Violence Against Women's homepage on the web:

In 1994 Congress passed the Violence Against Women Act (VAWA) in recognition of the severity of crimes associated with domestic violence, sexual assault, and stalking. This Act emerged from the efforts of a broad, grassroots coalition of advocates and survivors who informed the work of Congress. In the two decades prior to VAWA, a movement had grown within the United States to respond appropriately to violent crimes against women.  Rape crisis centers and women’s shelters were established in localities, and state and local laws had changed.  However, the progress had been uneven around the country.  VAWA was borne out of the need for a national solution. This Act enhances the investigation and prosecution of violent crimes against women.

Nary a mention of Hillary’s work “help[ing] create the office on Violence Against Women.” Now, of course, it might be that she actually did help to do so. But, if there is evidence supporting that claim, why not link that, rather than a page that credits “a broad, grassroots coalition of advocates and survivors”?

She was instrumental in securing over $21 billion in funding for the World Trade Center redeveloment.

Once again, whatever share of responsibility for securing redevelopment funds Hillary Clinton wants to claim, one supposes that she would document that responsibility. The paean, however, simply links that claim to a 2002 speech given by the Comptroller of the City of New York. That speech appropriately acknowledges the post-attack contributions and services of, literally, thousands of individuals, represented by the corporations that employed them, dozens of such companies, including financial institutions and others. At the end of that exhaustive appreciation, the Comptroller stated:

And I would be remiss if I did not thank the New York State Congressional delegation, led by Congressman Charles Rangel and the two United States Senators, Sen. Chuck Schumer and Sen. Hillary Clinton. They have done wonderful work in helping to move New York City, advocate for New York City and get money into the city.

Notice, in that appreciation, Clinton is, of course, mentioned. After all, she was New York's recently elected junior Senator, who, along with the senior Senator, Charles Schumer, and the sizable delegation of House members, worked to secure recovery and redevelopment funding. So, no, I’m not saying that Clinton gets no acknowledgment, just as every American soldier that served in WWII gets and deserves appreciation for their service. Still, the hubris is to suggest particular responsibility for the funds lies in the hands of a grievously attacked State’s junior Senator.

If there is grounds for suggesting that she had a more particular and praiseworthy role in the funding of New York’s redevelopment, the AddictingInfo authors simply failed to provide support that view.

Took a leading role in the investigation of health consequences of first responders and drafted the first bill to compensate and offer the health services our first responders deserve (Clinton’s successor in the Senate, Kirsten Gillibrand, passed the bill).

Again, the factual support offered for the claim is thin, and one wonders why what is offered counts for research. The paean points to a news article reporting that, at the front end of Clinton’s 2006 re-election bid, she received key endorsements from two firefighters unions in New York that had supported her 2000 Republican opponent. In that article, one of the union officials is described as crediting Clinton as mentioned above:

Standing with a group of union leaders in front of a firehouse in Brooklyn, she listened intently as two union presidents praised her success in obtaining federal funds for firefighters, for the city's security operations and for health research related to the Sept. 11 attacks, which killed 343 firefighters, drove others into retirement and left many complaining of debilitating long-term illnesses.

So, in the view of an endorsing union official, Clinton is described as “obtaining federal funds for firefighters, for the city’s security operations and for health research related to the Sept. 11 attacks.” Nothing in the article makes out Clinton as having taken a leading role in doing so. Federal funds are appropriated by the Congress, not by a single Senator or Representative. That a particular project or need receives federal funding can usually be credited to a State’s delegation in Congress, and sometimes will be described as a Congressman’s “pet project.” But this union officials remarks only evidence a role not the role as part of the delegation that secured these funds.

Reference was also made, then, to Senator Gillibrand’s having “passed” Clinton’s bill after she succeeded Clinton in office. Oddly, that article leaves one with the impression that Gillibrand did not merely tidy up a nearly done project worked on by Hillary. Rather, the author of the referenced piece leaves readers with the distinct impression that Gillibrand accomplished what Clinton, due to her abrasive relationships in Congress, had been unable to do:

She followed a similar playbook in pressing the 9/11 health care legislation, for which Mrs. Clinton had long struggled to attract Republican support.

In summer 2009, Ms. Gillibrand introduced the bill in the Senate. She helped lobby House members — at one point prompting Representative Carolyn B. Maloney, who briefly considered a challenge to Ms. Gillibrand, to lash out at her for being late to the issue. She persuaded Senator Tom Harkin, Democrat of Iowa and chairman of the health committee, to call the only Senate hearing on the bill.

And she buttonholed fellow senators, especially Republicans. “On the 9/11 bill, one of my colleagues said to me, ‘Can you please talk to your friend from New York, Kirsten, and tell her to stop asking me?’ ” Senator Joseph I. Lieberman, independent of Connecticut, said.

So, in some of these attributions of credit, Hillary is in the right place at the right time and the authors indiscriminately credit her for a success. Here, Senator Gillibrand succeeds where Senator Clinton could not succeed and the authors credit Clinton for the success while consigning Gillibrand to an afterthought role. Shame alone ought to compel Clinton to belittle her role and credit Gillibrand rather than to leave this impression standing.

Was instrumental in working out a bi-partisan compromise to address civil liberty abuses for the renewal of the U.S. Patriot Act.

The claim is unsupported by the cited reference. The cited reference is Senator Clinton’s objections to the conference report on the PATRIOT Act re-authorization. As happened in fact, the civil liberties concerned that Clinton may have shared with others were addressed in a separate bill, the USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006 (S. 2271). Again, the paean to Clinton fails to mention this legislation by name. Perhaps that is understandable. While she may have “supported” the bill, she was not an original sponsor or co-sponsor of the bill. That Senate bill did have three Senate co-sponsors ... all Republicans.

Proposed a revival of the New Deal-era Home Owners’ Loan Corporation to help homeowners refinance their mortgages in the wake of the 2008 financial disaster.

Another way to phrase this “accomplishment” would be, “attempted a re-tread operation of a defunct, Great Depression era home loan rescue program but failed to garner sufficient support to actually put treads on that retread.”

This particular point of “accomplishment” bears a strong resemblance to Uncle Rico, in Napoleon Dynamite, thinking back on his high school glory days, although the director has Rico play the role in a way that leaves the definite impression that Rico’s memories are better than his play ever was. Even if Rico was a legendary high school star athlete, Clinton’s op-ed proposal – which went nowhere and became nothing – is that really an accomplishment?

Was a major proponent of sensible diplomacy which brought about a ceasefire between Hamas and Israel, and brokered human rights with Burma.

As to the Hamas ceasefire brokered in November 2012, to which the paean refers, well, okay. Neville Chamberlain returned from meeting Adolph Hitler and proclaimed, “Peace in our times.” Thereafter, Hitler invaded Poland and France. This paean points to a ceasefire that Israel would have welcomed, but which was followed by an onslaught of missile attacks that continued through 2013, and through most of 2014, was briefly stopped again, and which continues today. For the 12 hours of respite, of course, please, give Hillary credit. But not for anything more than that, and not for find a permanent or workable solution to Hamas terrorism. Of course, one can hardly blame her failures there. Hamas is the puppet of the Iranian regime and the Obama administration has been chasing an accord with that State of Terror like a dog chases a car.

Regarding Burma, the paean cites an article as supporting its assertion that Clinton “brokered human rights with Burma.” The article only states, however, that Clinton sought to broker human rights agreements with Burma.

Human Rights Watch, moreover, has this to say about the current status of human rights in Myanmar:

Four years after the military installed a new government, the reform process has stalled. The number of political prisoners is on the rise with arrests of students, farmers, and community activists for peaceful protests. Parliamentary elections are scheduled for late 2015, but there are serious concerns about the fairness of the process. Approximately one million people have already been disenfranchised. Among those are stateless Rohingya Muslims, many of whom remain in squalid camps with limited government and international humanitarian support after being subjected to a government-assisted campaign of ethnic cleansing and crimes against humanity in 2012. Long-running armed conflict between the government and ethnic minority groups has displaced over 150,000, amid army abuses including sexual violence, forced labor, and use of child soldiers.

Do not mistake my meaning. I am certain that Hillary Clinton wants Myanmar’s military regime to respect human rights. Moreover, I am sure she tried to effect that end. Wishes, however, are not fishes. And Hillary’s net is, frankly, an empty one.

Oversaw free trade agreements with our allies such as Panama, Colombia, and South Korea.

This particular claim is one that takes a curious mind right into the center of American politics. The Panama Free Trade Agreement, the Colombia Free Trade Agreement, and the Korean Free Trade Agreement were all negotiated and signed before Obama became President. These agreements were reached by the Bush administration with these three countries.

The same election, however, that swept Obama into the White House, swept Democrats into control of the Congress – both the House and Senate – until the November 2010 election cycle gave us a Republican-controlled House and the 2014 election cycle added a Republican Senate. Notice, if you look at the “support” for this particular claim, that Secretary of State Clinton’s statement is dated 2011.

Until Republicans gained control of the House, the President and his Secretary of State undertook no significant effort to obtain congressional approval of these agreements – to have done so would have been a bold and distinctive move precisely because union bosses dislike free trade agreements and Democrats controlling the House and Senate were beholden to those union bosses.

Still, even the “oversaw free trade agreements” language grates, because, based on facts, until the very end of her tenure at State, the more accurate description would be “overlooked free trade agreements.”

Was the most traveled Secretary of State to date.

Maintaining the appearance of being busy should never be confused with working toward, or obtaining, meaningful accomplishments. Yet touting that Clinton was the Nation’s most traveled Secretary of State suggests that merely having Clinton on the go constitutes a creditable accomplishment. Flail much?

The Clinton Foundation, founded by her and her husband, has improved the living conditions for nearly 400 million people in over 180 countries through its Initiative program.

With news reports showing that decisions at the State Department favored donors to the Clinton Global Initiative and the Clinton Foundation, I will say nothing more about this bizarre attempt to claim responsibility for the works of literally dozens of organizations and nations. Let’s allow the rest of the “deleted and wiped” emails of the Clinton server to come out, allow the balance of the ugly facts about influence peddling be resolved, and then let’s look at the question of whether proponents of ongoing programs around the world deservedly share responsibility for their work with CGI, which conducts annual conferences at which these advocates gather, rub elbows and obtain new network contacts.

These are not all of her accomplishments. Her activism on behalf of women a children across the world is renowned. Her activism for raising the minimum wage and combating climate change is stellar. You do not have to support what she does or stands for. But do not say she doesn’t have any accomplishments. The conservatives who say this are the ones who are pushing for Ted Cruz – who brought on a $24 billion shut down. That, to them, is an accomplishment?

Seriously.

Activism for women? Except those unborn. And those injured by abortion. And the several known victims of her husband’s sexual predation.

Activism for raising the minimum wage? Again, this takes us to fundamental philosophies. Government coercion of higher rates for wages does not create wealth. It transfers it from consumers to those who work at minimum wage, except to the extent that consumer avoid such transfers by surrendering habits of purchase involving minimum wage employment, such as amusement parks and fast food establishments.

I guess, on climate change, given the absence of an actual consensus on the involved science, and given the latest modeling, that shows that the climb in the average annual temperature of the Earth has been in a 20 year pause, there just is no good reason to credit Hillary. More importantly, Clinton, unless she repudiates the costly approaches loved by Obama and his EPA Administrator is just another threat to American prosperity, and to the already marginalized poor and working poor, on whom the burdensome costs of “green” energy fall most harshly.

So, there you have it.

Hillary Clinton is praised by AddictingInfo and ascribed with a plethora of accomplishments. There are even links in the paean that, one assumes (but does so only carelessly), support these assertions. As this blog shows, however, the citations seldom provide support for the overblown claims, and many of the claims are based solely on the coincidence of presence, not on Clinton’s distinctive or sole, creditable efforts.

Go ahead, praise her if you must, but just skip the lies and the obfuscations.

Forget the Necessary and Proper Clause, We Need an IDGARA Amendment to the Constitution

I would like to propose an amendment to the Constitution.

It would, of course, be a mere formality. It would, however, make constitutional the excesses, overreaches, violations, and abuses regularly visited by government actors upon the People, upon individuals, and upon States.

The Amendment would be styled, The I Don't Give a Rat's Ass Amendment, and it would read as follows:

Whenever this Amendment shall have been ratified by three fourths of the States, or whenever any government officials needs or desires to pretend that it shall have been so ratified, then this Amendment shall be part and parcel of the Constitution, and shall amend and modify each and every letter, word, clause, sentence, paragraph, portion, provision, Article and part thereof, so that, as amended, every provision of the Constitution shall be understood to read, 'If I care what the Constitution says, then and only then will I abide by its terms; when, however, I find the terms and provisions of the Constitution inconvenient, obstructive, or unhelpful, then I don't give a Rat's Ass what it says, and that's perfectly permissible."

In writing on the Law, Thomas Aquinas suggested that positive law, law enacted by man, should be limited in terms and scope and number, and should comport itself to the conduct of men (as consistent with God's law). The I Don't Give a Rat's Ass Amendment does just that. It avoids the niceties and restrictions that so often are merely forms and shadows, and too often observed in their breach.

If you read in these words a criticism limited to Democrats, then you misunderstand the temper of my criticism.

John Roberts has twice deployed the essential power of the I Don't Give a Rat's Ass principle in sustaining the Obamacare Act against constitutional challenges. Lest you forget, Roberts is a hopeful monster of Republican creation.

Anthony Kennedy has three times deployed the essential power of the I Don't Give a Rat's Ass principle as he causally but casually pushed America toward acceptance of a Supreme Court ruling holding that the framers of the Fourteenth Amendment intended to prohibit limitations on marriage that discriminate against same-sex couples.

George W. Bush deployed the I Don't Give a Rat's Ass principle in signing the Bipartisan Campaign Reform Act of 2002 into law despite his stated conclusion that several provisions of the law were, in his judgment, unconstitutional. He deployed that same principle with his grotesque enlargements of Clinton era surveillance programs when he pushed for, and signed into law, the PATRIOT Act.

Of course, it isn't just Presidents and Supreme Court justices that handily rely upon and invoke the essentials of the I Don't Give a Rat's Ass principle.

Too often, Congress enacts laws of uncertain constitutionality, leaving to the Courts the performance of its own separate duty to judge whether bills presented for consideration satisfy constitutional norms.

The FCC has reared its ugly head to seize the Internet, a medium of communication, and appears intent on deciding how private persons and organization use that medium to communicate. That the Constitution prohibits any law abridging the freedom of speech and of the press simply elicits from Net Neutrality Commissioners an entirely unsurprising "I Don't Give a Rat's Ass."

I hope that you will consider adding your voice to mine.

It is time to relieve beleaguered elected officials and agents of government of the shameful task of pretense, the arduous artifices of obfuscation, bound up in being required to pretend that they care what the Constitution says.

With the "I Don't Give a Rat's Ass Amendment" then we truly can advance to an open, honest, government in the sunshine.

Anchor Babies: Anchors Aweigh? Or Away?

This post is the first of a series addressing the "anchor baby" or "birth right citizenship" controversy.

Donald Trump opposes the constitutional right of children born in the United States to parents illegally present here to claim status as American citizens based on the mere fact of their birth here:

I don't think they have American citizenship and if you speak to some very, very good lawyers -- and I know some will disagree, but many of them agree with me -- and you're going to find they do not have American citizenship. We have to start a process where we take back our country. Our country is going to hell.

Trump is not alone in his views. Radio host and author, Mark Levin, has staked out a view that so-called “anchor babies” do not have US citizenship, and could not obtain such citizenship unless and until Congress enacts a law so providing:

Lindsey Graham, South Carolina’s senior US Senator, and a competing candidate to Trump for the Republican presidential nomination, explained his views opposing “birth right” citizenship on Greta Van Susteren’s program on Fox News:

I'm looking at the laws that exist and see if it makes sense today. Birthright citizenship doesn't make so much sense when you understand the world as it is. You've got the other problem, where thousands of people are coming across the Arizona/Texas border for the express purpose of having a child in an American hospital so that child will become an American citizen, and they broke the law to get there. We ought to have a logical discussion. Is this the way to award American citizenship, sell it to somebody who's rich, reward somebody who breaks the law? I think we need to look at it really closely.

When “anchor babies” are the focus of political debate, it is often the case that a subtext is present, a subtext of mushrooming welfare program costs. In fact, however, “anchor babies” are only a problem to the extent that the laws of the United States, particularly immigration laws, and the laws of the States, particularly public benefit program laws, allow them to be.

Here is the basic notion, well represented by the moniker “anchor baby:”

A pregnant woman, whether documented or not, gives birth within the United States. The child born to her, under the Constitution and federal statute law, has status as an American citizen from birth. Thereafter, by the fact of their child’s citizenship, its parents assert the rights of their American citizen baby (a) to have the benefits available to any American citizen, and (b) to have their parents filial support and presence here.

Citizens from birth do not require permission from States or the federal government to assert or to enjoy their State and federal statutory and constitutional rights. Others – born elsewhere – must follow the legal naturalization process to gain status as citizens and lay claim to such prerogatives. Those naturalized citizens, moreover, can have their status as citizens stripped from them. No provision of US law, statutory or constitutional, rightly empowers the government to involuntarily strip a natural born citizen of their status as American citizens.

The most notorious instances in which naturalized citizens were stripped of citizenship involve individuals that immigrated to America following World War II. John Demjanjuk lost his status as a naturalized citizen after the Department of Justice concluded that he had lied about his identity to hide his role as a Nazi camp guard at the notorious Sobibor concentration camp. Demjanjuk was deported, stood trial on charges related to his alleged role at Sobibor, in Israel, where he was convicted, and then granted a reprieve, and in Germany, where he was convicted of his acts, and where he died while his appeal from that conviction was pending.

Although in dispute, the costs associated with recognizing the status as natural born citizens for so called “anchor babies” does appear to be a principal concern for those that propose that recognition of birthright citizenship for “anchor babies” must end. I am not an economist. I am not even an armchair economist. Here, however, are what appear to me to be the two leading perspectives on this aspect of the “anchor babies” dispute:

Birth right citizenship for anchor babies inflicts substantial costs on American taxpayers.

Birth right citizenship for anchor babies provide substantial benefits to the American taxpayer.

It seems certain that both positions cannot, at the same time be correct. On the other hand, both may, in different senses, be correct. If one has been discipled on the writings of Frederic Bastiat, then they would likely conclude that the imposition of “new harms” (the accruing additional costs in public benefit programs resulting from the births of entitled “anchor babies that must be born by the taxpayers) will not work in any way to produce a basis for stable economic growth.

In a future post in this topic area, I will delve more into balancing the “costs” of “anchor babies” with the “benefits” of them. In this first entry, though, there are larger questions.

Is the elimination of “anchor baby” status a viable solution to issues of costs? If not, what other changes in law are viable and would address cost issues?

Two provisions of law afford children born in the USA status as citizens by the bare fact of their birth here. One provision is found in the Fourteenth Amendment. That provision states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

The other provision is found in federal statute law. It states:

The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;

These two provisions are quite similar, with a few important distinctives:

Fourteenth Amendment Citizenship
  ... is sourced in the US Constitution
  ... applies to all “persons born ... in the United States”
  ... who are “subject to the jurisdiction thereof”
  ... was proposed by Congress to the States
  ... was ratified by the States
  ... can only be amended or repealed by a subsequent constitutional amendment
  ... and is irrevocable but alienable.

On the other hand

Federal Statutory Citizenship
  ... is sourced in federal statute
  ... applies to all “person born in the United States”
  ... who are “subject to the jurisdiction thereof”
  ... was enacted by the Congress without action by the States
  ... was not ratified by the States
  ... can be repealed or amended by Congress, and can be declared unconstitutional by courts
  ... is both revocable and alienable.


As the foregoing comparison clarifies, there are two essential differences between birthright citizenship granted by the Constitution, and birthright citizenship granted by federal statute law.  First, whether citizenship is a revocable condition varies between the two. Second, the means by which the citizenship grant mechanism was adopted and by which it may be amended or removed. These differences may not define the terms of a debate over “anchor babies,” but they do define the boundaries within desired changes may be obtained.

The fact that “birth right citizenship” is endowed by operation of the Constitution, as well as by federal statute law, bears substantial significance in any search for solutions to the problem of “anchor babies.” Any fix or solution must address, not only the statutory source of citizenship, which may be provided by congressional action with presidential concurrence or over presidential veto, but also the constitutional source of that citizenship. Constitutional grants of citizenship can only be amended by amending the Constitution. In fact, that duality may mean that a solution is doomed to fail absent appropriate calculations about both sources of birth right citizenship.

Now, if we, as a People, do reach a consensus that we have a problem with all the sequelae that follow after “Anchor babies,” and we start to talk about solutions, the mechanisms by which citizenship was acquired becomes important for an additional reason. If citizenship was acquired as a constitutional right then any solution must include such amendment of the Constitution as appropriately resolves the issues.

Because that question, the dispute over whether acquiring citizenship by birth, reflects a constitutional endowment hangs over the larger questions of whether “anchor babies” really constitute any sort of problem, that constitutional question really should be resolved at the beginning of the discussion, before we descend too far into the garden plot of solutions.

September 11, The Day the First Amendment Died

Some folks will think of this date as the day American government officials conspired to draw America into international conflicts by killing nearly 3,000 of their own.I've watched several of the "inside job" conspiracy videos and have not found anything credible. I am open to being convinced.

Yet, as a federal constitutional law and civil rights attorney, I understand, and hope you will, how badly damaged our Nation was -- above and beyond the death toll -- in the exercise of our civil rights and liberties.

Not only did the Patriot Act authorize the continuing and increasing surveillance of Americans (lest my Republican friends think I'm blaming all this activity on Bush, lest my Democrat friends think that they are off the hook, you should read up on the Clinton era Carnivore and Echelon programs, which you can do starting at pages such as this one), the claimed need to protect government officials led to the adoption of rules by the US Marshal's Service, the Secret Service, the Supreme Court police, and other federal policing agencies, that resulted in removing peaceful demonstrators from the line of sight of government officials attending public events.

For example, Reverend Patrick Mahoney​, my long time client, and several others, were arrested when they engaged in prayer and the display of signs on the public sidewalk across from the entrance to the Cathedral of St. Matthew, in Washington, DC, on the morning of the annual Red Mass. You can read the decidedly constitution-free decision of Judge Royce Lamberth in which Mahoney's pleas for respect for the freedom of speech fall on security-deafened ears here.

Mahoney began his vigils on Red Mass mornings to communicate his concern over the banning of Ten Commandments. The immediate concern he addressed was the incident in which Justice Roy Moore of the Alabama Supreme Court placed such a monument in the rotunda of that State's Supreme Court. In the post 9/11 era, the Supreme Court police and the Secret Service created giant, city-block sized "speech free" zones.

Within those zones, individuals could walk, talk, ride bikes, walk dogs, drink coffee, wait for buses, make phone calls, wave to friends, hail cabs, and all the other typical and expected human behaviors of daily life in an urban setting. BUT WHAT THEY COULD NOT DO is seek to communicate a message on what they considered to be an important public issue to government officials passing through the "speech free zone."

To communicate, Reverend Mahoney and others had to move out of the exclusion zone, away from lines of sight of government officials, and stay within a holding "pen" like they were stockyard bound livestock. While the bulk of my post 9/11 experience with government restrictions on free speech involved cases of religious speech or pro-life speech, the ACLU also cataloged the deleterious impact of the government's unflinching assertion of security interests on core political speech activities too.

So, yes, I mourn the lives lost.

But more so, I mourn that the meaning of those lives lost is disregard for our essential liberties by the courts, the police, and government officials.

The Judge, the Clerk, The Governor and the General Assembly: How to Understand the Incarceration of Kim Davis on Charges of Contempt

Recent developments in Kentucky have captured the attention of the Nation. Even the ominous stare down between BarryO the Boyking and a melting glacier could not displace the story from the headlines.

There have been many opinions expressed on the topic – from speaking of the martyrdom of Kim Davis to calling for the martyrdom of her – there seems to be no end of opinions on the matter. As with most things, though, many of the opinions rest on a shaky foundation of poor, or no, understanding of important underlying principles of law.
A local jail in Kentucky picked up a new detainee yesterday. Mind you, virtually every county jail in America likely picked up a new detainee or two. But this detainee is a breed apart: not a drunk driver pulled from the mangled wreck of her auto, nor a post-partum-depressed mother that just drowned her baby in the bathtub, not even the local chemist operating a meth lab from his basement workshop. No, this new occupant, Kim Davis, is an elected official, the County Clerk for Rowan County.

Unlike the drunk driver, the homicidal mad-momma, or the meth-matician, Ms. Davis has not been sentenced to a term of years in jail or prison. Indeed, unlike those criminals, Ms. Davis has not been tried by a jury consisting of her peers and found guilty of any crime whatever. Instead, Ms. Davis has been ordered confined indefinitely in jail by a United States District Court Judge, David Bunning.

Davis, a Democrat, ran for, and was elected to, office in Kentucky. Judge Bunning, on the contrary, was appointed to the federal bench by George W. Bush, a Republican. Judge Bunning’s name may ring familiar to some of you. His father, Jim Bunning, served as a US Senator from Kentucky for a couple terms after having served six terms as a member of the House of Representatives from Kentucky. Of course, David Bunning may not have been chosen as a favor by a stalwart Republican president. (I’m sure that all Presidents from both parties only pick the best available candidate and never use their appointment powers to cement relationships or repay favors. Wink Wink Nod Nod.)

So, here we have had a federal judge handling a federal lawsuit over the refusal of a State Court Clerk to issue State marriage licenses.

Now, ordinarily, a clerk refusing to perform a duty of office could be subjected to a suit in state court. There is an old English lawsuit, something called a Petition for Writ of Mandamus. That suit can be filed by affected persons asking a state court judge with the appropriate level of authority to order the clerk to do their duty.

But here we are talking about a same sex couple that tried to get a marriage license. Having been frustrated in that effort, rather than seek an equally valid license from the clerk of another county, and rather than filing a petition for a writ of mandamus with a Kentucky court, the couple, represented by the Kentucky chapter of the American Civil Liberties Union, sued in federal court.

Now please, don’t misunderstand me. I am not suggesting that it was improper at all for such a lawsuit to be filed in federal court. Congress endowed federal trial courts with jurisdiction to hear and decide lawsuits involving claimed violations of federal civil rights. Congress also created a statute-based cause of action for the violation of federal civil rights. Abraham Lincoln addressed the duty of courts to decide cases, in his First Inaugural Address. He said, “Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs if others seek to turn their decisions to political purposes.”

So, no, I’m not criticizing Judge Bunning from acting as Judge in the case.

Prior to becoming a disgraced former Senior Counsel for the American Center for Law and Justice, that organization described me (I had nothing to do with how they chose to describe me) as one of the Nation’s leading religious liberties advocates. I have filed many federal civil rights actions as an attorney, representing street preachers, anti-abortion protestors, students treated unequally based on the religious content of their speech. For injured clients, whose recognized constitutional rights had been denied, I have asked federal judges to issue orders stopping government officials from interfering with my clients’ rights. I have asked judges to award damages to my clients for the loss of those rights. So, on the level of general principles I cannot be understood in this post to be claiming that filing the lawsuit in federal court was wrong. I have also represented clients in cases where others tried to stretch federal civil rights laws beyond their design and intention, in order to accomplish a plainly political objective.

That the Judge Bunning had legal authority (what lawyers call “jurisdiction”) granted to his court by Congress is not subject to dispute. That the same sex couples – like other citizens of the United States – are entitled to assert and to prove if they can that their federal civil rights have been violated, is not subject to dispute.

For my purposes today, the questions in dispute are whether Kim Davis should have been fired for refusing to issue marriage licenses and whether she should be incarcerated for contempt of court.

Kim Davis ran for office. The People of Rowan County elected her clerk.

That was an act of popular democracy. Kim Davis, a Democrat, being elected by the People of Rowan County is a matter of some moment. Because under Kentucky law, the Governor cannot simply call her office and tell her she’s fired. Well, he certainly could. But that statement would be followed by a chortle, and perhaps a question, such as, “Been hitting the Makers’ Mark, Governor?” No, the Governor cannot fire her.

The Kentucky Supreme Court cannot fire the Clerk. The Courts of Kentucky are quite jealous of their distinct constitutional stature. They do not brook even the making of rules of court by the legislature – that rule-making is quite common in other States and at the federal level. But, as the Kentucky Courts are quite sensitive to questions of their separate sphere of power and authority, it is well-known to them that they possess no power to discharge from office an elected clerk.

In fact, what the Commonwealth of Kentucky faces with a clerk that is refusing to perform duties of her office is the exact conundrum the American people face with a president that refuses to perform the duties of his office. Because, you see, whether she sits in jail for the balance of her elected term of office or not, the only way that Davis can be removed from office is by impeachment by the Kentucky General Assembly. That is it. She cannot be fired. Stop assuming that she can be. Stop insisting that she be.

Now, as to the question of whether Ms. Davis should be incarcerated for contempt of court, I think Judge Bunning went way overboard in jailing Davis.

I can prove that he did.

I have represented persons charged with contempt. I have read the federal law on contempt and researched the cases and made written interpretations and analysis of it. But I do not need to engage in a fine legal analysis to show why Judge Bunning’s contempt confinement order is a Bridge Too Far. You see, the same sex couples and their ACLU attorneys prove that the Judge went too far. Here is what the couples stated in their petition to hold Davis in contempt:

Plaintiffs do not seek to compel Davis’ compliance through incarceration. Since Defendant Davis continues to collect compensation from the Commonwealth for duties she fails to perform, Plaintiffs urge the the Court to impose financial penalties sufficiently serious and increasingly onerous to compel Davis’ immediate compliance without further delay.

You see it, right? “Plaintiffs do not seek to compel Davis’ compliance through incarceration.”

Rather than confinement, the Plaintiffs “urge[d] the ... Court to impose financial penalties[.]”

Question resolved.

The judge, Judge David Bunning, a Republican appointed by George W. Bush has ordered a Democrat, Kim Davis, the elected clerk of Rowan County to be incarcerated. Why? Not because it was asked of him by the Plaintiffs.

We have not heard the end of this matter. The Kentucky General Assembly is highly unlikely to impeach Davis. In fact, if the Assembly does anything, what it is likely to do is change the marriage licensing statute to protect the rights of conscience of county clerks. In the meantime, if Kim Davis does not change her mind, then it will be up to the unjust judge to relent and to release her from confinement.

In fact, as a matter of federal law, Judge Bunning should release Davis because his decision to confine Davis may have violated her rights under the federal Religious Freedom Restoration Act. That’s right. Judge Bunning may well have violated federal law by imposing incarceration as the method of coercing Kim Davis to submit to his will in this matter.

Many readers will recall the teapot tempest earlier this year – it seems ages ago given how the legal landscape shifted in June – when an Indiana pizzeria stirred up a kerfluffle by announcing that it would not agree, if asked, to cater a wedding reception for a same sex couple. Memories Pizza actually closed its doors because of the hostile reaction of some members of the public. Remember that? Back then, one of the hotly disputed issues was the scope of Indiana’s Religious Freedom Restoration Act. Many voices cried out about the injustice of protecting religious freedom if it meant denying two gay men the right to have pizza served at their wedding reception.

For my part, I suspected that ordering pizza for a wedding reception would constitute proof positive that a couple was only faking gay.

In any event, the disputed statute is one modeled on the federal Religious Freedom Restoration Act. That law applies to every federal official and every federal action. So when Judge Bunning put Kim Davis in jail, he should first have determined whether she had a sincerely held religious belief regarding same sex marriage, then decided whether jailing her to compel her compliance with an order that violated her religious scruple constituted a substantial burden on those religious beliefs, and then, finally, if they did, he should have made sure that his acts constituted the least restrictive means to accomplish those purposes.

Where the other side argues that a person should be fined, not jailed, and the judge jails the person, I think the case is easily made that the judge did not employ the least restrictive means to serve the interest in compelling compliance with the court’s order.

So now, like Alice’s tumble into a strange hole, things get curiouser and curiouser, as the clerk defies the judge that defies the law. Judge Bunning was advised that the federal RFRA statute impacted what he did. I read the papers filed by Davis’ attorneys. They cited a federal appeals court decision that threw out 19 contempt citations because the decisions to impose them violated RFRA.

This matter will continue to develop. Perhaps, at some point, Judge Bunning will be brought to task for disobeying federal law. Meanwhile, stop talking about how Davis should be fired. She can’t be fired. Instead, enjoy the show, and the many folks discomfitted by the possibility that every step they take is fraught with opportunities to err.

Jim's Top Ten Online Sources for the Informed Citizen

I understand that an uneven enforcement of literacy testing made a powerful tool of discrimination during the Democrat Party's reign of Jim Crow. And, no, I am not necessarily calling for a return to literacy testing as a precondition to the right to vote. I will say, however, that it would be perfectly permissible under the Constitution to impose even handedly and enforce even handedly a system of testing the ability to read, to write, and to understand, as a precondition to being allowed to exercise the elective franchise.

An informed electorate -- composed of individuals whose opinions can sharply and deeply conflict -- is the imagined future that the Framers considered the guard against future usurpations by government.

Much of the blogging I do here depends on my own ability to make the best possible use of online resources. In this post, I wanted to make sure that those of you who find value in what is posted here have the benefit of the same, readily available online resources.

So here, in completely random order, are the top ten online resources to which I have found myself returning again and again, as I think on our Nation's Constitution, our rights as individuals, our government, our governance, and our history:

Avalon

This archive includes text versions of historical documents from Ancient Greece to Modern America. Read the Notes on the Constitutional Convention, Philadelphia, 1787, or read the transcripts of the Nuremberg Tribunal on German War Crimes. There is so much here, it is the top of my list. One drawback, and it is not much of one: you should know what you are looking for when you come here, have some idea of dates of documents, authors of them, and the like. It just makes location easier.

Avalon describes itself:

“The Avalon Project will mount digital documents relevant to the fields of Law, History, Economics, Politics, Diplomacy and Government. We do not intend to mount only static text but rather to add value to the text by linking to supporting documents expressly referred to in the body of the text.

The Avalon Project will no doubt contain controversial documents. Their inclusion does not indicate endorsement of their contents nor sympathy with the ideology, doctrines, or means employed by their authors. They are included for the sake of completeness and balance and because in many cases they are by our definition a supporting document.”

Congress

This site has taken over, but continues, the former Thomas.LOC.gov, the Library of Congress website. On here you can search the texts, titles, and legislative records of current and recent federal legislation, as well as link to the Federal Register, and many other sources of government information.

Congress.gov describes itself this way:

“Congress.gov is the official website for U.S. federal legislative information. The site provides access to accurate, timely, and complete legislative information for Members of Congress, legislative agencies, and the public. It is presented by the Library of Congress (LOC) using data from the Office of the Clerk of the U.S. House of Representatives, the Office of the Secretary of the Senate, the Government Publishing Office, Congressional Budget Office, and the LOC's Congressional Research Service.”

The Founders’ Constitution

Had we lived in the period leading to the ratification of the US Constitution, many of the source works excerpted at The Founders’ Constitution might well be known to us first hand. If you are thinking about a particular provision of the Constitution, its purpose and scope, The Founders’ Constitution provides background materials that help to illuminate the motivations for the provision and the purpose and scope of it. The site is nicely arranged in sections corresponding, point by point, to the Constitution and the amendments.

The University of Chicago Press describes The Founders’ Constitution this way:

“Hailed as "the Oxford English Dictionary of American constitutional history," the print edition of The Founders' Constitution has proved since its publication in 1986 to be an invaluable aid to all those seeking a deeper understanding of one of our nation's most important legal documents.

In this unique anthology, Philip B. Kurland and Ralph Lerner draw on the writings of a wide array of people engaged in the problem of making popular government safe, steady, and accountable. The documents included range from the early seventeenth century to the 1830s, from the reflections of philosophers to popular pamphlets, from public debates in ratifying conventions to the private correspondence of the leading political actors of the day.

These rich and varied materials are arranged, first, according to broad themes or problems to which the Constitution of 1787 has made a significant and lasting contribution. Then they are arranged by article, section, and clause of the U.S. Constitution, from the Preamble through Article Seven and continuing through the first twelve Amendments.

The Online Library of Liberty

The OLL is an excellent aggregation of writings focused on liberty and the law.

The Liberty Fund describes the Online Library of Law and Liberty thus:

“The Online Library of Law and Liberty’s focus is on the content, status, and development of law in the context of republican and limited government and the ways that liberty and law and law and liberty mutually reinforce the other. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law and Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The website is provided by Liberty Fund, Inc., a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals. The Foundation develops, supervises, and finances its own educational activities, with the goal of fostering discussion and thought on enduring topics pertaining to the creation and maintenance of such a society.”

The Legal Information Institute

More often than not, if I link to a Supreme Court case, or a constitutional provision, the link brings you to the Legal Information Institute. This resource is invaluable.

LII describes itself this way:

We are a not-for-profit group that believes everyone should be able to read and understand the laws that govern them, without cost. We carry out this vision by:

    Publishing law online, for free.
    Creating materials that help people understand law.
    Exploring new technologies that make it easier for people to find the law.

Project Gutenberg

Project Gutenberg has been around on the internet as long as I’ve been prowling the web. Here you will find e-Texts of virtually every description. Shakespeare, before he gets banned. Lewis Carroll, before someone complains of his political incorrectness. So many publications in the public domain, it simply is not possible to identify them all here.

Project Gutenberg says this about itself:

The mission of Project Gutenberg is simple:

    To encourage the creation and distribution of eBooks.

This mission is, as much as possible, to encourage all those who are interested in making eBooks and helping to give them away. In fact, Project Gutenberg approves about 99% of all requests from those who would like to make our eBooks and give them away, within their various local copyright limitations. Project Gutenberg is powered by ideas, ideals, and by idealism. Project Gutenberg is not powered by financial or political power. Therefore Project Gutenberg is powered totally by volunteers.

The Internet Archive

This site caught my attention in the late 1990s or early 2000s when I found a video of racist-eugenecist Margaret Sanger on here. There are so many different collections here, I view this site as an excellent place to discover the meaning of “Kismet.”

From the Archive’s “About” Statement:

The Internet Archive is a 501(c)(3) non-profit that was founded to build an Internet library. Its purposes include offering permanent access for researchers, historians, scholars, people with disabilities, and the general public to historical collections that exist in digital format.

The Heritage Foundation

The Heritage Foundation website is a great starting place for looking into a broad swath of economic, social, international and other policy questions. While on the site, the Daily Signal free subscription brings you a shot in the arm on breaking developments across the spectrum of policy.

The Heritage Foundation describes itself this way:

Founded in 1973, The Heritage Foundation is a research and educational institution—a think tank—whose mission is to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense.

We believe the principles and ideas of the American Founding are worth conserving and renewing. As policy entrepreneurs, we believe the most effective solutions are consistent with those ideas and principles. Our vision is to build an America where freedom, opportunity, prosperity, and civil society flourish.

The Cato Institute

 

Admittedly, Cato and I part ways on certain issues ... you might call them the social conservative issues ... still, Cato has an excellent array of resources on economic liberty and policy.

The Cato Institute says of itself:

The Cato Institute is a public policy research organization — a think tank – dedicated to the principles of individual liberty, limited government, free markets and peace. Its scholars and analysts conduct independent, nonpartisan research on a wide range of policy issues.

Founded in 1977, Cato owes its name to Cato’s Letters, a series of essays published in 18th- century England that presented a vision of society free from excessive government power. Those essays inspired the architects of the American Revolution. And the simple, timeless principles of that revolution — individual liberty, limited government, and free markets – turn out to be even more powerful in today’s world of global markets and unprecedented access to information than Jefferson or Madison could have imagined. Social and economic freedom is not just the best policy for a free people, it is the indispensable framework for the future.

Fat vs Bloated, Democrat vs Socialist

For a long time, I thought I might be fat.

Several things contributed to that impression. I get sweatier than other folks even in cool weather. I buy clothing in the big and tall section. Occasionally, folks will say things like, "wouldn't you prefer a smaller portion?" And, of course, when I visit the doctor, and they have me stand on the scale, that really doesn't help.

As it turns out, however, I may not be fat.

True, my abdomen may be more expansive than others. That expansiveness may not be fat. According to a commercial on the radio this morning, I may simply be bloated. Apparently, the difference between being fat and being bloated is hard to determine simply by appearances. The advertiser explained that their probiotic supplement will clear my gut of sludge, resulting in a new and slimmer me, if my problem is bloating.

It turns out that it is often difficult to distinguish between things as seemingly similar as are being fat and being bloated.

For example, earlier this summer, Democratic National Committee Chairman Debbie Wasserman Schultz was unable to state the difference between Democrats and Socialists. With my newly enlightened understanding of the apparent problem of confusing being fat with being bloated, Wasserman Schultz's difficulty gets my sympathy.

As I thought about it, really, it is difficult to say what are the differences between Socialist Party and Democratic Party platforms:

Democrats and Socialists tolerate private property so long as no one disputes that private property and private interests are subject to public direction and control. 

Democrats and Socialists distrust appeals to individuality, to the rights of persons over the rights of collectives. 

Democrats and Socialists punish effort and success through progressive schemes of taxation. 

Democrats and Socialists never met a problem that could not be used as an excuse to enlarge government: government programs, government spending, government payrolls.

Still, because it is hard to tell the difference between the two, particularly if you are one or the other, I am thinking that perhaps there is a way to get to the bottom of things.

If you think you might be suffering from DSCD (Democrat v. Socialist Confusion Disorder) there is now a treatment that will free you from your problem.

The treatment is pro-libertica. It consists of a regular program of de-governmentization. Taken regularly, your dependence on the idea of government as a solution will decrease and decrease. Eventually, you will discover that, with enough pro-libertica, it won't matter if you were fat, bloated, Democrat, or Socialist, you will just enjoy, finally, being free.