Squaring the Culture

"...and I will make justice the plumb line, and righteousness the level;
then hail will sweep away the refuge of lies,
and the waters will overflow the secret place."
Isaiah 28:17

07/23/2008 (1:00 pm)

Energy Oppressors On the March

The American version of Gosplan, the Soviet Union’s central economic planning agency, was unveiled about two weeks ago by, of all agencies, the Environmental Protection Agency. I’m not kidding.

The EPA released its Advanced Notice for Proposed Rule-Making earlier this month, declaring its intention to regulate… well, everything. Everything that has an engine, anyhow. And buildings. And cows. They’re going to regulate cows.

The story is that the International Center for Technology Assessment, an environmentalist group, petitioned the EPA back in 1999, asking them to regulate greenhouse gases from motor vehicles. The EPA denied their petition based on the claim that EPA lacked authority to regulate greenhouse gases. Several left-loon states took up their petition and marched it to the Supreme Court, where in 2007, deciding Massachusetts v. EPA, that infernal fool Anthony Kennedy joined the Seig Heil brigade of the Court leftists in declaring that yes, CO2 is a pollutant (it’s not — it’s plant food, but we can’t expect poor Anthony Kennedy to grasp this, can we?) and the EPA is authorized to regulate it.

So, now the EPA is unveiling its plans to regulate CO2. They plan to regulate every conceivable source of CO2. They plan to regulate it down to minuscule levels, far below the emissions levels that are currently, technologically possible. And in doing so, they plan to manage the entire US economy.

Here’s the description from the Heritage Foundation:

A few of the items the EPA wants to regulate: planes, trains, ships, boats, farm tractors, farm and mining equipment, lawn mowers, garden equipment, portable power generators, fork lifts, construction machines, and logging equipment. The EPA plan contemplates not only emission caps, but true central planning features such as mandated equipment redesign and operational changes. And that’s only the beginning.

The EPA plan also acknowledges that regulating carbon through the Clean Air Act would trigger regulation requirements under both the Prevention of Significant Deterioration (PSD) and National Ambient Air Quality Standards (NAAQS) programs. Under the PSD program, any building exceeding 100,000 square feet would be subject to an expensive permitting process for new construction or modification. The EPA conservatively estimates this item alone will bring 1 million new sources under its regulatory regime.

Just last month the Senate rejected, again, a cap-and-trade plan for regulating greenhouse gas emissions. But don’t fear, environmentalists: The EPA claims it can introduce a cap-and-trade plan by fiat. The EPA admits designing a cap-and-trade system “would entail working with a large number of diverse interest groups on difficult issues involving redistribution of wealth on a scale that typically is decided by Congress rather than the Executive Branch.”

But the bureaucrats at the EPA are undaunted. They fully believe they can and should design a system requiring massive “redistributions of wealth.”

Did you get all that? They’re going to mandate equipment designs. They’re going to dictate operational procedures. They’re going to regulate building sizes. They’re going to institute Cap and Trade by Executive fiat. They’re going to tell us what sort of LAWN MOWER we’re allowed to use.

It’s not law — yet. However, all it will take for this Beast to become the law of the land is for the EPA to issue its final version, and the Chief Executive to refuse to stop it. Stroke of the pen, law of the land. Kinda cool.

This is the way the American experiment in self-government ends: a President gets coerced into nominating a spineless judge to the Supreme Court (do you really think Robert Bork would be flip-flopping between the left and right the way Kennedy has?), then roughly 20 years later, the Court authorizes central planning in the form of carbon emission control, and then an agency of the Executive branch implements it by fiat. Poof! The experiment is over. Huzzah for the Commissariat!

I’m not convinced that the election of a Republican President can stop this. McCain has showed remarkable gullibility on the subject of carbon emissions; he might just agree to these shackles on American ingenuity. There’s absolutely no question, however, that Obama would allow these regulations to take effect; he dreams about central control at night. This is a neo-Marxist dream coming true — and a nightmare for free people everywhere.

The Bush administration has been fighting diligently on all our behalf to keep the hard leftists in the EPA under control; this is what that ugly Nazi Waxman has been griping about for all these years, the Bush administration preventing the leftists from saying whatever they like through the EPA. He calls this “censorship;” I call it “responsible administration,” noting that the EPA does, in fact, report to the President. However, President Bush’s term is nearly over, and as stressful and unsatisfying as his tenure has been, and if this EPA nightmare comes to pass we may look back and long for it.

Hat tip goes to the Wall Street Journal for bringing this to our attention. We need a groundswell of outrage to stop the American system from being shackled into poverty by bureaucrats. Take it to the streets, people.

07/23/2008 (10:40 am)

Countdown to Oct 7

On October 7 of this year, the US Supreme Court will hear the case of US v Herring and decide whether the police department’s accidental failure to purge an expired warrant from their records requires the exclusion of evidence gathered under that warrant. The case triggers the hope that finally, after almost 50 years of insanity, we can kiss the Exclusionary Rule goodbye.

The Exclusionary Rule is the one that says that evidence gathered improperly cannot be used at trial. According to standing Court precendent, the 4th Amendment protection against unreasonable searches and seizures and the 5th Amendment protection against self-incrimination are not safe unless evidence gathered in violation of the 4th Amendment gets excluded from trial; and not only the evidence gathered improperly, but evidence obtained as a result of other evidence that was gathered improperly, is “fruit of the poisoned tree” and must be excluded as well. The case of Weeks v US in 1914 created the Exclusionary Rule for federal cases (which became a major issue during Prohibition), and in 1961, Mapp v Ohio extended the rule to all the states by way of the 14th Amendment. Some recent cases, however, have suggested that the Court is ready to make changes in the Exclusionary Rule.

Adam Liptak of the New York Times observed over the weekend that the US is alone among nations of the world in enforcing an exclusionary rule.

The United States is the only country to take the position that some police misconduct must automatically result in the suppression of physical evidence. The rule applies whether the misconduct is slight or serious, and without regard to the gravity of the crime or the power of the evidence. (my emphasis)

“Foreign countries have flatly rejected our approach,” said Craig M. Bradley, an expert in comparative criminal law at Indiana University. “In every other country, it’s up to the trial judge to decide whether police misconduct has risen to the level of requiring the exclusion of evidence.”

But there are signs that some justices on the United States Supreme Court may be ready to reconsider the American version of the exclusionary rule. Writing for the majority two years ago, Justice Antonin Scalia said that at least some unconstitutional conduct ought not require “resort to the massive remedy of suppressing evidence of guilt.”

Naturally, the fact that the US does something unusual does not constitute a reason, in and of itself, to change the rule. It does give us a reason to evaluate whether our distinction is a good one, though, and in this particular case, the foreign courts have a point. Some violations of 4th Amendment procedure are more blatant, and more damaging to the fabric of society, than others. Furthermore, the truth is the truth, and evidence gathered improperly is still evidence in an objective universe, regardless of whether it’s permissible in court or not. If we know a crime has been committed, and we know by whom, we should be able to prosecute it.

Law professor Eugene Volokh suggests that the reason for the US’ unique approach to excluding evidence is that it’s a judge-made rule in the US. In most other nations, the legislature made the rules about investigative procedure (and they should have the power to do so here as well). Since the rule was made by judges, they naturally chose to enforce the rule in a manner that remains entirely under the control of judges, avoiding the need for cooperation between branches of government.

This is insanity, and should be changed by the legislature. It makes no sense to allow known criminals to walk away unpunished because of procedural miscues, without at least allowing a court to weigh the miscue against the seriousness of the offense. Allowing the court to weigh the comparable offenses could permit the prosecution of criminals while protecting our liberty.

I actually prefer allowing all evidence gathered to be used in court, but punishing the investigating officers for violations of 4th Amendment protections, graded by the seriousness of the violation. This would deter unreasonable searches, but permit the system of justice to prosecute known criminals. The one exception should be for coerced evidence, which should never be admitted.

There’s no question that protections must remain in place to guard citizens against unreasonable police actions and self-incrimination. However, the Exclusionary Rule has outlived its usefulness as a means to achieve this. Let’s hope the Supreme Court restores the nation’s sanity, and gives us a way to prosecute known criminals without giving away our protections altogether.

Photos from IMDB.com. First photo is of Jack Webb and Harry Morgan as Sgt. Joe Friday and Officer Bill Gannon in Dragnet 1967. Second photo is of Joe Ross and Fred Gwynne as Officers Muldoon and Tootie in Car 54, Where Are You? circa 1961.

06/17/2008 (11:59 am)

Casuistry at its Finest

John Yoo, Berkeley law professor and former Justice Department official, wrote a scathing review of Boumediene v Bush in today’s Wall Street Journal (which I addressed a few days ago), and it sparked some reaction from leftist bloggers. Glenn Greenwald, at Salon.com, illustrates the vacuum of logic in which social progressives operate on a daily basis; it’s a wonder that they don’t suffocate.

Greenwald calls Yoo a liar. Ironically, this is one of the left’s favorite imprecations against conservatives; they always find a way to call us “liars,” usually meaning “they didn’t address my favorite irrelevant sound bite,” or sometimes “they changed their position sometime in the last 30 years.” I remember visiting “bushlies.com” back in 2001 to see what sort of ammunition they’d gathered; it was a truly entertaining detour into liberal fantasy land, seeing what constituted a “lie” in leftist vernacular. The irony, of course, arises from the simple fact that social progressives routinely lie through their teeth — the deliberate, misleading kind of lie, not the mortal sin of disagreeing with a leftist.

In this case, though, it isn’t “lie” that gets washed through the Wonderland Dictionary. Greenwald plays his little games with the phrase, “fighting against the US.”

Yoo, for instance, claims that the Supreme Court in Boumediene allows “an alien who was captured fighting against the U.S. to use our courts to challenge his detention.” But huge numbers of detainees in U.S. custody weren’t “captured fighting against the U.S.” at all. Many were taken from their homes. Others were just snatched off the street while engaged in the most mundane activities. Still others were abducted while in airports or at work…

Many of the highest-profile “War on Terror” detainees who have been held for years with no charges have been similarly “captured,” while unarmed, in the most mundane of circumstances, far away from any “battlefield” — not “captured fighting against the U.S.,” as Yoo misleadingly put it today.

Brilliant. Simply brilliant.

By Greenwald’s definition, we would have no right to arrest enemy spies here in America during wartime, nor would we have any basis for capturing enemy soldiers who happened to be, say, traveling to an R&R facility behind their own lines — we could only call them “enemy combatants” if we caught them firing weapons. Similarly, action against enemy propaganda mills would be improper, as the writers and purveyors of such propaganda are not “fighting against the US.” The only people who are fighting against the US, according to Greenwald, are those who are actually shooting, and they’re only fighting against the US at the very moment that they’re shooting.

Does he really expect intelligent people to take him seriously? This is a word game, not an argument.

Greenwald goes on:

The other deeply misleading claim in Yoo’s Op-Ed is even more transparent. He characterizes the Court’s decision as “grant[ing] captured al Qaeda terrorists the exact same rights as American citizens to a day in civilian court.” What minimally self-respecting law professor would be willing to make this claim with a straight face?

The whole point of the habeas corpus right is that without a meaningful hearing, we don’t know if the individuals our Government is imprisoning are really “al Qaeda terrorists” or something else.

Greenwald seems unable to grasp that the argument is not over whether a hearing should be held, but whether that hearing must be held in American, domestic, criminal courts. As Chief Justice Roberts’ dissent made clear, the procedure defined by Congress in the Military Commissions Act of 2006 for evaluating the detainees met and exceeded all the requirements, not only of the Geneva Convention, but of the majority opinion’s own definition of a proper procedure.

Actually, this is just the sort of legal word-parsing that we can now expect American soldiers to have to face when defending their legitimate execution of American policy. In his fevered quest to find something, anything, with which to accuse those who correctly identify the insanity of the Boumediene decision, Greenwald has accurately illustrated one of the reasons why it’s insane.

06/14/2008 (1:33 pm)

Supreme Court Grants Court Access to Enemy Combatants

The tyranny of the left grew by a huge leap on Thursday when the US Supreme Court struck down the Military Commissions Act of 2006 (hereafter, “MCA”) as unconstitutional, in Boumediene v Bush, The act of granting habeas corpus rights in American courts to captured enemy soldiers who are not Americans, are not located in America, have never lived in America or visited America, who would rather not be anywhere near America, and who already have more rights than any combatants in the history of the world, is bad enough — when we’re fighting a war, it helps if our highest court does not act the Useful Idiot and aid our enemies’ most cynical tactics. It’s much worse that in order to do it, the Court arrogated to itself the right to enforce the terms of the US Constitution to anyone, anywhere on the globe, ironically in the name of limiting the power of the Executive and Congress.

The opinion of the majority reads like the rationalizations of a high schooler in trouble; it’s clear from the outset that the Court was squirming and trying to pretend there was no ruling precedent, though they clearly knew there was. Anthony Kennedy, speaking for the leftist wing of the Court, slithered through a lengthy history of habeas corpus in common law to prove that habeas corpus was a critical right (as though anybody doubted this) and hoping to illustrate that nothing addressed the question of granting rights to aliens captured in battle. The smokescreen attempts to obscure the thorough and probably deliberate misreading of the one precedent that directly addresses the question, Justice Jackson’s majority opinion in Johnson v Eisentrager, an attempt by German war criminals to obtain habeas corpus rights in American courts. I’m sure the true leftists urged the moderate Kennedy to write the opinion so as to avoid blame for it themselves.

Just so we can see what the leftist tyrants were attempting to avoid while blowing their ink cloud, allow me to quote the findings of the Court in Eisentrager:


1. A nonresident enemy alien has no access to our courts in wartime…

2. These nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States…

3. The Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States…

Clear enough? The Court does have the right to overturn previous decisions; this Court, however, chose instead to misrepresent Eisentrager, so as to invalidate a standing precedent without having to explain why.

The Court makes much of the length of detainment without hearing, ignoring (again, probably deliberately) the simple fact that it was the pending higher court appeals that prevented timely resolution in the prescribed military tribunals. The detained enemy combatants made sure they did not stand trial before military tribunals in order to make this very point possible. As Chief Justice Roberts points out in dissent,

Since the DTA became law, petitioners have steadfastly refused to avail themselves of the statute’s review mechanisms. It is unfair to complain that the DTA system involves too much delay when petitioners have consistently refused to use it, preferring to litigate instead.

The most ironic and laughable aspect of this decision is that the MCA, which the Court struck down, was specifically recommended by the same Court a mere 2 years ago as the remedy for the previous law, the Detainee Treatment Act of 2005 (hereafter, “DTA”). The Court in Hamdan v Rumsfeld, another case decided by leftist premeditation and in clear contempt of Congress, had decided that the DTA, though constitutionally sound, did not apply to cases underway before the DTA was passed, but stated plainly that the Congress could specify the law to apply to such cases if they chose. Congress and the President proceeded promptly to pass the MCA, adding precisely what the Court had told them was lacking in the DTA. Quoth Justice Scalia in dissent, “Turns out they were just kidding.”

Chief Justice Roberts and Justice Scalia both wrote unusually harsh dissents, both drawing the conclusion that the majority decision was really about extending Court authority rather than about protecting any particular rights.

From Roberts’ dissent:

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.

Roberts adds that the MCA grants the detainees everything the majority opinion claims would be required in order to meet the Constitutional standard — the right to hear the charges, to challenge the basis for detention, to call witnesses, to appeal. to employ counsel, to challenge the factual record — and that the fact the MCA-defined procedure was not followed should have prevented the plaintiffs from being heard by the Supreme Court in the first place. He also notes the creation of a new, “reverse-facial” test for constitutionality in which the majority claims that if it can imagine any situation in which the statute might be used in an unconstitutional manner, it must be struck down in its entirety; the usual standard is that the Court must “establish that no circumstance exists under which the Act would be valid.” (US v Salerno, 1987).

Scalia’s dissent began with an assessment of the damage done by the majority opinion, both to the war…:

America is at war with radical Islamists… The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today…

At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield… These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection. Astoundingly, the Court today raises the bar, requiring military officials to appear before civilian courts and defend their decisions under procedural and evidentiary rules that go beyond what Congress has specified… If they impose a higher standard of proof (from foreign battlefields) than the current procedures require, the number of the enemy returned to combat will obviously increase.

… and to the separation of powers:

And today it is not just the military that the Court elbows aside… [It is] clear that Congress and the Executive— both political branches—have determined that limiting the role of civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting… What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails…

Even today, the Court cannot resist striking a pose of faux deference to Congress and the President … the Court says: “The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.” Ante, at 69. Indeed. What the Court apparently means is that the political branches can debate, after which the Third Branch will decide.

He goes on to explain the majority’s complete misreading of the Eisentrager case, pointing out (as I did, above) that contrary to the claim of the majority that Eisentrager had set up a “functional” test for jurisdiction, the Court had explicitly found that the Constitution does not ensure habeas for aliens held by the United States in areas over which our Government is not sovereign.

In a case related by the ideology of the judge, an Ohio Circuit Judge yesterday struck down Ohio’s death penalty statute on bizarre procedural grounds. The Volokh Conspiracy posted the link to the photo from the USA Today article describing the decision.

We’ve grown used to the left in America abusing the Courts in order to jam their agenda down the nation’s throat. I would be calling for the impeachment of judges if there was any possibility that the procedure would be finished while President Bush was still in office. As it is, this case illustrates how crucial it is that liberal Democrats be kept out of the Oval Office this year; the liberties of the nation are clearly not safe in the hands of judges who let their ideology decide their cases, and then play with the words dishonestly until they justify the result their ideology demanded.

Ed Morrissey adds his observations about the case at yesterday’s Hot Air.

05/20/2008 (12:31 pm)

Child Porn Law Upheld, With an Interesting Twist

The US Supreme Court yesterday upheld a federal statute designed to quell child pornography on the Internet, rejecting a challenge that the law was overly broad and vague. Deciding the case of US v Williams, Justice Anton Scalia wrote the majority opinion, while Justice Stephens filed a concurring opinion annoyingly touting legislative intent, and Justices Souter and Ginsberg filed a single, dissenting opinion.

The Child Pornography Prevention Act (CPPA), passed back in 1996, attempted to criminalize some forms of pornography that did not involve children (they used young-looking adults), sometimes did not use actual photographs (they used computer-generated images), or in some cases did not involve actual sexual activity (e.g., film portrayals, like Dakota Fanning in Hounddog, where we all know she’s not really being raped.) Personally, I would not have had any trouble with that, but the Court found the CPPA overbroad in Ashcroft v. Free Speech Coalition back in 2002, and struck down the law.

Congress responded with a careful and interesting rewrite. The new law, cutely named the “Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003” (PROTECT), instead of attempting to outlaw specific forms of pornography (other laws do that), outlaws attempting to obtain or distribute anything that’s described as child porn. Short version: it doesn’t outlaw making child porn, it outlaws trying to get it, or trying to give it away. If you ask for child porn or you offer it, for sale or for free, even if you don’t have any and never get any, you’ve violated the law.

This turns out to be a pretty effective way to skin the cat. Pornography laws need to be carefully drawn. You don’t want to outlaw the grandparents handing out pictures of their grandkids in the bathtub (although I know some adults who wish they could outlaw some of the pictures their parents took). You also don’t want to outlaw advocacy of changes in the laws. Some would add that you don’t want to outlaw feature films with redeeming art value that just happen to show people doing things they’re not supposed to do (although this is a debatable point.) PROTECT manages to avoid all this. Feature films are off the hook because they never represent themselves as real, grandma is off the hook because she never represents the photos as porn, and advocates are off the hook because they don’t try to get or give away photos. However, the perv in the chat room may only have a pic of the kids in the bathtub, but simply representing it as kiddie porn breaks the law.

In order to defend this construction, Justice Scalia made it clear that the first Amendment does not protect solicitation of a crime, nor an offer to commit a crime. This is not exactly new, but it’s pretty sensible, and I don’t think it’s been spelled out this clearly before. Law Prof Eugene Volokh does a nice job explaining.

Meanwhile. Scalia continues to make legal opinions entertaining. Here’s his take on the Eleventh Circuit’s claim that the law was overbroad because it allowed the arrest of somebody who was doing nothing but bragging about what he had:

The Eleventh Circuit believed it a constitutional difficulty that no child pornography need exist to trigger the statute. In its view, the fact that the statute could punish a “braggart, exaggerator, or outright liar” rendered it unconstitutional. 444 F. 3d, at 1298. That seems to us a strange constitutional calculus. Although we have held that the government can ban both fraudulent offers, … and offers to provide illegal products, the Eleventh Circuit would forbid the government from punishing fraudulent offers to provide illegal products. We see no logic in that position; if anything, such statements are doubly excluded from the First Amendment.

Bravo, Scalia. And bravo, Congress. Nice job.

04/29/2008 (1:47 pm)

Democrats Attack Vote Integrity — and Lose

The US Supreme Court decided yesterday that Indiana’s Voter Identification law requiring citizens to show a picture ID in order to vote does not violate the Constitution. The majority opinion in Crawford, et al, v Marion County Election board, written by Justice John Paul Stephens, argues that requiring Indiana voters to dig up a birth certificate and stand in line at the Dept of Motor Vehicles to obtain a photographic voter ID card does not unduly burden the voter or threaten to curtail voting by the poor and elderly. The Indiana voter ID is free, and Indiana allows provisional voting without the ID.

The case was decided 6-3, with Justices Stephens, Kennedy, and Roberts arguing that the petitioners (Democrats) did not manage to quantify what burden the law placed on poor voters, and Justices Scalia, Thomas, and Alito arguing that the law was not discriminatory since all voters were treated alike. Justices Souter and Ginzberg dissented, saying that the law would probably deter tens of thousands from voting (this is nonsense, in my humble opinion) and that the state did not justify the burden on voters. Justice Breyer dissented because he felt the law unevenly burdened voters who lack a driver’s license.

I’m pleased. The Court did the right thing.

The case will severely restrict the Democratic party’s attempts to flood the polls with illegal aliens voting Democratic, and should also limit schemes to pay voters to vote more than once. The law should go a long way toward restoring public confidence in the voting process.

I have never, for a single moment, believed that Democrats were actually concerned that the poor and elderly would be unduly burdened by the requirement to show photo ID. It’s simply not intellectually plausible. Poor people are required to hold a photo ID to receive welfare benefits in some states, and the system works. Indiana’s law contains appropriate accommodations for those who have difficulty traveling, or who can’t find the documents they need in order to obtain a photo ID. In fact, as Allahpundit points out, the burden of obtaining a voter ID is not much different from the burden of voting itself; the voter has to leave home, travel, and stand in line. If that’s an undue burden, then voting itself is an undue burden.

Nor did I believe that Democrats were serious when they said that voter impersonation was rare. Perhaps it was in the past, but there are millions of illegals in the country today that can easily come up with a bill listing their name and address, but cannot qualify for a photo ID. I don’t know personally any Democrats stupid enough not to see how the law might affect the ability of illegals to vote.

In short, I believe Democrats opposed the law simply and completely because they know their ability to cheat during elections will be curtailed by photo IDs… and I sincerely hope they are correct.

The partisan divide on this issue was striking. The law was passed in the Indiana state legislature with Republicans voting unanimously for the measure, and Democrats voting unanimously against. The petitioners even attempted to use this as an argument for striking down the law, but the Court correctly observed that while the vote was partisan, the reasons given for the law were neutral. See p. 20 of Justice Stephens’ opinion.

Update: Oh, I forgot: Michelle Malkin points out that the plaintiff in this case, who was refused the right to vote in Indiana in 2006, was illegally registered to vote in two states — and taking a homestead exemption to her taxes in both states, as well.

04/25/2008 (8:00 am)

I Love This Guy

Justice Anton Scalia will be appearing in an interview with Leslie Stahl on 60 Minutes this Sunday, a pre-release tour for a book he co-authored with legal scholar Brian Garner, “Making Your Case: The Art of Persuading Judges.” I detest 60 Minutes as a dishonest propaganda machine, but apparently Scalia felt competent to handle them, probably noting Justice Clarence Thomas’ success on his own book promotion interview. You can view a news clip promoting the interview at CBS.com, but you’ll have to watch a 30-second commercial first. Bleah.

My Court owed no apology whatever for Bush v. Gore, we did the right thing. So there.

Scalia has the right attitude. Stahl kept asking him “Was it political?” Scalia, calling that “nonsense,” simply stuck to the facts:

1) The core question, whether the scheme the Florida Supreme Court devised for the recount was unconstitutional, was settled on a vote of 7-2, not 5-4 like the Left dishonestly repeats. It wasn’t even a particularly close call.

2) It was Al Gore, not Anton Scalia, who decided to make the matter a judicial issue. “What were we supposed to say: ‘Not important enough?'” Scalia wonders.

(As an aside, I’ll add that that entire episode was Al Gore’s fault, and nobody else’s. Gore employed well-known and widely-used hardball tactics deliberately to undermine the public’s confidence in the voting process, in a cynical attempt to change the outcome of an election he knew he had lost. He probably believes in his gut that this was justified by frauds he imagines his opponent employed, but there were no such frauds — this was proved in court — and in any case, “They did it first” does not justify wrongdoing, a maxim my kids understood by the time they were 7, but Gore doesn’t understand to this day. Ask me how much I respect Al Gore. Go ahead.)

Scalia also made mincemeat of Stahl’s contention that he wants to impose his own point of view on abortion. From the Reuters report on the interview:

“If indeed I were … trying to impose my own views, I would be in favor of the opposite view, which the anti-abortion people would like to see adopted, which is to interpret the Constitution to mean that a state must prohibit abortion,” Scalia said.

He’s accurately pointing out here what conservatives would be doing if they behaved like liberals. Scalia does what judges are supposed to do, interpret the law rather than invent it.

I particularly liked this tale from the Reuters story:

…in 2006 when a Boston reporter approached him after a mass and asked whether lawyers might question his impartiality in church-state matters, Scalia flicked his fingers under his chin in a well-known dismissive gesture.

That’s actually the best response to a question like that. Imagine the bigotry of the reporter: “Non-religious people like me are impartial. Religious people are biased.” Nobody is more lost in their biases than a person who believes their own point of view represents the “unbiased” position, and there’s really nothing to say to such a person. I probably would have snorted, but then, I’m not a New Jersey Italian like Scalia.

The only thing better than a smart judge with integrity is a smart judge with integrity and personality. Bravo, Anton!

Photo by REUTERS/Jonathan Ernst, from a National Italian American Foundation gala dinner in Washington October 13, 2007.

04/16/2008 (8:41 pm)

Sneer Reflex, Judicial Style

The US Supreme Court today released its decision on Baze v. Rees, the case examining whether lethal injection constitutes a violation of the 8th Amendment ban against cruel and unusual punishment. The Court correctly decided that it does not.

On a tip, I read the concurring opinion by Justice Scalia, whose decisions are usually brilliant, precise, wry, and entertaining. Today’s was no exception, as he very precisely tore Justice Stephens’ concurring opinion to shreds. Stephens, while agreeing with the final decision of the majority, apparently had argued that the ongoing support for the death penalty, itself, is “the product of habit and inattention rather than an acceptable deliberative process,” Scalia spanked him appropriately.

Since we recently discussed the Uncontrollable Sneer Reflex in the wake of Barack Obama letting his mask slip and exposing the American Left’s universal, reflexive disdain for the opinions of anybody not a member of their club, I thought the closing shot from Scalia’s opinion was particularly appropriate. Here Scalia takes Stephens to task for an act of raw, judicial activism:

As JUSTICE STEVENS explains, “ ‘objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’ ” Ante, at 14 (quoting Atkins v. Virginia, 536 U. S. 304, 312 (2002); emphasis added; some internal quotation marks omitted). “I have relied on my own experience in reaching the conclusion that the imposition of the death penalty” is unconstitutional. Ante, at 17 (emphasis added).

Purer expression cannot be found of the principle of rule by judicial fiat. In the face of JUSTICE STEVENS’ experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress—who retain the death penalty as a form of punishment—is dismissed as “the product of habit and inattention rather than an acceptable deliberative process.” Ante, at 8. The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. Ante, at 10, n. 13. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a “thirst for vengeance.” Ante, at 11. It is JUSTICE STEVENS’ experience that reigns over all.

I especially note Stephens’ dismissal of the state legislature’s, Congress’, and even the Court’s support for the death penalty as “the product of habit and inattention rather than an acceptable deliberative process.” Translation: “They’re not as smart as me.” I also note his dismissal of the public’s support for the death penalty as a mere “thirst for vengeance.” To me, this is the same sentiment Obama expressed as he described small-town Pennsylvanians “clinging to their guns, and to their religion…” The political left genuinely thinks the only way anybody could possibly disagree with them is if they’re just too stupid to see what those enlightened, properly educated leftists see. They believe this so deeply that they think it’s their duty to overrule them, even in the teeth of the US Constitution. Leftists are pure totalitarians at heart. They cannot be trusted with our liberties. Ever.

I understand the lure of thinking one is smarter than others; I fall prey to it myself sometimes, but I sincerely hope I would never allow my esteem for my own intellectual prowess to lead me to cancel the legislative process demanded and protected by the Constitution.

01/11/2008 (4:32 pm)

Political Advertising For Whom?

“Hillary: The Movie” is getting a shakedown from federal judges, who seem likely to ban the film’s advertising within 60 days of an election.

Citizens United, a conservative advocacy group, is challenging the nation’s campaign finance laws, which require disclaimers on political advertisements and restrict when they can be broadcast. The group argues “Hillary: The Movie” and related television advertisements are not political advertising even though the New York senator is in the presidential race.

The movie is being sold on DVD and will be screened in theaters, neither of which are regulated by the Bipartisan Campaign Reform Act of 2002 — McCain-Feingold. However, the advertising for the film is likely to be restricted. (View the trailers for the film here.)

The suit was brought by Citizens United, the makers of the film, objecting to the Federal Election Commission’s requirement that they include political disclaimers in the ads for the film if displayed during the 60-day blackout period before the national election. They would also be required to name their contributors, if the movie were found to be political advertising under McCain-Feingold. Citizens United is claiming that the ads are commercial ads, which are exempt from restrictions.

Citizens United is the brainchild of David Bossie, one-time Whitewater prosecutor and investigator for Rep. Dan Burton (R, In).

Independent blogger-filmmaker Evan Maloney at Brain-Terminal.com observes that Michael Moore was not restricted in the same manner when he ran Fahrenheit 9/11 in the months preceding the 2004 presidential election. Moore had to remove all mention of President Bush from his advertising, but was not required to issue a disclaimer or disclose his contributors.

Excellent legal analysis here by one Jonathan Turley, Prof. at George Washington University Law School.

My question is, if it’s a political ad, for whom is it advertising?

The Bipartisan Campaign Reform Act of 2002 has already been tested before the Supreme Court, and incorrectly found to be Constitutionally valid. It constitutes an assault on the First Amendment, and should be repealed by an act of Congress.

12/25/2007 (5:40 pm)

Voter ID Ruling Coming Soon

The US Supreme Court will begin its 2008 term by hearing arguments on Indiana’s new, strict voter ID law. The Indiana law requires voters to provide a photo ID when voting in person; the ACLU and the Indiana Democratic Party filed suit in federal court to have the law declared unconstitutional. The US Circuit Court found, 2 to 1, that the statute does not unconstitutionally burden voters and constitutes a reasonable restriction, and the Indiana Democrats appealed to the SCOTUS.

The Washington Post report on the impending case quotes US Circuit Court Judge Evans as writing in his dissent,

Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic…

Precisely so. They’re particularly interested in suppressing election-day turnout by dead people and illegal aliens, who, as the good judge aptly pointed out, are believed to skew Democratic.

The general opposition to photo ID requirements for voters includes a real head-scratcher: they claim that such voter fraud doesn’t exist. Page 2 of Project Vote’s position paper, for example, provides us with this:

There is virtually no evidence that voters engage in voter impersonation – the only kind of fraud addressed by additional ID requirements – with any frequency.

Their evidence seems to be that there are few cases of voter ID fraud being prosecuted; it seems to me that this proves that such violators are seldom caught, not that the act never takes place.

The claim doesn’t pass the laugh test. The defendant’s brief to the SCOTUS cites a court finding in Washington of more than 1,600 fraudulent votes in the 2004 gubernatorial election including double-voting and votes by the deceased, a state study in Missouri identifying 1,000 fraudulent votes in just 2 counties in the 2000 election including double-voting, vacant lot voting, and votes by the deceased, and similar incidents in Wisconsin and Florida. The Mayor of Miami was unseated in 1998 because of rampant voter fraud. We even had national news stories back in 2000 of students in Wisconsin bragging that they’d voted twice. Strict photo ID laws would prevent all of this. One wonders whom Project Vote was trying to convince.

The defendant’s brief also cites a study by one Clark Benson apparently for the state of Indiana, in which he found that in 2004 there were 4.3 million voters on the state’s registration rolls while only 3 million voters claimed to be registered, for a list inflation rate of more than 40%, the highest in the nation. The potential for mischief here seems obvious.

Contrary to Democrat accusations, it seems unlikely that requiring a photo ID of voters actually prevents anybody from voting. Notably, the plaintiffs in Indiana produce not a single voter who was deterred from voting after passage of Indiana’s strict law. A recent study by Mycoff, Wagner, and Wilson concluded that voter photo ID laws don’t affect voter turnout at all, and one by Jeffrey Milyo of the Univ. of Missouri concludes that by improving the public perception that the voting process is honest, voter ID laws actually increase voter turnout overall.

A pair of studies published by the Eagleton Institute of Politics at Rutgers (here and here) get touted by opponents of photo ID voter requirements because they both claim that such requirements suppress voter turnout among the poor and elderly; however, despite frequent positive press, neither study has fared well under peer review. Both studies review a single year of voting, 2004, rather than doing a before/after analysis of states that have passed voter ID laws. Other researchers claim that both studies use the same, flawed categories of voter restrictions, miscategorizing states with high turnouts and strict laws as having laxer laws than they really do. See the Milyo and Mycoff studies cited above for details.

The Gore campaign deliberately undermined the public’s confidence in the fairness of the voting process back in 2000, and concern over illegal immigration threatens to damage that confidence even further. Photo IDs are an easy and effective way to restore that confidence.

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