What’s at Stake: The Rule of Law

Familiarity breeds contempt, I know.  Perhaps that’s why our former ConLaw Prof President has so little regard for the Constitution.  Whatever the reason, Obama’s first term has witnessed a steady erosion of the “rule of law,” by which I mean a system in which the political classes recognize that laws have fixed meanings that can withstand the ambitions of individual men and women.  Give the guy four more years, and Obama might just kill off constitutional government altogether.

From the get-go, BHO has brushed aside constitutional niceties – remember those heady early days when the administration revealed its gangster tactics: robbing Chrysler bondholders to pay off the UAW?

When Obama got angry with the Supreme Court over Citizens United, he first tried public humiliation of the justices on national TV.  Then he tried to ram the DISCLOSE act through Congress.  Ultimately, he tried to undo Citizens United via an executive order that sought to intimidate corporations from political contributions under pain of forfeiting government contracts.

Obama didn’t like Bill Clinton’s Defense of Marriage Act, so he declared that he wasn’t going to enforce it.  Never mind the president’s the duty to “take Care that the Laws be faithfully executed.”  He’s not too keen on “faithfully” executing immigration laws, either.  He used the power of the federal government in an attempt (partially successful) to shut down Arizona’s valiant attempt to enforce federal law.   And then Obama unilaterally exempted 800,000 illegals from the scope of federal immigration law.  Congress of course was not consulted. Why bother?

Unlike Clinton, Obama doesn’t want to “end welfare as we know it.” In fact, he’s been exempting states from the mean old workfare requirements, even though the welfare reform law gives him no such power.

As a senator, Obama railed against Bush’s wiretapping program.  As president, Obama claims the power to kill any person – even US citizens – who he thinks pose a threat to the country.  But of course, he can trusted with that power.

Having won the Nobel Peace Prize, Obama decided he needed a war of his own.  So he authorized an attack on Libya. No need to consult the yokels in Congress.  They’ve never lived abroad.  What do they know about killing foreigners?

And when anyone in Congress has the temerity to question the administration, they get nothing but stonewalling and bogus claims of phony privilege.

Can you imagine a second term Obama?  Drunk with power, untroubled by reelection, he will move the government decisively closer to Peronist dictatorship.  The comparison is not hyperbole.  On paper, Argentina has a very good Constitution, large swaths of it were copied from the US Constitution.   A constitution is not self-executing.  The political class has to respect it.

A Victory for Pennsylvania Voter ID Law

On August 15, a Pennsylvania judge refused to enjoin “Act 18,” a law that requires voters to produce — gasp! — a photo ID in order to vote.   Liberal groups like the ACLU immediately denounced the law.  How can the Chicago boys get out the graveyard vote if poll watchers get all persnickety about identification?   But a cobbled together group of plaintiffs is challenging the law as an undue burden on the right to vote and a violation of equal protection.

Undue burden?  A voter can use any photo ID issued by any federal, state, or municipal agency — even a state university ID.  And if a voter shows up without an ID, he or she can still cast a provisional ballot, which will count – provided the voter can produce identification within 6 days.  Do we really want people who are too lazy or apathetic to comply with these minimal requirements voting?

As for equal protection, the argument is baffling.  The requirements apply equally to all voters — nobody is targeted.   The judge correctly ruled that the plaintiffs were unlikely to succeed on the merits.

Virtual Constitutional Convention Starts Today!

ConventionUSA is the brainchild of Thomas Brennan – a retired judge from Michigan who believes deeply in the need to involve citizens in the process of Consitutional review and – potentially – change.  He conceived “Convention USA” as a virtual constitutional convention, organized along the lines of the original 1787 convention, i.e., each state has its own “delegation” and the proceedings will be conducted according to standard parliamentary procedure.   The convention has a prominent advisory committee, including such liberals as Prof. Lawrence Lessig, and conservatives like Prof. Kevin Gutzman.  Today the delegates hope to convene online to adopt rules and elect a Chairman.  I’ll post later with updates on how it goes.

Judge: No Constitutional Right to Gay Marriage

Newsflash – a Court has actually decided to apply the Constitution instead of re-writing it!

A federal judge in Hawaii (of all places) has declared that same-sex couples do not have a constitutional right to get married.   In a 117-page ruling, Senior U.S. District Judge Alan C. Kay held that the issue was controlled by the Supreme Court’s summary ruling in the 1972 case of Baker v. Nelson (a case that Vaughn Walker side-stepped in his activist decision striking down Prop 8). (h/t ScotusBlog)

Significantly, the judge went on to hold that, even if Baker didn’t control, a state ban on gay marriages satisfies the minimum level of constitutional analysis.  Because there is no “fundamental right” to gay marriage, there is no need to apply “strict scrutiny” to laws restricting such marriage; rather, such laws need only satisfy the “rational basis” test.   Ultimately, Judge Kay quite rightly concluded that the issue should be decided by elected representatives, not unelected judges.

“If the traditional institution of marriage is to be restructured,” the judge wrote, “it should be done by a democratically-elected legislature or the people through a constitutional amendment, not through judicial legislation that would inappropriately preempt democratic deliberation regarding whether or not to authorize same-sex marriage.”

Judge Kay is not a household name; but he is a Reagan appointee who has been quietly toiling away all these years.  At the risk of repeating myself, judicial appointments matter.  A lot.

What’s at Stake in November: A Look at Mitt’s Judicial Record

I suspect many of you agree with me that President Obama has been a disaster for the judiciary, filling up the federal bench with living-Constitution radicals drunk with power and phony “empathy” for the little guy whose rights they are determined to stamp out (see here, here, and here).

And yet, many of you ask: will Mitt be any better? Didn’t he appoint liberals to the bench as governor of Massachusetts? One sees this charge leveled on multiple blogs.

Based on my initial research, I think the charge against Romney is unfair. First, a little context. In Massachusetts, all judicial appointments must be approved by the Governor’s Council, an elected body not under the Governor’s control. During Romney’s term, Democrats held eight of nine seats on the Council. In that light, it was a victory that about one-fourth of Romney’s appointments were Republican.

Romney never had an opportunity to appoint a state Supreme Court justice, which is virtually the only state court position where political ideology is the decisive factor. Rather, Romney was appointing lower court judges – magistrates and trial court judges. At that level, it doesn’t really matter what the judge thinks about Guantanamo Bay, gay marriage, or the unitary executive. What matters is competence and being tough on crime. Those are exactly the criteria that Romney used. Even the Boston Globe concedes: “Romney was known for seeking prosecutors and other attorneys considered pro “law and order,” and was usually successful in sitting them on the bench.”

Romney reformed the judicial selection process through the creation of a Judicial Nomination Commission, and appointed Christopher Moore – a member of the Federalist Society – to chair the commission. The Federalist Society, as you may know, is the premier conservative legal organization in the U.S., promoting originalism and fighting against liberal judicial activism.

Romney has repeatedly blasted the Massachusetts Supreme Court decision that created – by judicial fiat – a right to gay marriage in the Commonwealth. Judge Robert Bork has backed Romney since 2008, when he said, “No other candidate will do more to advance the conservative judicial movement than Governor Mitt Romney … Governor Romney is committed to nominating judges who take their oath of office seriously and respect the rule of law in our nation.”

None of this guarantees that Romney will appoint conservative judges. There are no guarantees in this realm. Remember: Ronald Reagan appointees Sandra Day O’Connor and Anthony Kennedy often disappointed, and John Roberts has rendered an awful decision on Obamacare (but many great opinions in other cases). The one thing that we can say with absolute, 100 percent certainty is that Mitt’s judicial picks will be head-and-shoulders above Obama’s – and that makes all the difference in a system where the Constitution “means” whatever the judiciary says it means.

The Continuing Carnage of Planned Parenthood v Casey

Although Roe v Wade is the Supreme Court’s original sin, it is Planned Parenthood v. Casey (with a plurality opinion written by 3 spineless Republican appointees) that continues to be used by Courts to continue to thwart all democratic efforts to protect the unborn. Yesterday, the Ninth Circus, er, Circuit, blocked, at least temporarily, an Arizona law that would have prevented abortions of children after 20 weeks of pregnancy, and even then with exceptions for medical emergencies. The problem with the law is that it might infringe on the limits set in Planned Parenthood v. Casey, which forbids any “burden”on the Roe abortion right before viability (not every baby is viable at 20 weeks). Or at least that’s the position of the ACLU, which remains a steadfast defender of the civil liberties of every person lucky enough to make it out of the womb alive. Back in April, the Oklahoma Supreme Court denied the state’s voters an opportunity to vote on a proposed ballot initiative (Question 761) that would change the state constitution to re-define “person” as “any human being from the beginning of the biological development of that human being to natural death.” The problem, of course, is that the measure would mean that fetuses have a right to life under the Due Process Clause, and that would contradict (drumroll, please) Planned Parenthood v. Casey. Supporters of the Oklahoma law recently petitioned the Supreme Court for review (the petition is here). And I assume that supporters of the Arizona law will eventually need to seek Supreme Court relief from the Ninth Circuit’s final ruling. Here’s hoping that the Court accepts one or both cases, and that the Justices have the fortitude (are you listening, Mr. Chief Justice?) to revisit the wretched precedent of Casey.

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