Category: Constitution

Mitt vs. The Donald: The Donald Loses

By , March 3, 2016 10:49 am

Due Process for Me, But Not for Thee

By , November 19, 2015 7:42 pm

Charles C. W. Cooke, an ex-pat Brit and newly minted citizen of the United States squarely hits the nail that the hammer-headed American public seems to be missing more and more recently. As he writes in the National Review,

As a result, the question here shouldn’t be ‘why does the NRA oppose using this [terrorism watch] list in a civil context?’ but ‘why doesn’t everybody oppose using this list on a civil context?’

Why indeed? Why do so many people fail to see that our constitutionally protected rights to due process are nowhere to be seen in the President’s proposal to deny Second Amendment rights to anyone found on that secret list? The mind boggles.

A Thumbs Up for Religious Freedom or a Sop Before the Same-Sex Marriage Ruling?

By , June 3, 2015 6:30 pm

I don’t know, but the thought occurred to me Monday.

To the Source (of much conversation)

By , March 6, 2015 2:37 pm

So, I’ve mentioned before, but I’m going to refer you again to this great little source of entertainment–if you like to follow the Supreme Court. Today, published the audio of Wednesday’s oral arguments in King v. Burwell, the important challenge to the statutory construction of the Affordable Care Act, commonly known as Obamacare. I have not listened to it, but I will be doing so in a few minutes as I run–yes, you can download the arguments.

You should listen to it too, rather than paying attention to second-hand commentary on the case.

How Important is Religious Freedom?

By , July 21, 2014 2:58 pm

This important.

The More Things Change . . .

By , July 16, 2014 11:23 am

Pampering Illegal Aliens
Reminds me of this:
Charges of Pampering Japanese
Cross posted to

From the Left and the Right on Argument and Collegiality

By , May 31, 2014 7:15 pm

Two recent interviews of two Supreme Court Justices, one on right–Clarence Thomas–and one on the left–Elena Kagan, both in agreement that you can disagree, yet be agreeable.

Here’s Kagan:

In the following video, Thomas also discusses civility on the Court. Because his comments come about 22:30 minutes into the video, I’ve cut and pasted that part of the transcript. Like Kagan, he praises the collegiality of his colleagues. A lesson for the rest of us maybe?

Thomas: You know, it should be mysterious. I can still remember the first time I set foot in that room and those doors closed. I mean, my goodness, it’s pretty daunting the first few times. Because that’s where the actual work and the decision-making takes place. It’s just the nine, there’s no staff, no recording devices. And we vote in descending order of seniority. It is a process in this city, normally when I was a staffer, you always had assistants around. And, people are engaged –they actually talk about the case. They actually tell you what they think and why. You record the votes. And there’s some back and forth– there’s more now. When Chief Justice Rehnquist was here, he moved it along very quickly. Now there’s more back and forth, more discussion. We normally have one break and there’s more discussion, off to the sides, about cases. And to see people who are trying their best to decide hard things and feel strongly about their view of it, is fascinating. And the thing that’s been great is, I just finished my 18th term, and I still haven’t heard the first unkind word in that room. And you think what we’ve decided–life and death, abortion, execution, war and peace, financial ruin, government relationship with citizens. You name it. We’ve decided it. And I still have not heard the first ad hominem in that room. It is an example of what I would have thought decision-making would be at the higher levels of civil government in all parts of our country.

SWAIN: What ensures that decorum?

THOMAS: The human beings on this Court, and people who, in one way or another, one degree or another understand that it’s not about them. It’s about the Constitution, our country, and our fellow citizens, that they don’t take themselves as seriously as they take the work of the Court.

SWAIN: We’ve learned a lot about the many traditions this Court holds and its processes that are passed down from Court to Court. And some of those happen in the conference room, such as the handshake. How important are symbols and traditions to the process that happens here?

THOMAS: I think the handshake, whether you’re in sports or church or other activities, it means something. It still means something. We can sense when somebody’s phony and they don’t mean it. These people, in this room, are genuine. It’s warm and professional. There’s always a handshake before we go on the bench. When we see each other and we haven’t– its the first time during the day– we always make sure to shake hands, whether it’s in public or in private. There’s sort of a sense of courtesy and decency and civility that’s a part of it. On the days that we work, whether we’re on the bench or we are in conference, we go to lunch together. In the early years when I first came here, we had that lunch in a small room off the main dining room. Justice O’Connor insisted that we have lunch every day when we were sitting. And she insisted, “Now Clarence, you should come to lunch.” And she was really sweet, but very persistent. And I came to lunch– and it was one of the best things I did. It is hard to be angry or bitter at someone and break bread and look them in the eye. It is a fun lunch; very little work is done there. It’s just nine people, eight people, whoever shows up having a wonderful lunch together. It is wonderful. So the traditions, I think, are important. It’s like traditions in our society, in our culture. They developed over time for a reason. And it helps sustain us in the other work that we do, I think. They help sustain us.

Here’s a link to the Thomas’s C-Span interview.

Cross posted from

Court or Steamroller? When Rights Conflict

By , March 1, 2014 4:27 pm

I don’t care which side you are (were) on in the recent outcry over Arizona’s SB1062, but I assume you are interested in the facts of what the bill did and did not do. From what I’ve read, the bill was badly misrepresented. And in the process, its proponents were labeled haters and homophobes, while Jon Stewart called the bill repugnant–even though SB1062 did not even mention same-sex marriage or homosexuality and even though it essentially copied laws that are already on the federal books and on the books of 18 states.

In fact, the proposed law would have come into play if, say, the government attempted to force a small business to provide birth control. It would have applied to a government’s attempt to compel a business to pay for abortion services for its employees. If you can think of a case where the government–state or federal–might impose a burden on someone’s sincere religious belief, the proposed law would apply. Yes, it could have come into play had a baker refused to bake a cake for a same-sex wedding.

But the bill WOULD NOT have decided the case. The bakery would still have to pass GO. The owner would still have to demonstrate that he or she was acting out of a sincere religious belief. The same-sex couple would still be able to argue that the baker’s belief was less than sincere and did not justify refusing them service. And a court would ultimately have to decide between the two parties—based on the rules set out in the proposed law. In other words, the bill did not create an exception, so religious people could discriminate willy nilly. It simply sets the standards by which a court would adjudicate such a case.

Don’t believe me? Here, for your reading pleasure, is the best description of the proposed law I’ve read. It’s written by 11 prominent law professors, some of them Republicans, some Democrats; some of them support same-sex marriage, some don’t. Nine of them felt that Gov. Brewer should have signed the bill. Two were unsure. Among the 11 are Mary Ann Glendon of Harvard and Michael McConnell of Stanford, two of the brightest lights in the legal academy.

You can read what they wrote at the link–without any filtering by the press or Comedy Central or by me. The following are three key paragraphs:

SB1062 would amend the Arizona RFRA [Religious Freedom Restoration Act] to address two ambiguities that have been the subject of litigation under other RFRAs. It would provide that people are covered when state or local government requires them to violate their religion in the conduct of their business, and it would provide that people are covered when sued by a private citizen invoking state or local law to demand that they violate their religion.

But nothing in the amendment would say who wins in either of these cases. The person invoking RFRA would still have to prove that he had a sincere religious belief and that state or local government was imposing a substantial burden on his exercise of that religious belief. And the government, or the person on the other side of the lawsuit, could still show that compliance with the law was necessary to serve a compelling government interest. As a business gets bigger and more impersonal, courts will become more skeptical about claims of substantial burden on the owner’s exercise of religion. And as a business gets bigger, the government’s claim of compelling interest will become stronger. (Emphasis supplied)

A few paragraphs later, the 11 law professors summarize the bill’s impact as follows:

So, to be clear: SB1062 does not say that businesses can discriminate for religious reasons. It says that business people can assert a claim or defense under RFRA, in any kind of case (discrimination cases are not even mentioned, although they would be included), that they have the burden of proving a substantial burden on a sincere religious practice, that the government or the person suing them has the burden of proof on compelling government interest, and that the state courts in Arizona make the final decision. (Emphasis supplied)

Did you catch that? Those who are refused service by a business can still sue. Those who are sued can assert the defense of sincere religious practice. And the courts get to sort it out–just like they would have done prior to the bill becoming law. The only difference is that the evidentiary rules governing that courtroom exercise would be codified.

And that’s repugnant? My eye.

Cross posted to

Limited Government Via Incremental Politics

By , October 21, 2013 10:09 am

George Will (who, by the way, is speaking at BYU tomorrow) nails it in his October 18, 2013, column:

[Barack Obama] and some of his tea party adversaries share an impatience with Madisonian politics, which requires patience. The tea party’s reaffirmation of Madison’s limited-government project is valuable. Now, it must decide if it wants to practice politics.

Rauch hopes there will be “an intellectual effort to advance a principled, positive, patriotic case for compromise, especially on the right.” He warns that Republicans, by their obsessions with ideological purity and fiscal policy, “have veered in the direction of becoming a conservative interest group, when what the country needs is a conservative party .”

A party is concerned with power , understood as the ability to achieve intended effects. A bull in a china shop has consequences, but not power, because the bull cannot translate intelligent intentions into achievements. The tea party has a choice to make. It can patiently try to become the beating heart of a durable party, which understands this: In Madisonian politics, all progress is incremental. Or it can be a raging bull, and soon a mere memory, remembered only for having broken a lot of china. Conservatives who prefer politics over the futility of intransigence gestures in Madison’s compromise-forcing system will regret the promise the tea party forfeited, but will not regret that, after the forfeiture, it faded away. (Emphasis supplied)

(Wills’s visit reminds me of a couple of other media luminaries who stopped by to chat when I was at BYU, including to David Halberstam, in the Marriott Center, and Bob Woodward, in the Wilkinson Center Ballroom. I read Halberstam’s The Best and the Brightest as a consequence of his visit.)

More on Assault Rifle Lingo

By , January 20, 2013 8:27 pm

I posted on assault rifles a few weeks ago. This post goes into much more detail. Whatever side of the gun control debate you’re on, being in possession of some facts is always good.

Key grafs:

The military defines an assault rifle as a lightweight, intermediate caliber select fire rifle. Quite the mouthful isn’t it. Broken down into everyday terms, it means you can carry it for a long time because it is light weight. Intermediate caliber refers to a cartridge between the full power rifle and the pistol, and you get more ammunition for the same weight compared to full power rifles.

. . .

The second correct definition of an assault rifle is based on cosmetic features set by politicians. These rifles are all semi-automatic, or self-loading in old school firearm terms. Every time you press the trigger, one round is fired, and one round only. The action cycles, replacing the now expended case with a fresh round from the magazine. While this can be accomplished very rapidly, it is still one shot per trigger press.

What makes one rifle an assault weapon, and a rifle that works exactly the same way and looks very much the same not an assault weapon? The politicians that set the cosmetic features of a rifle they deem to be an assault weapon. So this second definition is slippery and can be very broad, but boils down to some group of politicians decided that the rifles with X features are “scary”, and thus “assault weapons”. This also means that it varies by state. California has a very wide definition of what an assault rifle is with a list of specific firearms for good measure. Free markets being what they are, there have been many creative ways found to manufacture rifles that work exactly like, or very close to, the CA definition, without crossing those legal lines.

But what does this mean to the current hue and cry spewing forth from the likes of Piers Morgan and Senator Diane Feinstein? It means that through ignorance or malice, they are lying. The CT school massacre was an act of pure evil, and a Bushmaster rifle may have been used. It was NOT however, an “assault rifle” either in true (military) terms, nor in the made up terms of the CT assault weapons ban. (Sec. 53-202a. Assault weapons: Definition) The rifle was semi automatic, but lacked some cosmetic features deemed “scary” or “evil” by some know nothing politicians and wasn’t included in the specifically named list of weapons.

And here’s something I didn’t know (among many things, mind you): the AR in the name AR-15 stands for Armalite, the first manufacturer of such rifles, NOT “assault rifle.”

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