Behaving badly

If there are any of my left leaning friends who do not already know that I am a constitutional literalist, and that I do not twist words to make the 2nd Amendment mean something other than what it literally says… let me disabuse you of that notion. We have a problem with gun violence in this country, but the redefining our constitution is not the way to address that problem. There are far better avenues, but in order to achieve progress… we need compromise.

The New Jersey gun control debate may actually provide some sort of relief for folks stuck in the middle. The current smart gun law in that state sucks. The very left wing Chris Hayes of MSNBC seems to be getting a bit of a clue about this. Hayes, several of the gun control groups and even the Senator who wrote the bill seem willing to repeal it if the right will take a step or two toward compromise. I personally think that NJ law was horribly shortsighted and has done far more harm than good, and that it needs to be repealed. I would hope that if the left were to move in that direction that the right might see an opening for peace and give it a try.

Wrong.

So here comes this dude in the video, doing all the things the right says he ought to be able to do (small business owner, introduce new products, trying to get ahead like a good capitalist) and what happened? Dude runs a gun store and has a documented history of staunch resistance to any form of gun control. He sees an opportunity to offer a new gun to the market for those who might want it. Bad move. Now he sleeps in his own store to protect it from being burned down by his now former supporters. His family has received death threats.

The video tells the rest.

By the way… Mr. Raymond’s statement about Hayes reversing position on the NJ law has come true. On his show tonight Hayes made a statement of support for repeal, and had as guest the lady Senator who wrote the bill (didn’t get her name)… who made the same promise.

Tell me, my right leaning friends… how can this be justified?

This ain’t no chicken sandwich, and nobody threatened to kill the Catheys… your move.

   

###

I swings both ways

When defending our Constitution I take the seemingly rare position of defending *all* of the document. Thus I take umbrage at being spied on by my own government even if all they collect is my metadata... whatever that is... as there can be no doubt that such action constitutes a 4A violation.  

I further detest the practice of targeted killings of Americans without due process, school sponsored group prayer in the classroom, vouchers that exist for the sole purpose of sending kids to religious schools on my dime. These actions violate 1A as does allowing really rich guys to hide behind corporate entities while buying elections. 

These violations originate mostly from the right side of our political spectrum although there is that continuation of Darth Cheney authoritarianism by the current administration that has me a bit upset. The left is far from innocent when it comes to constitutional infringement. In addition to the eavesdropping and denial of due process, they get it dead wrong on gun ownership. We can debate 2A language from here to eternity and it won't change the fact that our founders intent was that private citizens should have a guaranteed right to firearms. 

Over the years we've set reasonable restrictions to this right. We've done similar with all other constitutional guarantees, but many of my lefty friends don't feel there has been enough restriction while my right wingnut buddies chafe at current restriction while going ballistic at the slightest suggestion of more. To some degree and in some areas I might be persuaded to agree with both, but I refuse to go moonbat in either direction.

Now, with that said, I've gotta get something off my chest and my right wing buddies aren't gonna like it. It is time we did something with the all-or-nothing mindset being sold to the great unwashed by the NRA... otherwise known as the lobbying arm of the gun manufacturers. 

Several years back the left took the all-or-nothing position in their efforts to ban guns. The backlash was as swift as it was vicious, and after a relatively few years we have more money than Carter had Little Liver pills flowing into NRA war chests and dipshits like Ted Nugent defecating out his mouth at NRA conventions and Republican campaign events.

Politics is like a pendulum. The further to one side it swings the harder it swings back. Without moderation radicalism vs. overreaction swap sides with each swing. This is not good for our society, and this is where government should step in and steer the sides toward moderation.

A governor on a carburetor keeps an engine from over-revving, and reasonable statesmen in government should be able to moderate the rhetoric and find compromise before this debate throws a rod. Failing this I fear we'll simply see more and more radical pendulum swings. 

I like my guns. They've served me well through the years, giving me pleasure while causing no harm to others. Although I've sold several over the past couple years I still have some antiques that have been in the family for generations, a couple little plinkers used for target and skunk shooting, one remaining varmint gun, a pistol or two (again for plinking), and my shotguns.

My lefty friends may disagree, but shooting is a sport and firearm ownership is a protected right. My right wingnut friends will disagree with me when I say that even with this right there is room... even a necessity for some restrictions on firearm possession. Not many of the currently proposed restrictions would amount to a hill of beans, but something has got to give if we want to insure our right to keep and bear arms.

We gun owners are the ones with something to lose in this debate. With all of the recent and seemingly never-ending atrocities and simple acts of stupidity by folks who should know better, the absolutists on the left will eventually have the sand necessary to sway the middle and no amount of special pleading will prevent the inevitable. There is room for compromise before it gets to that point, but there will be none afterwards. 

If the wingnuts on the right don't back off and start moving toward something reasonable I fear the next swing will be so far to the left that at least a few of my firearms will fall victim to useless and unwise regulation. Once that happens it will be another two generations before the pendulum swings back to the right... if it ever does. I'd rather that not happen. 

###

Goodhair back in the clown car

... and Texas women better keep their powder dry. The first bill on Guv. Goodhair's list of "emergencies," with full support from the teabagger section, is another attempt to foist their personal religious beliefs onto the taxpayers. Never let it be said that a teabagger let a little thing like our U.S. Constitution (or ethics) stand in the way of dogma.

"While legislators begin to file legislation during this pre-filing period that began today, they, too, look forward to supporting the flagship Pro-Life bill for the next session: Texas Right to Life’s Pre-born Pain Bill."

I've got a feeling this state is boing to be turning blue a lot quicker even than we'd hoped.

###

A Farewell To Arms: Ending The Phony Filibuster

The following is reprinted in its entirety from  Jonathan Turley's blog. Turley tags the post under "Constitutional Law" , "Politics" and "Things That Tick Me Off." Following some interesting conversations with right wing acquaintances and friends suffering some to degree or another with sour grape syndrome... and feeling a need to respond... it seems that this brief article came along at just the right time. 

By Mark Esposito, 

Newly elected Massachusetts senator Elizabeth Warren has a radical idea — words should mean what they mean. Take for example the word “filibuster.” Most of us have the quaint notion that a filibuster is an exhausting oration rarely used by a principled senator to stop devastatingly wrongheaded or corrupt legislation in its tracks. From the time of Cato, the legislative maneuver was used as the last gasp effort to do the right thing even as the forces of corruption were circling. It was essentially a plea for good men and women to think long and hard before passing ill-considered law. Think Jimmy Stewart in Mr. Smith Goes To Washington.

But alas, in the Orwellian world of “government speak” the new filibuster means simply that a senator makes a telephone call to the senate majority leader threatening to stand before senate and protest a particular bill. Magically, the bill now requires 60 votes (for the cloture motion needed to end the phony filibuster) to pass instead of that old-fashioned formula for representative democracy — the favoring of one half of the members present plus one. No speech, no reason, no passion, and no democracy. It’s too damn easy to gum up the people’s business with that slimmest and slimiest of minorities — the ego of one.

The rule has permitted the “Nattering Nabobs of No” – also known as Senate Republican Caucus — to use the filibuster 380 times since 2006 to stop such menacing bills as those appointing judges or heads of government agencies, ending subsidies to Big Oil, and to open government processes to the public. That, according to Warren, spells abuse and government gridlock.

Oh, and what about that merit of allowing a sincere senator to try by the sheer force of his words to stop bad legislation from becoming law? According to Warren that’s as phony as the new filibuster, too. “We’ve seen filibusters of bills and nominations that ultimately passed with 90 or more votes,” she says. Senator-elect Warren has had enough of “government speak” and now calls for a majority to just be a majority.

On her first week on the job in January, Elizabeth Warren, joined by several freshman senators, will propose that the Senate rules to be changed to make language meaningful again. She’ll ask that exclusive club, by a simple majority vote, to make a filibuster mean what the word implies. If she gets her way, senators will no longer hold a cell phone veto over the will of the majority and will have to actually stand in the well of the Senate to speak their piece. Maybe they’ll read aloud the Constitution, the Declaration of Independence or even the telephone directory. Maybe they’ll tell us about their childhood growing up in idyllic East Bumbletuck or about their favorite cat or about the time they caught the winning touchdown pass. But maybe –just maybe — they’ll feel compelled by logic or honor or just plain ol’ manners to explain to us all why the manifested will of the world’s greatest nation takes a back seat to their petty wants.

###

A little something for everyone

Einer Elhauge is a professor at Harvard Law School. He joined an amicus brief supporting the much maligned constitutionality of the individual mandate contained in the Affordable Care Act. In a piece penned for the most recent issue of The New Republic Elhauge

If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?

The so called defenders of our Constitution, in argument before SCOTUS and without any supporting text or historical evidence, made a legal case against the Act’s individual mandate. The rhetoric from the right ranting against the mandate falsely claims that the framers of our Constitution would certainly have found such a measure to be unconstitutional.  They argue that nothing exists supporting this claim because a constitutional ban on purchase mandates was too “obvious” to mention. They base the claim that purchase mandates are unprecedented. Not so, says Elhauge…

In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.

Congress did not stop there, says Elhauge, because six years later…

And you know what this Congress, with five framers serving in it, did? It enacted a federal law requiring the seamen to buy hospital insurance for themselves. That’s right, Congress enacted an individual mandate requiring the purchase of health insurance. And this act was signed by another founder, President John Adams.

Yes, I know Adams was not one of the founders. The editors correct this at the end of the article.

Elhauge next offers a little positive territory for conservatives, albeit still damaging to their effort to kill President Obama’s benchmark legislation.

…in 1792 Congress, including 17 framers, passed another statute that required all able-bodied men to buy firearms. Yes, we used to have not only a right to bear arms, but a federal duty to buy them. Four framers voted against this bill, but the others did not, and it was also signed by Washington.

The lesson we should learn from this piece is just how ignorant the average American has become regarding the history of our country, our Founders and the framers of our Constitution. Attempts to derail this legislation is every bit as misdirected as are Liberal efforts to twist the Second Amendment in justification of anti-gun legislation.

The ACA is a bastard bill only because of its wealth of compromises made necessary by right wing resistance. It can be improved and should be. So called “socialized” medicine works well in countries as varied as Cuba and Canada, Russia and Finland, Germany and Spain. Our own healthcare system contains examples of “social” healthcare. Consider the Veterans Administration and the TRICARE insurance program, not to mention Medicare.

Our Constitution does not prohibit either the employer or the individual mandates contained within the ACA. A simple study of Congressional activity debunks that concept as effectively as it debunks the anti-gun arguments.

If these mandates or the entire bill do not pass SCOTUS muster we should go back to the drawing board and as a nation cobble a bill that works. Of course this would require the Congress learn to conduct itself somewhere north of the kindergarten level.

Good luck with that.

###

Their number is not so negligible these days

"The political processes of our country are such that if a rule of reason is not applied in this effort, we will lose everything--even to a possible and drastic change in the Constitution. This is what I mean by my constant insistence upon "moderation" in government. Should any political party attempt to abolish social security, unemployment insurance, and eliminate labor laws and farm programs, you would not hear of that party again in our political history. There is a tiny splinter group, of course, that believes you can do these things. Among them are H. L. Hunt (you possibly know his background), a few other Texas oil millionaires, and an occasional politician or business man from other areas.⁵ Their number is negligible and they are stupid."

The part about Texas oil millionaires has certainly not changed, and thanks to them Texas has some of the best politicians and judges money can buy.

Read the rest of Ike's letter HERE.

###

Eye opener

"...Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances..."

The United States is supposed to be a land of the free... the leader of the free world... O say does that star spangled banner yet wave...

... which makes it rather difficult to explain how America fell to 47th place in the Reporters Without Borders annual rankings of press freedom of countries around the world, a drop of 27 positions in just a single year. We're behind Estonia, Slovenia, Botswana and even El Salvador in our abuses of the free press. How do we explain such a precipitous drop? How could we justify even that 20th place showing of last year? With all our horn tooting you'd think we'd be in first place year after year. Instead that honor goes to Finland and Norway.

The free press is our firewall against the abuses of government. For many years that is exactly how it worked, but they aren't doing very much firewalling these days. I think the word for what we're seeing is Authoritarianism. What with the TSA, the very poorly named Patriot Act, constant efforts to disenfranchise legal voters (HERE, and HERE, and HERE), police abuses of the Occupy protesters (too many other links to list), invasive intrusions into a woman's womb (HERE, and HERE)...

The list goes on, but the press is notably absent. The once proud profession seems to be cowed. and perhaps for good reason. When a journalist actually finds the nerve to actually practice journalism, they often get shot down. 30 some-odd professional journalists suffered arrest in various location while  providing coverage of the Occupy movement.

Consider Noot's childish outburst at the South Carolina debate and how the right wing pundits not only defended, but applauded the behavior... so very different from that contentious Richard Nixon - Dan Rather confrontation in 1974 at the height of Watergate, and the more recent Rather - George H.W. Bush 1988 encounter. The wingnut sphere was all riled up then too, but not so much when the media started digging into Monkey Business or Cigargate.

Oh well. So much for all that old First Amendment clap trap. Who needed it anyway. Right?

Nixon is long dead, but that old nixonian stink is in the air now far worse than ever before. A familiar old 1960's feeling tells me... there's something happening here...

###

H/T

Eye of the beholder

According to Conservapedia, Judicial activism is when

“…courts do not confine themselves to reasonable interpretations of laws, but instead create law. Alternatively, judicial activism is when courts do not limit their ruling to the dispute before them, but instead establish a new rule to apply broadly to issues not presented in the specific action. "Judicial activism" is when judges substitute their own political opinions for the applicable law, or when judges act like a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of Congress, rather than limiting itself to the powers traditionally given to the judiciary”

Black’s Dictionary of Law offers a somewhat simpler definition, describing judicial activism as a…

"…philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions"

The actual term is relatively new in the American Political lexicon, having first appeared in a January, 1947 Forbes Magazine piece penned by Arthur Schlesinger, Jr.  Not unsurprisingly, Schlesinger was describing decisions by the Court of Chief Justice Harlan Fiske Stone, and specifically those by Associate Justices Hugo Black, William Orville Douglas, Frank Murphy, and Wiley Blount Rutledge… all appointed to the Court by Franklin Delano Roosevelt. Chief Justice Stone was himself rather moderate but sided with the liberal majority quite often.

The odd thing about the term is just how vagrant the definition has become over the ensuing years. Judicial appointees have always been chosen to reflect the politics of the current White House occupant, and the tilt of any decision would naturally lean with the majority. Depending upon that majority, the Court’s decisions over the three quarters of a century since Schlesinger coined that term have reflected left leaning philosophy alternately with right producing decisions to almost equivalent degrees.

Yet Conservapedia continues their very interesting definition from the above to say…

“…judicial activism is a way for liberals to avoid the regular legislative means of enacting laws in order to ignore public opinion and dodge public debate”

Since when does public opinion rise above the level of law? Is it not the role of the Court to make decisions based upon constitutional values rather than bow to majority rule and in spite of majority opinion? Our Constitution was written with the intent of protecting the rights of the minority from the will of the majority.

One of the decisions the right loves to defame as “activist” came not long after Schlesinger penned his Forbes piece. In Brown v. Board of Education the left-leaning Earl Warren Court overturned Plessy v. Ferguson, which for 60 years had lent a judicial stamp of approval to racial segregation. This "activist" ruling started our country on a long road toward racial equality.

Some 20 years later the Burger Court applied 14^th amendment privacy protections to current state laws that criminalize abortions. Both the 1949 Brown decision and Roe v. Wade in 1973 are decried by conservatives and cited as evidence of an overreaching Court. The prohibitions and limitations voided by each of these cases find root not in fiscal conservatism, but in a conservative Christian mentality. Look around today and see who it is shouting "activism" the loudest.

Slowly, starting in the 60's, the liberal mood began to ebb. Prompted by the incessant fear mongering of the newly empowered "Christian Conservatives," the electorate began to swing to the right. In 1971 Richard Nixon appointed the very fiscally conservative William Rehnquist to replace the liberal Hugo Black, and then 1986 Ronald Reagan nominated Rehnquist to replace moderate Warren Burger as Chief Justice. To fill the remaining vacancy, Reagan next tapped neoconservative Antonin Scalia.

Liberals could see what was happening and a year later, fed up with what they perceived as the appointment of too far right leaning activist judges, Democrats in the Senate staged an almost unprecedented revolt over the appointment of Robert Bork. Following a long and bloody battle Bork withdrew his name and a more moderate Anthony Kennedy was confirmed in his stead, but the religious right has never forgiven this action.

Conservatism has ceased to be about political considerations and instead has taken on the "social conservative" (read Christian) mantle. Where the court had previously been stacked to favor reasonable, moderate interpretations of the law with an emphasis on protecting the rights of the individual, we soon saw an abrupt turn to this rigid, authoritarian "new" right and an implementation of decisions favoring "family values."

George H.W. Bush appointed the inscrutable Clarence Thomas to replace the moderately progressive Thurgood Marshall, and although Democrats in the Senate worked hard to “Bork” him, Thomas was confirmed in 1991. 

Over his eight years in the White House Bill Clinton was able to hold the line with appointments of progressives Ruth Bader Ginsburg and Stephen Breyer to replace the equally liberal Byron White and Harry Blackmun. Yet in 2000 it was this somewhat moderate Court that gave us Bush V. Gore. Rehnquist, Scalia and Thomas, reluctantly joined by moderates Kennedy and O’Connor effectively negated a popular vote and elected a President.

The real turn in the Court came in 2005 when George W. Bush nominated John Roberts first to replace the retiring associate Justice Sandra Day O’Conner, and then as Chief Justice replacing the retiring William Rehnquist. O'Connor was a somewhat left leaning moderate, and Roberts' political views made even Rehnquist look middle-of-the-road.

Bush immediately followed these actions with the nomination of Samuel Alito, Jr., arguably the most reactionary Justice ever to hold the position. The Court was now stacked with four hard right justices, four others to the left, and Anthony Kennedy as the swing vote.

In the 2010 Citizens United v. Federal Election Commission decision Kennedy joined conservatives Roberts, Alito, Scalia and Thomas to grant “personhood” to corporations. Both this decision and Bush v. Gore raised a hue and cry from the left, yet it remains common for the right to accuse the Court of left-leaning judicial activism.

This obviously is an unfair characterization. The term could more accurately be defined as any decision made by any judge that does not agree with the particular view of one of the parties in the case. It swings both ways.

It is politicians who speak in terms of majority. Constitutionalists couch arguments in terms of reason and fairness. Judicial activism is in the eye of the beholder.

###

What Did Jesus Do?

Answering Religious Conservatives Who Oppose Bullying Prevention Legislation

Daniel B. Weddle and student Kathryn E. New, University of Missouri at Kansas City - School of Law
 New England Journal on Criminal and Civil Confinement, Vol. 37, p. 325, 2011

Abstract:

Conservative Christian organizations assert that anti-bullying programs are a stealth effort by gay activists to introduce into American schools an aggressive lesbian, gay, bisexual, transgender (LGBT) agenda. They contend that legislation and bullying prevention programs that mention gays are an attempt to indoctrinate children to embrace homosexual lifestyles; tolerate homosexual behavior; and celebrate homosexuality, bisexuality, and transgender identity.

These voices are having an impact on state legislatures and the damage is immense. Educational research has made clear the devastating effects of bullying upon children, and LGBT students are among the most often targeted and least protected students. Given that schools are already failing to address bullying effectively, efforts to thwart protection of any group of students -- especially one that is routinely targeted -- is unconscionable.

Yet these devoted Christians zealously interfere with protection of LGBT students from abuse by their peers and believe wholeheartedly that they are doing children and Christ a great service.

We believe they fundamentally misunderstand three things: the dynamics of bullying, the law pertaining to student-on-student abuse, and the example and teachings of Christ. This Article addresses these misunderstandings. We propose a response to the distortions that are used to promote what is an anti-gay agenda that represents neither the teachings of the Bible nor the position of most Christians and evangelicals, whom these organizations purport to represent.

Our hope is that, once the distortions are debunked, thinking Christians will reject the misguided efforts of a relatively few but influential individuals and organizations. If new voices can confront the misleading claims of anti-gay zealots with informed educational, legal, and Biblical responses, perhaps the distortions will be seen for what they are by Christians and non-Christians alike.

Full article available at SSRN,

###

Repeal Citizens United

Over 110,000 signatures so far.

"Proposing an amendment to the Constitution of the United States to expressly exclude for-profit corporations from the rights given to natural persons by the Constitution of the United States, prohibit corporate spending in all elections, and affirm the authority of Congress and the States to regulate corporations and to regulate and set limits on all election contributions and expenditures."

If you agree with that, go to this link and sign the petition.

###

H/T Juanita Jean

Rand Paul sides with ACLU?

When Alabama's Republican Senator Jeff Sessions proposed an amendment to a just-passed bill that would give the President the authority to continue jailing a terrorist suspect found not guilty by a court, Kentucky's Tea Party darling Rand Paul showed his libertarian streak. 

“There is one thing and one thing only protecting innocent Americans from being detained at will at the hands of a too-powerful state – our Constitution, and the checks we put on government power.”

That is precisely the ACLU's position.

###

More evidence that the Right is wrong

The previous couple of blogs were intended to illustrate that the Religious Right of this country are hypocrites. This article from the Wall of Separation blog is just another log on the fire. The Religious Right Christian conservatives of this country would more appropriately be named… the Christian Taliban.

Those consistently sticking with the Republicans are simply enabling the Dominionists. You want fiscal conservatism, I understand. Perhaps to a degree we have common ground, but there is no way I can condone this kind of authoritarianism.

If you stomach such... then "drinking the Kool-Aid" is a term that applies and I defy you to justify such blindness. You claim to love our Constitution, yet you continually partner with a bastard cult that has vowed to destroy it.

The Christ of the Bible would not recognize these so-called christians.

Yielding To Censorship: Mo. School Board Bans Books that are ‘Contrary to the Bible’

Kurt Vonnegut’s novel Slaughterhouse-Five is considered a modern classic. That doesn’t mean it’s a particularly easy read. Indeed, it deals with some fairly heady topics. When I first encountered it in high school, I wasn’t sure what to make of it. But it sure made me think, which, in my view, is what a good novel should do.

Funny thing about that thinking – some people see it as dangerous. And a few of those people sit on the school board in Republic, Mo.

The board voted 4-0 recently to ban Slaughterhouse-Five and another book, Sarah Ockler’s Twenty Boy Summer, after a local resident complained that the books teach ideas contrary to the Bible.

Wesley Scroggins had originally targeted three books, but the board voted to keep one, Laurie Halse Anderson’s award-winning Speak, on the shelves. According to the Springfield News-Leader, Scroggins “challenged the use of the books and lesson plans in Republic schools, arguing they teach principles contrary to the Bible.”

After the vote, which removes the books from the curriculum and the school library, Scroggins said, “I congratulate them for doing what’s right and removing the two books. It’s unfortunate they chose to keep the other book.”

Actually, what’s unfortunate it that the school board didn’t stand up for church-state separation and the freedom to learn. And it’s unfortunate that the education of students at Republic High School is being held hostage by such narrow-minded people.

It might also be unconstitutional. In 1982, the Supreme Court struck down a book censorship plan at a New York school district. Members of the school board in Island Trees had banned eight books, including Slaughterhouse-Five, after a statewide right-wing pressure group started a campaign against them. Board members agreed, calling the books “anti-American, anti-Christian, anti-Semitic, and just plain filthy.

Justice William Brennan led a court plurality in striking down the censorship scheme.

Brennan wrote, “In brief, we hold that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to ‘prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’ Such purposes stand inescapably condemned by our precedents.”

In 1993, a school board in Olathe, Kan., ordered the removal of the book Annie on My Mind from a school library because it deals with homosexuality. Parents who supported the novel sued and won. A federal court ruled that public schools may not ban books “based on their personal social, political and moral views.”

It sounds like the school board in Republic did exactly that. One fundamentalist complained that the books offended his interpretation of the Bible – so out went the books.

If there’s any silver lining in this sorry incident, it’s this: Telling young people that they can’t or shouldn’t read a certain book or listen to a certain CD almost always causes a run on that book or CD. After all, it’s imperative to find out what it is that the adults don’t want you to see or hear.

So I say to the students of Republic High: Get your hands on a copy of Slaughterhouse-Five. It’s worth your time. And if you’re having trouble finding a copy around town, drop me a line. I know a source at a used-book store who can round up as many as you need.

###

Moralism and the demise of liberty

In the last blog (the one about vibrators) I responded to a comment with mention of the infamous La Grange Chicken Ranch, and how moralism caused the demise of that Texas institution. That would be a long story and strictly and opinion piece, but here is a transcript of the events that actually closed the whorehouse, as told by a man who was there.




Gov. Briscoe and the Chicken Ranch
Robert L. Hardesty, SPECIAL CONTRIBUTOR
Published: 5:19 p.m. Friday, July 30, 2010

During the three years I worked for Gov. Dolph Briscoe, I never saw him duck a tough decision. He was a cautious man. But in the end, he followed his favorite dictum from Sam Houston, "Just do right and risk the consequences." I heard him say it dozens of times. I well remember the first time I heard it. And there were a lot of consequences.

It all began on a quiet day in my Capitol office in 1973. I had recently been appointed by the newly elected governor to be his press secretary. My previous experience being limited to speech writing for President Lyndon B. Johnson, who had a fixed notion about the responsibilities of a speechwriter, one of the first being keeping his name out of the newspapers. He used to tell us, "You should have a passion for anonymity."

Well, that was about to end. My executive assistant, Mary Nell Carlson, buzzed on the phone. "Bob, Marvin Zindler is on the phone and wants to talk to you immediately."

"And who is Marvin Zindler?"

"Don't you know who Marvin Zindler is?" Her tone of voice sounded as if she wanted to end the question with, "dummy?"

"Never heard of him." I was, as I say, new to this business.

"He's with Station KTRK in Houston. He's about the biggest name on Houston television."

"Well, put him on," I said, totally unaware of what I was getting into.

"Mr. Hardesty, this is Marr-vin Zindler."

I soon learned that that was the way he always spoke, on and off the air. Everything was a pronouncement.

"Yes, Mr. Zindler, what can I do for you?"

"You can get me an appointment with the governor on Monday." (This, as I remember, was Friday.)

"Can I tell the governor why you want to talk to see him?"

"I'm onto the biggest story of my career. There are laws being broken. And I want to know what the governor is doing about it."

"Doing about what?"

"You don't think I'm going to tell you, do you? You'd leak it to every reporter in the Capitol. This is an ex-clu-sive."

"Mr. Zindler, I have no wish to ruin your ‘exclusive.' But I have to know why you want to talk to the governor. I'm not about to let you go in there and blind-side him on a subject he doesn't know anything about."

"Hardesty, I'm going to call you on Monday morning and I'd better have an appointment with the governor or there's going to be in trouble."

"Well, you can call, but I don't promise anything."

I hung up, fuming. I don't respond well to threats. I sat there for a long time, wondering what to do. I knew I had to protect the governor. That's what he would expect me to do. But how? Protect him from an irate reporter? Or protect him from a potentially embarrassing story?

Finally, I called the governor and told him about the Zindler call.

"You did right, Bob. I can't see every reporter who thinks he has a big story but won't tell us what it is. See what he's working on. Someone should know."

That "someone," I decided, was Mack Wallace, the director of the Governor's Criminal Council. If laws were being broken, Mack would know about it. He was the former district attorney of Athens and a wonderful gossip. He knew everything that was going on in the state — at least everything worth knowing.

"You don't know about Marvin Zindler?" he asked. "He's an investigative TV reporter and a self-appointed consumer guardian. He's always snooping around Houston restaurants to see if he can find any rat (droppings) in the kitchen. And if he does, he embarrasses the owners on his TV show. Closes them down if he can. I guess that's important but he's a real jerk. He's had a total makeover of his looks: chin job, nose job, eye job, silver toupe, huge padded shoulders. A showman, not a reporter. ‘Marr--vin Zind--Ier. Eyyye-Witness News.'

Why do you ask?"

"He says he's investigating some illegal activity somewhere and wants to talk to the governor about it. That's all he'll say."

"Let me make some calls."

An hour later he was in my office. "Aw. He's investigating that old whore house down in LaGrange."

"Whore house?"

"Yeah, the Chicken Ranch. Says it's open illegally — which I guess it is. It's been there for as long as I can remember. Probably longer. Kids from UT and A&M go there for their first serious sex. Everybody knows about it. Nobody ever complains about it. The girls are clean. It's respectable."

"Why is it called "The Chicken Ranch."

Mack knew I was new to Texas and he loved to instruct me on the little-known folklore of the state.

"Because back in the Depression nobody had any money and the madam started accepting chickens in exchange for services."

"What's Zindler got to do with it?"

"Well, apparently he's trying to make a name for himself statewide and he's been snooping around the place, interviewing the customers and even taking pictures. Now he says he confronted the local sheriff — Flournoy — with his ‘evidence' but the sheriff wouldn't close it down."

"So now he wants to confront the governor with his ‘evidence,' " I said. "So he can go on the air and say the governor knows all about it but won't close it down."

"That's my guess. Or he wants to be able to say, ‘I shamed the governor into closing it down.' " "Either way, the governor comes off looking bad."

I immediately put in another call to the governor. "Well," he said with a sigh, "we'd better have a meeting first thing Monday morning."

Then I put in another call that I was looking forward to — to Marr-vin Zindler.

"I understand you want to talk to the governor about the Chicken Ranch," I said.

He exploded. "How did you find about that? Who leaked it to you?"

"Oh, I have my sources," I replied casually. "Am I going to see the governor?"

"Call me Monday, as we agreed."

I hung up before he could say anything more.

Later in the day, Attorney General John Hill stuck his head in my office. "What's this Monday meeting all about?" he asked.

I told him it was about the Chicken Ranch and he said, "If Dolph thinks I'm going to touch that tar baby he's sadly mistaken." (His very words. I'll never forget them.)

Early Monday morning we gathered in the governor's office. "We" consisted of the governor, Attorney General John Hill and his First Assistant, Larry York, Department of Public Safety Director Col. Wilson "Pat" Spier, Secretary of State Mark White (one of Briscoe's most trusted advisers), the Governor's Executive Assistant Charles Purnell, Mack Wallace, and myself. And, of course, Janey Briscoe, the governor's wife, who was sitting on the sofa, knitting.

The governor opened the meeting by nodding to me. "All right, Bob, fill us in on this Chicken Ranch business."

I told them everything that had transpired on Friday. Wallace, chewing on the stub of a cigar, filled in some blanks. When we had finished, the governor looked up and said, "You know, I didn't know that place was still open."

I thought Janey was going to choke.

Turning to Speir he said, "I assume it is still open, Colonel."

"Yes, governor, we've had it under surveillance for some time. There were rumors that organized crime was involved, but we couldn't find any evidence of that. It's a very important part of the community. No complaints. And we didn't see any reason to close it down."

"Do you have the authority to close it down?

"Well, we think so."

"It's operating illegally?"

"We assume so."

The governor turned to Hill, the attorney general, who had been strangely quiet during the whole meeting. "John? They're operating illegally?"

"Well, Dolph, they almost certainly are, but I'd want to research it." He obviously wasn't going to commit himself.

Hill's first assistant interjected. I'm not exactly certain of what he said, but the gist was that the entire operation had been operating outside of the law for years and was still operating outside of the law.

The governor took a deep breath. "Well what are we going to do?" he asked.

The room was silent.

"Bob," he asked me, "What are the press ramifications of closing the place down?"

"Not good. They're going to have a field day if you shut it down and they're going to come down on you like a ton of bricks if you don't shut it down. Zindler will see to that."

"Well, Pat," he asked Spier. "What are we going to do?'

"Just give me my marching orders, governor, and I'll obey them."

The governor turned to Hill.

"Just tell me what you want me to do, Dolph," the attorney general replied. My God, I thought, talk about profiles in courage.

The governor turned to Mark White "Mark? What do you think?"

The secretary of state tried to lighten things up a little. "Governor, I didn't go to UT or A&M. I went to Baylor University. I didn't know about places like The Chicken Ranch."

The rest of us roared with laughter. Janey Brisoe, sitting next to Mark, patted him on the knee and said in a low voice, "I'm so proud of you."

Then White added, "Governor, I don't see that you have any choice."

After a long pause, the governor turned to DPS director. "Pat, we need to enforce the law."

"Yes, sir, I'll call Sheriff Flournoy immediately."

That was it. No bluster. No histrionics. The governor had stepped up to the plate and the Chicken Ranch was effectively closed. He didn't take any pleasure in it. I think it saddened him. Certainly he hadn't run for governor of Texas to shut down a whore house. He just followed his favorite dictum: "Just do right and risk the consequences."

I was very proud of him that day. I still am.

There were consequences, as we knew there would be. A lot of the Capitol press corps poked fun at him. Texas Monthly acted as if he had committed a sin. And several years down the road, Larry L. King, in his hilarious Broadway musical, "The Best Little Whore House in Texas," portrayed him as an indecisive buffoon.

If any of it bothered him, he didn't show it. He was a class act and I believe history will remember him as an outstanding governor and a man of character, principle.

In the Burt & Dolly movie based on the play, Gov. Briscoe was played by the brilliant character actor, Charles Durning.

###

Slow learner

Just a few years ago it was D.C. with the Heller case, but more recently Chicago has been at the epicenter of disputes over gun rights. The decision in McDonald v. Chicago reversed the obviously wrong-headed city ordinance denying law abiding citizens the right to possess firearms for self protection. Although I’m far less fond (and in great disagreement) with other recent decisions, especially Citizens United (effectively granting Personhood to corporations) and the more recent Wal-Mart v. Dukes (effectively denying Personhood to women) rulings, SCOTUS got it right with McDonald.

But Chicago seems to not get the message. It was just last summer when SCOTUS struck down the Chicago ordinance that effectively banned handguns in the city. SCOTUS, in no uncertain terms, told the city that the Second Amendment applies to states… and therefore to municipalities.

So what did the city do? In the wake of that ruling, Chicago enacted yet another ordinance… this time requiring gun owners to get firearms training, which required practicing at a firing range, but then banned firing ranges within the city limits. Classic fail! Guess what? They found themselves back in court yet again.

Litigation ensued once again claiming that the Chicago ordinance violates the Second Amendment. The 7th Circuit, taking a cue from Heller and McDonald, enjoined the ordinance, ruling Wednesday that those objecting to the ordinance have “a strong likelihood of success on the merits.” The 7th Circuit opinion described the ordinance as “too cute by half” and that it amounted to “a thumbing of the municipal nose at the Supreme Court.”

You lose again, Chicago. When are you going to figure out that the American people will not be denied their rights?

Didn’t take long to answer that question. Chicago is a slow learner. In the wake of this most recent ruling the City Council quickly leapt into action, crafting a new ordinance allowing gun ranges in Chicago under strict permitting guidelines… banning ranges within 1,000 feet of a school, park, place of worship, day care center, liquor store, library, museum, hospital, residential district or another gun range.

The Sun-Times reports on the latest Chicago gun ordinance. The NRA told the Sun-Times that the ordinance is so restrictive it could invite another lawsuit. It will and it should. Citizens need to keep pounding on SCOTUS’ door each and every time our government oversteps it's bounds. This our right… and it is our duty. We won’t always prevail, but losing should never dampen the effort.

Now it is time to revisit Citizens United and Wal-Mart....

###

Verbatim

Should It Matter What Powers Congress Invokes?

Wednesday, July 06, 2011

By Mike Dorf

Judge Sutton's concurrence in last week's 6th Circuit ruling upholding the individual mandate of the Affordable Care Act is so effective because, more than any academic or judicial writing concluding that the mandate is constitutional, Sutton's analysis credits the claimants as raising a real objection. He feels the full force of the argument for an activity/inactivity line but finds the argument lacking nonetheless. His reasoning will have credibility with conservatives on the Supreme Court--even though he couches his conclusion with qualifiers about his limited role as a circuit judge.

That said, I do want to take issue with one smallish point Judge Sutton makes en route to his final conclusion. In addition to voting to uphold the mandate under the Commerce Clause, he writes separately to explain why he thinks that it cannot be sustained as an exercise of the power to tax. Congress could have structured a mandate as a tax, but here it did not, Judge Sutton concludes. One factor he cites en route to that conclusion is the fact that Congress, in the Act, invoked the Commerce power but not the Taxation power. It's not clear how much weight Judge Sutton gives this factor, but I think it ought to be given no weight.

We could have had a jurisprudence in which, in order for a law to be a valid exercise of some power of Congress, the law would have to include a provision stating that Congress is exercising that power. But in fact we have no such jurisprudence. Let me give three examples, starting with the Uber-Case on enumerated powers.

(1) I start with McCulloch v. Maryland, in which Chief Justice John Marshall upholds the power of Congress to charter the Second Bank of the United States by invoking what he calls the "great powers," including:

to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and; to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation are intrusted to its Government. 

Now notice that the Act of Congress creating the Second Bank does not invoke any affirmative powers. To be sure, the Second Bank was modeled on the First Bank, and the Congressional Charter of the First Bank did list reasons for granting the charter that can be tied to the powers that Marshall invoked in McCulloch. The First Bank charter recites that having a bank will be:

very conducive to the successful conducting of the national finances; will tend to give facility to the obtaining of loans for the use of the government, in sudden emergencies; and will be productive of considerable advantages to trade and industry in general . . . .

But even if we can map the First Bank charter's reasons onto the powers Marshall invoked in McCulloch, there is nothing whatsoever in the McCulloch opinion to indicate that Marshall thought formal invocation of a power by Congress was a prerequisite for sustaining an Act of Congress as falling within that power.

(2) The point is even more arresting in a much more recent case, Gonzales v. O Centro Espirita, in which the Supreme Court unanimously applied the Religious Freedom Restoration Act (RFRA) to the federal government less than a decade after having held that RFRA was invalid as applied to the states. What power did Congress exercise in passing RFRA as applicable to the federal government? The short answer, as Sarah Palin might say, is "you know, all of 'em."  That is, because RFRA requires certain religious exceptions to federal statutes, the authority for RFRA (as applied to the federal government) is whatever power justifies whatever  statute is yielding to RFRA in any particular case. Did Congress mention all of its powers in RFRA?  Certainly not. Yet that didn't bother the Court in O Centro one bit.

(3) To be sure, in O Centro the Court assumed but did not directly decide the constitutionality of RFRA as applied to the federal government. So consider last year's decision in United States v. Comstock, upholding a federal statute authorizing civil detention of certain federal prisoners after they have completed their sentences. The Court found the law necessary and proper to running its prisons, which in turn is necessary and proper to enforcing the criminal law, which in turn is necessary and proper to effectuating the powers that Congress exercised in enacting those criminal laws in the first place--like the power to create a Post Office (in the case of mail fraud), the power to regulate interstate commerce (in the case of bank robbery), and the power to establish intellectual property (in the case of criminal IP piracy).  Did the civil commitment statute in Comstock list "all of em" in a section of the law listing the powers Congress was exercising? Nope.  The statute didn't list any powers. Did the Court nonetheless uphold the Act? You betcha.

Thus, I think Judge Sutton is wrong to the extent that he suggests (and he only barely suggests) that Congress must invoke a power in order for that power to be available to sustain an Act. Perhaps if Congress specifically disclaims a power in the Act, then it cannot later come back and defend the Act in Court on the basis of that power, but if there is such a rule, I don't think the Court has clearly articulated it. (The closest the Court has come to doing so is in the somewhat different context of rational basis scrutiny of state laws, in the Nordlinger v. Hahn case, where the Court said that a legislative ruling out of a possible purpose for a law makes that purpose unavailable in future litigation.) In any event, despite language making clear that Congress did not want to call the penalties under the ACA a "tax," the ACA does not clearly disclaim the taxing power as a basis for sustaining it.

###

The author, Michael C. Dorf holds the Robert S. Stevens Professor of Law at Cornell University School of Law,
Ithaca, NY. The blog Dorf on Law is a regular read.

###