The Odious Dr. Liu

I'm late commenting on it — for reasons I'll explain soon — but we really dodged a bullet when Republicans blocked the nomination of Dr. Gordon Liu for the Ninth Circuit of Appeals. Apart from the damage he would have done there, that job is often considered a stepping stone to the Supreme Court. If you wonder just how big the bullet was, this 2006 quote of his from the Yale Law Journal is enough:

On my account of the Constitution’s citizenship guarantee, federal responsibility logically extends to areas beyond education. Importantly, however, the duty of government cannot be reduced to simply providing the basic necessities of life…

Beyond a minimal safety net, the legislative agenda of equal citizenship should extend to systems of support and opportunity that, like education, provide a foundation for political and economic autonomy and participation. The main pillars of the agenda would include basic employment supports such as expanded health insurance, child care, transportation subsidies, job training, and a robust earned income tax credit.

It's a pity, actually, that Dr. Liu is allowed to teach at U.C. Berkeley's law school, where he may be doing more long-term damage than if he were on the Ninth Circuit.

If we're to reclaim this country from Progressives two things must happen: (1) the State-sponsored educational system must be privatized and returned to reason, and (2) all Progressive judges must be expunged from the courts.

We're still in considerable danger from both those influences, but at least we can claim this one (temporary) victory.

Obama Ignores Inconvenient Laws

Unsurprisingly, the gangster government Administration continues to ignore legal rulings contrary to its policies.

The DoJ abandoning a slam dunk case against the New Black Panther Party's voter intimidation is well known. The Interior Department continues to refuse to grant drilling permits* in the Gulf, despite two court orders knocking down their precipitous moratoria.

Now we find that, even after Judge Vinson's ruling against ObamaCare, Sebelius, et al plan to plow ahead. What's worse, if it could be worse, is the selective enforcement. The waiver count is over 700. Not to worry, though. They're only "temporary."

Well, that's a relief.

Also, according to an HHS spokesman, who said after the the granting of 500 new ones, "It's more than a handful, but not a big number." Of course, 500 counts of conspiracy would be considered a big number in criminal proceedings, but it's nothing when you're above the law.

[Update:] Looks like the bastards finally gave in to reality political pressure. One company has received a permit. Others are expected in "the coming weeks and months."

Suddenly, Obama Cares About Constitution

Right.

Obama, Holder Call 1996 Defense of Marriage Act Unconstitutional

BusinessWeek - Joel Rosenblatt

Feb. 24 (Bloomberg) -- The Obama administration said it will no longer oppose court challenges to the Defense of Marriage Act, which prohibits the federal government from recognizing same-sex marriages for purposes of taxes, ...

Now, NOW they're worried about the Constitution?

Sheesh. Frankly, I don't care who marries whom. It's none of my business, nor anyone else's but the parties involved. My amateur opinion is that all the voter referenda restricting marriage between consenting adults are illegal. Individual rights are not up for a vote. But this is un-effing-believable. These guys - Holder and Obama - have more chutzpah than Qaddafi and Achmed-squiggle.

Google Touts Free Enterprise?

Google finally shows some mild respect for free enterprise when it complains about a lawsuit that substitutes litigation for competition. (MS co-founder Paul Allen is suing practically everybody in Silicon Valley for patent infringements.)

"This lawsuit against some of America's most innovative companies reflects an unfortunate trend of people trying to compete in the courtroom instead of the marketplace," the Mountain View search giant said in a statement. "Innovation — not litigation — is the way to bring to market the kinds of products and services that benefit millions of people around the world."

True, but more than a little ironic coming from the social democrats at Google who don't seem to remember those words when it comes to things like Net so-called Neutrality, i.e. violation of property rights by government regulation and price controls.

Sen. Tom Coburn on Kagan's Nomination

Sen. Tom Coburn has a few choice words to say on Elena Kagan's SCOTUS nomination. He concludes, rightly, that she shouldn't be approved.

In her testimony, it was clear that Kagan subscribes to the progressive view that the wrongly decided precedents of the Supreme Court are more important the clear intent of the Constitution.

Does anyone seriously believe that when the Founders gathered in Philadelphia 220 years ago they were aspiring to control the buying decisions of individual consumers from Washington? They were arguing for the opposite and implored future Courts to slap down any law from Congress that expanded the Commerce Clause.

In “Federalist Paper 45,” James Madison wrote: “The powers delegated by the proposed Constitution to the Federal Government are few and defined.” The Supreme Court has repeatedly turned a blind eye when Congress exceeded its authority under the Commerce Clause. As a result, the federal government can control practically every aspect of our lives.

For instance, in the 1942 case Wickard v. Filburn, the Supreme Court decided that a farmer in Ohio, Roscoe Filburn, had to cease growing wheat to feed his chicken because he didn’t have permission from Congress. As a matter of law, we aren’t far from regulating American’s eating habits.

Kagan refused to answer the substance of my question. Her answers indicated she would support the big-government policies that created our $13 trillion debt and the welfare state that is collapsing into a fiscal black hole.

Even more troubling was Kagan’s refusal to say whether she believed in the principle of natural rights contained in the Declaration of Independence. Kagan told me, “I don’t have a view of what are natural rights independent of the Constitution.”

The good senator is one politician who gets it. Would that there were at least 65 more in the Senate (and 300 in the House) who did.

Obama the Thug, Part 27

The consensus on the left and right is that Obama's first Oval Office address was a dud. When you're a hidebound leftist and you've lost Eugene Robinson, you know you're in trouble. But I'm sure my beefs are very different from his.

Like any conscious being with some ability to sensibly allocate his time, I didn't bother to watch the speech. But I did read parts of it. What annoyed me was the whining of this part:

"I've talked to shrimpers and fishermen who don't know how they're going to support their families this year. I've seen empty docks and restaurants with fewer customers - even in areas where the beaches are not yet affected. I've talked to owners of shops and hotels who wonder when the tourists will start to come back. The sadness and anger they feel is not just about the money they've lost. It's about a wrenching anxiety that their way of life may be lost.

Notice how he always falls back on the stereotypical community organizer's litany of disastrous effects and how the poor are suffering. This is exactly the way those petty thugs use moral intimidation to get their way with banks, mortgage lenders, city officials, etc. The technique is all Obama knows. He must have been a completely inept lawyer in the face of any judge who wasn't instantly impressed by the pity card.

But what truly ticked off me off was the sheer thuggery of this:

I refuse to let that happen. Tomorrow, I will meet with the chairman of BP and inform him that he is to set aside whatever resources are required to compensate the workers and business owners who have been harmed as a result of his company's recklessness."

Notice the sheer lawlessness of his attitude toward BP. He will "inform" them they are going to do such and such, as if there are no laws to follow in the matter, only his dictates. Just as one example, there is a legal – albeit, perhaps foolishly low — $75 million cap on liability. Even ignoring that, there is simply no legal authority on the part of the Executive to force BP to establish such a fund.

Not surprisingly, BP preemptively caved on the threat.

"BP will set aside $20 billion to pay the victims of the massive oil spill in the Gulf, senior administration officials said Wednesday, a move made under pressure by the White House as the company copes with causing the worst environmental disaster in U.S. history."

As if $20 billion was nothing more than a reasonable, if stinging, rebuke on a company who has been a very bad boy and The One is merely wagging his finger at them.

You can just hear how this crisis is a wet dream for an anti-business leftist (but I repeat myself) who finally has a chance to, big time, stick it to da man.

Anyone who does not now believe that Obama is, in fact, a Fascist doesn't understand Obama or Fascism. Among other characteristics is creating a shadow govt. Michelle Malkin has the lowdown on that.

Finally, be sure to catch some of Kenneth Green's points at AEI about the speech, which outline well just what a dishonest demagogue the stick-figure stick wielder truly is. About the only quasi-positive thing I can say for Obama is that he is fairly consistent. He never lets a crisis go to waste.

[An irresistible update:

"Countries like China are investing in clean energy jobs and industries that should be right here in America."

Right. That's why China is building about one major coal fire plant per month for the foreseeable future. Of course, they are investing in some 'green' technology: they have planned to build 15 new nuclear power plants in the next five years. That, of course, is one 'green' technology Obama almost never talks about.

So, once again the Thug-in-Chief also proves to be the Misleader-In-Chief.]

Madison on the Commerce Clause

According to James Madison,

It is very certain that [the Commerce Clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.

Letter to Cabell, February 13, 1829.

I'm assuming he would know the motive for including the clause, and how it should be interpreted.

Yet, in Wickard v Filburn, the Supreme Court decided otherwise when they declared a farmer growing wheat for his personal consumption had to comply with FDR's arbitrary dictates. For the horrid details, see the book The Dirty Dozen by Levy and Mellor.

Hey, Let's Make Firing the Ugly Illegal

Demonstrating once again that there is no limit to the absurd positions the self-appointed PC police will take, a Stanford law professor wants to make hiring and firing based on appearance illegal.

Professor Rhode writes:

As the history of civil rights legislation suggests, customer preferences should not be a defense for prejudice. During the early civil rights era, employers in the South often argued that hiring African Americans would be financially ruinous; white customers, they said, would take their business elsewhere.

Fair enough. How about the preferences of the business owners as a defense? Fifth and Fourteenth Amendments anyone? Is it asking too much for a law professor to be aware of those? Sheesh. Once upon a time, such lunatics were confined to street corners. Today, they get professorships at the country's leading law schools.

She continues:

In rejecting this logic, Congress and the courts recognized that customer preferences often reflect and reinforce precisely the attitudes that society is seeking to eliminate. Over the decades, we've seen that the most effective way of combating prejudice is to deprive people of the option to indulge it.

Right. Because there's no good reason not to fight prejudice through government coercion. What's a little thing like personal choice and property rights – when that personal choice is wrong (in the eyes of a statist feminist) and someone's employment is at stake?

But if "depriving people of the option to indulge it" is the goal, for the holy sake of acceding to 'society's desire' to eliminate it, why stop there? Why not just lock up anyone who says an unkind word about Rosie O'Donnell? Better still, why not drown anyone over the age of twelve who makes a rude remark about Elena Kagan?

Ok, fine. I'm finally going to join the "there ought to be a law" crowd. Let's toss out the First Amendment and make stupid suggestions from PC Progressives that ignore my constitutional rights illegal. If they're free to indulge their subjective desires, backed by cherry-picked data, and have them enforced by law, so am I. Let's do a little social engineering my way for a change.

Double sheesh.

Oliver Wendell Holmes, Constitution Destroyer

Thomas Bowden offers a superb essay in The Objective Standard on Oliver Wendell Holmes' 1905 dissent in Lochner v New York and its legal aftermath.

Sound like a snooze fest? Far from it. For anyone interested in one of the major steps that led to the modern Court's abandoning the Constitution, it's a must read. Twice. At over 11,000 words of careful prose, that's no small effort, but it will be well rewarded.

Bowden discusses the details of the case and why the Court decided as it did, including the reasons for Holmes' dissent. That mere 617 word legal dissent [pdf warning], as much as the case itself, influences the law even today and stands as a clear historical marker in the Progressive destruction of objective law and the Constitution.

What Bowden doesn't discuss — it's not his purpose — is how Holmes' view grows out of his general adoption of Pragmatism. In many ways, Holmes anticipated James and Dewey, and injected that deadly philosophy into mainstream legal thought.

His Pragmatism is shown clearly by such statements as: “General propositions do not decide concrete cases,” and “Every opinion tends to become a law,” and the reshaping of law is the “natural outcome of a dominant opinion.” It's made even more obvious by his view that, as Bowden puts it, "a proper constitution averts disaster by providing an orderly mechanism for embodying in law the constantly shifting, subjective opinions of political majorities."

Given the ultimate success of that view, it's not surprising that Holmes could say with impunity later in life: “All my life I have sneered at the natural rights of man.”

All this may sound remote from the day-to-day onslaught of statism we're currently battling. But consider that HR 3200 (the 'Health Care' bill), Cap and Trade (which will come back alive after that issue is settled), and many similar Congressional rapes would not likely have gotten as far as they have if Congress knew SCOTUS would strike them down at once.

Consider, too, that relationship between basic ideas and the law the next time you hear some Progressive argue, in essence, "anything goes if the majority favor it." That's the ghost of Holmes talking*.

The view that there are no unchanging basic principles, and therefore no basic inviolate rights — and therefore any decision democratically arrived at to usurp them is perfectly fair — is Pragmatism applied to the law.

Given how thoroughly Pragmatist the Court in the past century has become, it isn't hard now to see the effects of abstract legal philosophy on daily life. The Court's Kelo decision to do nothing in response to her home being stolen for the 'good of the community' is just one recent example.

We have Oliver Wendell Holmes to thank for much of that.



*"[Pierce, James, Dewey, and Holmes] helped put an end to the idea that the universe is an idea, that beyond the mundane business of making our way as best we can in a world shot through with contingency, there exists some order, invisible to us, whose logic we transgress at our peril." Louis Menand, in his book, The Metaphysical Club

Obama For SCOTUS Justice?

Talk show host Michael Savage, for whom I have no love at all, is reputed to have originated the quip that liberalism is a mental disorder. He may finally have proved his point with evidence provided by a recent WaPo editorial by Georgetown law professor Jeffrey Rosen.

Rosen, apparently in all seriousness, suggests that: [Obama's] education, temperament and experience make him ideally suited to lead the liberal wing of the [Supreme] court." He continues in the rest of the essay to flesh out his reasons, most of which are factually in error.

I'm going to ignore those reasons here. That choice is so patently absurd I won't bother to argue against it. (Ok, I'll just mention this: apart from having vanishingly little experience in the law after his Harvard stint as editor of the Law Review — during which he published nothing — his open and admitted disdain for the Constitution* should disqualify him at the outset. Granted, that last hasn't stopped any number of Progressives from sitting, starting with Oliver Wendell Holmes.)

Instead, I'll just very briefly take up this notion of a "liberal wing of the court."

Given the modern meaning of the term "liberal" it is unconstitutional – and hence illegal — for there even to be a "liberal wing of the court."

In the Federal system, the role of the Supreme Court of the United States is to apply the principles of the Constitution to cases that come before it. Not to override the legislature to further a Progressive agenda. That it has done so off and on for the past 100 years** (particularly in the New Deal period, after FDR threatened to dilute the court***) is a major factor in the economic disasters the country has faced during the past century. A crime repeated is no less a crime for being common.

This country won’t be safe again until law professors like this one are back standing on soapboxes on the street corner, panhandling for nickels.


[*Obama laments on a Chicago radio program, 2001: "But the Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society.

And to the extent as radical I think as people tried to characterize the Warren Court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it's been interpreted.

The Warren Court interpreted it in the same way that generally the Constitution is a charter of negative liberties. It says what the states can't do to you. It says what the federal government can't do to you, but it doesn't say what the federal government or the state government must do on your behalf."]


[** See How Progressives Rewrote the Constitution, by Univ. of Chicago Law Prof. Richard Epstein for details, along with

*** The Forgotten Man by Amity Shlaes.]

Thomas Mitchell Explains the Constitution

Thomas Mitchell, editor of the Las Vegas Review-Journal, gives a straightforward, simple, and historically and philosophically accurate explanation of the U.S. Constitution.

He writes, for example,

One persistent online commenter insisted recently, "Since you brought the issue up, again, Mr. Mitchell, please point out to me language in the Constitution that permits a corporation to petition the government for redress. And since there is no such language, how can such a right be claimed by corporations?"

The Constitution does not permit. It does not dispense rights. It grants limited powers to the various branches of government and then provides checks and balances. Such as Article 1, Section 8: "The Congress shall have power to ..."

The Bill of Rights does not grant rights, either. Those 10 amendments limit the power of government to encroach on the rights presumed to belong to all of us.
...
Rights come from nature, not government.

Look at how the Bill of Rights is phrased. None says the state hereby grants these rights to its citizens. It should more properly have been called the Bill of Prohibitions.

"Congress shall make no law ... abridging the freedom of speech ..." The freedom is presumed and Congress shall not interfere.

Bravo, sir.

The Unconsitutionality of ObamaCare

George Will has written a fine column on the unconstitutionality of ObamaCare. Taking the line put forth by the superb legal scholar Dr. Randy Barnett, Will makes distinctions rare among conservatives.

But first, Dr. Barnett's position. In a long and fairly challenging position paper, he writes:

[Discussing the alleged precedent and parallel between the ObamaCare mandate and requiring drivers to purchase car insurance...] What a state (or private citizen) may require of someone using its property is wholly different than what it may do to control their purely private behavior.
...
Today, even voting is not constitutionally mandated. [Ed. note: it is in certain European countries, interestingly.] But, if this precedent is established, Congress would have the unlimited power to regulate, prohibit, or mandate any or all activities in the United States.

Such a doctrine would abolish any limit on federal power and alter the fundamental relationship of the national government to the states and the people. For this reason it is highly doubtful that the Supreme Court will uphold this assertion of power.

[And] It is a safe bet that any argument that leads to a conclusion that Congress has an effectively unlimited police power akin to that of states will be rejected by this Supreme Court.

Bold and unusually optimistic claims. But Dr. Barnett, fine scholar that he is (Prof. of Legal Theory, Georgetown), doesn't leave the issue at an analysis of legal theory. He backs it up by citing recent court cases showing the actual behavior of the SCOTUS.

George Will echoes this view when he writes: "But if any activity, or inactivity, can be declared to have economic consequences, then anything can be regulated — or required." He goes farther than this and discusses the false alternative between Progressive and conservative legal thought on the role of judges in the American political system.

Furthermore, judicial review — and the Constitution itself — is largely nullified by a doctrine of virtually unlimited judicial deference to Congress's estimates of what is "necessary and proper" for the regulation of commerce.
...
[J]udicial supervision of democracy troubles people who believe, mistakenly, that the Constitution's primary purpose is simply to provide the institutional architecture for democracy.

Such people believe that having government by popular sovereignty is generally much more important than what government does; hence, courts should be broadly deferential to preferences expressed democratically. This is the doctrine of those conservatives who deplore, often with more vigor than precision, "judicial activism."

He goes on to make a negligible error in the following about 'true conservatives' but we can gloss over that. His basic point remains valid when he says:

More truly conservative conservatives take their bearings from the proposition that government's primary purpose is not to organize the fulfillment of majority preferences but to protect preexisting rights of the individual — basically, liberty. These conservatives favor judicial activism understood as unflinching performance of the courts' role in that protection.

[Note: For those wanting to explore that subject further, Dr. Tara Smith has done good work on the topic of which this essay just scratches the surface.]

I'd like to share Dr. Barnett's optimism that SCOTUS would overturn the individual mandate. Further, since the AFL-CIO has now cut a deal with Congress to exempt union members from certain taxes in the bill, the legislation fails on the grounds of equal protection as well. But, despite the cases he cites, the history of SCOTUS in the past 100 years doesn't give me great confidence. They did, after all, ultimately give Social Security and Medicare a pass and the Wagner Act is still law.

So, whether any of that will make a difference to the current court is anybody's guess. (If passed, not a foregone conclusion at this point.) At best, it will likely be a year at least before the whole thing is reviewed. By then, it could have done much damage. Still, the fight ain't over til it's over. And not even then.