The Left is Still Trying to Strictly Redefine "Judicial Activism"

I noticed this with the Roberts confirmation hearings, but didn't say anything about it at the time. Once again the Left attempts to redefine words to mean what they want them to mean so as to confuse the issue. Case in point, Michael Bryan of Blog for Arizona, dean4az.blogspot.com, posts on the question of just what is "judicial activism":

Who's the activist? The only quantifiable measure of a judges 'activism' is how often s/he invalidates a law duly passed by Congress.

He then gives this table indicating how "activist" each sitting member on the Supreme Court is:

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

I left this comment:

That's funny. I thought part of the "checks and balances" function of the Judicial branch was to, you know, check the power of the Legislative branch? Not merely rubber-stamp its legislation. If Congress overreaches the powers delegated to it under the Constitution, the Courts are supposed to rein it in. This is to protect the rights of the minority against the power of majorities. As Justice Scalia (56.25%) has put it, "The only reason you need a constitution is because some things you don't want the majority to be able to change. That's my most important function as a judge in this system. I have to tell the majority to take a hike."

"Activism" on the court, on the other hand, is inventing law - finding things in laws already written that were never intended. As 9th Circuit Judge Alex Kozinski put it, "build(ing) magnificent legal edifices on elliptical constitutional phrases - or even the white spaces between lines of constitutional text." Creating law is a power reserved to the legislative branch by the Constitution.

The Courts aren't empowered, for example, to tell the Massachusetts legislature that they must pass "gay marriage" legislation (not "civil union"), and set a deadline to do so.

Not that that stopped the Massachusetts Supreme Court.

You see, the SCoMA decided that the MA Constitution meant that "gay marriage" was required under law, even though it had never meant that before. No Massachusetts legislature had ever written a law that said that. No plurality of Massachusetts voters had ever voted on any law like that, but four of seven Justices sitting on the bench decided for everyone in Massachusetts what the law really meant, although the people who wrote and ratified that Constitution would have (I can say with some confidence) disagreed with that finding.

That is "judicial activism" - a tiny minority telling everyone else what is and isn't right - with essentially no legal recourse but the amendment process. It renders constitutions worthless, because tiny black-robed minorities get to decide what the law means on a day-to-day basis, and can change that meaning at any time.

Sorry, Michael, but you've got it exactly backwards. "Invalidating laws passed by Congress" isn't "judicial activism," it's the job description for the Judicial Branch.

Based on that understanding, I'd say that Thomas is the most on-the-ball Justice sitting on the Supreme Court today.

The source for Michael's post was this New York Times piece, So, Who are the Activists? by Yale law professor Paul Gewirtz and recent Yale law graduate Chad Golder. That piece opens:

WHEN Democrats or Republicans seek to criticize judges or judicial nominees, they often resort to the same language. They say that the judge is "activist." But the word "activist" is rarely defined. Often it simply means that the judge makes decisions with which the critic disagrees.

In order to move beyond this labeling game, we've identified one reasonably objective and quantifiable measure of a judge's activism, and we've used it to assess the records of the justices on the current Supreme Court.

Here is the question we asked: How often has each justice voted to strike down a law passed by Congress?

Note that the authors have identified this question as one way to identify "judicial activism," but Michael has labled this test "The only quantifiable measure". The NYT piece notes, "Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down." But Michael characterizes "striking down laws passed by Congress" thus:

Generally, those who are touted as 'conservative' judges who 'strictly apply the law', do not such thing. They legislate from the bench by second-guessing Congress almost half the time, or more.

I would argue that the supposedly liberal members of SCOTUS - who are supposed to be protecting the rights of the individual against government tyranny (I believe that's part of the liberal creed, but not the Leftist one) - are falling down on the job. Badly. The NYT piece continues:

Since the Supreme Court assumed its current composition in 1994, by our count it has upheld or struck down 64 Congressional provisions. That legislation has concerned Social Security, church and state, and campaign finance, among many other issues. We examined the court's decisions in these cases and looked at how each justice voted, regardless of whether he or she concurred with the majority or dissented.

You'll note the piece takes no notice of what those cases were specifically, or who voted which way on them. No, the only measure is whether or not a Justice voted to "strike down" legislation.

Kelo v. New London (private property rights), voted to uphold: Kennedy, Souter, Ginsberg, Bryer, and Stevens. Voted to strike down: O'Connor, Scalia, Rehnquist and Thomas.

Raich v. Gonzales (medical marijuana), voted to uphold: Stevens, Kennedy, Souter, Ginsburg, Breyer. Voted to strike down: O'Connor, Rehnquist, and Thomas.

McConnell v. FEC (Campaign finance reform), voted to uphold: Stevens, O'Connor, Souter, Ginsburg and Breyer. Voted to strike down: Scalia, Kennedy, Rehnquist, and Thomas.

Note which side Rehnquist and Thomas are on in all three cases. Now tell me that "judicial activism" by this definition is a bad thing.

Ted Frank at Point of Law noted on the Kelo decision:

Justice Kennedy's concurrence creates a brand-new test: "There may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause." This test is so amorphous to be effectively standardless, requiring case-by-case adjudication, thus effectively transforming the judicial branch into a super-legislature with the power to veto condemnations engaged in by the executive branch—after extensive litigation over whether the favoritism is "permissible" or "impermissible," of course. Like many other cases in the last decade, the Supreme Court's decision vests additional political power in itself.

Big surprise. That seems to be the natural condition for all forms of government. I submit that the "test" Professor Gewirtz and Mr. Golder have concocted is perfectly useless as an indicator of much, at least by itself.

Thomas Sowell has an excellent piece up on the topic, Judicial Activism Reconsidered. He begins:

Like many catchwords, "judicial activism" has acquired so many different meanings as to obscure more than it reveals. Yet it is not a term that can simply be ignored as intellectually "void for vagueness" for at the heart of it are concerns about the very meaning and survival of law. Abandonment of the term not being a viable option, clarification becomes imperative.

"Judicial activism" and "judicial restraint" raise logically obvious but often ignored questions: Activism toward what? Restraint toward what? Are judges deemed to be activist or restrained toward (1) the current popular majority, (2) the legislature representing the current popular majority, (3) the statutes passed by present or past legislatures, (4) the acts of current of past executive or administrative agencies, (5) the meaning of the words in the Constitution, (6) the principles or purposes of those who wrote the Constitution, or (7) the legal precedents established by previous judicial interpretations of the Constitution?

It would appear to me that there are at least seven objective and quantifiable tests identified right there, not just one. Read the whole piece. Professor Sowell is far better at this than I am.

UPDATE, 11/2: The comments over at Michael's original post are kind of amusing.

Newspeak

I watched a movie this afternoon that I hadn't seen in a while, The Majestic, starring Jim Carrey. It was set in 1951, during the House Unamerican Activities hearings. It's a sort of Capra-esque period film, but, given what's been happening in the news politically recently, it was interesting to watch. It has inspired this post, and hopefully one other if I can eke it out by tomorrow.

The Declaration of Independence? The Constitution? They’re pieces of paper with signatures on them. And you know what a piece of paper with a signature is? A contract. And contracts can be renegotiated at any time. - Author Michael Sloan from the screenplay for The Majestic, spoken by the character Leo Kubelsky, studio lawyer.

--

In his opening statement kicking off "Ghosts of Nominations Past: Setting the Record Straight," Sen. Schumer declared that Senate Democrats on the committee had been doing their level best to grapple with a breakdown in the process caused by Republicans. The problem, according to Sen. Schumer, went well beyond the stalling resorted to by Republicans when they were last in charge of the Senate Judiciary Committee. The crux of the matter was President Bush's determination to pack the federal courts with "right-wing ideologues" in the mold of Scalia and Thomas, judges well outside of the mainstream, bent on implementing their extremist political views through conservative judicial activism. What was needed, Sen. Schumer proclaimed, was for the president to nominate moderates — by which he seemed to mean those who would interpret and enforce the law, rather than disregard and willfully rewrite it in order to advance a fierce partisan agenda. - Peter Berkowitz, National Review Online - It's Unanimous - May 17, 2002

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(Senator Hillary) Clinton announced Thursday she will oppose Roberts after the Senate Judiciary Committee voted 13-5 to recommend confirmation. The full Senate is expected to vote next week.

She cited "an obligation to my constituents to make sure that I cast my vote for chief justice of the United States for someone I am convinced will be steadfast in protecting fundamental women's rights, civil rights, privacy rights, and who will respect the appropriate separation of powers among the three branches."

She added that after Roberts' testimony before the Senate Judiciary Committee earlier this month, "I believe the record on these matters has been left unclear."

She said her "desire to maintain the already fragile Supreme Court majority for civil rights, voting rights and women's rights outweighs the respect I have for Judge Roberts' intellect, character and legal skills."

Edward Cox, a Manhattan lawyer and son-in-law of President Richard Nixon who also is seeking the GOP Senate nomination, said Clinton "had a chance to show that she could rise above blind partisanship and not be beholden to left-wing attack groups."

"The senator unfortunately has again decided to join the likes of Ted Kennedy and the liberal wing of her party in support of judicial activism," Cox added. - Associated Press story, 9/24/05

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Ruth Bader Ginsburg told an audience Wednesday that she doesn't like the idea of being the only female justice on the Supreme Court. But in choosing to fill one of the two open positions on the court, "any woman will not do," she said.

There are "some women who might be appointed who would not advance human rights or women's rights," Ginsburg told those gathered at the New York City Bar Association. - AP Story, 9/21/05

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If Americans loved judicial activism, liberals wouldn't be lying about what it is. Judicial activism means making up constitutional rights in order to strike down laws the justices don't like based on their personal preferences. It's not judicial activism to strike down laws because they violate the Constitution.

But liberals have recently taken to pretending judicial activism is -- as The New York Times has said repeatedly -- voting "to invalidate laws passed by Congress." Invalidating laws has absolutely nothing to do with "judicial activism." It depends on whether the law is unconstitutional or not. That's really the key point. - Ann Coulter, Actually, 'Judicial Activism' Means E=MC²

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"When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean - neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master - that's all." - Lewis Carrol, Through the Looking Glass

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“My obligation is to the Constitution. That’s the oath.” - Judge John Roberts, Senate confirmation testimony.

That's a lot of quotes, but hopefully you got the gist of it. For the Left, "judicial activism" is restraining "progressive" legislation (that just happens to contravene the Constitution). For the Right, "judicial activism" is creating law from the bench, or upholding "progressive" legislation though it violates the Constitution, because it "advances rights," (as the Left defines "advancing rights.")

The Senate Democrats proclaim that they want to make sure that Roberts is a "moderate," or at least not a "judicial activist." They've suddenly fallen in love with the concept of stare decisis. As I noted back in June over the Janice Rogers Brown nomination, at question is what Duke University law professor Erwin Chemerinsky called "shred(ding) the last eighty years of American Constitutional law." Yet his counterpart, Chapman University law professor John Eastman rebuked him:

What happened seventy or eighty years ago that changed the Constitution? There was not a single amendment at issue in the 1930's that changed the Constitution. Some radical, federal programs were pushed through. Some radical judges, under pressure, finally signed on them, and the notion that we can't question that unconstitutional action that occurred in the 1930's, and somehow that defending that unconstitutionality is adherent to the rule of law, is rather extraordinary. There are scholars on left and right that have understood that what went on in the 1930's was...had no basis in Constitutional law, or in the letter of the Constitution itself.

But it extends well past the 1930's, and everyone in the Senate knows it. Chemerinski recently wrote:

Since (Lewis F.) Powell's resignation, Sandra Day O'Connor has been the fifth vote in such crucial areas as upholding the right to abortion, limiting campaign contributions, protecting the separation of church and state, and permitting universities to engage in affirmative action.

None of this was, in Chemerinski's eyes, "judicial activism," and he adds:

Democrats need to oppose any nominee who would bring about significant changes in these areas.

James Madison, writing under the pseudonym Publius, in Federalist #78 defined the intent of the Supreme Court:

By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

However, see: Kelo v. New London, Raich v. Gonzales, Wickard v. Filburn, Scott v. Sanford, U.S. v. Cruikshank, ...

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Which is why every elected and appointed Federal official swears an oath, not to the flag, not to the nation, not to the President nor to Congress, but to uphold and defend the Constitution of the United States against all enemies, foreign and domestic.

But of course, if you're able to redefine the language, "uphold and defend" can mean anything you like. Just like "judicial activism."

Today’s decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning.

Something has gone seriously awry with this Court’s interpretation of the Constitution. Kelo v. City of New London, Thomas, J. dissenting.

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The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize. Wabaunsee v. Umbehr, Scalia, J. dissenting.

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That's the First Amendment, Mr. Chairman. It's the backbone of this nation. It's everything that gives us the potential to be right and good and just -- if only we'd live up to that potential. It's what gives me the right to sit in this chair and say my piece before this committee without fear. It's the most important part of the contract that every citizen has with this country. And even though this contract... the Constitution and the Bill of Rights -- even though they're just pieces of paper with signatures on them -- they're the only contracts we have that are most definitely not subject to renegotiation. - Author Michael Sloan from the screenplay for The Majestic, spoken by lead character Peter Appleton.

Apparently Mr. Sloan hasn't been paying attention to the courts.

But he's bang-on-the-money about that "if only we'd live up to that potential" part.

Judicial Activism

So the Supreme Court has handed down its decision in King v. Burwell, the second "Obamacare" decision.  This one was not 5-4, but 6-3, and upheld the "subsidy" for non-state exchanges that was the key question at stake.

Ten years ago I wrote a piece on judicial activism where another Arizona blog had tried to define the meaning of the phrase as how often judges invalidate "law duly passed by Congress."  I wrote:

I thought part of the "checks and balances" function of the Judicial branch was to, you know, check the power of the Legislative branch? Not merely rubber-stamp its legislation. If Congress overreaches the powers delegated to it under the Constitution, the Courts are supposed to rein it in. This is to protect the rights of the minority against the power of majorities. As Justice Scalia (56.25%) has put it, "The only reason you need a constitution is because some things you don't want the majority to be able to change. That's my most important function as a judge in this system. I have to tell the majority to take a hike."

"Activism" on the court, on the other hand, is inventing law - finding things in laws already written that were never intended. As 9th Circuit Judge Alex Kozinski put it, "build(ing) magnificent legal edifices on elliptical constitutional phrases - or even the white spaces between lines of constitutional text." Creating law is a power reserved to the legislative branch by the Constitution.

Justice Scalia wrote the dissent in Burwell. As most Scalia opinions are, this one is powerful and eloquent.

And factually accurate:

This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an "Exchange established by the State." The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B.

Words no longer have meaning if an Exchange that is not established by a State is "established by the State." It is hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words "established by the State." And it is hard to come up with a reason to include the words "by the State" other than the purpose of limiting credits to state Exchanges. "[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover." Lynch v. Alworth-Stephens Co., 267 U. S. 364, 370 (1925) (internal quotation marks omitted). Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.

When I wrote that piece ten years ago, I found a column by the irreplaceable Thomas Sowell also on judicial activism. In it he wrote:

"Judicial activism" and "judicial restraint" raise logically obvious but often ignored questions: Activism toward what?

Well, obviously in this case: "The Affordable Care Act must be saved."

Scalia further on:

It is probably piling on to add that the Congress that wrote the Affordable Care Act knew how to equate two different types of Exchanges when it wanted to do so. The Act includes a clause providing that “[a] territory that . . . establishes . . . an Exchange . . . shall be treated as a State” for certain purposes. §18043(a) (emphasis added). Tellingly, it does not include a comparable clause providing that the Secretary shall be treated as a State for purposes of §36B when she establishes an Exchange.

He isn't shy about using a sledgehammer when he feels it necessary.

More:

For its next defense of the indefensible, the Court turns to the Affordable Care Act's design and purposes. As relevant here, the Act makes three major reforms. The guaranteed-issue and community-rating requirements prohibit insurers from considering a customer's health when deciding whether to sell insurance and how much to charge, 42 U. S. C. §§300gg, 300gg–1; its famous individual mandate requires everyone to maintain insurance coverage or to pay what the Act calls a "penalty," 26 U. S. C. §5000A(b)(1), and what we have nonetheless called a tax, see National Federation of Independent Business v. Sebelius, 567 U. S. ___, ___ (2012) (slip op., at 39); and its tax credits help make insurance more affordable.

The Court reasons that Congress intended these three reforms to "work together to expand insurance coverage"; and because the first two apply in every State, so must the third.

This reasoning suffers from no shortage of flaws. To begin with, "even the most formidable argument concerning the statute's purposes could not overcome the clarity [of] the statute’s text." Kloeckner v. Solis, (2012). Statutory design and purpose matter only to the extent they help clarify an otherwise ambiguous provision. Could anyone maintain with a straight face that §36B is unclear? To mention just the highlights, the Court's interpretation clashes with a statutory definition, renders words inoperative in at least seven separate provisions of the Act, overlooks the contrast between provisions that say "Exchange" and those that say "Exchange established by the State," gives the same phrase one meaning for purposes of tax credits but an entirely different meaning for other purposes, and (let us not forget) contradicts the ordinary meaning of the words Congress used. On the other side of the ledger, the Court has come up with no thing more than a general provision that turns out to be controlled by a specific one, a handful of clauses that are consistent with either understanding of establishment by the State, and a resemblance between the tax-credit provision and the rest of the Tax Code. If that is all it takes to make something ambiguous, everything is ambiguous.

Having gone wrong in consulting statutory purpose at all, the Court goes wrong again in analyzing it. The purposes of a law must be "collected chiefly from its words," not "from extrinsic circumstances." Sturges v. Crowninshield, (1819). Only by concentrating on the law's terms can a judge hope to uncover the scheme of the statute, rather than some other scheme that the judge thinks desirable. Like it or not, the express terms of the Affordable Care Act make only two of the three reforms mentioned by the Court applicable in States that do not establish Exchanges. It is perfectly possible for them to operate independently of tax credits. The guaranteed-issue and community-rating requirements continue to ensure that insurance companies treat all customers the same no matter their health, and the individual mandate continues to encourage people to maintain coverage, lest they be "taxed."

The Court protests that without the tax credits, the number of people covered by the individual mandate shrinks, and without a broadly applicable individual mandate the guaranteed-issue and community-rating requirements "would destabilize the individual insurance market." If true, these projections would show only that the statutory scheme contains a flaw; they would not show that the statute means the opposite of what it says.

Here I'd like to interject a quote from the dissent to Home Building and Loan Association v. Blaisdell (1934):

I quite agree with the opinion of the court that whether the legislation under review is wise or unwise is a matter with which we have nothing to do. Whether it is likely to work well or work ill presents a question entirely irrelevant to the issue.

Blaisdell considered a Constitutional question, but the argument is the same: It isn't the Court's job to determine if a law is good or not.  The Constitution does not give the Judicial Branch the power to make law.  That power is reserved to the Legislative branch only.  If the Legislative branch does a bad job, then The People have the power to elect new legislators.  If the JUDICIAL branch does a bad job, The People have less recourse.

Scalia writes:

The Court's decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people’s decision to give Congress "[a]ll legislative Powers" enumerated in the Constitution. Art. I, §1. They made Congress, not this Court, responsible for both making laws and mending them. This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. We must always remember, therefore, that "[o]ur task is to apply the text, not to improve upon it." Pavelic & LeFlore v. Marvel Entertainment Group, Div. of Cadence Industries Corp. (1989).

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More importantly, the Court forgets that ours is a government of laws and not of men. That means we are governed by the terms of our laws, not by the unenacted will of our lawmakers. "If Congress enacted into law something different from what it intended, then it should amend the statute to conform to its intent." Lamie, supra, at 542. In the meantime, this Court "has no roving license. . . to disregard clear language simply on the view that . . . Congress 'must have intended' something broader." Bay Mills, 572 U. S., at ___ (slip op., at 11).

Even less defensible, if possible, is the Court’s claim that its interpretive approach is justified because this Act "does not reflect the type of care and deliberation that one might expect of such significant legislation." It is not our place to judge the quality of the care and deliberation that went into this or any other law. A law enacted by voice vote with no deliberation whatever is fully as binding upon us as one enacted after years of study, months of committee hearings, and weeks of debate. Much less is it our place to make everything come out right when Congress does not do its job properly. It is up to Congress to design its laws with care, and it is up to the people to hold them to account if they fail to carry out that responsibility.

Rather than rewriting the law under the pretense of interpreting it, the Court should have left it to Congress to decide what to do about the Act’s limitation of tax credits to state Exchanges. If Congress values above everything else the Act’s applicability across the country, it could make tax credits available in every Exchange. If it prizes state involvement in the Act's implementation, it could continue to limit tax credits to state Exchanges while taking other steps to mitigate the economic consequences predicted by the Court. If Congress wants to accommodate both goals, it could make tax credits available every where while offering new incentives for States to set up their own Exchanges. And if Congress thinks that the present design of the Act works well enough, it could do nothing. Congress could also do something else altogether, entirely abandoning the structure of the Affordable Care Act. The Court’s insistence on making a choice that should be made by Congress both aggrandizes judicial power and encourages congressional lassitude.

Just ponder the significance of the Court's decision to take matters into its own hands. The Court's revision of the law authorizes the Internal Revenue Service to spend tens of billions of dollars every year in tax credits on federal Exchanges. It affects the price of insurance for millions of Americans. It diminishes the participation of the States in the implementation of the Act. It vastly expands the reach of the Act's individual mandate, whose scope depends in part on the availability of credits. What a parody today's decision makes of Hamilton's assurances to the people of New York: "The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over . . . the purse; no direction . . . of the wealth of society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment."

That is what this Court did today. As Scalia correctly points out, the overriding principle here is, "The Affordable Care Act must be saved." Because the intent of the legislation must be good.

And THAT is "judicial activism" - rule of men, not of law.  And that was what the Constitution was written to prevent.

Also:  Read this post from 2010.  It's short, and relevant.  And Chief Justice Roberts is no "conservative."

Judicial Activism Defined

"Judicial Activism" Defined

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.

The Nation will live to regret what the Court has done today. - Antonin Scalia, Boumediene v. Bush, (dissenting)

What in the world is a 'moderate interpretation' of the text? Halfway between what it really says and what you want it to say?

It is literally true that the U.S. Supreme Court has entirely liberated itself from the text of the Constitution.

What 'we the people' want most of all is someone who will agree with us as to what the evolving constitution says.

We are free at last, free at last. There is no respect in which we are chained or bound by the text of the Constitution. All it takes is five hands. - Antonin Scalia, excerpts from a speech quoted in the New Orleans Times-Picayune, 3/10/04

Something has gone seriously awry with this Court’s interpretation of the Constitution. - Clarence Thomas (dissenting) Kelo v New London (2005)

I keep saying that "Claire Wolfe Time" passed us by a long time ago.

See also this and this.

R·S·P·E·C·T for and the Rule of Law

I've been saving links for just a few weeks for this piece, and - once again - it's been like drinking from a fire hose trying to select the best (worst?) out of the stream. 

Let us begin with the oft-repeated quote from Atlas Shrugged:

There is no way to rule innocent men. The only power any government has is to crack down on criminals. When there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking the law. Create a nation of lawbreakers and then you can cash in on the guilt. Now that's the system!

The Heritage Foundation reports that there are now so many federal criminal laws, no one knows just exactly how many there are:

Two objections to the current state of federal law have been that no one knows how many federal crimes there are, and no one can easily find them all. Heritage and others have encouraged Congress to direct the executive branch to compile a list of all federal offenses and to make that list readily accessible to the average person without charge. Recently, the Senate Judiciary Committee took a positive step toward that goal.

The American legal system has always presumed—often incorrectly—that every person knows every criminal law. In fact, no one—no police officer, no prosecutor, no judge, and no law professor—knows all of them. One reason why this problem has existed is that there is no compendium of all federal criminal laws that a person—or a lawyer—could turn to when issues arise.

In the past the Justice Department and the American Bar Association (ABA) separately attempted to prepare a list of federal offenses. Neither the Justice Department nor the ABA succeeded, no other component of the executive branch has picked up the baton since then, and no comprehensive, easily accessible list exists today.

 If you have ten thousand regulations you destroy all respect for the law.
-- Winston Churchill

Attorney Harvey Silverglate believes there are enough that pretty much everyone unwittingly commits Three Felonies a Day.

I've been writing about abuses of our "justice" system (it's a legal system - very little "justice" gets done, and that generally by accident) almost since I started this blog.  Here are some recently bookmarked news stories:

Video Shows Officer Confronting Man Filming Arrests In Towson (MD)

Meghan McCorkell reports Baltimore County police officials say they are concerned by the video and they've launched an investigation.

Early Sunday morning, a man videotaped as Baltimore County Police arrested two people in Towson. As the video rolled, he was confronted by an officer.

"I'm allowed to do this," he told the officer.

"Get it out of my face," the officer replied.

"I have my rights," the man said.

"You have no rights," the officer said.

But the man didn't stop rolling and was once again aggressively approached.

"Do you see the police presence here? Do you see us all? We're not [expletive] around. Do you understand? Do not disrespect us and do not not listen to us," the officer said. "Now walk away and shut your [expletive] mouth or you're going to jail, do you understand?"

"You have no rights."

From a cop.

Next!

Family Says Moore Police Beat Father To Death (OK)

Nair Rodriguez and her daughter Lunahi told News 9 they got into an argument at the Warren Theater around midnight. Nair said she slapped her daughter then stormed away. Her husband, Luis, chased after her. That was when the family said officers confronted Luis Rodriguez and asked to see his identification.

According to Lunahi and Nair, he tried to bypass the officers to stop his wife from driving off because she was so angry. They said officers took him down and it escalated.

Lunahi Rodriguez said that five officers beat her father to death right in front of her, in the parking lot of the movie theater.

"When they flipped him over you could see all the blood on his face, it was, he was disfigured, you couldn't recognize him."

By the time it was all over, Nair Rodriguez said that she knew her husband was dead.

NEXT!

Dashboard cam catches cops in unbelievable series of lies that led to man's false arrest (NJ)

Police charged a New Jersey man with resisting arrest and assaulting an officer, but recently revealed footage from a dashboard camera told a different story: Not only did the officers start beating the man for no apparent reason, but they actually crashed one of their vehicles into the man's car.

Then they allegedly lied about what transpired and suppressed the evidence, but were somehow found innocent during an internal investigation.

Prosecutors, however, dropped all charges against 30-year-old Marcus Jeter, a black man, once they saw the incredible video footage, which fully corroborates Jeter's side of the story.

NEXT!

What's in a name? For the wrong Cody Williams, 35 days in jail (FL)

They arrested the wrong Cody Williams, and then kept him in jail for more than a month.

The Clay County, Fla., Sheriff's Office punished a deputy Tuesday for the wrongful arrest of 18-year-old Cody Lee Williams, who didn't even share the same middle name as a man accused of having sex with a young girl.

"Other than the name, there's no other similarities," Kris Nowicki, Cody Lee Williams' attorney, told the Los Angeles Times on Tuesday. "Cody Williams had never met this girl and didn't know anything about her."

OK, that's a (very) few representatives of the front-line enforcers (and I won't even touch on "asset forfeiture" in this piece), but they're the kind of thing that inspires this:


Now, let's move up the chain.

Leawood couple battle to open police investigation records

Public records never meant a lot to Robert and Adlynn Harte — until police raided their upscale Leawood home two years ago.

The failed search for marijuana set the Hartes on a yearlong crusade for documents to shed light on what led to a search likened to a military operation that produced no charges or evidence.

The Hartes spent $25,000 working to get the records.

Now they're lobbying the Kansas Legislature to make it easier to get at such records.

"We're accidental activists," Adlynn Harte said.

--

Kansas is the only state in the country that keeps such documents from public view, say open-records advocates who argue for more transparency on the activities of police and prosecutors.

--

"How can we possibly judge whether law enforcement and the courts are doing their job," Kansas Press Association executive director Doug Anstaett said in an email, "if we have no access to the information that would help us form that opinion?"

Just last year, Glenn Reynolds wrote a Columbia Law Review piece, Ham Sandwich Nation: Due Process When Everything Is a Crime that begins thus:

Prosecutorial discretion poses an increasing threat to justice. The threat has in fact grown more severe to the point of becoming a due process issue. Two recent events have brought more attention to this problem. One involves the decision not to charge NBC anchor David Gregory with violating gun laws. In Washington D.C., brandishing a thirty-round magazine is illegal and can result in a yearlong sentence. Nonetheless, the prosecutor refused to charge Gregory despite stating that the on-air violation was clear. The other event involves the government’s rather enthusiastic efforts to prosecute Reddit founder Aaron Swartz for downloading academic journal articles from a closed database. Authorities prosecuted Swartz so vigorously that he committed suicide in the face of a potential fifty-year sentence.

Both cases have aroused criticism. In Swartz's case, a congresswoman has even proposed legislation designed to ensure that violating a website's terms cannot be prosecuted as a crime. But the problem is much broader. Given the vast web of legislation and regulation that exists today, virtually any American bears the risk of being targeted for prosecution.

Attorney General (and later Supreme Court Justice) Robert Jackson once commented: "If the prosecutor is obliged to choose his cases, it follows he can choose his defendants." This method results in "[t]he most dangerous power of the prosecutor: that he will pick people he thinks he should get, rather than pick cases that need to be prosecuted." Prosecutors could easily fall prey to the temptation of "picking the man, and then searching the law books . . . to pin some offense on him." In short, prosecutors' discretion to charge—or not to charge—individuals with crimes is a tremendous power, amplified by the large number of laws on the books.

Prosecutors themselves understand just how much discretion they enjoy. As Tim Wu recounted in 2007, a popular game in the U.S. Attorney's Office for the Southern District of New York was to name a famous person—Mother Teresa, or John Lennon—and decide how he or she could be prosecuted:

It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder, or other crimes you’d see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes like "false statements" (a felony, up to five years), "obstructing the mails" (five years), or "false pretenses on the high seas" (also five years). The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The, result, however, was inevitable: "prison time."

Do read the whole thing. The point of the piece is that "longstanding aphorism that a good prosecutor can persuade a grand jury to indict a ham sandwich."  And these days, an indictment is as good as a conviction:

...fewer than 5 percent of cases brought by American prosecutors every year lead to an actual jury trial, while the rest play out in plea bargains almost entirely behind closed doors. In practice, that means juries have all but vanished from the justice system, replaced by a highly efficient machine that processes cases without ever stopping to consider what seems moral or fair.

Or just.  How bad has it gotten? Radley Balko reported on March 7:

I've addressed the problem of prosecutorial misconduct here a few times before — both its prevalence, and the fact that misbehaving prosecutors are rarely sanctioned or disciplined. Recently (or perhaps the better word is finally), some judges have begun to speak out about the problem including, most notably, Alex Kozinski, the influential judge on the U.S. Court of Appeals for the 9th Circuit.

Late last year, South Carolina State Supreme Court Justice Donald Beatty joined Kozinski. At a state solicitors’ convention in Myrtle Beach, Beatty cautioned that prosecutors in the state have been "getting away with too much for too long." He added, "The court will no longer overlook unethical conduct, such as witness tampering, selective and retaliatory prosecutions, perjury and suppression of evidence. You better follow the rules or we are coming after you and will make an example. The pendulum has been swinging in the wrong direction for too long and now it's going in the other direction. Your bar licenses will be in jeopardy. We will take your license."

You'd think prosecutors would be abashed at that kind of down-dressing. Well, you'd hope anyway, but no:

Beatty singled out South Carolina's 9th Judicial District in particular. There's a good reason for that: He noted in his talk that two prosecutors from that district, overseen by Solicitor Scarlett Wilson, had already been suspended for misconduct and at the time of his talk, another complaint was pending. A recent complaint by the state's association of criminal defense lawyers recently laid out a list of other complaints against Wilson's office.

But Wilson took personal offense at Beatty's comments. She accused him of bias and sent a letter asking him to recuse himself from criminal cases that come out of her district. In one sense, Wilson is unquestionably correct. Beatty is biased. He’s clearly biased against prosecutors who commit misconduct. But that's a bias you probably want in a judge, particularly one that sits on a state supreme court. It's also a bias that isn’t nearly common enough in judges. (Not only do most judges not name misbehaving prosecutors in public, they don’t even name them in court opinions.)

Other prosecutors around the state jumped on, and now at least 13 of the head prosecutors in the state's 16 judicial districts, along with South Carolina Attorney General Alan Wilson, are asking for Beatty's to be recused from criminal cases. This would presumably end his career as a state supreme court justice.

Read the original piece and all the links.

Here's an example of why South Carolina was called out: Death row lawyer: 'If I throw in the towel, a client dies'

By the time Edward Lee Elmore won his freedom at age 53, he had spent 30 years -- most of them on death row -- imprisoned in South Carolina for a crime he says he did not commit.

Law enforcement planted evidence and prosecutors manipulated facts to cast Elmore as the only suspect in the 1982 murder of 75-year-old Dorothy Edwards, his lawyers claim.

Even with seemingly overwhelming evidence in Elmore's favor, it took nearly two decades to win his release, in what an appeals court called "one of those exceptional cases of 'extreme malfunctions in the state criminal justice systems.' "

So this abuse is hardly a new thing, and it makes one wonder just how "exceptional" that "extreme malfunction" of the justice system really was. But this is hardly limited to the states. Mother Jones reports:

Federal prosecutors, judges, and other officials at the Justice Department committed over 650 acts of professional misconduct in a recent 12-year period, according to a new report published by a DC-based watchdog group, the Project On Government Oversight. POGO investigators came up with the number after reviewing documents put out by the Department of Justice's Office of Professional Responsibility (OPR). According to one little-noticed OPR document published last year, a DOJ attorney failed to disclose a "close personal relationship" with the defendant in a case he was prosecuting, in which he negotiated a plea agreement to release the defendant on bond. An immigration judge also made "disparaging remarks" about foreign nationals. POGO contends that this number is only the tip of the iceberg and OPR needs to release more information about this misconduct to the public.

"The bottom line is we just don't know how well the Justice Department investigates and disciplines its own attorneys for misconduct when it occurs," says Nick Schwellenbach, a contributor to POGO. "The amount and types of misconduct DOJ's own investigators conclude has happened suggests more [information] should be public than is already, including naming names of offending prosecutors that commit serious misconduct."

All that report means is they got caught 650 times. There's no telling how many times their malfeasance went undetected, and - detected or not - that malfeasance remains unpunished.

But the problems are hardly limited to cops and prosecutors.  What about the judges?

A fundamental premise of American constitutionalism is that an independent judiciary stands guard against abuses of power by the other two branches of government. But independence leaves judges with immense power. Although the vast majority of judges at both the federal and state levels have genuine respect for the rule of law as a constraint on their power, it takes only a few self-important or ambitious judges to create precedents that other courts may later rely on in the name of the rule of law.

Some judges are easily tempted to engage in such law making. Putting aside political ambition and other personal conflicts of interest that are countered only by strength of character, all American judges have been trained in the centuries-old tradition of the common law. That tradition, it is often said, is one of judge-made law. Although a more accurate understanding is that the common law reflects judicial recognition and articulation of evolving popular custom and practice, there are many examples of policy-driven judicial modifications of common law rules, sufficient to persuade modern judges that they have law making power even in a constitutional system of separated powers.

Most present day judges have been encouraged in this view by armies of special interests advocates and a generation of law professors whose writings and teachings often emphasize the role of law as an instrument of change. Because most law teaching, even in an era of pervasive regulation pursuant to ever more complex statutes, relies on the reading and analysis of judicial opinions, courts are regularly portrayed as agents of change and students are encouraged to pursue policy objectives through imaginative interpretations of prior judicial rulings and existing laws and regulations.

More than a few judges find themselves persuaded that, as descendants of common law judges, they have an important role to play in updating and improving the law. Besides, making policy to serve the public good is far more interesting and gratifying work than interpreting and enforcing laws made by others. And if they have qualms about venturing into policy making, judges can have reference to higher authorities like Supreme Court Justice Stephen Breyer and 7^th Circuit Judge Richard Posner whose books defend judicial lawmaking pursuant to theories of a "living constitution" and "judicial pragmatism" respectively.

Judges can all too easily fancy themselves philosopher kings with special talents for objectivity and doing the right thing in a world of uncompromising partisanship. Recent state court decisions in Pennsylvania, New York, and Montana bear witness to the fruits of environmentalist persistence in the courts and the concomitant threat to the rule of law.

Over the years, I've written a bit on "judicial activism" as well.  But that's not the only problem.  Judges are often appointed for life (or until they're bumped up higher in the pecking order), and are notoriously hard to unseat.  Like Pennsylvania county judge Mark Ciavarella Jr. who was sent to prison for 28 years.  For what?

...for taking $1m in bribes from the builder of two juvenile detention centres in a case that became known as "kids-for-cash".

As a result, 4,000 convictions were overturned.

Or the case of Michigan Circuit Court Judge Bruce Morrow:

Morrow, who works in the Frank Murphy Hall of Justice overseeing criminal cases, is accused of engaging in conduct that "demonstrates a lack of impartiality, failure to follow the law, an abuse of judicial power and violations of the Michigan Code of Judicial Conduct," according to the complaint filed in March.

From a Massachusetts School of Law publication, The Long Term View, a 1997 paper, WITHOUT MERIT: THE EMPTY PROMISE OF JUDICIAL DISCIPLINE:

Judicial independence is predicated on "good faith" decision-making. It was never intended to include "bad-faith" decision-making, where a judge knowingly and deliberately disregards the facts and law of a case. This is properly the subject of disciplinary review, irrespective of whether it is correctable on appeal. And egregious error is also misconduct, since its nature and/or magnitude presuppose that a judge acted wilfully, or that he is incompetent.

--

Every case has many facts, any of which may be inadvertently "misstated" in judicial decisions. But judicial misconduct is not about innocent "misstatement" of facts, and certainly not about peripheral facts. It involves a judge's knowing and deliberate misrepresentation of the material facts on which the case pivots. These facts determine the applicable law. If the applicable law doesn't allow the judge to do what he wants to do, he's going to have to change the material facts so that the law doesn't apply. When judges don't want to put themselves on record as dishonestly reciting facts, they just render decisions without reasons or factual findings.

The prevalence of intellectually dishonest decisions is described by Northwestern Law Professor Anthony D'Amato in "The Ultimate Injustice: When the Court Misstates the Facts". [PDF]  He shows how judges at different levels of the state and federal systems manipulate the facts and the law to make a case turn out the way they want it to. It quotes from a speech by Hofstra Law Professor Monroe Freedman to a conference of federal judges:

Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.

Afterward, when Professor Freedman sat down, a judge sitting next to him turned to him and said, "You don't know the half of it."

No, I'm afraid we really don't.

Finally at the top of the chain, we have this:

And this:

Not a season passes without new disclosures showing Nixon's numerous attempts at criminal use of his presidential powers and in fact the scorn he held for the rule of law.
― Bob Woodward.

The Wall St. Journal - All the President's IRS Agents:

Few presidents understand the power of speech better than Barack Obama, and even fewer the power of denying it to others. That's the context for understanding the White House's unprecedented co-option of the Internal Revenue Service to implement a political campaign to shut up its critics and its opponents.

Perhaps the biggest fiction of this past year was that the IRS's targeting of conservative groups has been confronted, addressed and fixed. The opposite is true. The White House has used the scandal as an excuse to expand and formalize the abuse.

About a month after the IRS inspector general released his bombshell report about IRS targeting of conservative groups last May, Acting IRS Commissioner Danny Werfel unveiled a "plan of action" for correcting the mess. One highlight was that targeted groups would be offered a new optional "expedited" process for getting 501(c)(4) status.

The deal, which received little public attention, boiled down to this: We'll do our job, the IRS said, if you give up your rights.

Remember: "You have no rights."

The LA Times - The president's power grab:

Recently, a bizarre scene unfolded on the floor of the House of Representatives that would have shocked the framers of the Constitution. In his State of the Union address, President Obama announced that he had decided to go it alone in areas where Congress refused to act to his satisfaction. In a system of shared powers, one would expect an outcry or at least stony silence when a president promised to circumvent the legislative branch. Instead, many senators and representatives erupted in rapturous applause; they seemed delighted at the notion of a president assuming unprecedented and unchecked powers at their expense.

Last week, Obama underlined what this means for our system: The administration unilaterally increased the transition time for individuals to obtain the level of insurance mandated by the Affordable Care Act. There is no statutory authority for the change — simply the raw assertion of executive power.

The United States is at a constitutional tipping point: The rise of an uber presidency unchecked by the other two branches.

The Washington Examiner - Obama threatens vetoes of bills requiring him to follow the law:

President Obama is threatening to veto a law that would allow Congress to sue him in federal courts for arbitrarily changing or refusing to enforce federal laws because it "violates the separation of powers" by encroaching on his presidential authority.

"[T]he power the bill purports to assign to Congress to sue the President over whether he has properly discharged his constitutional obligation to take care that the laws be faithfully executed exceeds constitutional limitations," the White House Office of Management and Budget said Wednesday in a statement of administration policy. "Congress may not assign such power to itself, nor may it assign to the courts the task of resolving such generalized political disputes."

The lead sponsor of the measure, Rep. Trey Gowdy, R-S.C., said it was designed to curb Obama's abuse of presidential authority, most notably in his frequent changes to Obamacare.

However, one of the jobs of the Chief Executive of the United States spelled out under the Constitution that Obama swore twice to uphold and defend is:

...he shall take Care that the Laws be faithfully executed....

NOT "...he shall decide which parts of the Laws will or won't be enforced today...."

Also from the Washington Examiner - 'Most transparent' White House ever rewrote the FOIA to suppress politically sensitive docs:

It's Sunshine Week, so perhaps some enterprising White House reporter will ask press secretary Jay Carney why President Obama rewrote the Freedom of Information Act without telling the rest of America.

The rewrite came in an April 15, 2009, memo from then-White House Counsel Greg Craig instructing the executive branch to let White House officials review any documents sought by FOIA requestors that involved "White House equities."

That phrase is nowhere to be found in the FOIA, yet the Obama White House effectively amended the law to create a new exception to justify keeping public documents locked away from the public.

Rewriting the Freedom of Information Act is also not within the powers of the Executive.

Of course, as he took office Obama promised:

"Transparency and the rule of law will be the touchstones of this presidency."

But that was January of 2009, and as we've learned, all of Obama's promises have an expiration date.  Apparently that date was April 15.

"Rule of Law" is defined by Webster's as "adherence to due process of law :  government by law."  But when the government is obviously not adhering to the law, what then?

Several years ago, Steven Den Beste wrote in his essay Non-European Country:

The apparent similarities between Europe and the US are entirely cosmetic. ("The US and UK are two peoples divided by a common language.")

The differences are deep and profound, because we are held together by an idea, and Europeans do not have any equivalent. And both the cosmetic similarities and the deep differences manifest most clearly in our concept of liberty, for our concept of liberty is utterly unlike the European concept of "freedom". It covers some of the same ground, but that is at best coincidence. And there are many, many differences.

Our freedom of speech and the press are critically different. In large parts of Europe, hate speech is a crime. But in America, hate speech is protected speech. So when a French judge tried to order an American company to remove Nazi symbols from their site in the US, an American judge told the French judge to get stuffed.

Americans may use deadly force to defend themselves and their property. A Brit who shoots a burglar in his home may land in prison. An American who does the same will probably be treated as a hero. That idea we share admits of no other conclusion; the man who kills a dangerous intruder in his home proves his dedication to that idea as strongly as anyone can without serving the nation in wartime.

A lot of Europeans don't understand why Americans of good conscience can hate what the Nazis stand for and also believe that their symbols should not be suppressed. They don't understand why so many of us are so opposed to gun control. But that's because they don't even understand that those are part of the same thing. They're both aspects of that idea we all share.

It is that idea which explains why Americans may use deadly force to defend a total stranger, and why so many of us actually will do so. And it is that idea which explains why it is that we have not "gotten over" the attacks in September of 2001, and why we're not going to.

And if I've learned anything in the last two years, what I've learned is that it is an idea which is totally foreign to the European mindset, or at least the mindset that dominates Europe's chattering classes and polity and most of its press.

In his 2010 speech at the Cato Institute, George F. Will expanded on the thing that makes us different from Europeans:

Fifty-one days ago now, the President signed into law the Health Care Reform, the great lunge to complete the new deal project, and the Great Society project. The great lunge to make us more European. At exactly the moment that this is done the European Ponzi scheme of the social welfare state is being revealed for what it is. There's a difference. We are not Europeans, we are not in Orwell's phrase "a state-broken people." We do not have a feudal background of subservience to the State. No, that is the project of the current administration. It can be boiled down to "Learned feudalism."

UPDATED to add:

Alexis de Tocqueville published the first volume of his opus Democracy in America in 1835 - less than 50 years after the ratification of the Constitution.  From Chapter VI, titled "What Sort of Despotism Democratic Nations Have to Fear," comes this passage:

I seek to trace the novel features under which despotism may appear in the world. The first thing that strikes the observation is an innumerable multitude of men, all equal and alike, incessantly endeavoring to procure the petty and paltry pleasures with which they glut their lives. Each of them, living apart, is as a stranger to the fate of all the rest; his children and his private friends constitute to him the whole of mankind. As for the rest of his fellow citizens, he is close to them, but he does not see them; he touches them, but he does not feel them; he exists only in himself and for himself alone; and if his kindred still remain to him, he may be said at any rate to have lost his country.

Above this race of men stands an immense and tutelary power, which takes upon itself alone to secure their gratifications and to watch over their fate. That power is absolute, minute, regular, provident, and mild. It would be like the authority of a parent if, like that authority, its object was to prepare men for manhood; but it seeks, on the contrary, to keep them in perpetual childhood: it is well content that the people should rejoice, provided they think of nothing but rejoicing. For their happiness such a government willingly labors, but it chooses to be the sole agent and the only arbiter of that happiness; it provides for their security, foresees and supplies their necessities, facilitates their pleasures, manages their principal concerns, directs their industry, regulates the descent of property, and subdivides their inheritances: what remains, but to spare them all the care of thinking and all the trouble of living?

Thus it every day renders the exercise of the free agency of man less useful and less frequent; it circumscribes the will within a narrower range and gradually robs a man of all the uses of himself. The principle of equality has prepared men for these things;it has predisposed men to endure them and often to look on them as benefits.

After having thus successively taken each member of the community in its powerful grasp and fashioned him at will, the supreme power then extends its arm over the whole community. It covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.

(My emphasis.)  Which pretty much defines "a state-broken people."  End of edit.

Will continued later in his speech:

We see in the rampant indebtedness of our country and the European countries what someone has called "a gluttonous feast on the flesh of the future." We see the infantilization of publics that become inert and passive, waiting for the state to take care of them. One statistic: 50% of all Americans 55 years old or older have less than $50,000 in savings and investment.

The feast on the flesh of the future is what debt is. To get a sense of the size of our debt, in 1916, midway in Woodrow Wilson's first term, the richest man in America John D. Rockefeller could have written a personal check and retired the National Debt. Today the richest man in America, Bill Gates, could write a personal check for all his worth and not pay two months interest on the National Debt. Five years from now interest debt service will consume half of all income taxes. Ten years from now the three main entitlements, Medicare, Medicaid and Social Security plus interest will consume 93% of all federal revenues. Twenty years from now debt service interest will be the largest item in the federal budget.

"The project," I have come to believe, IS to make us a "state-broken people," inert and passive, waiting for the state to take care of us.

But we are Americans, not Europeans, and we are not yet (and I hope never will be) a state-broken people.

Glenn Reynolds has a recurring theme at Instapundit - that Congress doesn't pass a lot of legislation that could actually do some good because "they provide too few opportunities for graft." I wish he was being humorous, but I'm certain he is not. He has a couple of others concerning pitchforks, and Tar. Feathers.

If citizens cannot trust that laws will be enforced in an evenhanded and honest fashion, they cannot be said to live under the rule of law. Instead, they live under the rule of men corrupted by the law.
― Dale Carpenter, Flagrant Conduct: The Story of Lawrence v. Texas


When government acts according to no limit but its own discretion – when the citizen can only know what the rules are after the ruler announces them, and only for that moment, until the ruler changes them again – the citizen’s rights are insecure; he is vulnerable to the self-interested or abusive acts of the ruler. He cannot make plans or deal with others safely and rationally. These evils follow regardless of whether the arbitrary power is wielded by a monarch or by a democratic voting majority.
― Timothy Sandefur, The Conscience of the Constitution

The rule of law can be wiped out in one misguided, however well-intentioned, generation.
― William T. Gossett

Our government is well down the path to lawlessness.  As it goes, we follow.  When people no longer trust the system, they stop relying on it.  When they stop trusting the government, they stop obeying it.

Og over at Neanderpundit wrote an interesting piece recently - Watch This Space.  Pullquote:

At some point the regulations and laws will make it impossible for businesses of certain sizes to survive, and then things will change dramatically. People will turn to practices that are illegal in order to make a living, just as the oppression of communism drove commerce underground. We are very near to that tipping point; I see people doing riskier and riskier things to stay afloat. Do not confuse illegal with immoral; and do not assign moral values to legislators- in the main, they have none to impart.

American industry is prepared to do what it has to, to get through the coming shitstorm. And it will involve, in many cases, bending, skirting, or downright breaking the law. Are you ready? Can you break the law day in and day out without acting so guilty a cop notices immediately?

In ten years if you cannot you will be in trouble.

I'm not so sure it's that far away. After all, if Harvey Silverglate is right, business operators (and everyone else) are currently committing three felonies a day. Prosecutors just haven't set their sights on them (or us) yet. 

But if they haven't broken us to the State by the time all those spinning plates start falling off their sticks, well, as I've said before, our "austerity protests" are going to be SPECTACULAR.

New Addition to the Blogroll

The Everlasting Phelps

Anybody who writes lines like these:

I hate it when someone uses footnotes on a "study" that doesn't actually follow logic. I would rather read straight bullshit than well-documented bullshit.

--

Face it. Men are pigs. We like farting, and we are secretly proud of our stripes. I would still be making stripes if I didn't like having my kibbles and bits swinging around when I walk. At least our underwear doesn't look like we decided to steal them from a crime scene, and we don't leave them soaking in the bathroom sink all the time.

--

As a white man, I am not allowed to have an opinion that is at odds with acquiescence to a minority, or I am a bully. By having white skin and a couple of testicles, I am presumed to not be capable of understanding the position of people who lack one of those two qualifications.

--

With news that it is up to the Controversial 9th Circuit to judge recall, my first reaction was, "well, if there is a way for them to sway it towards Bustamonte, they will."
That is real discouraging for me, and not because of I am anti-Democrat. The discouragment comes from realising that I have no expectation of the application of law from the 9th circuit. None. The 9th is so activist, so interventionist, and so partisain that it is a mockery of what the Judicial branch is supposed to represent. They are supposed to be the brake on the engine of government. Instead, the 9th has ventured so far into judicial activism that they are not slowing the engine, but instead speeding it along.

If someone doesn't clean out or clean up the Ninth Circuit pretty soon, we are going to have a real honest-to-goodness constitutional crisis out of that court.

deserves to be read.

And get this: He's a lawyer! Spoons has some competition.

Welcome to my blogroll, Phelps.

UPDATE: Ok, he's not a lawyer. For some strange reason, I feel better.

Hopenchange Fails Again

I'm not sure how long it takes to bring a TV series from concept to the small screen, but I wouldn't be surprised if it's about 20 months if you really push.

I'm betting that NBC's Outlaw was a brainstorm that occurred about the time someone realized that Obama was going to be President. Consider the premise: an ultra right-wing Supreme Court Justice, gambler, womanizer, picks up an ACLU lawyer one night after boozing and betting in Atlantic City, and in the morning he becomes a new man! (I'm surprised he didn't come out of the closet, too!) He retires from the bench to open his own law practice to protect the "little guy" against capitalists, conservatives, all the evil exploiters of the downtrodden! (But I repeat myself.)

How could it miss?

Apparently they showed three episodes an then put it on hiatus.

Which is now permanent.

All together now, aaaaaawwwww!

UPDATE: Reader Sarah left an interesting comment which caused me to do a little research into the writing of the show. As far as I can tell, the creator, producer, and writer for the shows that aired is John Eisendrath. He was interviewed before the show premiered, and here is his explanation of the thoughts behind its creation:

I wanted to do this show because I do not have much faith in the legal system and I have seen innocent people be hurt by it. And I longed for [change] particularly by judges who knew they were doing something that would hurt innocent people but felt that they were bound by the law to hurt them because that was their job, to uphold the law.

I wanted to write a story about a judge who couldn't do that anymore, who felt like he had a higher calling that went beyond (h)is obligation to following the law as a judge. But as a conservative, he knew that he couldn't just make it up as he went along, so he left to do something in pursuit of that higher calling.

Yup, that's one definition of conservatism. And a beautiful definition of why liberals love judicial activism: Don't uphold the law, make it up as you go along!

Light a Seegar, it's the Best Birthday Present EVER!.

Mrs. Baker's little boy was born 45 years ago this day, and today the U.S. Court of Appeals for the District of Columbia gave me the best birthday present a gun-nut could ever want: A decision overturning D.C.'s draconian gun-ban on the grounds that the Second Amendment to the Constitution protects an individual right to arms.

If you've not been following the case, this has been in the pipeline for a while. The D.C. court was the ideal place to bring up such a suit because the District is not legally a "state." Its statutes are subject only to federal law. Because of the precedent of U.S. v. Cruikshank the Second Amendment has been excluded from "incorporation" under the 14th Amendment's "privileges or immunities" and/or "equal protection" clauses. State and local restrictions on the right to arms are legal (thus Chicago and Morton Grove, IL can ban handguns while Kennesaw, GA can mandate firearm ownership). While many courts have thrown out Second Amendment challenges on the "collective rights" arguments, all they've needed to do is cite Cruikshank - but Cruikshank, like Dred Scott before it, is a racist decision.

At any rate, Washington, D.C. doesn't get that protection. It's under federal law only, and the Second Amendment definitely applies.

Bear with me here. I've read enough legal decisions to make my eyes bleed over the last ten or twelve years. As a result, I assume other people have the same knowledge I've acquired, or conversely, don't know a damned thing about what I'm discussing. Either I give too much background information, or not enough. I prefer to err on the side of "too much."

In 1976 the City of Washington, D.C. passed three ordinances that had the following effects:

1: No new handguns could be added to the existing registry except for handguns belonging to retired police officers - essentially a ban on any new (legally possessed) handguns in the District.

2: No handgun could be carried without a permit - thus preventing even mere possession in ones own home.

3: All firearms - long guns included - had to be kept unloaded and either disassembled or with a trigger or other locking device installed, thus rendering any firearm kept legally from being available for self defense.

(And in the period since, D.C. has often been "murder capital of the U.S." for cities over 500,000 population - trading off fairly regularly with that other gun-control bastion, Chicago.)

Two very similar cases were brought before the D.C. District Court in 2003. Seegars v. Ashcroft was brought by the NRA on behalf of several plaintiffs arguing that the D.C. ban on registering new handguns was a violation of the Second Amendment. At about the same time the Cato Institute, a libertarian think-tank, filed Parker v D.C. on essentially the same grounds. In both cases all the plaintiffs were asking for was the right to keep a loaded firearm in their own homes. There was much wrangling, and the NRA attempted to get both cases tried simultaneously, but the Cato lawyers fought that battle successfully and kept them separate.

The National Rifle Association drew a lot of flak at the time (even from me) because they argued in front of the court that they were OK with registration. At any rate, Seegars lost in the District court and when it proceeded to the Appeals court that suit was dismissed on a very narrow reading of an earlier case where the panel concluded that the plaintiffs didn't have standing to sue because they hadn't actually been arrested and prosecuted for trying to register a firearm! To top it all off, during this period some granstanding Senators tried to render the whole point moot by overturning the D.C. gun ban by act of Congress. That failed too.

So, with Seegars a lost cause, many of us (me among them) figured Parker was headed for the scrap heap as well. The District Court found against Parker and the other plaintiffs because it (like most courts) believed the Second Amendment does not protect an individual right to arms. CATO then appealed to the D.C. Circuit Court of Appeals - and the appeal was granted. It seems one of the Parker plaintiffs actually tried to register a handgun - and was rejected. That was sufficient "damage" in the eyes of the Court. (I'll be quoting from the decision a lot in a later post.)

Today in a 2-1 decision (District cases are heard by a single judge, Appeals court cases are heard by a three-judge panel) the Appeals court found that the Second Amendment protects an individual right to arms, and that the rights of the plaintiffs had been unconstitutionally violated by the D.C. gun ban.

This was immediately denounced as "judicial activism at its worst" by the Brady Bunch. I'll have more to say on that topic later, too.

So where do we go from here? Well, most probably the District of Columbia will file for a Stay to prevent the decision from vacating the D.C. gun ban (don't rush out and buy a handgun yet, you denizens of D.C!) Then it will file an appeal for an en banc rehearing of the case. If granted, all (or at least most) of the judges on the D.C. Circuit will hear the case, and we'll get to see how many of them are honest and how many (in the words of 9th Circuit judge Alex Kozinski) are willing to constitutionalize their personal preferences, burying language that is incontrovertibly there. Regardless of the outcome of such an appeal, the case will then progress to the Supreme Court.

And there's the rub.

What happens then?

In 2001 the Fifth Circuit in U.S. v Emerson decided that the Second Amendment did indeed protect an individual right to arms, but that the right was not immune to "limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." It decided that the defendant's individual right to arms had not been violated because he had received due process of law "albeit likely minimally so". In December of 2002 the Ninth Circuit Court of Appeals in Silveira v Lockyer decided that the plaintiffs had no standing to sue because there was no individual right to arms, based on their previous Hickman v Block decision. (Note to the Ninth Circuit: I live in Arizona, one of the states you preside over. And I know what the Second Amendment says, even if you do not.)

So we had two Circuit Courts of Appeals with recent cases having opposite holdings on whether the right to arms was individual or collective.

The Supreme Court passed on both appeals. Dr. Emerson remained in jail, Californians don't get any new "assault weapons" as defined by whoever is in charge of the California Dept. of Justice this week. And the question of whether or not the Second Amendment protects an individual right remains unanswered by our highest court.

Will they hear it? If they hear it, how will they decide? Will they finally "incorporate" the Second Amendment against infringement by the states?

In other words, will the Supreme Court overturn 72+ years of bad law at one stroke?

Think on that question and see if you can sleep soundly tonight.

I'll have more to say on today's decision later. I need to read it again and think a bit.