Constitution

Tyrannical Judicial Malpractice in California

Calvin Freiburger California, Constitution, Ed Whelan, gay marriage, homosexuality, http://schemas.google.com/blogger/2008/kind#post, judicial activism, law, Left, liberalism, National Review, secularism, Vaughn Walker

A federal judge has ruled California’s Proposition 8, which maintains the definition of marriage as a man-woman union, unconstitutional. I have a post condemning the ruling slated to be published on NewsReal later today (UPDATED: here’s the link); in the meantime, National Review has some must-read analysis on the decision.

Ed Whelan on Judge Vaughn Walker’s bias:

From the outset, Walker’s entire course of conduct in the anti-Prop 8 case has reflected a manifest design to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Prop 8’s sponsors. Consider his series of controversial — and, in many instances, unprecedented — decisions:

Take, for example, Walker’s resort to procedural shenanigans and outright illegality in support of his fervent desire to broadcast the trial, in utter disregard of (if not affirmatively welcoming) the harassment and abuse that pro–Prop 8 witnesses would reasonably anticipate. Walker’s decision was ultimately blocked by an extraordinary (and fully warranted) stay order by the Supreme Court in an opinion that was plainly a stinging rebuke of Walker’s lack of impartiality.

Take Walker’s failure to decide the case, one way or the other (as other courts have done in similar cases), as a matter of law and his concocting of supposed factual issues to be decided at trial. 
Take the incredibly intrusive discovery, grossly underprotective of First Amendment associational rights, that Walker authorized into the internal communications of the Prop 8 sponsors — a ruling overturned, in part, by an extraordinary writ of mandamus issued by a Ninth Circuit panel consisting entirely of Clinton appointees.

Take Walker’s insane and unworkable inquiry into the subjective motivations of the more than 7 million Californians who voted in support of Prop 8.  

The NRO Editors:

What Walker did not prepare us for is the jaw-dropping experience of reading his sophomorically reasoned opinion. Of the 135 pages of the opinion proper, only the last 27 contain anything resembling a legal argument, while the rest is about equally divided between a summary of the trial proceedings and the judge’s “findings of fact.” The conclusions of law seem but an afterthought — conclusory, almost casually thin, raising more questions than they answer. On what grounds does Judge Walker hold that the considered moral judgment of the whole history of human civilization — that only men and women are capable of marrying each other — is nothing but a “private moral view” that provides no conceivable “rational basis” for legislation? Who can tell? Judge Walker’s smearing of the majority of Californians as irrational bigots blindly clinging to mere tradition suggests that he has run out of arguments and has nothing left but his reflexes.

But the deeper game Judge Walker is playing unfolds in those many pages of “fact finding” that make up the large middle of his ruling. There, through highly prejudicial language that bears little relation to any fact, the judge has smuggled in his own moral sentiments — in precisely the part of his opinion that would normally be owed a large measure of deference in the appellate courts. To take one example: It is hardly an incontrovertible fact that “Proposition 8 places the force of law behind stigmas against gays and lesbians.”  But there it is, as finding No. 58. With “facts” like these, and appellate judges disinclined to question them, Judge Walker plainly hopes to propel this case toward a gay-marriage victory, regardless of how transparently weak his legal conclusions are. 

Lawless Congress

Calvin Freiburger Congress, Constitution, Democrats, Left, liberalism, limited government, Pete Stark, progressivism

Via Hot Air, here’s Rep. Pete Stark (D-CA) claiming that there are virtually no limits on Congress’s power:

Ed Morrissey says that “Republicans in every district should play this clip and demand an answer from incumbent Democrats who voted for ObamaCare.” Indeed. Pete Stark’s understanding of government is nothing short of despotic, and he’s not the only one. Every member of his party needs to be challenged on their how they expect to preserve liberty in a nation without limits on government…or if they even care.

Conservatism Can’t Survive Without the Pro-Life Movement, Part II

Calvin Freiburger 2010, 2012, abortion, blogosphere, capitalism, conservatism, Constitution, David Swindle, foreign policy, Founding Fathers, Islamofascism, Israel, judicial branch, liberalism, libertarianism, liberty, NewsReal, Republican Party, resercons, War on Terror

In Part I, I argue that it would be politically foolish for the Right to further backpedal or abandon the pro-life cause. Here I want to make the case that the right to life truly is inseparable both from core conservatism and from any meaningful effort to advance conservative ideas—that, in fact, pro-abortion tendencies actually endanger the prospects of those who value limited government, the free market, and strong national defense.

As I explained on June 15, abortion is an affront to the Declaration of Independence. As the unjust taking of a human life, it is wrong for the same reason slavery, theft, assault, honor killings, rape, eminent domain abuse, and individual health insurance mandates are wrong: they are all violations of human liberty and natural rights.  Accordingly, society justly protects its citizens from them via law for the same reason.  As long as conservatism still “holds these truths to be self-evident” that all men have “certain unalienable rights” to “life, liberty, and the pursuit of happiness,” and as long as conservatism still accepts that “governments are instituted among men” for the purpose of “secur[ing] these rights,” then philosophically-consistent conservatives have no choice but to oppose legalized abortion. Nobody can support abortion in good conscience without either honestly confronting this conundrum head-on, or asking himself what definition of “conservatism” he’s been operating under all this time.

That pro-choice views are an egregious exception to conservatives’ and libertarians’ pro-liberty rhetoric should be obvious. What may be less obvious—but is no less true—is that such dubious thinking cannot help but undermine other core conservative principles and efforts. Continue reading →

Is the Fourteenth Amendment Illegitimate?

Calvin Freiburger civil war, Constitution, history, libertarianism, Republican Party, revisionism

One of NewsReal’s regular commenters, the Inquisitor, seems to think so:

…the 14th Amendment is not the law of the land as it “… was never constitutionally proposed to the states by Congress and never constitutionally ratified by the states.”

I must admit I’ve never heard this one before, but it smells like more of the same old neo-Confederate revisionism that libertarians and paleoconservatives just can’t get enough of.  And sure enough, Inquisitor cites Kevin Gutzman’s Politically Incorrect Guide to the Constitution as his source.  I haven’t read Gutzman, but PIG series is known for being pretty hit & miss when it comes to American history and constitutional theory.

Against my better judgment about how to productively use my time, I decided to see what I could find about this startling constitutional revelation.  I found an article by Gene Healy at the dubious LewRockwell.com, entitled “The Squalid Fourteenth Amendment.”  That should do it.

As the legally reconstituted Southern states were busy ratifying the anti-slavery Thirteenth Amendment, the Republican-dominated Congress refused to seat Southern representatives and Senators. This allowed the remaining, rump Congress to propose the Fourteenth Amendment, consistent with Article V’s requirement of a 2/3 majority for sending a proposed amendment to the states. Never mind that Congress also clearly violated that Article’s provision that “no State, without its Consent, shall be deprived of its equal suffrage in the Senate.”

The Constitution also says that “No State shall enter into any Treaty, Alliance, or Confederation,” and that “No State shall, without the Consent of Congress…enter into any Agreement or Compact with another State, or engage in War, unless actually invaded.”  Oh, so now the rebels should get the protection of the Constitution they tried to withdraw from? You try to break apart the country in the name of “the great truth that the negro is not equal to the white man,” and you have no right to expect to be welcomed back into the Union immediately.

Though the Northern states ratified the Fourteenth Amendment, it was decisively rejected by the Southern and border states, failing to secure the 3/4 of the states necessary for ratification under Article V. The Radical Republicans responded with the Reconstruction Act of 1867, which virtually expelled the Southern states from the Union and placed them under martial law. To end military rule, the Southern states were required to ratify the Fourteenth Amendment. As one Republican described the situation: “the people of the South have rejected the constitutional amendment and therefore we will march upon them and force them to adopt it at the point of the bayonet.”

President Andrew Johnson saw the Reconstruction Act as “absolute despotism,” a “bill of attainder against 9,000,000 people.” […] The rump Republican Congress overrode Johnson’s veto and enacted statutes that shrank both the Supreme Court’s appellate jurisdiction and the Court itself – just in case the judicial branch got any funny ideas of its own about constitutionalism. Jackboot on its neck, the South ratified, but not before New Jersey and Ohio, aghast at Republican tyranny, rescinded their previous ratifications of the mendment. Even with the fictional consent of the Southern states, the republicans needed New Jersey and Ohio to put the amendment over the top. No matter; by joint resolution, Congress declared the amendment valid. Thus it – you’ll excuse the phrasing– “passed into law.”

The Constitution requires “three fourths of the several states” to ratify amendments.  In 1868, the Union had 37 states, requiring 28 states to ratify the 14th Amendment.  By 1868, it had thirty ratifications, meaning that New Jersey and Ohio’s withdrawals would bring the number down to…28.  (And for what it’s worth, since then, every state which originally rejected the 14th Amendment has reversed its decision.)

Once again, paleo-libertarians appear to fare little better with American history than the Left.

“American Right to Life’s” Misguided Pro-Life Profiles (UPDATED)

Calvin Freiburger abortion, activism, conservatism, Constitution, extremism, judicial branch, strategy, stupidity, Supreme Court

I recently came across a website called Pro-Life Profiles (hat tip: Lisa Graas), which evaluates the pro-life credentials of various center-right figures, from GOP candidates to conservative activists.  The first thing that’s important to note about the site is that it’s a project of American Right to Life.  ARTL proclaims itself the “personhood wing of the pro-life movement,” but according to the National Right to Life Committee, ARTL is a scam that does little more than raise funds from people who confuse them with the more well-known NRLC.  Who’s right?  I can’t say for sure, but I’m inclined to trust NRLC (despite some disagreements with them) based on my familiarity with all the work they undertake on behalf of the pro-life movement, whereas I know of ARTL doing no such work.  (UPDATE: In the comments, ARTL spokesman Bob Enyart claims the ARTL that ran afoul of NRLC was a different, now-defunct organization.) I report, you decided.

Their website seems entirely devoted to tearing down other pro-lifers as traitors to the cause (or at least insufficiently devoted), and that’s the exclusive mission of Pro-Life Profiles.  Admittedly, they have found several legitimate reasons for criticizing politicians such as George W. Bush, Mitt Romney, Ron Paul, and even Sarah Palin, and they’re correct to stress that the ultimate goal of the pro-life movement must be full, nationwide legal protection for the unborn as full human beings.  Unfortunately, in their zeal to reach the ultimate goal, they make profoundly wrong moral and practical arguments against various valuable, common-sense pro-life policies.

For instance, in criticizing Concerned Women for America and its president, Wendy Wright, ARTL argues that pro-lifers should not support laws that require obtaining parental notification/consent, or require being shown ultrasounds, before obtaining an abortion.  They claim that it’s immoral to support any law that tacitly accepts abortion’s legality, and that such laws are somehow counterproductive to the goal of legal protection for the unborn.  Among their arguments (many of them are vapid & repetitive, and life is short, so I’m only going to address the highlights):

ARTL: They don’t actually reduce abortions, and in fact may increase abortions.

ME: Simply ask yourself: does having to inform or get permission from your parents to get an abortion, does that make seeking an abortion easier or harder?  If a women sees an ultrasound showing that unborn babies aren’t simply a lump of tissue, is she more or less likely to go through with it?  Though these laws won’t prevent abortions in all cases, it should be obvious which direction they move things in.  In particular, does ARTL mean to deny the enormous power of ultrasounds to change people’s hearts and minds?

ARTL: It’s immoral to support any law whose end result still permits abortions to take place.

ME: You’re not giving abortion tacit approval by voting for something less than outright prohibition if outright prohibition is not an option available to you.  If it pushes the law in the right direction, and if it saves lives, it’s not only moral, but necessary.  Strategy is not an either-or proposition; you have to pursue every available avenue.

ARTL: “Thirty years of evidence also shows that the regulation strategy has failed to move the federal judiciary, which is mostly Republican and overwhelmingly pro-choice, toward the right-to-life position.”

ME: This is just stupid—who ever said they’re supposed to move the judiciary?  Reducing abortions legislatively and getting good judges on the bench are both important goals, but one has nothing to do with another.  Again, it’s not either-or.

ARTL: Such regulations “call upon our own judges to uphold laws that regulate killing the innocent, and thus turn conservative judges increasingly against the personhood of the unborn.”

ME: Their link claims that “Antonin Scalia has publicly stated that he would strike down any law that prohibited abortion in all fifty states, and Clarence Thomas has ruled that the public has the right to decide to legalize the killing of unborn children.” I don’t know what cases/remarks they’re referring to, but in Scalia’s case I suspect he was simply noting that, as a judge, he does not have the authority to criminalize abortion.  And unfortunately, he’s right: judges are not policymakers, and even the language of the 14th Amendment discusses “born” citizens, making any judicial abortion ban shaky Constitutional ground.  That’s why pro-lifers should fight for the Human Life Amendment.

ARTL: These laws “will keep abortion ‘legal’ if abortion is wickedly ‘returned to the states.”

ME: “Wickedly” returned to the states?  Short of a constitutional amendment, you can’t make much legislative headway until you return it to the states by overturning Roe v. Wade (and popular support for state abortion bans will certainly come before enough support to pass a national constitutional amendment).  Because abortion is not explicitly mentioned in the Constitution, the states have the right to determine abortion policy.  Reverse Roe, and abortion automatically becomes illegal in those states whose pre-Roe abortion bans remain in effect, and the rest of the states get a fighting chance.  Pro-choice politicians would no longer be able to hide behind the Supreme Court.  This scenario is bad why?

It’s absurd to think parental notification laws would prevent full abortion bans.  Even if they did give tacit approval to the principle of choice (which they don’t), they’re mere legislative acts, and can be superseded by new legislative acts with a simple majority vote.

Absent in ARTL’s analysis is any recognition of Constitutional originalism, separation of powers, or judicial restraint.  Understandably-frustrating though it may be at times, the Founders placed clear limits on how political goals—even noble and essential ones—may be pursued.  In their view, how much should the pro-life movement respect the rule of law? If they think the ends justify the means, and that the Right should embrace judicial activism, they should come out and say so.  But before that, they’d do well to brush up on how past leaders reconciled human rights and constitutionalism, and think twice before condemning the rest of us as traitors to the unborn.

Republicans Fiddle While Democracy Burns

Calvin Freiburger Barack Obama, blogosphere, Cass Sunstein, Constitution, cowardice, Democrats, liberalism, liberty, Republican Party, resercons, speech, strategy

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

Enshrined in the First Amendment to the US Constitution, free speech is one of America’s cornerstones.  All sides sing its praises, and no politician can expect to safely voice disrespect or opposition towards it.

The underlings of politicians, on the other hand…

Cass Sunstein, appointed by Barack Obama to head the White House Office of Information & Regulatory Affairs, isn’t a big fan of free & unregulated political expression.  In the past, he’s argued for new laws that would make bloggers and web-hosting services potentially liable for what their commenters say, as well as make it easier to sue people who “spread rumors” for libel.

For obvious reasons, these proposals would be logistical nightmares to implement, forcing bloggers to spend less time expressing their own ideas and more time policing their audiences, lest they risk liability for the words of others.  The end result is a stifling of free speech, and make no mistake: that’s exactly what Barack Obama and Cass Sunstein intend.

Now, Sunstein has been caught proposing more regulation of the blogosphere, in the form of new federal mandates forcing websites to “provide links to sites of the other point of view…Or maybe a popup on your screen that would show you an advertisement or maybe even a quick argument for a competing view.”  An Internet Fairness Doctrine, if you will.

What do the Left’s premier guardians of free speech at the ACLU have to say about all this?  Nothing.

Of course, I expect the Democrats to pull this garbage, and their foot soldiers on the Left and in the media to quietly go along.  The real scandal here is the lack of strong, vocal Republican opposition.  If they aren’t finally corrected, and fast, the cowardice and inability to lead that dominate the GOP are going to be the death of this country.

Why Do People Pay Andrew Sullivan to Talk, Again?

Calvin Freiburger Andrew Sullivan, Barack Obama, conspiracy theories, Constitution, Democrats, Elena Kagan, homosexuality, judicial branch, law, liberalism, moonbats, stupidity, Supreme Court

Andrew Sullivan, leading contender for Most Deranged Blogger in America, has apparently decided conspiracy-mongering over the sex lives of conservative women wasn’t interesting enough, so now he’s taken it upon himself to uncover the truth behind rumors that Obama Supreme Court nominee Elena Kagan might be a lesbian, and what the White House’s reaction to the rumors means for the struggle for gay rights:

Apparently unsatisfied with what seemed to be a clear denial from the White House that Kagan was gay, Sullivan asked, “Is Obama actually going to use a Supreme Court nominee to advance the cause of the closet (as well as kill any court imposition of marriage equality)? And can we have a clear, factual statement as to the truth?”

But they did give a clear, factual statement. And Sullivan’s Atlantic colleague Marc Ambinder has reported that close friends of Kagan say she’s straight; Ambinder tells The Daily Beast he has since received a similarly definitive answer from White House officials. Sullivan offers no new evidence to suggest the White House answer is wrong. In his first post on the issue, Sullivan wrote that further questions are fair game because “we have been told by many that she is gay”—without ever disclosing who the “many” might be and whether or not they are credible sources.”

When pressed, Serious Andrew’s line changes to:

Sullivan said that as a blogger, “my job is to think out loud. It is not my job to report stories.” As for information on Kagan’s orientation, “one need have no ‘evidence’ beside the fact that she is single and seems to be lacking in any emotional or relationship history to ask a question not about her private life but about her public identity.”

But Todd Gitlin, a professor of journalism at Columbia University, told The Daily Beast that Sullivan’s failure to provide any clear evidence that Kagan’s sexuality was in question raised major ethical concerns by pushing unsourced rumors into the mainstream press.

“It’s slimy locution here in that he writes ‘We have been told by many that she is gay,'” Gitlin said. “And what would constitute evidence? If someone shows up and says ‘I slept with Elena Kagan when we were in college,’ so what? I see nothing but slime down the slippery slope because accusers are a dime a dozen.”

Sullivan’s response?

“Gitlin’s remarks are so baldly homophobic, I’m a little taken aback.” (Gitlin stressed that rumors surrounding Kagan should not be viewed as a negative if true.)

“Since when is it ‘slime’ to ask someone a simple positive question about his or her orientation?” Sullivan added. “Since when is asking someone about her orientation an ‘accusation’? Is being gay something one is ‘accused’ of? And Gitlin’s blanket assumption that being gay means who you ‘sleep with’ is reductionist bigotry. Being gay is a core part of someone’s emotional identity and personal biography.”

Valiant though Greg Gutfeld’s above attempt may be, it’s no longer possible to truly parody Andrew Sullivan.  The man does it himself.

I don’t much care whether or not Kagan is gay; I care about the fact that, as a leftist, she’d be the antithesis of everything a good justice should be.

Lincoln Derangement Syndrome

Calvin Freiburger Abraham Lincoln, anger, blogosphere, civil war, conservatism, Constitution, dishonesty, extremism, Founding Fathers, propaganda

Somebody named JD Longstreet is very, very upset that Southerners and Southern history are not given the respect they deserve in the media, schools and commentary class (hat tip to Ol’ Broad).  Given the Left’s infernal obsession with casting conservative views and traditional American values as racist, I would be inclined to sympathize with him…except for the fact that his post rapidly devolves into an unhinged, duplicitous tirade that is guilty of the very historical revisionism Longstreet claims to oppose.

Because I apparently didn’t have enough better to occupy my time with tonight, I decided to conduct a closer examination of this post.  Click on through to check out my findings – if you dare: Continue reading →

Michael Medved: What Does “Get Back to the Constitution” Mean?

Calvin Freiburger 2010, 2012, activism, anger, Barack Obama, conservatism, Constitution, dishonesty, Glenn Beck, Michael Medved, Republican Party, resercons, stupidity, talk radio

Michael Medved is, bar none, one of the most intelligent, knowledgeable, and eloquent guys in all of talk radio—which is why it’s such a shame that he devotes so much of his skill to deflecting substantive criticism away from the Republican Party.  Townhall’s Greg Hengler highlights the following exchange between Medved and a caller (h/t to Hot Air):

Here is a great exchange between a caller to Michael Medved’s radio show who’s obviously influenced by Glenn Beck’s daily mantras like “There is no difference between the two parties — they’re both ‘progressive’,” etc. Without naming Beck’s name, Medved goes off on this caller (read: Glenn Beck). Take a listen:

I’ll be the first to agree that Beck substantially overstates the similarities between Republicans and Democrats (in fact, I’ll go even further and say that Beck’s analysis often comes across as impulsive and poorly thought out), and this particular caller does not make his case well at all.  But while Beck overstates the problem, that doesn’t exonerate Medved from understating it.  He challenges the caller to provide a single example of an issue on which John McCain and Barack Obama were on the same page.

I’ll take that challenge, Michael: not only is McCain’s role in campaign finance reform the stuff of legend, but it could even be argued that he’s even more to the left here than Obama is.

I do believe that satisfies the original challenge, but let’s throw in a second, for good measure: immigration.  McCain is also infamous for his left-wing zealotry in favor of amnesty, and though he may have backpedaled ever so slightly in 2008 for political expediency, he incredibly ran an ad running to Obama’s left here as well, accusing Obama of playing a role in killing 2007’s amnesty bill.

Besides, being somewhat better than the alternative is still not sufficient to rise to the level of good.  Take abortion, for example—when your opponent gets caught red-handed on the wrong side of starving newborns to death in broom closets, it doesn’t take much effort to look good by comparison.

On almost every conceivable issue, John McCain’s conservative credentials have serious flaws, not the least of which was the mainstream conservative Club for Growth’s judgment that his “overall record is tainted by a marked antipathy towards the free market and individual freedom.”

I voted for McCain. I understand that half a loaf is better than no loaf.  I don’t demand 100% ideological purity from every single politician.  But the GOP’s lack of commitment to conservatism is bigger than a handful of isolated blemishes; it’s an identity crisis that caused and enabled many of the Bush presidency’s failings and led to the election of Barack Obama.  Will Medved admit that this is a real, legitimate problem?  How does he propose that we address it?  (And no, throwaway admissions that “Republicans aren’t perfect” don’t count.)

As to the third party question: it’s true that anyone who expects a third party candidate to actually win the White House is delusional, and I’m not aware of any existing third parties that deserve to be taken seriously.  But while many disgruntled conservatives may have mixed-up views of them, a decent third party might be useful in a different way: not as a replacement for the GOP, but as the catalyst for real GOP reform.  As long as Republicans keep limping along on life support, the Beltway types will take their every victory as an affirmation that they’re doing enough right that they’re justified in maintaining the status quo.  It’s doubtful that anything less than a real threat to Republican viability would be enough to force any real self-reflection.

What’s most shameful is Medved’s angry, impatient reaction to the idea that Republicans need to “get back to the Constitution”:

What does that mean?  Stop with the slogans! Talk to me about reality! Americans are out of jobs, there’s 10% unemployment in this country.  We are being spent into oblivion […] so why are you talking about pie-in-the-sky stupidity, fantasy land, kindergarten, childish idiot stuff?  I mean, and you are!

Regardless of Brian’s inability to articulate his message, the fact remains there is no way Medved does not know exactly what “get back to the Constitution” means.  He’s simply too smart, too informed, and too active a conservative intellectual not to.  Take the courts—did the GOP put up much of a fight against Sonia Sotomayor?  Federal influence in education, healthcare, and environmental & workplace regulations have obvious constitutional problems.  In many cases, the GOP has been on the wrong side of these questions, and even when they haven’t, often they fail to make an issue of the constitutional aspect (though there are a few bright spots).  Is restoring a proper understanding of & reverence for the Constitution no longer a major priority of conservatism, in Medved’s view?

This exchange was indeed educative, but not for the reason Hengler thinks.  It demonstrates that, while talk radio personalities like Michael Medved are a tremendous asset in some ways, in others they’re part of the problem.