Category: judiciary

Categories
judiciary U.S. Constitution

Liar in Chief

When you hear the word “unprecedented,” reach for your … dictionary.

As I’ve noted before, the word no longer sports its traditional meaning.

On Monday, President Barack Obama commented on the possibility that the Supreme Court would strike down the 111th Congress’s Patient Protection and Affordable Care Act by saying that such a move would constitute “an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” Yesterday, a three-​judge panel of the Fifth Circuit Court of Appeals ordered the Justice Department to clarify the president’s statement. By Thursday.

Does the president — who happens to have taught constitutional law — really think the courts do not have the power to review and disqualify law on the basis of constitutionality?

As reported on CBS News’s Crossroads site, “Overturning a law of course would not be unprecedented — since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional.”

I’d like to take a moment and thank the president … for help making the Constitution a live topic of conversation these days. But there’s something worrisome here. The president knows better. This is even worse than, say, Newt Gingrich totally messing up his comments on “activist judges,” making hash of law and interpretation. This is a president with a Harvard-​established reputation on the subject saying something patently untrue.

He could only have been “fibbing.” And hoping to get away with it … apparently on the supposition that Americans are so miseducated we wouldn’t even notice.

We noticed.

This is Common Sense. I’m Paul Jacob.

Categories
judiciary property rights

Pest Control for Pesky Evidence

Should courts be outlawed from thwarting outlaws?

The Environmental Protection Agency has acted to unilaterally ban a pesticide in use for decades. Writing for the Cato Institute’s blog, Ilya Shapiro notes that the agency’s move exemplifies “a growing trend among federal agencies and courts to incrementally expand the government’s enforcement power by adopting statutory interpretations that go beyond their plain meaning and intent.”

The pesticide is carbofuran, used to protect crops since 1969. What is the evidence that carbofuran poses a hitherto un-​comprehended threat to human well-​being? Federal law requires EPA to provide for a “notice and comment” period before altering an established legal threshold for pesticide residues on food. If “material issues of fact” are then raised, the agency must conduct a public evidentiary hearing. National Corn Growers indeed raised “material issues of fact” regarding the alleged hazards of carbofuran. So an evidentiary hearing is mandatory.

The DC Circuit ruled, however, that scientific disagreements are insufficient to trigger judicial review and that decisions about new residue tolerances should be left entirely to the EPA. If upheld, the decision means the agency could determine all by itself whether its regulatory actions are consistent with law. Even when they obviously aren’t.

Along with the National Corn Growers and other industry groups, the Cato Institute and Pacific Legal Foundation are challenging this latest assault on property rights and the rule of law — an assault you might even call a pestilence.

This is Common Sense. I’m Paul Jacob.

Categories
initiative, referendum, and recall judiciary

Rights and Democracy

Democracy and constitutional rights fit together better than some people think.

Most people don’t think of democracy as some hyper-​pure system where two wolves and a lamb decide whom to eat for dinner. They envision a constitutional republic that protects fundamental rights while also democratically controlling government’s legitimate decisions and policies.

Increasingly, our representative bodies — from city councils to Congress — have attacked both our rights and our votes.

We need a direct democratic check on government; we need voter initiative and referendum.

Yet, even when citizens vote directly on an issue, the courts remain there to provide an additional check. Recently, Federal Judge Vaughn Walker struck down California’s Prop 8, a state constitutional amendment banning gay marriage. He said the measure violates the 14th Amendment’s requirement of “equal protection of the laws.”

Controversial? Yes. Sensible? Also yes.

Not so sensible, though, have been some criticisms.

My friend Joe Mathews, no initiative enthusiast he, wrote in the Washington Post: “Perhaps the spectacle of a federal judge overruling such a momentous electoral result will force Californians to reckon with the fact that their initiative process is at odds with norms of American civil rights and government.”

But this is about rights, not procedures. The vast majority of states have bans just like California’s. Banning same-​sex marriage has been popular with both legislatures and voters.

Politicians can be wrong. Voters can be wrong. Judges can be wrong. But with each checking the others, we will be better off.

This is Common Sense. I’m Paul Jacob.

Categories
judiciary Ninth Amendment rights U.S. Constitution

Rights Retained by All But Kagan

When grilled by the Senate Judiciary Committee, Supreme Court nominee Elena Kagan didn’t have to go out on a limb to dismiss the rights affirmed in the Declaration of Independence. Most liberals and conservatives share the view that a judge’s job is to interpret the law, not defend “natural rights.”

Yet, our Founders regarded natural rights as an important restraint on government. 

Not so with progressives today and yesterday. As scholar Jim Powell noted in The Daily Caller, progressives don’t like natural rights, or the function they serve. Powell quotes Teddy Roosevelt: “I don’t think any harm comes from the concentration of power in one man’s hands.”

TR was wrong. Progress depends not on unlimited power for leaders and bureaus, but on limiting those powers so voluntary co-​operation can work its wonders.

Progressives from TR to Kagan oppose natural rights because they run dead against progressivism. 

Even the enumerated rights in the Bill of Rights limits government too much for progressives, so they twist words to get rid of their practicality.

The idea of natural, basic rights find their most concise defense in the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The question to ask Supreme Court candidates — indeed, any person who must swear to “uphold the Constitution” — is how “the people” can retain their unenumerated rights.

The question is almost never asked.

To our detriment.

This is Common Sense. I’m Paul Jacob.

Categories
judiciary Second Amendment rights U.S. Constitution

Advance for Rights

Next to the Bill of Rights, the Fourteenth Amendment might well be the most momentous Amendment to the Constitution. Here’s the most interesting chunk of it:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Before this amendment, adopted after the Civil War (mainly to keep white southerners from tyrannizing ex-​slaves), the Bill of Rights had applied to individuals only against the federal government. After it, states were required to follow the Bill of Rights, too.

This week, in McDonald v. City of Chicago, five of nine members of the Supreme Court decided that the Second Amendment guarantees the right to own guns against prohibitive regulation by states. In Heller, two years ago, the Supreme Court had applied the Second Amendment to individuals only against federal government regulation.

McDonald is a major advance for gun ownership rights. But the most interesting thing about the case is Justice Clarence Thomas’s separate concurrence. Four of the Justices decided that the 14th Amendment’s “due process” clause applied. Thomas argued, instead, that it is the “privileges and immunities” clause that matters. 

Why care? Well, “privileges and immunities” is just a fancy way of saying “rights.”

That’s why we have courts. To protect our rights.

This is Common Sense. I’m Paul Jacob.

Categories
judiciary responsibility

Pump Down the Volume

Can somebody sue you for making something wonderful that might hurt somebody else who uses your product carelessly?

Of course. This is America, land of the Bill of Rights, mom, apple pie, Chevrolet … and outrageous litigation.

Some suits are sound, sure. But, on top of those you’ve got your money-​grubbing frivolous actions, pushed by freeloaders and fronted by freebooters, er, lawyers. But at least these folks don’t always win. That’s where I’ve got some good news to pass along: A federal court has slapped down ludicrous litigation against Apple Computer.

Apple makes the popular iPod media player. Litigants Joseph Birdsong and Bruce Waggoner alleged that Apple is culpable for “possible hearing loss” resulting from iPod use, thanks to allegedly improper earbud design.

Birdsong and Waggoner don’t assert that their own eardrums had burst, or even that the ears of others had suffered. In fact, the ruling against them notes: “At most, the plaintiffs plead a potential risk of hearing loss.…”

Obviously, when your own careless conduct causes you harm, you alone are responsible. Turn  your stereo volume to the max and press your ear against stereo speakers. It isn’t the stereo maker’s fault when your eardrums pop. 

By the way, iPods also have volume control.

This is Common Sense. I’m Paul Jacob.