Tag: Supreme Court

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judiciary

Beardless in Arkansas

The United States Supreme Court has accepted a legal petition presented in an unusual manner: in handwritten form, without the benefit of any lawyer.

The case comes from a convict in the Arkansas State prison system, one Gregory Holt, “aka Abdul Malik Muhammad,” who wants to wear a beard while incarcerated, in accordance with his religion. The prison rules prohibit beards on hygiene and security grounds. Muhammad’s case is interesting. Questions include (and I quote)

  • Whether the Arkansas Department of Corrections’ no beard grooming policy violates the Religious Land Use and Institutionalized Persons Act…
  • Whether a 1/2 inch beard would satisfy the security goals sought by the policy.
  • Whether the no beard grooming policy violates Petitioner’s First Amendment right to practice Islam as he believes it…

How will the Supreme Court rule? On the face of it (no beard pun intended), prisoners’ appeals for court intervention in how they are incarcerated, on the basis of their rights, may seem odd to some. After all, the whole point of imprisonment is to deny the most basic right to liberty, because, presumably, a criminal has denied someone else’s rights.

But in our society, even those guilty of serious crimes and having lost much of their freedom retain certain rights. This stems mostly from our fear of what becomes of us — not the criminals — should we stop respecting every person’s humanity.

It’s also heartening to see a petition rise to the highest court in the land from the very lowest perch without aid of a lawyer … or even a computer or typewriter.

This is Common Sense. I’m Paul Jacob.

Categories
judiciary Ninth Amendment rights Tenth Amendment federalism

Too Respectful of Congress?

In disagreements between individuals and the IRS, I tend to side with individuals against the IRS. So Wednesday’s Supreme Court ruling against the Defense of Marriage Act seems about right, on the face of it.

Yes, the judicial review and nixing of DOMA regarded a tax case.

The state of New York recognized the marriage of two women, Edith Windsor and Thea Spyer. Ms. Spyer died in 2009. Ms. Windsor inherited, paying $363, 053 in estate taxes. She sued against DOMA because she wanted to claim the federal estate tax exemption for surviving spouses.

The Supreme Court majority sided with Windsor. Chief Justice Roberts dissented, arguing that the court lacked the authority in this case to overturn this law; and Justice Scalia dissented separately, joined by Justice Thomas; Alito wrote another separate dissent.

Fascinating reading, all of it, but I was disappointed that Justices Scalia and Thomas are so deferential to Congress regarding DOMA, without any consideration of the Tenth Amendment, which recognizes that states have powers not delegated to the federal government — and surely regulating marriage was not one of the enumerated powers delegated to Congress — or the Ninth Amendment, which recognizes “rights retained by the people,” and that has a lot of bearing on the practice of marriage.

It seems to me that in matters of marriage, at the very least, the federal government should be following the people and the states, not the other way around.

This is Common Sense. I’m Paul Jacob.

Categories
ideological culture national politics & policies Second Amendment rights Tenth Amendment federalism

Nullification Today

As the federal government lurches further out of control, wildly grasping to increase control over our lives, an old and controversial method of reining in our central government gains popularity: State nullification of federal law.

A recent Rasmussen survey asked whether “states have the right to block any federal laws they disagree with on legal grounds,” and 38 percent of likely voters surveyed said “Yes.”

Cutting to the quick of the Commerce Clause, a new Kansas law — Senate Bill 102, the Second Amendment Protection Act, signed by Governor Sam Brownback last month — states that firearms manufactured and owned in Kansas that do not cross state lines are not subject to federal law.

Of course, the Supreme Court thinks otherwise. In Wickard v. Filburn, the Court allowed the federal government to regulate darn near anything on the grounds that any conceivable act of consumption affects demand, and thus “commerce.” Goofy ruling? Yes. But by tradition it’s the Supreme Court justices who get the final word.

Yet even that has been denied by many constitutional theorists, including Thomas Jefferson and James Madison — “Mr. Constitution” himself — both of whom supported nullification, as recently explained by historian Tom Woods. No compact joined into by multiple parties may only be interpreted by one of the parties alone, unless specified to that effect. The Constitution doesn’t even mention judicial review, so the tradition of the Supreme Court’s final word is itself a matter of dispute.

Standing up for the status quo, Attorney General Eric Holder has written to Brownback against the new Kansas law, citing the Supremacy Clause. Problematic? Yes. But not easily dismissed.

Brownback has volleyed back.

At least we can expect the old issues of constitutional law to gain a new and lively hearing.

This is Common Sense. I’m Paul Jacob.

Categories
judiciary Tenth Amendment federalism too much government

Resistance Still Possible

According to a majority on the Supreme Court, Obamacare’s penalty for not buying medical insurance is constitutional because it’s a “tax,” not a “penalty.” Hmmm. All taxes may penalize, and penalties sure can be “taxing,” but this similarity doesn’t give us license to swap one for the other.

Chief Justice John Roberts reportedly flip-flopped about whether the Obamacare mandate is unconstitutional — perhaps in fear of left-leaning politicians and pundits. (“We’re not going to like you if you hinder our tyrannical medical regime by applying constitutional principles!”)John Roberts, flip/flop

The chief’s formal opinion states that under the Constitution the wisdom of legislation is a “judgment . . . reserved to the people.” Whoa. Hasn’t Marbury been decided? Doesn’t the courts’ power of judicial review help ensure that constitutional restraints on government power continue to restrain?

Well, just because the Roberts Court refuses to do its job doesn’t mean we must twiddle our thumbs in response. We can fight for an anti-Obamacare majority in Congress and the White House in November.

We can also urge our state governments to decline to cooperate with Obamacare right now. As wretched as it is, the court’s ruling at least overrules the new law’s attempt to force states to massively expand Medicaid. Almost immediately after the ruling, Florida Governor Rick Scott, who had refused to cooperate with other aspects of the law, announced that Florida will not expand Medicaid eligibility. A dozen or so other governors have made similar commitments.

What about your governor? Do you need to make a phone call?

This is Common Sense. I’m Paul Jacob.

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
ballot access too much government

Arizona “Clean Elections” Scheme Nixed

The United States Supreme Court decided, 5-4, against Arizona’s “clean elections” law. In two challenges to the law, Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett and McComish v. Bennett, the Court ruled for freedom and against a bizarrely unfair form of “fairness.”

The idea behind Arizona’s law was to make money somehow “not count” by “leveling the playing field.” Arizona did this by giving taxpayer money to “clean elections candidates” to equal the voluntary donations obtained by privately funded competitors.

Chief Justice Roberts says the scheme goes “goes too far.” I would say: Way too far.

Roberts nicely argues that though “‘Leveling the playing field’ can sound like a good thing . . . in a democracy, campaigning for office is not a game.  It is a critically important form of speech.  The First Amendment embodies our choice as a Nation that, when it comes to such speech, the guiding principle is freedom — the ‘unfettered interchange of ideas’ — not whatever the State may view as fair.”

Now, I see why people don’t like the ugliness and “unfairness” inherent in “winner-takes-all” zero-sum contests like political campaigns. But the solution isn’t to hand public money to some favored candidates, effectively putting a finger on the scales. Instead, provide the public with greater choices, and let the people freely decide.

This is Common Sense. I’m Paul Jacob.

Categories
First Amendment rights

No More Speech Rationing

Advocates of campaign finance regulation, what George Will calls “speech rationing,” say letting corporations — including non-profit corporations — spend unlimited money on political speech corrupts democracy.

Actually, muzzling speech is what corrupts democracy and the point of it: i.e., to protect our freedoms, including freedom of speech.

Protecting these freedoms is a vital political good, even if some speech is deplorable.

The recent Supreme Court decision, Citizens United v. FEC, dramatically strikes down unconstitutional limits on electioneering by businesses and non-profits. But it leaves intact unconstitutional limits on their direct contributions to campaigns.

It also doesn’t touch requirements forcing campaign donors to disclose personal information. In his partial dissent, Justice Clarence Thomas pointed to how California donors giving more than $100 must reveal their names and addresses, info then publicized on the Internet. Supporters of a recent controversial ballot proposition were subjected to intimidation and property damage as a result.

The disclosure laws have spawned what Justice Thomas calls “a cottage industry that uses forcibly disclosed donor information to pre-empt citizens’ exercise of their First Amendment rights.”

Thomas is right. And campaign finance regulation should be tossed out root and branch.

This is Common Sense. I’m Paul Jacob.

Categories
property rights U.S. Constitution

Not Robbed Until Proven Guilty

You are “innocent until proven guilty” in America, with one big exception: Under civil forfeiture laws, police don’t have to prove that a crime has actually been committed in order to seize your property. And once your boat or car is stolen by your government, the burden falls to you to prove your stuff is innocent.

Police departments are getting rich from the loot they seize from folks never convicted of a crime. As the Institute for Justice argues, civil forfeiture laws provide an ugly incentive for police “to enforce the laws in ways designed to maximize forfeiture income rather than to minimize crime.”

Now a challenge has reached the U.S. Supreme Court. Alvarez v. Smith concerns six people whose property was seized by Chicago police, though three of them were never charged with a crime.

The Institute for Justice, the Cato Institute, the ACLU and the Reason Foundation have filed amicus briefs arguing that due process was denied.

In favor of more free-wheeling civil forfeiture are a number of state governments, the National Conference of State Legislatures, the National Association of Counties, the National League of Cities, the U.S. Conference of Mayors and other groups representing government entities that spend the proceeds from the seized loot.

During oral arguments, Judge Sonia Sotomayor asked the pertinent question, “You take the car and then you investigate?”

Backwards justice is no justice at all.

This is Common Sense. I’m Paul Jacob.

Categories
First Amendment rights national politics & policies

Stop Us Before We Kill Free Speech Again

The Supreme Court has yet another chance to refer to the First Amendment to the U.S. Constitution. And follow it.

The case before the court, Citizens United versus FEC, has to do with how federal campaign finance laws and the regulations issued by the Federal Election Commission are violating freedom of speech.

Citizens United is a conservative non-profit organization that produced a documentary critical of Hillary Clinton during the presidential campaign last year. A D.C. court ruled that producing it with the help of corporate funding was a violation campaign finance law, specifically the McCain-Feingold Act.

Eight former FEC commissioners have now filed an amicus brief in the case. They argue that the lower court’s decision violates the First Amendment — you know, the part about not making any law to abridge freedom of speech. One of the former commissioners, Hans von Spakovsky, explains in the Wall Street Journal that it is virtually impossible to know under the convoluted regulations exactly when one is allowed to engage in political speech and when one must shut up. Why not just let everyone exercise his First Amendment rights?

Spakovsky concludes that friends of campaign finance restrictions on speech have “lost sight of a basic truth: The answer to speech they disagree with is not to restrict that speech, but to answer it with more speech.”

That’s just — and this is — Common Sense. I’m Paul Jacob.

Categories
term limits U.S. Constitution

Replacing Souter

Supreme Court Justice David Souter is retiring. Apparently, Washington life doesn’t suit Souter, and, frankly, that’s the best thing I’ve heard in his favor.

A lot of people now speculate on whom our president will nominate, and how it will impact our country’s future. What will Congress do with the candidate? Will the ugly maw of politics sully the whole process . . . again?

One insight to glean from the second-guessing, speculation, and rumination is how sad it is that so much power rests on one selection.

When our leaders select a Supreme Court justice, they are selecting someone for life, really. Very few justices do as Souter has done, retire early, before their grasp on law and philosophy and politics might have dimmed a bit.

And that means that the job — already strategically important — becomes the Pearl of Great Price around which a lot of ugly politics scrambles.

How much better it would be were the Constitution amended to set terms for the justices, and limits to those terms!

Why not set terms to something like, say, eight years, and limit them to two? Sixteen years is plenty enough time in this office, way too much in most others.

Such a limit would make the position a little less crucial, and the turnover in the Court more evenly rotating.

And, thus, the appointment process a little less hysterical and ugly.

This is Common Sense. I’m Paul Jacob.