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Politics

The Tea Party’s Constitution

While scholars question the legal principles espoused by the Tea Party, some are celebrating the organization’s role in democratizing discussions of constitutional principles.

"The content of the movement’s understanding of the Constitution is not always easy to nail down, and it is almost always arguable," writes Adam Liptak in The New York Times. "But it certainly includes particular attention to the Constitution’s constraints on federal power (as reflected in the limited list of powers granted to Congress in Article I and reserved to the states and the people the 10th Amendment) and on government power generally (the Second Amendment’s protection of gun rights, the Fifth Amendment’s limits on the government’s taking of private property)."

According to Liptak, by focusing on these elements of the Constitution, the Tea Party is helping bring our nation’s sacred document to the forefront of national, political conversations. If that is a goal of the Tea Party, it may not hurt to have Virginia Thomas on board.

Politics

Texas Board of Education vs. America

Think Progress and the Texas Freedom Network report that the Texas Board of Education has elected to remove references to Thomas Jefferson from the state’s social studies curriculum standards.

Think Progress:

The Board removed Thomas Jefferson from the Texas curriculum, “replacing him with religious right icon John Calvin.”

9:30 – Board member Cynthia Dunbar wants to change a standard having students study the impact of Enlightenment ideas on political revolutions from 1750 to the present. She wants to drop the reference to Enlightenment ideas (replacing with “the writings of”) and to Thomas Jefferson. She adds Thomas Aquinas and others. Jefferson’s ideas, she argues, were based on other political philosophers listed in the standards. We don’t buy her argument at all. Board member Bob Craig of Lubbock points out that the curriculum writers clearly wanted to students to study Enlightenment ideas and Jefferson. Could Dunbar’s problem be that Jefferson was a Deist? The board approves the amendment, taking Thomas Jefferson OUT of the world history standards.

9:40 – We’re just picking ourselves up off the floor. The board’s far-right faction has spent months now proclaiming the importance of emphasizing America’s exceptionalism in social studies classrooms. But today they voted to remove one of the greatest of America’s Founders, Thomas Jefferson, from a standard about the influence of great political philosophers on political revolutions from 1750 to today.

9:45 – Here’s the amendment Dunbar changed: “explain the impact of Enlightenment ideas from John Locke, Thomas Hobbes, Voltaire, Charles de Montesquieu, Jean Jacques Rousseau, and Thomas Jefferson on political revolutions from 1750 to the present.” Here’s Dunbar’s replacement standard, which passed: “explain the impact of the writings of John Locke, Thomas Hobbes, Voltaire, Charles de Montesquieu, Jean Jacques Rousseau, Thomas Aquinas, John Calvin and Sir William Blackstone.” Not only does Dunbar’s amendment completely change the thrust of the standard. It also appalling drops one of the most influential political philosophers in American history — Thomas Jefferson.

9:51 – Dunbar’s amendment striking Jefferson passed with the votes of the board’s far-right members and board member Geraldine “Tincy” Miller of Dallas.

9:56 – Here is what the Library of Congress says about Jefferson’s influence: “Recognized in Europe as the author of the Declaration of Independence, Thomas Jefferson quickly became a focal point or lightning rod for revolutionaries in Europe and the Americas.” The Library of Congress notes, in particular, Jefferson’s influence on revolutionaries in France (including on the Declaration of the Rights of Man), other European nations, South America and Haiti.

If there was ever a WTF moment, this is it. Seriously, what else can you say? The wingers are so far gone, so far off the deep end, so completely crazy…it’s almost like the only thing left is…WTF?

World

Penn kicks reporter out of press conference for challenging “rectal cancer” remarks

Maybe he should get her thrown in jail!

Politics

Durbin Tells Progressive Senators They Can’t Have the Public Option Vote

With now more than 40 Senators saying they would support the public option in a reconciliation vote, Dick Durbin is trying to put the brakes on the process, saying that liberals may be asked to oppose the amendment [sub req] now that they’ve said they would support it. Roll Call reports:

Majority Whip Dick Durbin (D-Ill.) acknowledged Wednesday that liberals may be asked to oppose any amendment, including one creating a public option, to ensure a smooth ride for the bill. “We have to tell people, ‘You just have to swallow hard’ and say that putting an amendment on this is either going to stop it or slow it down, and we just can’t let it happen,” Durbin, who supports a public option, told reporters. “We have to move this forward. We know the Republicans are likely to offer a lot of amendments, and some of them may be appealing to Democrats, but we have to urge them to stick with the bill.”

Sen. Tom Carper (D-Del.), a leading centrist, suggested Democrats should be able to avoid blowing up a reconciliation package if there is ample negotiation on it before it hits the floor. But Carper appeared to warn his Democratic colleagues that any move to amend the reconciliation bill, however noble the policy aims, would only lead to chaos.

That’s the same Tom Carper whose contribution to the hcr debate was the deservedly short-lived opt-in, triggered co-op. But regardless of how worthless his contribution to the debate has been, he still gets a vote. As should Senate liberals, who as of yet aren’t backing down.

But prominent Senate liberals said they are determined to put the public option question to the test when reconciliation comes to the floor.

“I think we have got to do everything that we can to get a public option so that is absolutely something … somebody can and should do,” said Sen. Bernie Sanders (I-Vt.), who caucuses with Democrats.

Sanders said liberals have not decided who would offer such an amendment. However, Sen. Michael Bennet (D-Colo.) led a petition drive to get Senators to sign a letter pledging their support for it. The Progressive Change Campaign Committee, which has been tracking the letter signatories and Member statements, projects 41 firm votes in favor of the public option.

Sanders said he believes supporters will have the votes when the amendment comes up. “I can’t swear it to you, but I do think we can,” Sanders said. “I think that some people for whatever reason choose not to sign a letter but will vote. Yeah, I think we’ve got it.”

This largely seems to be an effort to discourage any amendments from being offered, though there is no indication as of yet that anyone other than public option supporters are being told to stand down. The Roll Call story says that other Senators, including Wyden and Boxer, “declined to rule out trying to change the reconciliation measure on the floor” pending knowing what will actually be in the reconciliation fix.

Politics

Supreme Court to Hear Case Involving Picketing of Soldiers’ Funerals

The Supreme Court granted certiorari in three cases for its term starting this fall, including one involving a $5 million jury verdict against the fiercely anti-gay group led by Kansas preacher Fred Phelps. SCOTUSblog’s Lyle Denniston writes that in Snyder v. Phelps, the high court will focus on "a significant question of First Amendment law: the degree of constitutional protection given to private remarks made about a private person, occurring in a largely private setting." Phelps and members of his Westboro Baptist Church, which consists largely of his relatives, picket funerals of soldiers as part of their campaign attacking America for allegedly being tolerant of lesbians and gay men. That campaign involves posting invective on a Web site called "godhatesfags.com," and hoisting signs at soldiers’ funerals with messages like "God Hates the USA," and "Semper fi fags." When Phelps and members of his outfit picketed the funeral of Marine Lance Corporal Matthew Snyder several years ago in Maryland, his father, Albert, lodged a lawsuit against Phelps, winning a $5 million jury verdict.

But that verdict was overturned by the U.S. Court of Appeals for the Fourth Circuit. Even though the appeals court found Phelps’ messages "utterly distasteful," it said they were protected by the First Amendment. The Fourth Circuit, as noted by the Religion Clause blog, also concluded that Phelps’ Web site postings concerning the dead solider were "imaginative and hyperbolic rhetoric intended to spark debate."

Politics

McDonald and the Future of the Privileges or Immunities Clause

By David H. Gans, Director of the Human Rights, Civil Rights, and Citizenship Program at the Constitutional Accountability Center. He is the lead author of the report, The Gem of the Constitution: the Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment, and co-author of CAC’s brief in McDonald. This article is cross-posted at CAC’s blog, Text & History.

On Tuesday, the Supreme Court heard oral argument in McDonald v. City of Chicago, which raises the question whether the Second Amendment’s guarantee of a right to bear arms applies to states and local governments. Going into argument, incorporation of the Second Amendment right seemed a given – after all, states already have to obey virtually every right in the Bill of Rights. The critical question was whether the Court would breathe new life into the Privileges or Immunities Clause, and honor the part of the Fourteenth Amendment’s text that clearly protects substantive fundamental rights from state infringement.

The Privileges or Immunities Clause was intended to be the centerpiece of the Fourteenth Amendment, but it was written out of the Constitution by the Supreme Court in the 1873 Slaughter-House Cases. The decision has been regarded as one of the worst in the Court’s history, and roundly condemned by the Amendment’s framers in the 1870s, Justice Harlan in the early 20th century, and Justice Black in the 1940s. The overwhelming consensus among scholars across the ideological spectrum – reflected in a law professors’ brief filed by CAC in McDonald – is that Slaughter-House obliterated the text and history of the Clause through a profoundly incorrect interpretation of the Constitution.

Unfortunately, the Privileges or Immunities Clause received a chilly reception from the Court on Tuesday, especially from those Justices who most profess to take the Constitution’s text and history seriously. Justice Scalia belittled the Clause, accusing Alan Gura, McDonald’s attorney, of "bucking for some place on some law school faculty" by advancing an argument that was "the darling of the professoriate." Scalia, supposedly the Court’s chief originalist, wouldn’t even consider the merits of the argument. Chief Justice Roberts, too, refused to follow the Constitution’s text and history where it leads. He explicitly worried that the Privileges or Immunities Clause would allow for broad protections of substantive liberty; he preferred to rely on the Due Process Clause, since that text is about process, and does not easily lend itself to protecting substantive fundamental rights. While Roberts and Scalia were content to rely on substantive due process to protect gun rights, they seemed to want to reserve the opportunity to bash the doctrine in future cases involving rights they don’t recognize. Other Justices were less overtly hostile, but none seemed willing to revive the Clause.

In light of its reception at the Court, was Gura too bold?

Politics

Supersizing the Second Amendment? (Part II)

By Adam Winkler, Professor of Law, UCLA School of Law. Professor Winkler signed an amicus brief filed in McDonald v. City of Chicago supporting incorporation through the Privileges or Immunities Clause of the Fourteenth Amendment.

[Part I of "Supersizing the Second Amendment?" is available here.]

So why do I still say that gun control advocates are also seemed to be big winners?

Because the Justices seemed to think that, regardless of incorporation, state and local governments would retain wide leeway to enact gun control. The only words used as much as "fundamental" and "implicit in ordered liberty" in the argument were "reasonable regulation."

Numerous Justices expressed their support for the idea that the Second Amendment did not prohibit reasonable regulation of firearms. Justice Kennedy said that lawmakers still "have substantial latitude and ample authority to impose reasonable regulations." Justice Ruth Bader Ginsburg said that she "thought that Heller allowed for reasonable regulation." Justice Scalia didn’t use that catchphrase, but went out of his way to say that Heller "was very careful not to impose" severe limits on the federal government "precisely because it realized that" gun violence "is a national problem."

There are two ways to think about "reasonable regulation." The first is what I’ve long endorsed: the Second Amendment should be governed by the formal "reasonable regulation" standard uniformly used in state constitutional law. Forty-two states have constitutional protections for the individual right to bear arms and all of them apply a deferential standard by this name. Under that test, any regulation will be allowed to stand so long as it doesn’t effectively destroy or nullify the individual’s right to have a gun for self-defense. Some types of weapons can be banned so long as individuals have access to others. Applying this test, almost all gun control survives.

World

House Republicans propose federal spending amendment

Cap at 20% of GDP.

Politics

SCOTUS Hears Argument On Major Second Amendment Case

Contrary to what you might have thought, not everything in the Bill of Rights applies against state and local governments. It’s only through a haphazard process called “selective incorporation” that the Supreme Court has determined which facets of the Bill of Rights apply to states — such as the 1st and 8th Amendments — and which do not, such as the 7th Amendment right to a trial by jury in civil cases whenever twenty dollars or more is at stake. And, similarly, a set of late-19th Century precedents (Cruikshank, Presser and Miller) held that the 2nd Amendment does not restrict states from passing their own restrictions on the right to keep and bear arms.

There has been an increasing amount of historical and legal scholarship that argues that this whole line of cases is wrong, starting with the Court’s opinion in The Slaughter-House Cases (1873) to strangle in the nursery the 14th Amendment’s newly-enacted protections of the privileges or immunities of all citizens, which was intended to federalize the protection of individual liberties in the wake of the Civil War. If accepted, these arguments — presented best in the Constitutional Accountability Center’s paper The Gem of the Constitution — would restore the original progressive intent of the 14th Amendment and the guarantees of all the Bill of Rights (as well as some group of unenumerated rights) against both federal and state action. Or, at a minimum, the Court could determine that the incorporation doctrine (via substantive due process) should apply to the Second Amendment.

[In the meantime, as you may recall, the Court held in its 2008 Heller decision that the Second Amendment does protect an individual right to bear arms as against federal restrictions, subject to qualifications the Court promised to sort out later.]

Which brings us to yesterday, an appeal of a decision of the United States Court of Appeals for the 7th Circuit regarding a Chicago gun control regulation, maintaining that no matter how poorly-reasoned they found the earlier Second Amendment cases, only the Supreme Court itself could overturn them and find the Second Amendment’s reach to extend to state and local laws. As Judge Easterbrook noted during oral argument, “I entirely appreciate your argument that the Slaughter-House Cases are wrongly decided. But as is often said in the bureaucracy, that’s above our grade level.”

But at this paygrade, the Privileges or Immunities argument just isn’t going to fly. Let’s go to yesterday’s transcript, with Alan Gura arguing on behalf of the gun owners:

JUSTICE SCALIA: No, no. I’m not talking about whether — whether the Slaughter-House Cases were right or wrong. I’m saying, assuming we give, you know, the Privileges and Immunities Clause your definition, does that make it any easier to get the Second Amendment adopted with respect to the States?

MR. GURA: Justice Scalia, I suppose the answer to that would be no, because -

JUSTICE SCALIA: Then if the answer is no, why are you asking us to overrule 150, 140 years of prior law, when — when you can reach your result under substantive due — I mean, you know, unless you are bucking for a — a place on some law school faculty -

(Laughter.)

MR. GURA: No. No. I have left law school some time ago and this is not an attempt to — to return.

JUSTICE SCALIA: What you argue is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it’s wrong, I have — even I have acquiesced in it?

The entire Court, it seemed, had problems with Gura’s attempt to assert that the Privileges or Immuntities Clause protected various unenumerated (i.e., not explicit) rights as understood at the time of the 14th Amendment. So, then, how do we determine the contours of a Second Amendment right as to state and local regulation via incorporation?

Politics

Bunning relents, agrees to deal

Roll Call reports that it’s over:

In the end Bunning agreed to a deal allowing him one vote on an amendment to pay for the bill’s $10 billion cost. That proposal was offered by Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.) last Thursday at the start of his filibuster, but Bunning rejected it because he feared his amendment would not pass.

Reid has also agreed to give Bunning two votes on amendments to a larger, one-year extension bill that is currently under consideration in the Senate.

So the news is that unemployment benefits will continue flowing, but we don’t get to see Democrats force Bunning to filibuster all night.

Politics

Supreme Court Considers Reach of Second Amendment

It appears, according to early reports, that a majority of the Supreme Court is set to ensure that an individual right to possess a gun is also protected against state action. SCOTUSblog’s Lyle Denniston reports, "The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment’s guarantee of ‘due process,’ since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge."

The Associated Press’s Mark Sherman also reported that the high court "appeared willing Tuesday to say that the Constitution’s right to possess guns limits state and local regulation of firearms."

In McDonald v. City of Chicago, the justices are weighing whether to expand its 2008 ruling in District of Columbia v. Heller to strike Chicago’s ban on handguns, which has been in place for decades. In Heller, the Supreme Court invalidated a federal gun regulation, finding that the Second Amendment does provide a personal right to possess a firearm. Specifically, in McDonald, the justices must now decide if and how protection of that right should be applied to the states. An attorney representing gun rights activists, Alan Gura, tried to encourage the justices to incorporate the Second Amendment through the Constitution’s privileges or immunities clause. But, Denniston wrote that Gura’s argument collapsed. Denniston noted that both Chief Justice John Roberts and Justice Antonin Scalia, both in the Heller majority, quickly dismissed the privilege or immunities argument. Instead, the justices maintained that incorporation of the Second Amendment would likely occur through the 14th Amendment’s "due process" clause.

For expert analysis of the issues involved in McDonald see a guest post from Harvard Law School Professor Mark Tushnet here and one from Chapman University School of Law Professor Lawrence Rosenthal here. Oral argument transcript is available here.

Politics

McDonald v. Chicago: A Debate About Gun Control or the Original Meaning of the Fourteenth Amendment?

By Lawrence Rosenthal, Professor of Law, Chapman University School of Law. Professor Rosenthal filed an amicus brief on behalf of the U.S. Conference of Mayors in McDonald v. City of Chicago in support of Chicago.

In its 2008 decision in District of Columbia v. Heller, a closely divided Supreme Court, applying what the majority characterized as "the original understanding of the Second Amendment," invalidated D.C.’s prohibition on the possession of handguns. Relying on eighteenth-century sources, the Court defined the Second Amendment right to "keep and bear arms" as "the individual right to possess and carry weapons in case of confrontation," and held that a prohibition on handguns was unconstitutional. The Court cautioned, however, that the Second Amendment is only a limitation on the powers of Congress, and reserved decision on the question whether it also applied to state and local governments by virtue of the Fourteenth Amendment. The Court noted that its nineteenth-century decisions had refused to apply the Second Amendment to state and local laws, but added that these cases "did not engage in the sort of Fourteenth Amendment inquiry required by our later cases."

The Court will now confront the applicability of the Second Amendment to state and local laws in McDonald v. City of Chicago. At issue is the constitutionality of Chicago’s handgun ban. Chicago and its amici rely on the approach to incorporation of the first eight amendments within the Fourteenth that the Court has taken for nearly a century – asking whether a particular right is "implicit in the concept of ordered liberty." Under this approach, many of the rights in the first eight amendments have been incorporated within the Fourteenth Amendment’s Due Process Clause – but not all.

Politics

Senate passes jobs bill

The Senate has passed H.R. 2847, now the vehicle for what’s become known as the Senate jobs bill, by a vote of 70-28.

The path to passage was cleared by Monday’s successful cloture vote in which newly-elected Sen. Scott Brown (D-MA) [UPDATE: Fox News Moment! Brown is, of course, a Republican. No, seriously!] was one among five Republicans joining Democrats to break the logjam.

Technically, what just happened was that a motion to concur in the House amendment to the Senate amendment to H.R. 2847, with an amendment (#3310) was agreed to.

Get that? The House passed H.R. 2847, which was originally a Commerce/Justice/Science appropriations bill, back in June of last year. It was filibustered (of course) for quite some time in the Senate and finally amended and sent back to the House in November. By mid-December, the House had amended the Senate’s amendment and sent it back yet again. And now, with no further need for it as an appropriations bill (since the departments and operations in question have since been funded by another bill), it was converted into the Senate jobs bill by the adoption of a substitute amendment (#3310) and passed. And now it returns to the House for a third time, this time as a jobs bill.

Fun!

Of note: Ben Nelson (D-NE) joined 29 Republicans in opposing passage of the bill, even as 13 Republicans crossed over to support it. Can’t wait to have the DNC spend some more small dollar donor money on ads for that guy.

Politics

In Second Amendment Case, Friends are Foes and Foes, Friends

The widely anticipated Second Amendment case pending before the Supreme Court is creating strange bedfellows, reports Jess Bravin in The Wall Street Journal. Bravin writes that, "as gun-rights groups battle each other over how to argue the case, … some left- and right-leaning legal theorists unite over how to interpret the Constitution."

As noted at ACS’s Supreme Court Preview for the Court’s current term, some progressive advocates support incorporation of the Second Amendment to the states in McDonald v. Chicago. They see McDonald as an opportunity to revive the Fourteenth Amendment’s Privileges or Immunities Clause, which was neutered by the Supreme Court in the 1873 Slaughterhouse Cases. Since then, incorporting rights to bar infringement by state action has been a burden carried by the Fourteenth Amendment’s Due Process Clause, which speaks merely to deprivations of rights, as opposed to the broader language of the Privileges or Immunities Clause.

As to the Second Amendment, the Supreme Court left the question of incorporation for another day in the 2008 D.C. v. Heller decision, which — for the first time — recognized the right to bear arms as an individual right, rather than a right bestowed upon members of a militia collectively. And that day will be before the Court soon in McDonald.

World

Rabbi Michael Lerner: Reviving the American Liberal Movement

The most important first step for liberals and progressives is to explain to themselves and each other that history is not over, that the Obama years still retain some possibilities.

Politics

Democrats propose to quash Supreme Court ruling on corporate election spending

“It’s one of the most wrongheaded decisions in court history,” said Sen.
Chuck Shumer of New York, referring the Supreme Court’s decision to allow
corporations to spend unlimited amounts of cash supporting or opposing
candidates.
Nobody would claim there needs to be more money in electoral theater, and yet removing any impedance to corporate political spending has some heralding the highest Court’s recent ruling [...]

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