Profile in Courage

Yesterday, the New York Times had a profile of New York Mayor Michael Bloomberg’s support of the construction of a Muslim community center a few blocks away from ground zero in Manhattan.

Bloomberg Official Photo

The article details his position as one in opposition of religious discrimination, something his parent’s faced as Jews trying to buy a home in Massachusetts.

Yet his quote really simplifies the argument:

“If somebody wants to build a mosque in a place where it’s zoned for it and they can raise the money, then they can do that,” he said. “And it’s not the government’s business.”

No matter what someone’s emotional reaction is to the building of this center, there is no way to stop it. Any efforts will be a violation of one group’s religious constitutional rights, which would be settled by the courts, likely in favor of the Muslim people developing the center.

I think it is important to note that this center will welcome people of different faiths as a way to bring the community together. Isn’t this kind of what we all dreamed and cried for following September 11, 2001?

Bloomberg could have dodged the whole argument and left it to the courts and various development boards to settle. Instead, he has weighed in on it in support of religious tolerance, despite public oppostion.  One person said it is the mayor's finest hour.  It may very well be.

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Legal Advice

Republicans are once again in a tizzy regarding the rights of the accused.

This in Politico:

Congressional Republicans want to know whether the Pakistani-born American arrested in the Times Square car bombing plot was read his Miranda rights, with Sen. John McCain saying it would be a “serious mistake” if the suspect was reminded of his right to remain silent.

These guys act like one must be read their rights to actually obtain them. Seems to me that NOT reading him his rights might set up the accused for some sort of defense.

To the lawyers and soon-to-be lawyers at ATK: Am I missing something?

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Health Care Reform and the Constitution

Opponents of health care reform have indicated that the proposed Bill is unConstitutional or that portions of it are, specifically the part that madates that people get coverage. Some states have indicated that they will sue and I have seen plenty of comments from pundits, politicians, and assorted others that are trying to convince me of the unfairness and offensiveness of this Bill. Some are unable to articulate any specific reason as to how it offends the Constitution, while others suggest that health care does not fall under one of the enumerated powers and therefore the feds lack the authority to implement this kind of plan. Supporters claim that it falls under the broad federal area of Interstate Commerce.

I recall a lecture from Con Law I where we were discussing Interstate Commerce and the various cases that led up to our current understanding. This was pre-Raich, mind you, and I asked the professor what exactly qualifies as "interstate commerce". His answer (I am paraphrasing here) was that it was pretty damn near anything the government wanted to call interstate commerce. Understanding this, I had serious doubts as to any court challenge of the individual mandate part of HCR. Orin Kerr over at Volokh, who is way more of Constitutional expert that I am, agrees and points out the odds of a successful challenge:

With all this blogging here at the VC about whether the courts will invalidate the individual mandate as exceeding Congress’s Article I authority, I thought I would add my two cents by estimating the odds of that happening. In my view, there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress’s Article I power. I tend to doubt the issue will get to the Supreme Court: The circuits will be splitless, I expect, and the Supreme Court will decline to hear the case. In the unlikely event a split arises and the Court does take it, I would expect a 9–0 (or possibly 8–1) vote to uphold the individual mandate.

He has some other points to make about what he thinks about the mandate and modern incarnation of IC. I tend to mostly agree with him, though I can see the logic behind the mandate. What are your thoughts?

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Pushing the Limits of Church and State

The New York Times Magazine, a weekly publication where they get to put longer stories and points of interest than what appears in their normal paper, recently published How Christian Were The Founders, an article that highlights the Christian Fundamentalist movement to effectively rewrite American history from a Christian-centric point of view. Highlighted in the article is the Texas Board of Education and and several opinions from Christian-based law schools.

More specifically, this movement focuses on American's founding fathers having a deeply Christian motivation for creating this country the way they did, as substantiated by early-American texts such as the Declaration of Independence, the Mayflower Compact and the Fundamental Orders of Connecticut. This is, the movement contends, supposed to be a Christian nation and our early historic documents verify that.

One of the most interesting cases made (and by "interesting" I mean "a stretch") for this is by Liberty University Law School's Cynthia Dunbar:

Dunbar began the lecture by discussing a national day of thanksgiving that Gen. George Washington called for after the defeat of the British at Saratoga in 1777 — showing, in her reckoning, a religious base in the thinking of the country’s founders...

...A student questioned the relevance of the 1777 event to the court rulings, because in 1777 the country did not yet have a Constitution. “And what did we have at that time?” Dunbar asked. Answer: “The Declaration of Independence.” She then discussed a legal practice called “incorporation by reference.” “When you have in one legal document reference to another, it pulls them together, so that they can’t be viewed as separate and distinct,” she said. “So you cannot read the Constitution distinct from the Declaration.” And the Declaration famously refers to a Creator and grounds itself in “the Laws of Nature and of Nature’s God.” Therefore, she said, the religiosity of the founders is not only established and rooted in a foundational document but linked to the Constitution. [emphasis added]

I checked with a few of my legal resources (my lawyer buddies) and asked them about this concept of "incorporation by reference." The consensus was this: incorporation by reference is often done in creating laws as well as in contract law and trust and estate law. But Constitutional Law, or in taking a non-legal document, like the Declaration, and trying to have any of its references incorporated into the Constitution is not an accurate use of that legal concept.

This entire article sets the stage for this: the movement focuses on tearing-down the "wall of separation" between church and state.

[Wallbuilders leader] David Barton reads the “church and state” letter to mean that Jefferson “believed, along with the other founders, that the First Amendment had been enacted only to prevent the federal establishment of a national denomination.” Barton goes on to claim, “ ‘Separation of church and state’ currently means almost exactly the opposite of what it originally meant.”

A response:

“The founders deliberately left the word ‘God’ out of the Constitution — but not because they were a bunch of atheists and deists,” says Susan Jacoby, author of “Freethinkers: A History of American Secularism.” “To them, mixing religion and government meant trouble.” The curious thing is that in trying to bring God into the Constitution, the activists — who say their goal is to follow the original intent of the founders — are ignoring the fact that the founders explicitly avoided religious language in that document.

I could fill line after line with examples in the article from one side or another in this debate, so instead I encourage you to read the article.

There are a few things at work here in this article. First is the Texas Board of Education. Unlike many other states, the Texas Board determines the curriculum and textbooks for the entire state, rather than district-by-district. Given the size of the Texas school system, and what that does to the price and content of textbooks across the country, what the Texas Bord decides arguably has a massive effect on the content of textbooks across the country.

The Texas Board is systematically allowing for religious content in public school books. This article not only shows how that is happening, and who the players are, but also how the Texas Board movement is hand-in-hand, conceptually and actually, with the overall "Christian Nation" movement across the country.

I have several problems with this. First, I believe the tactics they are using are misleading. Filling law school students' heads with erroneous legal interpretations is irrensponsible. Their goal there is to be able to start to challenge 1st amendment cases, with fresh Christian-law-trained minds, all the way up to SCOTUS...and perhaps even control SCOTUS one day. I admire the long-view strategy; that takes a level of commitment that I can't fathom! But it treads dangerously close to the establishment of a State religion.

Another problem I have is the blind, dogmatic following of the Texas Board with this approach. Specifically, here's one of my favorite gems:

Brown Bear Brown Bear, What Do You See?” It’s not an especially subversive-sounding title, but the author of this 1967 children’s picture book, Bill Martin Jr., lost his place in the Texas social-studies guidelines at last month’s board meeting due to what was thought to be un-American activity — to be precise, “very strong critiques of capitalism and the American system.” Martin, the creator of 300 children’s books, was removed from the list of cultural figures approved for study by third graders in the blizzard of amendments offered by board members...

..In this case, one board member sent an e-mail message with a reference to “Ethical Marxism,” by Bill Martin, to another board member, who suggested that anyone who wrote a book with such a title did not belong in the TEKS. As it turned out, Bill Martin and Bill Martin Jr. are two different people. But by that time, the author of “Brown Bear, Brown Bear” was out. “That’s a perfect example of these people’s lack of knowledge,” Miller says. “They’re coming forward with hundreds of amendments at the last minute. Don McLeroy had a four-inch stack of amendments, and they all just voted on them, whether or not they actually knew the content.[emphasis added]

It's fine for students to learn about the Mayflower Compact or any of the other semi-constitutional documents that preceded the actual Constitution, especially in terms of their overall impact on the final document we know and love today. But despite the rhetoric of only wanting to "acknowledge" the Christian contributions to the United States, this is an attempt to rewrite American history and establish Christianity as the single religion of the U.S., through our public school system (which is supposed to be the great democratizer).

Either you acknowledge every religion's impact on the formation of the country, or you stay secular and report the facts. I'm all for the latter. I can learn all the other stuff in the church of the denomination that I choose to attend. I am not hyperventilating about what they're doing; I don't think in the long run that our country will become some Christian Caliphate. But I do want to raise awareness. Our government is secular for a reason and what these folks are doing threatens to violate the 1st amendment and clearly establish a de-facto religion for the United States. That's not government's role, and that's not public education's role.

[/navel gazing]

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Lawyers for Terrorists?

One of the themes we should expect to hear in the 2010 election is that "Obama" gave a terrorist a taxpayer-funded lawyer hours after he tried to blow up a plane over Detroit.

Please can a lawyer tell me, once the guy landed in Detroit, wouldn't we be required to give him a lawyer? What were our other options?

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Juvenile Justice

Smitty gave me a heads up that The Supreme Court was hearing oral arguments in Graham v. Florida (08-7412) and Sullivan v. Florida (08-7621). These cases dealt with the Constitutionality of imposing a life sentence without the possibility of parole on a juvenile. I told Smitty that it was interesting that issue has never come up, but he suggested that those kind of sentences were probably not used on juveniles until relatively recently.

Scotus Blog has an excellent analysis or the arguments and discussions. If you are interested in the briefs and petitions filed up until now, I would suggest checking out scotuswiki. Last, but not least, NPR has a good article on the background of the two petitioners, Terrance Graham and Joe Sullivan.

The NPR article is a good place to start. Not surprising, Florida has 70% of the juvenile offenders locked up for life for crimes other than murder. Graham was convicted of armed robbery and Sullivan for raping an elderly woman. Neither person, in my mind, garners a whole lot of sympathy, but the question then becomes is it reasonable to lock them up and throw away the key?

Scotus Blog details some of the arguments made. For the State of Florida:

The state of Florida’s lawyer, Solicitor General Scott D. Makar from Tallahassee opened his argument by contending that a categorical bar on life-without-parole for minors would run counter to trends in treating juveniles over past couple of decades, frustrating states in their attempts to deal with rising juvenile crime while still remaining sensitive to the needs of youthful offenders.

Interesting, as most studies show that juvenile crime is the lowest it has been in years. Additionally, I don't believe that life sentences are a deterrent to a juvenile that is considering a criminal act. The justices seemed to vary in opinion from some supporting developing a bright line rule that would prohibit these sentences below a certain age. The Chief Justice seemed to prefer:

...to recruit a majority of the Supreme Court in favor of giving juveniles more chance to use their age to challenge life-without-parole prison terms, as an alternative to a flat constitutional bar against ever imposing that sentence.

There was this exchange with Sotomayor:

After Makar had said that Florida acknowledged that youthful age “does matter,” Justice Sotomayor asked for help in drawing the line where life-without-parole would be permissible. Would it be unconstituional if the youth were only 10? she asked. If that is too early, she said, why would 14 or 15 not be too early? Makar would only concede that “I think it [age] does matter.” Sotomayor was not satisfied, next asking about a no-release sentence for a five-year-old.

A five year old? I am sure that Sotomayor well knows that a 5 year old lacks the ability to form an intent to commit a crime. This seems like she wanted to be melodramatic. Lighten up Sonia.

I think the Founding Fathers did a good job in phrasing the prohibition against cruel and unusual punishment. They allowed for changes in society, as opposed to defining what was specifically cruel and unusual. In the late 18th century, all felonies were punished by death and children could receive pretty harsh punishments. Even as late at the early 20th century, punishments for juveniles were severe and due process was almost non-existent. Gradually, procedural safeguards were set up and, most recently, the Supreme Court said the death penalty could not be applied to juveniles.

I am leaning towards a ban on life sentences without parole for juveniles. Courts already have discretion in charging people under the age of 18 as adults. Most of the time, going through the juvenile system offers more flexibility in terms of treatments and punishments. While there are some youths that are likely incorrigible, this is hard to predict and there are certainly crimes that call for a life sentence. The problem is that I see too much potential for abuse, especially in a high profile case. What do the ATK readers think?

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Justice: Obama Style

When the President announced he would be closing Guantanamo, one of my fears is that this move lacked substance and many of the more onerous War on Terrorism policies would continue. While torture seems to thankfully be discontinued, rendition still occurs. Even worse than this is news that the Administration will ignore due process in the results of trials if they don't agree with the outcome. Reason covered an exchange between Sen. Martinez (R-Fl) and Defense Department Counsel Johnson, where Johnson said:

You raised the issue of what happens if there's an acquittal, and in my judgment, as a matter of legal authority...if a review panel has determined this person is a security threat...and should not be released, if for some reason he is not convicted for a lengthy prison sentence, then as a matter of legal authority I think it's our view that we would have the ability to detain him.

The word show trial comes to mind. If some other panel can just ignore due process and detain a person, then you don't really have due process. Glenn Greenwald had a good analysis. He pointed out that:

In its own twisted way, the Bush approach was actually more honest and transparent: they made no secret of their belief that the President could imprison anyone he wanted without any process at all. That's clearly the Obama view as well, but he's creating an elaborate, multi-layered, and purely discretionary "justice system" that accomplishes exactly the same thing while creating the false appearance that there is due process being accorded. And for those who -- to justify what Obama is doing -- make the not unreasonable point that Bush left Obama with a difficult quandary at Guantanamo, how will that excuse apply when these new detention powers are applied not only to existing Guantanamo detainees but to future (i.e., not-yet-abducted) detainees as well?

I can understand that the President is under a great deal of pressure from both sides of this debate...to protect the US from terrorists and to provide detainees with some level of due process. I just can't help thinking that subverting the Constitution to provide a feeling of safety is not the road we want to continue down. I was hoping that this Bush-era policy would not continue.

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Giving the Republicans a Whole Lot of Rope...

As a State of Michigan employee, I was keeping an eye on the possibility that Governor Jennifer Granholm would get the Supreme Court nod, so I was somewhat blinded by the significance of the nomination of Judge Sonia Sotomayor. Sotomayor was on Obama’s short list from the beginning. Her outstanding credentials have always been obvious, but what crept up on me was how brilliantly Obama put Republicans into a box.

Judge Sotomayor’s ethnicity, was clearly an asset for Obama, but he doesn’t merely get to check off the Latina box on the list of historic moments, he has made a political calculation that is relevant for this moment in Republican history. This is one more make it or break it time for the already ailing minority party.

What are the R’s to do with Sotomayor? She has been appointed by two previous Presidents, one Democrat and one Republican and has already been confirmed in a bipartisan fashion. She is the first appointee by Obama, so the Republicans will want to draw a little blood and not be seen as weak. She is seen by many as very liberal and her comments on appeals judges creating policy surely infuriates the right of the Republican base.

I always thought that if the 2008 election didn’t go to the Democrats, demographic changes in this country would surely kill of the Republican Party as we know it today. The Republican base is shrinking as groups they have routinely alienated have grown, including black’s and Hispanics. Gays, another constant target of the party base, has gained greater sympathy in the public’s mind. People support science in stem cell research and the teaching of evolution. Religious participation is dropping.

According a friend of mine who has been involved in Hispanic civil rights since the 1960’s, this appointment has gone over huge, HUGE in Cuban, Mexican, Puerto Rican and all other Hispanic communities. According to her, rarely do these groups come together as one voice as they have in this instance. This is a watershed moment.

This leads us back to the Republican conundrum. The far right forces are itching for a fight, folks like Randall Terry, Founder, of “Operation Rescue” the anti-abortion group want a filibuster. The Repubs are clearly test-marketing labels, Such as “Che Guevara in robes.” Some have already questioned her intellect, just as opponents of Justices Thurgood Marshall and Clarence Thomas did, and just as people through out the ages have questioned the intellect of minorities. Some are attempting to label her a racist.

They have a choice. They can attack and discredit a clearly intelligent woman, and permanently lose the support of the Hispanic community or they can roll over and alienate the only part of the Republican Party not in taters: the religious far–right. Unless they find some lurid photos and can force Obama to retract her nomination, they should take the smart route, roll over and live to fight another day for the middle ground of voters.

I am betting they are not that smart.

------------------------------------

UPDATE, May 29th:

It has been brought to my attention that I may have pulled a Dowd and plagiarized a friendly fellow blogger.

In his May 26th post, Mr. Furious states:

“I barely mentioned the whole "empathetic judge" thing, but it appears to be a perfect example of Obama handing the Republicans just enough rope.”

While I had missed his blog post, I am taking this opportunity to give Mr. Furious due credit.

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The Renewed 2nd Amendment

This is my third and final installment in a series of blog entries on guns and the second amendment. I promise no more, for the foreseeable future. I was planning on blogging about how the anti-gun movement has lost some steam since the Heller decision and wanted to discuss some aspects of that. I was in the middle of writing a response to Andy's comment on the previous entry, when I decided to include it in this post.

As is evident by the responses on this blog, I think the gun rights movement owes a fair amount to the intellectual honesty of most liberals. An article called, Liberals, Guns, and the Constitution makes this point very well. I wrote a paper on the 2nd Amendment for a Con Law seminar 4 or so years ago. The collective rights theory was definitely in the minority, but there were some prominent advocates. This isn't the case any more and that position seems to be on its way to history books and out of public policy and modern scholarship. The article mentions an excellent article by Sanford Levinson, called The Embarrassing Second Amendment. Levinson is, by no definition, a conservative.

I don't think this means that we are about to see AK47's being given to children on every corner, but I am hoping that we can see a more reasoned discussion. I would also like to see the laws regarding guns to respect liberty and the Constitution and protect rights while also ensuring the safety of the public.

Andy raised many points in his response to my previous post. I thought it should be included here, since it touches a great deal on rights:

I don't understand why anyone needs to own an assault weapon unless they are in the military.

This goes back to my original point. Individual liberties are not subject to the individual first demonstrating a need. This is just not the way it is done in a free society. Never has and never should be. I can think of a variety of reasons...some compelling, some not compelling. This makes no difference.

Can't use them for hunting.

The 2nd Amendment has absolutely nothing to do with hunting. It isn't mentioned anywhere in the Constitution, nor is it mentioned in any commentary published it at that time. I doesn't appear anywhere in the Federalist papers. As much as I enjoy hunting, I understand that the legislature can regulate it in any way it wants, including an outright ban.

Hand guns or even semi-automatics will do for burglars and protection.

I am confused here. An "assault rifle", as defined by the AWB, is a semi-auto. If you are thinking machine gun, they are already highly regulated and out of reach of most people, in terms of how much they cost. What do you think and assault rifle is?

All things are basic rights, but Congress has the right to decide what the basic rights are.

No.they.don't.

All things aren't basic rights. The Bill of Rights lists certain rights, but fundamental rights don't owe their existence to the gov't, they are inherent to a free people. A religious person would say they come from God. A non-religious person would say they are inherent to all humans by our nature.

The gov't certainly has the ability to pass laws and regulate a variety of acts, but they cannot infinge upon basic liberties except for rare circumstances and under very narrow means.

I think the 2nd amendment allows for freedom to bear arms, but not the freedom to bear assault weapons.

I think the 1st Amendment allows for media outlets to publish unpopular views, but unless you are an employee of them, people should be arrested for speaking out against the government. This is a silly example, but you are saying the same thing. An assault weapon is an 'arm'.

The Brady bill was put in to ensure safety of the people.

1. It didn't lower crime or improve safety. There have been several studies that have proven this.

2. We need to be careful as to what we do in the name of safety. Some Asian country (IIRC, North Korea) instituted a curfew for everyone which had the effect of dramatically lowering crime. Do you think this is a good idea. I can guarantee if we allowed warrantless, random searches, we would catch many criminals and seize a great deal of contraband. Should we negate the 4th Amendment.

I think that it should be re-enacted. So do most Americans

Irrelevent, if we are talking about a fundamental liberty.

It only expired because the radical right in Congress let it.

This not how I remembered it. There was certainly support amond anti-gun groups and some in Congress, but most were content to let it die.

And there was an uproar.

More like a whimper.

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