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Before President Obama even finished announcing Elena Kagan as his Supreme Court nominee, the Republican National Committee (RNC) was up with an attack memo questioning Kagan's commitment to our Constitution, asking, ominously, whether she "still views the Constitution 'as originally drafted and conceived' as 'defective'?" This time progressives should do more than play defense, we must turn the tables and win the fight over our Nation's charter.
In terms of Solicitor General Kagan's views on the Constitution, the RNC had to look long and hard to find something to attack. What they came up with, in dubious taste, is a tribute Kagan delivered on the death of Justice Thurgood Marshall, for whom Kagan clerked. Kagan writes poignantly of the great Justice, who argued Brown v. Board of Education, served, like Kagan, as U.S. Solicitor General, then became in 1967 the first African American to serve on the Supreme Court. She rightly calls Marshall "the most important -- and probably the greatest -- lawyer of the twentieth century." And she notes that Marshall, the great grandson of a slave, viewed the Constitution, which as originally drafted allowed slavery to flourish in the American south, as "defective," at least in that regard.
Kagan quotes a speech delivered by Justice Marshall on the Bicentennial of our Constitution that chronicles the arc of our constitutional progress. Marshall notes that it "took a bloody civil war before the Thirteenth Amendment could be adopted to abolish slavery." He hails the Fourteenth Amendment for "ensuring protection of life, liberty and property of all persons," but explains that it took almost a century for those rights to be meaningfully enforced in this country. He declares his intention to celebrate the bicentennial of the Constitution by recognizing that "several amendments, a civil war, and [a] momentous social transformation" were necessary to "attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today."
Not only is this history unimpeachable, it is hard to imagine anyone living Marshall's life seeing the Constitution differently. If Marshall's speech can be critiqued it is for this one reason: the great Justice seemed unable or unwilling, in this instance, to acknowledge the genius of our founders in many areas, while also critiquing their undeniable flaws such as the willingness to acquiesce to slavery. General Kagan clearly is able to see both the founders' genius and their flaws. In a powerful speech of her own delivered in 2007at West Point, then-Dean Kagan spoke to the cadets about the Constitution and the rule of law. Kagan explained that in a bold break from all prior world and military history, our 1787 founders demanded in Article VI of the U.S. Constitution that military officers and every other government official swear loyalty not to a General or a President, but to the Constitution. Kagan called fidelity to the Constitution and the rule of law "the foundation stone of our society," and she gave powerful examples of what fidelity to the Constitution and the law entails.
It is in this insistence that we revere both our founders as well as the generations of Americans who have fought tirelessly for passage of 27 Amendments that have helped create a "more perfect union" that Kagan and progressives have the chance to win the debate with conservatives and take back the Constitution. At the tea parties, in the attempts by states including Virginia to "nullify" health care, and in parts of the originalism jurisprudence of conservatives on the Roberts Court, there is strong sense of nostalgia for the unamended Constitution and the ideas of our founding, even when those ideas have been repudiated by subsequent constitutional history and overruled or limited by constitutional Amendments. The biggest difference between conservatives and liberals on the Supreme Court today is not the silly dispute about whether the Constitution is living or dead, it's about how much weight to accord the Amendments that have been ratified over the past 200 years. Conservatives tend to treat the Amendments -- particularly the post-Civil War 13th, 14th and 15th Amendments and the 19th Amendment, which secured political equality for women - as tinkering around the constitutional edges; liberals think these Amendments changed the entire fabric of the document.
Not only is this a powerful and accurate story, but polling done by The Mellman Group for Constitutional Accountability Center demonstrates that it is a winning story. Mellman tested the traditional progressive argument that constitutional principles must be applied in light of current circumstances against the conservative message that judges should "act according to the original meaning of the Constitution's text." The conservative message was favored by the American public by a margin of 54% to 42%. Then Mellman tested the conservative "original meaning" message against a progressive argument that judges must faithfully interpret the entire Constitution, "including all the Amendments passed over the last 200 years." This argument not only captures the most justifiable and important aspect of the idea of a "living" Constitution, but it also happens to crush the conservative "original meaning" argument 59% to 34%. This represents a 36% swing towards the progressive side of the argument simply because the idea of constitutional change is rooted in the amendment process.
The RNC's attack on Elena Kagan's views on the Constitution is thin and predictable. The progressive response needs to be fulsome and new.
BUCKNACKT'S SORDID TAWDRY BLOG We should not be a journey to the grave with the intention of arriving safely in an attractive & well preserved body, but rather to skid in sideways, chocolate, bier or wein in hand, body thoroughly used up, totally worn out and screaming "WHOO-HOO, WHAT A RIDE!!!!!!"
07 May 2010
BLONDE JOKES....SOME HUMOR TO BRIGHTEN YOUR DAY
DISNEYLAND
Two blondes were going to Disneyland . They were driving on the Interstate when they saw the sign that said Disneyland LEFT. They started crying and turned around and went home.
FLORIDA OR MOON
Two blondes living in Oklahoma were sitting on a bench talking, and one blonde says to the other, 'Which do you think is farther away... Florida or the moon?' The other blonde turns and says 'Helloooooooooo, can you see Florida ?????'
CAR
TROUBLE
A blonde pushes her BMW into a gas station. She tells the mechanic it died. After he works on it for a few minutes, it is idling smoothly.
She says, 'What's the story?'
He replies, 'Just crap in the carburetor'
She asks, 'How often do I have to do that?'
SPEEDING
TICKET
A police officer stops a blonde for speeding and asks her very nicely if he could see her license.
She replied in a huff, 'I wish you guys would get your act together.
Just yesterday you take away my license and then today you expect me to show it to you!'
RIVER
WALK
There's this blonde out for a walk. She comes to a river and sees another blonde on the opposite bank 'Yoo-hoo!' she shouts, 'How can I get to the other side?'
The second blonde looks up the river then down the river and shouts back, 'You ARE on the other side.'
AT THE DOCTOR'S OFFICE
A gorgeous young redhead goes into the doctor's office and said that her body hurt wherever she touched it.
'Impossible!' says the doctor.. 'Show me.'
The redhead took her finger, pushed on her left shoulder and screamed, then she pushed her elbow and screamed even more. She pushed her knee and screamed; likewise she pushed her ankle and screamed. Everywhere she touched made her scream.
The doctor said, 'You're not really a redhead, are you?
'Well, no' she said, 'I'm actually a blonde.'
'I thought so,' the doctor said, 'Your finger is broken.'
KNITTING
A highway patrolman pulled alongside a speeding car on the freeway. Glancing at the car, he was astounded to see that the blonde behind the wheel was knitting!
Realizing that she was oblivious to his flashing lights and siren, the trooper cranked down his window, turned on his bullhorn and yelled, 'PULL OVER!'
'NO!' the blonde yelled back, 'IT'S A SCARF!' '
FINALLY,
THE BLONDE JOKE TO END ALL BLONDE JOKES!
A girl was visiting her blonde friend, who had acquired two new dogs, and asked her what their names were. The blonde responded by saying that one was named Rolex and one was named Timex. Her friend said, 'Whoever heard of someone naming dogs like that?' 'HELLLOOOOOOO......,' answered the blonde. 'They're watch dogs'!
Two blondes were going to Disneyland . They were driving on the Interstate when they saw the sign that said Disneyland LEFT. They started crying and turned around and went home.
FLORIDA OR MOON
Two blondes living in Oklahoma were sitting on a bench talking, and one blonde says to the other, 'Which do you think is farther away... Florida or the moon?' The other blonde turns and says 'Helloooooooooo, can you see Florida ?????'
CAR
TROUBLE
A blonde pushes her BMW into a gas station. She tells the mechanic it died. After he works on it for a few minutes, it is idling smoothly.
She says, 'What's the story?'
He replies, 'Just crap in the carburetor'
She asks, 'How often do I have to do that?'
SPEEDING
TICKET
A police officer stops a blonde for speeding and asks her very nicely if he could see her license.
She replied in a huff, 'I wish you guys would get your act together.
Just yesterday you take away my license and then today you expect me to show it to you!'
RIVER
WALK
There's this blonde out for a walk. She comes to a river and sees another blonde on the opposite bank 'Yoo-hoo!' she shouts, 'How can I get to the other side?'
The second blonde looks up the river then down the river and shouts back, 'You ARE on the other side.'
AT THE DOCTOR'S OFFICE
A gorgeous young redhead goes into the doctor's office and said that her body hurt wherever she touched it.
'Impossible!' says the doctor.. 'Show me.'
The redhead took her finger, pushed on her left shoulder and screamed, then she pushed her elbow and screamed even more. She pushed her knee and screamed; likewise she pushed her ankle and screamed. Everywhere she touched made her scream.
The doctor said, 'You're not really a redhead, are you?
'Well, no' she said, 'I'm actually a blonde.'
'I thought so,' the doctor said, 'Your finger is broken.'
KNITTING
A highway patrolman pulled alongside a speeding car on the freeway. Glancing at the car, he was astounded to see that the blonde behind the wheel was knitting!
Realizing that she was oblivious to his flashing lights and siren, the trooper cranked down his window, turned on his bullhorn and yelled, 'PULL OVER!'
'NO!' the blonde yelled back, 'IT'S A SCARF!' '
FINALLY,
THE BLONDE JOKE TO END ALL BLONDE JOKES!
A girl was visiting her blonde friend, who had acquired two new dogs, and asked her what their names were. The blonde responded by saying that one was named Rolex and one was named Timex. Her friend said, 'Whoever heard of someone naming dogs like that?' 'HELLLOOOOOOO......,' answered the blonde. 'They're watch dogs'!
06 May 2010
Terrorists who want to buy guns have friends on Capitol Hill 6MAI10
This article ask is the NRA is a terrorist organization....YES IT IS!
Is the NRA a terrorist organization?
By George W. Bush's standard -- you're either with us or against us in the fight against terrorism -- NRA chief Wayne LaPierre should be just a few frequent-flier miles short of a free ticket to Gitmo right about now. Seems he and the rest of the gun lobby are fighting for terrorists' right to buy firearms.
The Bush administration urged Congress to pass a law barring people on the terrorist watch list from buying explosives and guns. The gun lobby objected. Now the Obama administration is urging Congress to pass the same legislation, and the gun lobby continues to object.
On Wednesday, New York Mayor Mike Bloomberg and NYPD Commissioner Ray Kelly, using the star power they acquired in the apprehension of the Times Square bomb suspect, came to Capitol Hill to plead for Congress to change the absurdity in the law that keeps those with alleged terrorist ties off airplanes but enables them to legally buy guns and explosives.
The New Yorkers' case was strengthened by the news that the Times Square suspect bought a gun in Connecticut as he set his plot in motion and had the gun with him when he drove to the airport Monday.
"At a time when the threat of terrorism is still very real, as we in New York City know all too well," Bloomberg told a Senate committee, "I think it's imperative that Congress close this terror gap in our gun laws and close it quickly."
"Failure to do so places this country at even greater risk," seconded the commissioner.
Rep. Peter King (R-N.Y.), who has joined the cause, warned that if a terrorist uses a gun that he buys legally, "there would be blood on our hands."
The hearing, before Joe Lieberman's homeland security panel, provided a rare chance for gun-control advocates to take the offensive in a debate that has mostly gone against them in recent years. More broadly, the issue allowed Democrats to exploit the war on terrorism in a way Republicans have been doing for years.
The bill to close the gun loophole isn't on the radar of Democratic leaders, making it unlikely that it will reach the Senate floor. Still, Lieberman's hearing was fascinating because it forced the pro-gun crowd to take their philosophy to its logical extreme: Are they so absolute about the Second Amendment that they'd risk national security by fighting for the right of would-be terrorists to own guns? Alarmingly, they are.
The NRA, restating its opposition to the bill a few months ago, said it is all part of a conspiracy by "politicians who hate the Second Amendment" and who "think that more gun owners can be placed on the list over time." At Wednesday's hearing, a representative of the conservative Liberty Coalition made a similar argument: "The bill should be titled the Gun Owners Are Probably All Terrorists Act."
Faced with a choice between conspiracy theories and the testimony of the heroes of Times Square, it was no surprise that pro-gun Republican senators on the committee such as Tom Coburn (Okla.), John McCain (Ariz.) and John Ensign (Nev.) declined to participate in the hearing. Also taking a pass was pro-gun Democrat Jon Tester (Mont.).
The lone pro-gun lawmaker to engage in the fight was the fearless Lindsey Graham (R-S.C.), who rolled his eyes and shook his head when Lieberman got the NYPD's Kelly to agree that the purchase of a gun could suggest that a terrorist "is about to go operational."
"I'm not so sure this is the right solution," Graham said, concerned that those on the terrorist watch list might be denied their Second Amendment right to keep and bear arms.
"If society decides that these people are too dangerous to get on an airplane with other people, then it's probably appropriate to look very hard before you let them buy a gun," countered Bloomberg.
"But we're talking about a constitutional right here," Graham went on. He then changed the subject, pretending the discussion was about a general ban on handguns. "The NRA -- " he began, then rephrased. "Some people believe banning handguns is the right answer to the gun violence problem. I'm not in that camp."
Graham felt the need to assure the witnesses that he isn't soft on terrorism: "I am all into national security. . . . Please understand that I feel differently not because I care less about terrorism."
But Lieberman wasn't going to let him get away without a challenge. "I must say I'm troubled by your concerns about this proposal," the chairman said. "I don't see an argument that holds up."
That was particularly so because, as various participants in the hearing had pointed out, the Government Accountability Office found that people on terrorist watch lists had bought guns or explosives from U.S. dealers 1,119 times over the past six years -- largely because the federal government has no power to stop them.
"Can I take a shot at that?" Graham asked when Lieberman finished. After some laughter, he added: "Probably a bad choice of words."
Is the NRA a terrorist organization?
By George W. Bush's standard -- you're either with us or against us in the fight against terrorism -- NRA chief Wayne LaPierre should be just a few frequent-flier miles short of a free ticket to Gitmo right about now. Seems he and the rest of the gun lobby are fighting for terrorists' right to buy firearms.
The Bush administration urged Congress to pass a law barring people on the terrorist watch list from buying explosives and guns. The gun lobby objected. Now the Obama administration is urging Congress to pass the same legislation, and the gun lobby continues to object.
On Wednesday, New York Mayor Mike Bloomberg and NYPD Commissioner Ray Kelly, using the star power they acquired in the apprehension of the Times Square bomb suspect, came to Capitol Hill to plead for Congress to change the absurdity in the law that keeps those with alleged terrorist ties off airplanes but enables them to legally buy guns and explosives.
The New Yorkers' case was strengthened by the news that the Times Square suspect bought a gun in Connecticut as he set his plot in motion and had the gun with him when he drove to the airport Monday.
"At a time when the threat of terrorism is still very real, as we in New York City know all too well," Bloomberg told a Senate committee, "I think it's imperative that Congress close this terror gap in our gun laws and close it quickly."
"Failure to do so places this country at even greater risk," seconded the commissioner.
Rep. Peter King (R-N.Y.), who has joined the cause, warned that if a terrorist uses a gun that he buys legally, "there would be blood on our hands."
The hearing, before Joe Lieberman's homeland security panel, provided a rare chance for gun-control advocates to take the offensive in a debate that has mostly gone against them in recent years. More broadly, the issue allowed Democrats to exploit the war on terrorism in a way Republicans have been doing for years.
The bill to close the gun loophole isn't on the radar of Democratic leaders, making it unlikely that it will reach the Senate floor. Still, Lieberman's hearing was fascinating because it forced the pro-gun crowd to take their philosophy to its logical extreme: Are they so absolute about the Second Amendment that they'd risk national security by fighting for the right of would-be terrorists to own guns? Alarmingly, they are.
The NRA, restating its opposition to the bill a few months ago, said it is all part of a conspiracy by "politicians who hate the Second Amendment" and who "think that more gun owners can be placed on the list over time." At Wednesday's hearing, a representative of the conservative Liberty Coalition made a similar argument: "The bill should be titled the Gun Owners Are Probably All Terrorists Act."
Faced with a choice between conspiracy theories and the testimony of the heroes of Times Square, it was no surprise that pro-gun Republican senators on the committee such as Tom Coburn (Okla.), John McCain (Ariz.) and John Ensign (Nev.) declined to participate in the hearing. Also taking a pass was pro-gun Democrat Jon Tester (Mont.).
The lone pro-gun lawmaker to engage in the fight was the fearless Lindsey Graham (R-S.C.), who rolled his eyes and shook his head when Lieberman got the NYPD's Kelly to agree that the purchase of a gun could suggest that a terrorist "is about to go operational."
"I'm not so sure this is the right solution," Graham said, concerned that those on the terrorist watch list might be denied their Second Amendment right to keep and bear arms.
"If society decides that these people are too dangerous to get on an airplane with other people, then it's probably appropriate to look very hard before you let them buy a gun," countered Bloomberg.
"But we're talking about a constitutional right here," Graham went on. He then changed the subject, pretending the discussion was about a general ban on handguns. "The NRA -- " he began, then rephrased. "Some people believe banning handguns is the right answer to the gun violence problem. I'm not in that camp."
Graham felt the need to assure the witnesses that he isn't soft on terrorism: "I am all into national security. . . . Please understand that I feel differently not because I care less about terrorism."
But Lieberman wasn't going to let him get away without a challenge. "I must say I'm troubled by your concerns about this proposal," the chairman said. "I don't see an argument that holds up."
That was particularly so because, as various participants in the hearing had pointed out, the Government Accountability Office found that people on terrorist watch lists had bought guns or explosives from U.S. dealers 1,119 times over the past six years -- largely because the federal government has no power to stop them.
"Can I take a shot at that?" Graham asked when Lieberman finished. After some laughter, he added: "Probably a bad choice of words."
Republicans and Teabaggers Finally Embrace Big Government 5MAI10
For more than a year now, we've been hearing from Republicans, tea party people and Glenn Beck's chalkboard about how big government is destroying American liberty and freedom. Much of the shrieking is literally accompanied by the yellow Revolutionary War "Don't Tread on Me" flag.
Every tea party lawn concert and misspelled sign regatta features people dressed in colonial drag with tea bags dangling from their tri-corner hats, waving banners in support of tax cuts, liberty and freedom and against the allegedly tyrannical Obama government. They're really scared and they want their country back from the (somehow) black liberal Nazi.
We've heard about how the "czars" are unconstitutional, even though the name "czars" was invented by the press as clever pseudonym for "advisers."
We've heard about how the Recovery Act, which has created hundreds of thousands of jobs and cut taxes for 95 percent of working families, is unconstitutional and an attack on states' rights and individual liberty. We've heard about how it's "generational theft" for the government to spend money to solve an economic crisis. We've heard about how the tax cuts in the Recovery Act are just a scam and should be returned to the government in protest.
We've heard about the crazy conspiracy theories involving the IRS invading our neighborhoods with armed goon squads -- rounding up anyone who purchased one of Glenn Beck's dozens of McBooks. Of course this meme turned out to be entirely untrue as there is no enforcement mechanism in the health care reform law should you simply choose not to pay the tax penalty for not buying insurance.
Republican attorneys general across the nation are challenging the health care law in court because, they say, it's unconstitutional. House minority leader John Boehner once called the bill "Armageddon" because of the tax penalty for Americans who choose not to buy insurance. Armageddon!
Throughout all of the misinformed and contradictory right-wing antics of the past year, I've been wondering how post-Bush Republicans and conservatives can possibly square all of their newly found affinity for freedom, liberty and the Constitution considering their eight year support for Bush era policies. Policies like illegal wiretaps of American citizens, the USA Patriot Act, suspension of habeas corpus (it's in the Constitution) and all the rest of it.
Have they at long last abandoned their support for these obvious trespasses against liberty and the Constitution? In fact, Glenn Beck said recently that he failed to speak out back then but, "It doesn't matter. I'm here now." Convenient timing. History appears to have skipped the first decade of the 21st century.
Put another way, are the Republicans suddenly joining up with civil libertarians to denounce policies that infringe upon basic constitutional rights? Maybe Rush Limbaugh teaming up with the ACLU during his drug case was a sign of things to come. A civil liberties-oriented conservative movement, eh?
Not a chance in hell.
This week, Rep. Peter King (R-NY) said about the failed Times Square car bomb suspect, "Did they Mirandize him? I know he's an American citizen but still."
I know he's an American citizen but still. This easily catapults to the top of the list of awful, creepy, dangerous things Republicans have said in the context of terrorism since 9/11 -- the same list that includes: "None of your civil liberties matter much if you're dead," and, "I have had it with members of your party undermining our troops, undermining a commander in chief while we are at war."
Republicans from King to John McCain to John Cornyn and Jon Kyl are engaged in some sort of weird penis-measuring contest over the Faisal Shahzad case, each attempting to prove how quickly they can subvert the basic rights of American citizenship in order to appear "tough" on terrorism.
Marco Rubio, who is the tea party favorite for the U.S. Senate from Florida, said, "If this individual has information that could help us prevent future attacks and loss of life, nothing should stand in the way of that, including Miranda."
So nothing except, again, the basic rights of American citizenship.
Pseudo-Republican Joe Lieberman wants to change the law in order to strip would-be terrorists of their American citizenship. Hey, why not expand that to encompass all violent crime. Before long, we're not going to need Amendments Four, Five, Six, Seven, Eight and Fourteen.
Liberty! Freedom! Constitution! Except when we're scared.
At the same time, a new poll from the New York Times and CBS shows that a narrow majority of Americans support the Arizona anti-immigration law even though a wide majority also believes that it will involve racial profiling. Concurrent to this poll, a Gallup survey shows that 75 percent of Republicans support the Arizona law with only 17 percent opposed.
Knowing full well that American citizens who happen to be brown will be swept up in the law enforcement dragnet, regardless of whether or not they've actually broken the law and regardless of whether or not they've lived in Arizona longer than many of the white people there, the Republicans and tea party people appear to be perfectly comfortable with the idea of government overreaching and engaging in a clear violation of the Fourteenth Amendment, among other things.
Liberty! Freedom! Constitution! Except if you're brown.
And finally, as the Deepwater Horizon disaster in the Gulf of Mexico rapidly buries any previous records for oil spills, dumping perhaps as much as 25,000 barrels of oil per day into the sea -- dooming jobs, wildlife and natural resources for decades to come, suddenly big government spending and "redistribution of wealth" isn't so bad after all.
Republican lawmakers are quickly stashing their "Don't Tread on Me" banners and tea bag hats in the nearest closet and demanding that the federal government come to the rescue of the Gulf States.
As documented by Dana Milbank this week, Republican David Vitter worried that BP couldn't do the job alone and that "federal and state" government agencies pitch in.
Talk radio and Fox News, meanwhile, lied about the administration's allegedly slow response, implying that the government should be doing more -- even though we've been told by everyone of Ayn Rand to Sarah Palin that the free market ought to be able to handle these things on its own. (For the record, the administration has been on the ground and at sea since day one of the BP crisis.)
The governors of Mississippi, Alabama and Florida, all run by small-government Republicans demanded more support from the National Guard. Small government senators Shelby and Sessions promised the full support of the federal government.
Bobby Jindal, who famously joked about federal spending for volcano monitoring and tried to stop any Recovery Act money from entering Louisiana, isn't so concerned about federal spending now. He issued a statement demanding "critical" federal government resources.
I think you get the idea.
But maybe we should just slow things down. Before we spend any government money, before we spread the wealth around and engage in generational theft, maybe we should start over. I know there's a crisis here, sort of like the one in which the economy was rapidly sinking into another Great Depression or the one in which American families are filing for medical bankruptcies every 30 seconds or the one in which there are 9/11-level deaths every month due to a lack of health insurance, but let's just slow down and start over.
In his University of Michigan commencement address in front of 92,000 people last weekend, President Obama made a rational, reasonable case for government. It was a far cry from Reaganomics and President Clinton's declaration about the end of big government. He said, "There are some things we can only do together, as one nation... So what we should be asking is not whether we need a 'big government' or a 'small government,' but how we can create a smarter, better government."
Perhaps, despite the inchoate rage of the tea parties and the posturing of the Republicans, they really do understand that we live in an era of unprecedented national crises and that with many of these problems only the federal government is adequately suited to repair the damage. If we could all meet up on these terms, on the terms of "smarter government," I think we'd be able to accomplish anything and mitigate any crisis.
After all, how bad can it be. The grandfather of the tea party movement, libertarian Ron Paul, receives government Medicare benefits.
Every tea party lawn concert and misspelled sign regatta features people dressed in colonial drag with tea bags dangling from their tri-corner hats, waving banners in support of tax cuts, liberty and freedom and against the allegedly tyrannical Obama government. They're really scared and they want their country back from the (somehow) black liberal Nazi.
We've heard about how the "czars" are unconstitutional, even though the name "czars" was invented by the press as clever pseudonym for "advisers."
We've heard about how the Recovery Act, which has created hundreds of thousands of jobs and cut taxes for 95 percent of working families, is unconstitutional and an attack on states' rights and individual liberty. We've heard about how it's "generational theft" for the government to spend money to solve an economic crisis. We've heard about how the tax cuts in the Recovery Act are just a scam and should be returned to the government in protest.
We've heard about the crazy conspiracy theories involving the IRS invading our neighborhoods with armed goon squads -- rounding up anyone who purchased one of Glenn Beck's dozens of McBooks. Of course this meme turned out to be entirely untrue as there is no enforcement mechanism in the health care reform law should you simply choose not to pay the tax penalty for not buying insurance.
Republican attorneys general across the nation are challenging the health care law in court because, they say, it's unconstitutional. House minority leader John Boehner once called the bill "Armageddon" because of the tax penalty for Americans who choose not to buy insurance. Armageddon!
Throughout all of the misinformed and contradictory right-wing antics of the past year, I've been wondering how post-Bush Republicans and conservatives can possibly square all of their newly found affinity for freedom, liberty and the Constitution considering their eight year support for Bush era policies. Policies like illegal wiretaps of American citizens, the USA Patriot Act, suspension of habeas corpus (it's in the Constitution) and all the rest of it.
Have they at long last abandoned their support for these obvious trespasses against liberty and the Constitution? In fact, Glenn Beck said recently that he failed to speak out back then but, "It doesn't matter. I'm here now." Convenient timing. History appears to have skipped the first decade of the 21st century.
Put another way, are the Republicans suddenly joining up with civil libertarians to denounce policies that infringe upon basic constitutional rights? Maybe Rush Limbaugh teaming up with the ACLU during his drug case was a sign of things to come. A civil liberties-oriented conservative movement, eh?
Not a chance in hell.
This week, Rep. Peter King (R-NY) said about the failed Times Square car bomb suspect, "Did they Mirandize him? I know he's an American citizen but still."
I know he's an American citizen but still. This easily catapults to the top of the list of awful, creepy, dangerous things Republicans have said in the context of terrorism since 9/11 -- the same list that includes: "None of your civil liberties matter much if you're dead," and, "I have had it with members of your party undermining our troops, undermining a commander in chief while we are at war."
Republicans from King to John McCain to John Cornyn and Jon Kyl are engaged in some sort of weird penis-measuring contest over the Faisal Shahzad case, each attempting to prove how quickly they can subvert the basic rights of American citizenship in order to appear "tough" on terrorism.
Marco Rubio, who is the tea party favorite for the U.S. Senate from Florida, said, "If this individual has information that could help us prevent future attacks and loss of life, nothing should stand in the way of that, including Miranda."
So nothing except, again, the basic rights of American citizenship.
Pseudo-Republican Joe Lieberman wants to change the law in order to strip would-be terrorists of their American citizenship. Hey, why not expand that to encompass all violent crime. Before long, we're not going to need Amendments Four, Five, Six, Seven, Eight and Fourteen.
Liberty! Freedom! Constitution! Except when we're scared.
At the same time, a new poll from the New York Times and CBS shows that a narrow majority of Americans support the Arizona anti-immigration law even though a wide majority also believes that it will involve racial profiling. Concurrent to this poll, a Gallup survey shows that 75 percent of Republicans support the Arizona law with only 17 percent opposed.
Knowing full well that American citizens who happen to be brown will be swept up in the law enforcement dragnet, regardless of whether or not they've actually broken the law and regardless of whether or not they've lived in Arizona longer than many of the white people there, the Republicans and tea party people appear to be perfectly comfortable with the idea of government overreaching and engaging in a clear violation of the Fourteenth Amendment, among other things.
Liberty! Freedom! Constitution! Except if you're brown.
And finally, as the Deepwater Horizon disaster in the Gulf of Mexico rapidly buries any previous records for oil spills, dumping perhaps as much as 25,000 barrels of oil per day into the sea -- dooming jobs, wildlife and natural resources for decades to come, suddenly big government spending and "redistribution of wealth" isn't so bad after all.
Republican lawmakers are quickly stashing their "Don't Tread on Me" banners and tea bag hats in the nearest closet and demanding that the federal government come to the rescue of the Gulf States.
As documented by Dana Milbank this week, Republican David Vitter worried that BP couldn't do the job alone and that "federal and state" government agencies pitch in.
Talk radio and Fox News, meanwhile, lied about the administration's allegedly slow response, implying that the government should be doing more -- even though we've been told by everyone of Ayn Rand to Sarah Palin that the free market ought to be able to handle these things on its own. (For the record, the administration has been on the ground and at sea since day one of the BP crisis.)
The governors of Mississippi, Alabama and Florida, all run by small-government Republicans demanded more support from the National Guard. Small government senators Shelby and Sessions promised the full support of the federal government.
Bobby Jindal, who famously joked about federal spending for volcano monitoring and tried to stop any Recovery Act money from entering Louisiana, isn't so concerned about federal spending now. He issued a statement demanding "critical" federal government resources.
I think you get the idea.
But maybe we should just slow things down. Before we spend any government money, before we spread the wealth around and engage in generational theft, maybe we should start over. I know there's a crisis here, sort of like the one in which the economy was rapidly sinking into another Great Depression or the one in which American families are filing for medical bankruptcies every 30 seconds or the one in which there are 9/11-level deaths every month due to a lack of health insurance, but let's just slow down and start over.
In his University of Michigan commencement address in front of 92,000 people last weekend, President Obama made a rational, reasonable case for government. It was a far cry from Reaganomics and President Clinton's declaration about the end of big government. He said, "There are some things we can only do together, as one nation... So what we should be asking is not whether we need a 'big government' or a 'small government,' but how we can create a smarter, better government."
Perhaps, despite the inchoate rage of the tea parties and the posturing of the Republicans, they really do understand that we live in an era of unprecedented national crises and that with many of these problems only the federal government is adequately suited to repair the damage. If we could all meet up on these terms, on the terms of "smarter government," I think we'd be able to accomplish anything and mitigate any crisis.
After all, how bad can it be. The grandfather of the tea party movement, libertarian Ron Paul, receives government Medicare benefits.
Consumer Protection: Progressive Momentum and Forbidden Love 6MAI10
Just like our victory on health-care reform, this shows we can make progress if we keep fighting. Reminds me of a chant often used at the protest against the Iraq war outside the White House and Capital building I went to in D.C., "THIS IS WHAT DEMOCRACY LOOKS LIKE, YOU ARE WHAT HYPOCRISY LOOKS LIKE".
Harry Reid got it right when he said that the GOP is "making love to Wall Street" - and when politicians and bankers "make love" it's the public that gets screwed. Sen. Shelby's so-called "consumer protection amendment" failed, as expected.(!) But what happens next? Progressives have captured the public mood and are changing the dynamic in Washington. It's time to capitalize on the momentum and press for the best reform possible.
Progressives, take a bow. Then keep on fighting.
Pity those poor bankers and politicians: The candles are lit, the wine has been poured, and Barry White is crooning in the background. But circumstances are making it difficult to consummate the relationship this time. In Sen. Reid's words, Republicans "are having difficulty determining how they're going to continue" their torrid affair with their banker/lovers. Here's their problem: While the tune may still be "Never Gonna Give You Up," the lyrics don't work anymore. The ideology of deregulation and false free markets doesn't create a tingle now that events have completely discredited it. That's why bank lobbyists and their political hirelings have been forced to resort to phony measures like the Shelby "consumer protection" amendment. When ideology fails, the only thing left is deception.
How bad and phony was the Shelby amendment? It was a Potemkin policy, a measure which claims to protect consumers but actually does the exact opposite. Here's what the AARP said about it in its letter of opposition: "The consumer protection agency will not be independent ... (it provides) inadequate resources ... oversight and enforcement is extremely limited ... and, the bill does not give states the authority to take action where necessary." As Sen. Dodd more succinctly put it, "It's like they want to create a police department that's only allowed to enforce laws against littering," adding: "It's like a stimulus package for scam artists."
The President also came out forcefully against Shelby's amendment. In a statement released today, he said that it "will gut consumer protections and is worse than the status quo. I will not allow amendments like this one written by Wall Street's lobbyists to pass for reform." The statement went on to say that it would "significantly weaken consumer protection oversight, includes dangerous carve outs for payday lenders, debt collectors, and other financial services operations, and hurts the ability of community and local banks to compete by creating an unlevel playing field with their non-bank competitors."
The President and Congressional Democrats deserve praise for standing up to the bank lobby and calling out this Shelby amendment for what it is: a Wall Street sting operation. But they're not acting in a vacuum. A free-form coalition of committed reformers has created enormous pressure to provide more than superficial change. Activists outside government and progressive leaders on the Hill have joined forces with impressive results. The New York Times, for example, details the success that progressives in the Senate have had in changing the narrative on reform (although, as Yves Smith points out, their use of the now rarely-used term "liberal" in place of "progressive" seems to have a taunting or deprecating quality).
There are tectonic forces at work in the political debate here, and the politicians that recognize them won't just have the satisfaction of offering better policies. They'll also be amply rewarded at the ballot box, according to the polls. Raw Story cites an intriguing Pew Research finding (also noted by Smith) that Americans have more positive feelings about the term "progressive" than they do about "capitalism." (They also have more positive feelings about "civil liberties" and "civil rights," as well as the more right-wing idea of "states rights" - which suggests Congress should stay away from pre-empting states' ability to provide consumers with financial protection.)
What happens next? The President's statement said that "the bill before the Senate ... includes the strongest consumer protections ever" - but it's not clear exactly how strong those protections will be. The current draft legislation places the consumer protection function within the Federal Reserve, and not as the stand-alone agency originally proposed. Democrats ... and like-minded Republicans ... should push for an independent Consumer Financial Protection Agency, and not the more diluted version agreed upon in negotiations. Sen. Jack Reed's amendment is effective on this score and should be brought to a floor vote soon, to capitalize on the momentum gained by the (presumed) defeat of Shelby's faux reform.
A few short weeks ago it looked like an independent Consumer Financial Protection Agency could become the "public option" of financial reform -- proposed by Democrats only to be traded away with a wink and a nod. Progressives in the Senate and elsewhere deserve enormous credit for changing the narrative and the public's mood. It's working. They should keep up the pressure, press the advantage, and keep pushing for the most effective reforms possible - in consumer protection and all other areas of this bill.
Harry Reid got it right when he said that the GOP is "making love to Wall Street" - and when politicians and bankers "make love" it's the public that gets screwed. Sen. Shelby's so-called "consumer protection amendment" failed, as expected.(!) But what happens next? Progressives have captured the public mood and are changing the dynamic in Washington. It's time to capitalize on the momentum and press for the best reform possible.
Progressives, take a bow. Then keep on fighting.
Pity those poor bankers and politicians: The candles are lit, the wine has been poured, and Barry White is crooning in the background. But circumstances are making it difficult to consummate the relationship this time. In Sen. Reid's words, Republicans "are having difficulty determining how they're going to continue" their torrid affair with their banker/lovers. Here's their problem: While the tune may still be "Never Gonna Give You Up," the lyrics don't work anymore. The ideology of deregulation and false free markets doesn't create a tingle now that events have completely discredited it. That's why bank lobbyists and their political hirelings have been forced to resort to phony measures like the Shelby "consumer protection" amendment. When ideology fails, the only thing left is deception.
How bad and phony was the Shelby amendment? It was a Potemkin policy, a measure which claims to protect consumers but actually does the exact opposite. Here's what the AARP said about it in its letter of opposition: "The consumer protection agency will not be independent ... (it provides) inadequate resources ... oversight and enforcement is extremely limited ... and, the bill does not give states the authority to take action where necessary." As Sen. Dodd more succinctly put it, "It's like they want to create a police department that's only allowed to enforce laws against littering," adding: "It's like a stimulus package for scam artists."
The President also came out forcefully against Shelby's amendment. In a statement released today, he said that it "will gut consumer protections and is worse than the status quo. I will not allow amendments like this one written by Wall Street's lobbyists to pass for reform." The statement went on to say that it would "significantly weaken consumer protection oversight, includes dangerous carve outs for payday lenders, debt collectors, and other financial services operations, and hurts the ability of community and local banks to compete by creating an unlevel playing field with their non-bank competitors."
The President and Congressional Democrats deserve praise for standing up to the bank lobby and calling out this Shelby amendment for what it is: a Wall Street sting operation. But they're not acting in a vacuum. A free-form coalition of committed reformers has created enormous pressure to provide more than superficial change. Activists outside government and progressive leaders on the Hill have joined forces with impressive results. The New York Times, for example, details the success that progressives in the Senate have had in changing the narrative on reform (although, as Yves Smith points out, their use of the now rarely-used term "liberal" in place of "progressive" seems to have a taunting or deprecating quality).
There are tectonic forces at work in the political debate here, and the politicians that recognize them won't just have the satisfaction of offering better policies. They'll also be amply rewarded at the ballot box, according to the polls. Raw Story cites an intriguing Pew Research finding (also noted by Smith) that Americans have more positive feelings about the term "progressive" than they do about "capitalism." (They also have more positive feelings about "civil liberties" and "civil rights," as well as the more right-wing idea of "states rights" - which suggests Congress should stay away from pre-empting states' ability to provide consumers with financial protection.)
What happens next? The President's statement said that "the bill before the Senate ... includes the strongest consumer protections ever" - but it's not clear exactly how strong those protections will be. The current draft legislation places the consumer protection function within the Federal Reserve, and not as the stand-alone agency originally proposed. Democrats ... and like-minded Republicans ... should push for an independent Consumer Financial Protection Agency, and not the more diluted version agreed upon in negotiations. Sen. Jack Reed's amendment is effective on this score and should be brought to a floor vote soon, to capitalize on the momentum gained by the (presumed) defeat of Shelby's faux reform.
A few short weeks ago it looked like an independent Consumer Financial Protection Agency could become the "public option" of financial reform -- proposed by Democrats only to be traded away with a wink and a nod. Progressives in the Senate and elsewhere deserve enormous credit for changing the narrative and the public's mood. It's working. They should keep up the pressure, press the advantage, and keep pushing for the most effective reforms possible - in consumer protection and all other areas of this bill.
Senator Lieberman's Latest Constititonal Buffoonery 6MAI10 UPDATE TO LIEBERMAN'S CITIZENSHIP REVOKING LAX POSTING BELOW
I am tired of right wing fanatics like Joe Lieberman of attacking the liberties and rights granted and guaranteed in our nation's Constitution. They are committing terrorism by their own definition by being "engaged in, or purposefully and materially support[ed], hostilities against the United States". They seek to destroy the Republic by their attacks on the document that is the foundation of what we are as a nation, and so are a real threat to the liberties and civil rights of all Americans. And Lieberman is so blinded by his fanaticism that he can not see that his own proposed law can be used against him!
In response to supposed legal restrictions on the interrogation of U.S. citrizen and suspected Times Square SUV bomber Faisal Shahzad, Senator Lieberman today proposed a bill that would strip American citizenship from anyone who has "provid[ed] material support or resources to a foreign terrorist organization" or "engaged in, or purposefully and materially support[ed], hostilities against the United States" or any of its allies.
Unfortunately for Senator Joe, the Supreme Court has made it crystal clear over the last four decades that the federal government simply has no power to take away U.S. citizenship. In Afroyim v. Rusk (1967), the State Department tried to strip citizenship from an American who'd voted in an Israeli election. The Court held that in the wake of the Fourteenth Amendment, Congress lacks "any general power, express or implied, to take away an American citizen's citizenship without his assent." Because the people are sovereign under our constitution, that document "defin[es] a citizenship which a citizen keeps unless he voluntarily relinquishes it." This idea that citizenship can only be voluntarily relinquished with the citizens' "assent" was reaffirmed in Vance v. Terrazas (1980), where the Supreme Court held that merely doing an act (there, naturalizing to Mexican citizenship) that the government claims is per se evidence of your intent to relinquish your U.S. citizenship is not enough. Even if the citizen "voluntarily" did the act (in Terrazas, he knew he was filling out Mexican citizenship forms and did it willingly), the burden remains on the government to prove that that act was done with the intent to renounce U.S. citizenship (rather than, say, to gain dual nationality). That's the law regardless of whether you are a birth citizen or naturalized (though fraud in the process of a naturalization application may be invoked to invalidate the naturalization).
Thus, most of the things people think might cause you to automatically lose citizenship - and which are listed on the State Department website as such, and in the federal statute books (8 U.S.C. § 1481) - do no such thing. There are cases where someone signed Israeli citizenship papers without reading them, so he didn't know that they said he was renouncing any other citizenship -- and the courts held he hadn't voluntarily renounced his U.S. citizenship. The State Department warns that serving as a policymaking official in a foreign government can cost you your citizenship, but Meir Kahane won his case where DOS said he'd renounced his citizenship by serving in the Israeli Knesset. If Lieberman's staff had done a bit of research on this, they'd notice that many of the things listed in 8 U.S.C. § 1481 actually don't operate to automatically strip citizenship, absent the dispositive element of "assent" to voluntarily give up your citizenship (e.g. serving in a foreign military, taking a foreign nation's oath of allegiance, etc.). Good thing, too - other statutory provisions provide for stripping citizenship for refusal to testify to Congress about one's subversive activities. (See 8 U.S.C. § 1451(a).) Like many Jim Crow laws enforcing segregation, these things sit on the books, unenforceable, because Congress refuses to clean up its own mess.
A series of draft-dodging cases in the wake of Afroyim also establish that citizenship stripping can't be done administratively - a court needs to confirm intent to give up US citizenship if assent is disputed. So it's a bit of a mystery why Lieberman thinks this will somehow help interrogate suspects immediately after capture.
Lost in this constitutional debate is the fact that no one can identify any defects in the handling of the Times Square bombing suspect sufficient to motivate any change in law (though Lieberman seems to think some quick (and illegal, as I've noted above) administrative citizenship stripping process (maybe by a Guantanamo-style Combatant Status Review Tribunal?) would have made it easier to interrogate the suspect). The suspect, Shahzad, was interrogated immediately (there is an "immediate public safety" exemption to the Miranda warning rule); then Mirandized (that is, told of his right to remain silent and of his right to request a lawyer); supposedly he provided valuable information throughout. Terrorism suspects in detention rarely have an incentive to spill accurate information once detained, and defense lawyers usually help mediate the process of acquiring accurate information from them through the plea bargain process. The ordinary, time-tested system seems to have been applied here, and seems to be working - so again, what's the problem?
All of this is putting to one side the problems with the notion of criminalizing something as broad and vague as "material support" itself. (Those interested in the details can click here.) Lower courts have six times held that the "material support" statute is unconstitutionally vague. Lieberman's bill would propose to strip citizenship for violating a law that federal courts have repeatedly held unconstitutionally vague. The Justices of the Supreme Court heard the government's appeal from those cases in Holder v. Humanitarian Law Project in February, and most commentators felt that at least seven justices were highly skeptical of the government claims as to the law's broad reach.
Moreover, the government argued to the Supreme Court that our HLP clients, members of domestic humanitarian groups who proposed to train rebel groups on the State Department's blacklists in non-violent conflict resolution -- pure speech seeking to turn groups away from violence and criminal activity -- would be guilty of providing "material support" if they did so, and thus could have their citizenship stripped under Lieberman's bill for doing so.
Finally, I would be remiss if I concluded without saying the following: as an occasionally-proud Yale Law School grad, I would like to apologize on behalf of my alma mater for producing Joe Lieberman. On the other hand, no one ever accused Yale of providing a black-letter legal education. And we were frequently encouraged to think outside the box. Maybe society did this to him.
--May 6, 2010
In response to supposed legal restrictions on the interrogation of U.S. citrizen and suspected Times Square SUV bomber Faisal Shahzad, Senator Lieberman today proposed a bill that would strip American citizenship from anyone who has "provid[ed] material support or resources to a foreign terrorist organization" or "engaged in, or purposefully and materially support[ed], hostilities against the United States" or any of its allies.
Unfortunately for Senator Joe, the Supreme Court has made it crystal clear over the last four decades that the federal government simply has no power to take away U.S. citizenship. In Afroyim v. Rusk (1967), the State Department tried to strip citizenship from an American who'd voted in an Israeli election. The Court held that in the wake of the Fourteenth Amendment, Congress lacks "any general power, express or implied, to take away an American citizen's citizenship without his assent." Because the people are sovereign under our constitution, that document "defin[es] a citizenship which a citizen keeps unless he voluntarily relinquishes it." This idea that citizenship can only be voluntarily relinquished with the citizens' "assent" was reaffirmed in Vance v. Terrazas (1980), where the Supreme Court held that merely doing an act (there, naturalizing to Mexican citizenship) that the government claims is per se evidence of your intent to relinquish your U.S. citizenship is not enough. Even if the citizen "voluntarily" did the act (in Terrazas, he knew he was filling out Mexican citizenship forms and did it willingly), the burden remains on the government to prove that that act was done with the intent to renounce U.S. citizenship (rather than, say, to gain dual nationality). That's the law regardless of whether you are a birth citizen or naturalized (though fraud in the process of a naturalization application may be invoked to invalidate the naturalization).
Thus, most of the things people think might cause you to automatically lose citizenship - and which are listed on the State Department website as such, and in the federal statute books (8 U.S.C. § 1481) - do no such thing. There are cases where someone signed Israeli citizenship papers without reading them, so he didn't know that they said he was renouncing any other citizenship -- and the courts held he hadn't voluntarily renounced his U.S. citizenship. The State Department warns that serving as a policymaking official in a foreign government can cost you your citizenship, but Meir Kahane won his case where DOS said he'd renounced his citizenship by serving in the Israeli Knesset. If Lieberman's staff had done a bit of research on this, they'd notice that many of the things listed in 8 U.S.C. § 1481 actually don't operate to automatically strip citizenship, absent the dispositive element of "assent" to voluntarily give up your citizenship (e.g. serving in a foreign military, taking a foreign nation's oath of allegiance, etc.). Good thing, too - other statutory provisions provide for stripping citizenship for refusal to testify to Congress about one's subversive activities. (See 8 U.S.C. § 1451(a).) Like many Jim Crow laws enforcing segregation, these things sit on the books, unenforceable, because Congress refuses to clean up its own mess.
A series of draft-dodging cases in the wake of Afroyim also establish that citizenship stripping can't be done administratively - a court needs to confirm intent to give up US citizenship if assent is disputed. So it's a bit of a mystery why Lieberman thinks this will somehow help interrogate suspects immediately after capture.
Lost in this constitutional debate is the fact that no one can identify any defects in the handling of the Times Square bombing suspect sufficient to motivate any change in law (though Lieberman seems to think some quick (and illegal, as I've noted above) administrative citizenship stripping process (maybe by a Guantanamo-style Combatant Status Review Tribunal?) would have made it easier to interrogate the suspect). The suspect, Shahzad, was interrogated immediately (there is an "immediate public safety" exemption to the Miranda warning rule); then Mirandized (that is, told of his right to remain silent and of his right to request a lawyer); supposedly he provided valuable information throughout. Terrorism suspects in detention rarely have an incentive to spill accurate information once detained, and defense lawyers usually help mediate the process of acquiring accurate information from them through the plea bargain process. The ordinary, time-tested system seems to have been applied here, and seems to be working - so again, what's the problem?
All of this is putting to one side the problems with the notion of criminalizing something as broad and vague as "material support" itself. (Those interested in the details can click here.) Lower courts have six times held that the "material support" statute is unconstitutionally vague. Lieberman's bill would propose to strip citizenship for violating a law that federal courts have repeatedly held unconstitutionally vague. The Justices of the Supreme Court heard the government's appeal from those cases in Holder v. Humanitarian Law Project in February, and most commentators felt that at least seven justices were highly skeptical of the government claims as to the law's broad reach.
Moreover, the government argued to the Supreme Court that our HLP clients, members of domestic humanitarian groups who proposed to train rebel groups on the State Department's blacklists in non-violent conflict resolution -- pure speech seeking to turn groups away from violence and criminal activity -- would be guilty of providing "material support" if they did so, and thus could have their citizenship stripped under Lieberman's bill for doing so.
Finally, I would be remiss if I concluded without saying the following: as an occasionally-proud Yale Law School grad, I would like to apologize on behalf of my alma mater for producing Joe Lieberman. On the other hand, no one ever accused Yale of providing a black-letter legal education. And we were frequently encouraged to think outside the box. Maybe society did this to him.
--May 6, 2010
Horseshoes, Hand Grenades, and Habeas 6MAI10
Imagine you or someone you loved were accused of a crime and tried in state court. Our federal constitutional rights give us certain protections in these state trials, but imagine your trial was an unfair one. Imagine the state court did not uphold your constitutional rights, for whatever reason: maybe your trial judge faced a tough election and wanted to look tough on crime; maybe the judge was lazy; maybe he or she simply did not understand the law. And imagine you were then convicted in this unconstitutional trial and sent to prison, or worse, sentenced to death.
Traditionally, if the state court failed to correct the federal constitutional error, you could go to a federal court seeking "habeas corpus" review. If a federal judge agreed that the state court violated your constitutional rights, the federal judge could order the state to release you or provide a new trial. In a decision released Monday in Renico v. Lett concerning the constitutional right to be free from double jeopardy (that is, being prosecuted twice for the same offense) — the Supreme Court of the United States reaffirmed previous rulings that a federal court may not order habeas relief merely because the state court violated your constitutional rights. Buried in footnote three of its decision, the court said it would not decide if the petitioner's constitutional right to be free from double jeopardy had been violated, only that the question was a "close" one.
The court then stated that if a state court ruling is "close" enough on the Constitution — the state court had made a credible effort, even if they got it wrong — a federal judge's hands are tied. If it's close enough, the federal judge is powerless to correct the injustice.
In deciding Renico, the court was interpreting a 1996 statute known as the Anti-Terrorism Effective Death Penalty Act (AEDPA). Ridiculous as it sounds, AEDPA effectively requires that federal judges ignore constitutional violations in "close" cases. This mandate on "close" cases conflicts with the famous holding in Marbury v. Madison that "It is emphatically the province and duty of the [judicial branch] to say what the law is."
Because AEDPA effectively strips judges of the power to decide whether a person's rights were violated, many federal judges have suggested that AEDPA violates the constitutional requirement known as "separation of powers," and is therefore unconstitutional. The Renico decision, however, did not address AEDPA's constitutionality.
When I was growing up in Michigan, where horseshoes was a favorite game, if I failed to meet one of my responsibilities but came close, my parents or teachers might say, "Close only counts in horseshoes and hand grenades." With yesterday's decision, we can add "habeas corpus" to the list. Until the Supreme Court resolves the constitutionality of AEDPA or Congress repeals it, state courts may often get away with "close enough" when it comes to our constitutional rights.
Traditionally, if the state court failed to correct the federal constitutional error, you could go to a federal court seeking "habeas corpus" review. If a federal judge agreed that the state court violated your constitutional rights, the federal judge could order the state to release you or provide a new trial. In a decision released Monday in Renico v. Lett concerning the constitutional right to be free from double jeopardy (that is, being prosecuted twice for the same offense) — the Supreme Court of the United States reaffirmed previous rulings that a federal court may not order habeas relief merely because the state court violated your constitutional rights. Buried in footnote three of its decision, the court said it would not decide if the petitioner's constitutional right to be free from double jeopardy had been violated, only that the question was a "close" one.
The court then stated that if a state court ruling is "close" enough on the Constitution — the state court had made a credible effort, even if they got it wrong — a federal judge's hands are tied. If it's close enough, the federal judge is powerless to correct the injustice.
In deciding Renico, the court was interpreting a 1996 statute known as the Anti-Terrorism Effective Death Penalty Act (AEDPA). Ridiculous as it sounds, AEDPA effectively requires that federal judges ignore constitutional violations in "close" cases. This mandate on "close" cases conflicts with the famous holding in Marbury v. Madison that "It is emphatically the province and duty of the [judicial branch] to say what the law is."
Because AEDPA effectively strips judges of the power to decide whether a person's rights were violated, many federal judges have suggested that AEDPA violates the constitutional requirement known as "separation of powers," and is therefore unconstitutional. The Renico decision, however, did not address AEDPA's constitutionality.
When I was growing up in Michigan, where horseshoes was a favorite game, if I failed to meet one of my responsibilities but came close, my parents or teachers might say, "Close only counts in horseshoes and hand grenades." With yesterday's decision, we can add "habeas corpus" to the list. Until the Supreme Court resolves the constitutionality of AEDPA or Congress repeals it, state courts may often get away with "close enough" when it comes to our constitutional rights.
Lieberman's Citizenship-Revoking Law Slammed As 'Draconian' 5MAI10
I think Joe Lieberman would have loved living in Nazi Germany (yes I know he is Jewish). He has become more fascist in his political views, so much so that I can see him licking the boots of Hitler and his cabal and the Gestapo and SS and turning in his fellow Jews and others declared enemies of the state until they finally came for him. That is what is so unfortunate about people like Lieberman, instead of actually standing up and defending the Constitution and our civil rights and liberties, Lieberman and his like are willing to throw that all away to protect what? And what makes him so sure his law couldn't be used against him? After all, his attack on the foundations of our Republic, our civil liberties and civil rights, is terrorism against thw American people.
Sen. Joseph Lieberman (I-Conn.) has yet to formally introduce legislation that would strip Americans involved in terrorism of their citizenship and already legal experts, including a former Bush administration official, are calling it "draconian."
The Connecticut Independent is planning to unveil on Thursday a proposal that will supposedly free up law enforcement in their efforts to try terrorist suspects, by giving the State Department the right to revoke the citizenship of those suspects who are American.
The substance of the proposal has yet to be unveiled, though it does have supporters in the House and Senate. But already a host of legal officials are raising red flags. For starters, the legislation would not, on its surface, solve the most immediate crisis for which it is seemingly designed. Lieberman is lamenting the fact that the Obama administration read the Miranda rights to Faisal Shahzad, the suspect in the attempted Times Square bombing. But even if Shahzad were deprived of his citizenship, his Miranda rights would still be read to him, so long as he was held in a criminal setting.
"Miranda applies if somebody's going to be charged with a crime, and that applies to somebody whether they're a citizen or not," said Anil Kalhan, a law professor at Drexel University.
Indeed, what Lieberman is attempting to do is to pave the way for terrorists with American citizenship to be thrown into military tribunals once they are captured. And it would give the State Department the power to make that determination.
"It sounds like a draconian solution," said John Bellinger a legal adviser to the United States Secretary of State during the Bush administration. "I assume the Senate has thought through the constitutional issues but I would want to see what the standards are for stripping someone of their citizenship and what opportunities they would have for notice and to challenge the decision... It certainly seems like a far-reaching step."
As Bellinger notes, the issue of revoking citizenship has been litigated to the highest levels of the justice system already. And as it stands now, the standard is set fairly high.
Story continues below
In Afroyim v. Rusk (1967) the Supreme Court ruled that a United States citizen could not be deprived of his or her citizenship involuntarily. The burden of proof falls on the government to determine that the person intends to revoke his or her own citizenship. There are additional elements to the law. As Emily Berman of the Brennan Center notes, a naturalized citizen can have his or her citizenship revoked if it is proved that he or she obtained their citizenship through fraudulent means. There are also complexities with regards to Americans who have joined "the armed forces of a state engaged in hostilities against the United States," says Kalhan. And this, indeed, may be the subset of the law that Lieberman is hoping to expand (to include non-state terrorist organizations).
But these remain fairly well established elements of immigration law. And an expansion of power to the State Department, as Lieberman seems to be envisioning, will almost assuredly be challenged on constitutional grounds, these experts say.
"With respect to people who are born American citizens I believe this would be an unconstitutional statute," said Berman. "I don't think the Congress has the power to give the State Department that right."
There are non-legal questions surrounding Lieberman's proposal as well. For starters, what would distinguish a member of al Qaeda from a domestic terrorist? Could a homegrown terrorist like Timothy McVeigh be denied citizenship rights? How would the State Department define what constitutes ties to terrorism? And what happens if the person is wrongfully accused?
"The slippery slope is there but also there's great potential to apply that kind of rule in a very arbitrary and discriminatory way," said Kalhan.
Perhaps the issue proving most bothersome to the legal community, however, is the slight Lieberman's bill sends to America's criminal justice system, which has, statistically, proven far more effective at trying citizen and non-citizen terrorists than its military counterpart.
"There is an ongoing and often irrational debate about what do we do with people who are suspected terrorists who are captured in the United States," said Berman. "The thought that we should be doing anything different than what we always have done is remarkable. I don't think anyone has ever been able to contradict all the evidence that the criminal courts are perfectly capable of locking these people away quite effectively."
Sen. Joseph Lieberman (I-Conn.) has yet to formally introduce legislation that would strip Americans involved in terrorism of their citizenship and already legal experts, including a former Bush administration official, are calling it "draconian."
The Connecticut Independent is planning to unveil on Thursday a proposal that will supposedly free up law enforcement in their efforts to try terrorist suspects, by giving the State Department the right to revoke the citizenship of those suspects who are American.
The substance of the proposal has yet to be unveiled, though it does have supporters in the House and Senate. But already a host of legal officials are raising red flags. For starters, the legislation would not, on its surface, solve the most immediate crisis for which it is seemingly designed. Lieberman is lamenting the fact that the Obama administration read the Miranda rights to Faisal Shahzad, the suspect in the attempted Times Square bombing. But even if Shahzad were deprived of his citizenship, his Miranda rights would still be read to him, so long as he was held in a criminal setting.
"Miranda applies if somebody's going to be charged with a crime, and that applies to somebody whether they're a citizen or not," said Anil Kalhan, a law professor at Drexel University.
Indeed, what Lieberman is attempting to do is to pave the way for terrorists with American citizenship to be thrown into military tribunals once they are captured. And it would give the State Department the power to make that determination.
"It sounds like a draconian solution," said John Bellinger a legal adviser to the United States Secretary of State during the Bush administration. "I assume the Senate has thought through the constitutional issues but I would want to see what the standards are for stripping someone of their citizenship and what opportunities they would have for notice and to challenge the decision... It certainly seems like a far-reaching step."
As Bellinger notes, the issue of revoking citizenship has been litigated to the highest levels of the justice system already. And as it stands now, the standard is set fairly high.
Story continues below
In Afroyim v. Rusk (1967) the Supreme Court ruled that a United States citizen could not be deprived of his or her citizenship involuntarily. The burden of proof falls on the government to determine that the person intends to revoke his or her own citizenship. There are additional elements to the law. As Emily Berman of the Brennan Center notes, a naturalized citizen can have his or her citizenship revoked if it is proved that he or she obtained their citizenship through fraudulent means. There are also complexities with regards to Americans who have joined "the armed forces of a state engaged in hostilities against the United States," says Kalhan. And this, indeed, may be the subset of the law that Lieberman is hoping to expand (to include non-state terrorist organizations).
But these remain fairly well established elements of immigration law. And an expansion of power to the State Department, as Lieberman seems to be envisioning, will almost assuredly be challenged on constitutional grounds, these experts say.
"With respect to people who are born American citizens I believe this would be an unconstitutional statute," said Berman. "I don't think the Congress has the power to give the State Department that right."
There are non-legal questions surrounding Lieberman's proposal as well. For starters, what would distinguish a member of al Qaeda from a domestic terrorist? Could a homegrown terrorist like Timothy McVeigh be denied citizenship rights? How would the State Department define what constitutes ties to terrorism? And what happens if the person is wrongfully accused?
"The slippery slope is there but also there's great potential to apply that kind of rule in a very arbitrary and discriminatory way," said Kalhan.
Perhaps the issue proving most bothersome to the legal community, however, is the slight Lieberman's bill sends to America's criminal justice system, which has, statistically, proven far more effective at trying citizen and non-citizen terrorists than its military counterpart.
"There is an ongoing and often irrational debate about what do we do with people who are suspected terrorists who are captured in the United States," said Berman. "The thought that we should be doing anything different than what we always have done is remarkable. I don't think anyone has ever been able to contradict all the evidence that the criminal courts are perfectly capable of locking these people away quite effectively."
One Nation Under Beck from MOJO MAI/JUNI 2010 In which our reporter learns about the divine origins of the Constitution at a Tea Party seminar.
Brought to you by the freaks of Mormonism, which you can learn a lot about by reading 'Under The Banner Of Heaven'. So many are deceived by the Mormon's "focus on the family" but anyone with the energy to do some research will find out Mormonism is as perverse and warped as every other cult, and is as dangerous as extreme fundamentalist "Islam, Zionism, Christianity, Hinduism and Buddhism", all movements that corrupt the true teachings of these religions. Click the header for the story at Mother Jones.
In mid-February, the Washington metro area was still digging out from the season's record snowfall, but Elaine Salisbury was determined not to let that get in the way of her Constitution study seminar. More than 50 people had signed up for the event in Woodbridge, Virginia; the region is a hotbed of Tea Partiers and anti-immigration Minutemen, and Salisbury knew just the tone to strike in her email alert. "This week has reminded me of Valley Forge. George Washington's troops had been reduced to 2,500, a third of whom had no boots for the mid-night march to Trenton on December 25, 1776. They left blood in the snow as they marched on their burlap bound feet...While I don't want you to risk your lives to attend the seminar, I want you to remember what others have done to bring us the freedom that we will be celebrating and learning about this weekend."
The patriots heeded her words, arriving even before the public library opened at 10 a.m, some with babies and preteens in tow. Inside the windowless cinder-block community room, they were rewarded with a lively if unorthodox daylong romp through American history, delivered with a preacher's passion by a "missionary for liberty" named Rick Dalton.
Dalton is a volunteer from the National Center for Constitutional Studies (NCCS) who had come all the way from Mesa, Arizona, to lead the faithful to a new understanding of the nation's core principles—something he has been doing with increasing frequency since the Tea Party movement exploded last year. Many Tea Partiers believe the country's economic and political woes are a direct result of Washington abandoning the Constitution, which they believe calls for an extremely limited federal government that does not concern itself with matters like bank failures or health care reform. They've turned to the founding document with the fervor of evangelicals seeking inspiration from the sacred texts of the past. As their prophet, many have chosen the late W. Cleon Skousen, a right-wing Mormon and self-described onetime aide to J. Edgar Hoover who in 1981 published The 5000 Year Leap—a conservative primer on the Constitution that Glenn Beck regularly urges his followers to read. (Beck even wrote the foreword to the new, bestselling edition.) It's thanks to Skousen's newfound popularity that NCCS, a small and heretofore obscure nonprofit he founded in Malta, Idaho, has seen demand for its seminars triple.
In the Woodbridge library, Dalton, a cherubic-looking man with a shock of white hair who in his spare time rocks out as a guitar player, was dressed neatly in a blue vest and khakis. A former cop and graduate of George Wythe University—an unaccredited institution in Cedar City, Utah, founded by Oliver DeMille, a Skousen protégé—he teaches with NCCS president Earl Taylor at the Heritage Academy charter school in Mesa, where he hones his material on formerly homeschooled high schoolers. He punctuates his lessons with tales of his days at the police academy, Bible jokes, and stories about his immense guitar collection. And like any good evangelist, Dalton weeps.
He kicked off his lecture with a story about former Black Panther Eldridge Cleaver, who once showed up at a Skousen lecture in San Jose, California. Cleaver had been tied to a shootout with police and had spent years evading prosecution in Cuba, Algeria, and elsewhere before turning himself in and pleading guilty to an assault charge. Skousen, ex-FBI man that he was, was nervous to see Cleaver in the audience. But according to Dalton, the famous revolutionary—who upon surrendering had said, "I'd rather be in jail in America than free anywhere else"—was there to learn about liberty. Cleaver later became a lecturer for NCCS—then called the Freemen Institute—as well as a convert to Mormonism.
Dalton choked up as he recalled the Cleaver quote. Once recovered, he directed the group to recite part of the Declaration of Independence, whereupon he choked up again.
The rest of the lecture hewed closely to NCCS's Skousen-penned workbook, The Making of America (pdf)—several of the teenagers in attendance had clearly spent time memorizing it—which stresses God's role in the shaping of America. Not only were the founders seeking to create a Christian nation, according to Dalton, but the Constitution's principles stem from ideas handed down to Moses himself—making it de facto a divine work passed on to the founders by a divine people, their Anglo-Saxon ancestors. (Dalton maintained that the people who settled England and northern Europe may have descended from one of the lost tribes of Israel—a piece of historical poppycock that has long held traction in the white supremacist movement.)
Racially tinged material has gotten NCCS into trouble in the past. In 1986, the state of California's Constitution Bicentennial Commission—headed by a Skousen acolyte—approved the sale of the Making of America textbook as a fundraiser. In the book, Skousen quotes liberally from a 1934 essay by Fred Albert Shannon, who had a rosy view of slavery. (Sample passage: "If the pickaninnies ran naked, it was generally from choice, and when the white boys had to put on shoes and go away to school, they were likely to envy the freedom of their colored playmates.")
Dalton did make sure to condemn slavery during his lecture, though he skipped any discussion of the 13th (or 19th) Amendment and instead focused on the Constitution's free-market origins. As he told it, the founders' love of capitalism was motivated by the experience of the early Jamestown settlers, many of whom starved because they were "communists"—they relied on common stores to ensure that everyone got a fair share of supplies. This, Dalton explained, destroyed their incentive to work, and Jamestown would have perished, but for a new "HDIC—head dude in charge" who heeded the biblical imperative "By the sweat of thy brow shalt thou eat bread" and let people keep what they produced. He also credited Karl Marx with inventing the income tax (a feat more commonly attributed to the decidedly Tory William Pitt the Younger). Dalton argued that the Constitution limits federal purchases of land to forts, magazines and arsenals, dockyards, and "other needful buildings such as post offices." "What about national parks?" he asked. "Think of all that land that could be put on the rolls and generating taxes!"
During a break, as the group snacked on boxed lunches from Panera, I talked to Robert Jeffery, a lanky fellow who spent "20 years and four days" in the Navy and now works as a construction inspector. He showed me a worn copy of the Constitution and Declaration of Independence that he keeps in his pocket at all times. Flipping it open to the Second Amendment, he said, "This is where I usually keep my concealed- carry permit." (He'd left his gun at home for the day.) I asked why he and his friends were spending Saturday at the library when they could be out, say, shoveling snow. They had, they said, turned to the founding principles to understand where the country had gone off track. Ken Vaughn, the head of the Northern Virginia branch of the Beck-inspired 912 movement, explained that his interest had been sparked by Washington "bailing out firms that had no right to be bailed out. I think that made people wake up and look at our debt and think, 'Maybe we need to make changes.'"
Ann Hardt, an energetic, ruddy-faced woman in jeans and sneakers, came to the seminar with three of her six homeschooled kids, ages 18, 16, and 13. She uses the Making of America materials to teach them history and told me she'd been to two of the center's seminars before, one with the kids. "I'm very concerned with the future of my children," she explained, which was why she had gone to several Tea Party rallies as well. She'd learned about the seminars from Salisbury, who attends her Mormon church.
After a few more digressions about his charter-school students and their mastery of the Constitution, Dalton ended just as he had started. Fighting back tears, he implored the audience to remember: "More powerful than any invading army is an idea, and freedom is an idea whose time has come."
In mid-February, the Washington metro area was still digging out from the season's record snowfall, but Elaine Salisbury was determined not to let that get in the way of her Constitution study seminar. More than 50 people had signed up for the event in Woodbridge, Virginia; the region is a hotbed of Tea Partiers and anti-immigration Minutemen, and Salisbury knew just the tone to strike in her email alert. "This week has reminded me of Valley Forge. George Washington's troops had been reduced to 2,500, a third of whom had no boots for the mid-night march to Trenton on December 25, 1776. They left blood in the snow as they marched on their burlap bound feet...While I don't want you to risk your lives to attend the seminar, I want you to remember what others have done to bring us the freedom that we will be celebrating and learning about this weekend."
The patriots heeded her words, arriving even before the public library opened at 10 a.m, some with babies and preteens in tow. Inside the windowless cinder-block community room, they were rewarded with a lively if unorthodox daylong romp through American history, delivered with a preacher's passion by a "missionary for liberty" named Rick Dalton.
Dalton is a volunteer from the National Center for Constitutional Studies (NCCS) who had come all the way from Mesa, Arizona, to lead the faithful to a new understanding of the nation's core principles—something he has been doing with increasing frequency since the Tea Party movement exploded last year. Many Tea Partiers believe the country's economic and political woes are a direct result of Washington abandoning the Constitution, which they believe calls for an extremely limited federal government that does not concern itself with matters like bank failures or health care reform. They've turned to the founding document with the fervor of evangelicals seeking inspiration from the sacred texts of the past. As their prophet, many have chosen the late W. Cleon Skousen, a right-wing Mormon and self-described onetime aide to J. Edgar Hoover who in 1981 published The 5000 Year Leap—a conservative primer on the Constitution that Glenn Beck regularly urges his followers to read. (Beck even wrote the foreword to the new, bestselling edition.) It's thanks to Skousen's newfound popularity that NCCS, a small and heretofore obscure nonprofit he founded in Malta, Idaho, has seen demand for its seminars triple.
In the Woodbridge library, Dalton, a cherubic-looking man with a shock of white hair who in his spare time rocks out as a guitar player, was dressed neatly in a blue vest and khakis. A former cop and graduate of George Wythe University—an unaccredited institution in Cedar City, Utah, founded by Oliver DeMille, a Skousen protégé—he teaches with NCCS president Earl Taylor at the Heritage Academy charter school in Mesa, where he hones his material on formerly homeschooled high schoolers. He punctuates his lessons with tales of his days at the police academy, Bible jokes, and stories about his immense guitar collection. And like any good evangelist, Dalton weeps.
He kicked off his lecture with a story about former Black Panther Eldridge Cleaver, who once showed up at a Skousen lecture in San Jose, California. Cleaver had been tied to a shootout with police and had spent years evading prosecution in Cuba, Algeria, and elsewhere before turning himself in and pleading guilty to an assault charge. Skousen, ex-FBI man that he was, was nervous to see Cleaver in the audience. But according to Dalton, the famous revolutionary—who upon surrendering had said, "I'd rather be in jail in America than free anywhere else"—was there to learn about liberty. Cleaver later became a lecturer for NCCS—then called the Freemen Institute—as well as a convert to Mormonism.
Dalton choked up as he recalled the Cleaver quote. Once recovered, he directed the group to recite part of the Declaration of Independence, whereupon he choked up again.
The rest of the lecture hewed closely to NCCS's Skousen-penned workbook, The Making of America (pdf)—several of the teenagers in attendance had clearly spent time memorizing it—which stresses God's role in the shaping of America. Not only were the founders seeking to create a Christian nation, according to Dalton, but the Constitution's principles stem from ideas handed down to Moses himself—making it de facto a divine work passed on to the founders by a divine people, their Anglo-Saxon ancestors. (Dalton maintained that the people who settled England and northern Europe may have descended from one of the lost tribes of Israel—a piece of historical poppycock that has long held traction in the white supremacist movement.)
Racially tinged material has gotten NCCS into trouble in the past. In 1986, the state of California's Constitution Bicentennial Commission—headed by a Skousen acolyte—approved the sale of the Making of America textbook as a fundraiser. In the book, Skousen quotes liberally from a 1934 essay by Fred Albert Shannon, who had a rosy view of slavery. (Sample passage: "If the pickaninnies ran naked, it was generally from choice, and when the white boys had to put on shoes and go away to school, they were likely to envy the freedom of their colored playmates.")
Dalton did make sure to condemn slavery during his lecture, though he skipped any discussion of the 13th (or 19th) Amendment and instead focused on the Constitution's free-market origins. As he told it, the founders' love of capitalism was motivated by the experience of the early Jamestown settlers, many of whom starved because they were "communists"—they relied on common stores to ensure that everyone got a fair share of supplies. This, Dalton explained, destroyed their incentive to work, and Jamestown would have perished, but for a new "HDIC—head dude in charge" who heeded the biblical imperative "By the sweat of thy brow shalt thou eat bread" and let people keep what they produced. He also credited Karl Marx with inventing the income tax (a feat more commonly attributed to the decidedly Tory William Pitt the Younger). Dalton argued that the Constitution limits federal purchases of land to forts, magazines and arsenals, dockyards, and "other needful buildings such as post offices." "What about national parks?" he asked. "Think of all that land that could be put on the rolls and generating taxes!"
During a break, as the group snacked on boxed lunches from Panera, I talked to Robert Jeffery, a lanky fellow who spent "20 years and four days" in the Navy and now works as a construction inspector. He showed me a worn copy of the Constitution and Declaration of Independence that he keeps in his pocket at all times. Flipping it open to the Second Amendment, he said, "This is where I usually keep my concealed- carry permit." (He'd left his gun at home for the day.) I asked why he and his friends were spending Saturday at the library when they could be out, say, shoveling snow. They had, they said, turned to the founding principles to understand where the country had gone off track. Ken Vaughn, the head of the Northern Virginia branch of the Beck-inspired 912 movement, explained that his interest had been sparked by Washington "bailing out firms that had no right to be bailed out. I think that made people wake up and look at our debt and think, 'Maybe we need to make changes.'"
Ann Hardt, an energetic, ruddy-faced woman in jeans and sneakers, came to the seminar with three of her six homeschooled kids, ages 18, 16, and 13. She uses the Making of America materials to teach them history and told me she'd been to two of the center's seminars before, one with the kids. "I'm very concerned with the future of my children," she explained, which was why she had gone to several Tea Party rallies as well. She'd learned about the seminars from Salisbury, who attends her Mormon church.
After a few more digressions about his charter-school students and their mastery of the Constitution, Dalton ended just as he had started. Fighting back tears, he implored the audience to remember: "More powerful than any invading army is an idea, and freedom is an idea whose time has come."
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