Quotulatiousness

June 29, 2012

Shikha Dalmia attempts to pull some lessons from the confusion of the Supreme Court’s Obamacare ruling

Filed under: Health, Law, USA — Tags: , , , , — Nicholas @ 10:51

The biggest loser in this ruling may well have been the remains of the Supreme Court’s dignity. At Hit and Run, Shikha Dalmia pokes through the smoking ruins of the decision to try to make some sense out of it all:

One: We know a ruling is a going to lead to a holy legal mess when it begins like this:

    ROBERTS, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–C, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined; an opinion with respect to Part IV, in which BREYER and KAGAN, JJ., joined; and an opinion with respect to Parts III–A, III–B, and III–D. GINSBURG, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which SOTOMAYOR, J., joined, and in which BREYER and KAGAN, JJ., joined as to Parts I, II, III, and IV. SCALIA, KENNEDY, THOMAS, and ALITO, JJ., filed a dissenting opinion. THOMAS, J., filed a dissenting opinion.

Another instance where a ruling began this way was in the 1978 Bakke case. In it, Justice Powell could not convince a majority of his colleagues to sign off on his tortured claim that the University of California could not reject white candidates because of their race. But it could give blacks and other minorities extra bonus points because of their race. He was against racial quotas, you see, but thought racial preferences were just peachy — a distinction that his conservative and liberal justice had difficulty seeing. The upshot was multiple opinions with multiple dissents and multiple concurrences without any clear guidance as to which one was applicable. This has lead to 40 odd years of conflict and confusion in the lower courts that the Supreme Court is still trying to sort out

[. . .]

Three: No one should ever again believe that conservative justices are opposed to judicial activism, preferring, instead to read and apply the law as written, computer-like. Justice Scalia proved this in his ruling in the Raich case when he happily signed off on an expansive understanding of Uncle Sam’s Commerce Clause authority to nullify state medical marijuana laws duly passed by voters just because he happened to disagree with them. Had it not been for his misguided reasoning, ObamaCare’s constitutionality — or lack thereof — under the Commerce Clause would not have even been an issue.

But Scalia at least chose to exercise one of the two options presented to him: uphold or overrule the law as written. Justice Roberts, on the other hand, as many have already pointed out, has rewritten ObamaCare as per his taste. The law itself repeatedly noted that the fine for not purchasing health care was a penalty not a tax, a designation that Roberts accepts in order to determine if the court had standing to rule under the Anti-Injunction Clause (the Clause bars legal challenges to federal taxes before they have gone into effect). But he rejected that designation and redubbed the “penalty” a “tax” in declaring it constitutional.

Update: Ace gets a bit heated about the political switch of opinion on the part of the chief justice:

What galls me is that a majority of the public wanted this overturned — but we don’t count. What counts is the opinion of the elites Roberts socializes with. They are a decided minority, but continue imposing their political will on the nation as if they were a majority.

And the actual majority? The Little People don’t count. They don’t have the right schooling, nor the socialization to truly understand how to best manage their affairs.

I was just reading a bit about the making of The Good, the Bad, and The Ugly. Sergio Leone included a brutal Union prison camp; he noted that there was a lot written about the Confederates’ brutal prison camps (like Andersonville) but nothing about the Unions’ similar camps. The winners, he noted, don’t get written about that way.

Roberts has aligned himself with the elites, who he supposes will be the Winners, and will thus have the final say in the history books about him. And he’s probably right that they will have the final say: Conservatives simply do not have much sway at all in some of the most critical institutions in America. And we’ll continue paying a high price for that until we change that.

Update, the second: Mark Steyn, on the other hand, sings the praises of Obamacare, now that it has hurdled the Supreme Court:

Still, quibbling over whose pretzel argument is more ingeniously twisted — the government’s or the court’s — is to debate, in Samuel Johnson’s words, the precedence between a louse and a flea. I have great respect for George Will, but his assertion that the Supreme Court decision is a “huge victory” that will “help revive a venerable tradition” of “viewing congressional actions with a skeptical constitutional squint” and lead to a “sharpening” of “many Americans’ constitutional consciousness” is sufficiently delusional that one trusts mental health is not grounds for priority check-in at the death panel. Back in the real world, it is a melancholy fact that tens of millions of Americans are far more European in their view of government than the nation’s self-mythologizing would suggest. Indeed, citizens of many Continental countries now have more — what’s the word? — liberty in matters of health care than Americans. That’s to say, they have genuinely universal government systems alongside genuinely private-system alternatives. Only in America does “health” “care” “reform” begin with the hiring of 16,500 new IRS agents tasked with determining whether your insurance policy merits a fine. It is the perverse genius of Obamacare that it will kill off what’s left of a truly private health sector without leading to a truly universal system. However, it will be catastrophically unaffordable, hideously bureaucratic, and ever more coercive. So what’s not to like?

June 14, 2012

The Commerce Clause: how it evolved to empower government control of everything

Filed under: History, Law, Liberty, USA — Tags: , , , — Nicholas @ 09:36

U.S. District Judge Roger Vinson ruled that because the Patient Protection and Affordable Care Act’s individual mandate to purchase health insurance is unconstitutional, the entire law “must be declared void.” Judge Vinson cites this Reason.tv video on page 47 of his decision.

June 7, 2012

“What’s next? Prosecutions before military tribunals in the U.S.?”

Filed under: Government, Liberty, Military, USA — Tags: , , , , — Nicholas @ 10:57

Judge Andrew Napolitano on the lack of outrage over the use of military drones within the borders of the United States (and, in all probability, Canada):

When drones take pictures of us on our private property and in our homes, and the government uses the photos as it wishes, what will we do about it? Jefferson understood that when the government assaults our privacy and dignity, it is the moral equivalent of violence against us. The folks who hear about this, who either laugh or groan, cannot find it humorous or boring that their every move will be monitored and photographed by the government.

Don’t believe me that this is coming? The photos that the drones will take may be retained and used or even distributed to others in the government so long as the “recipient is reasonably perceived to have a specific, lawful governmental function” in requiring them. And for the first time since the Civil War, the federal government will deploy military personnel inside the United States and publicly acknowledge that it is deploying them “to collect information about U.S. persons.”

It gets worse. If the military personnel see something of interest from a drone, they may apply to a military judge or “military commander” for permission to conduct a physical search of the private property that intrigues them. And, any “incidentally acquired information” can be retained or turned over to local law enforcement. What’s next? Prosecutions before military tribunals in the U.S.?

The quoted phrases above are extracted from a now-public 30-page memorandum issued by President Obama’s Secretary of the Air Force on April 23, 2012. The purpose of the memorandum is stated as “balancing…obtaining intelligence information…and protecting individual rights guaranteed by the U.S. Constitution…” Note the primacy of intelligence gathering over freedom protection, and note the peculiar use of the word “balancing.”

May 31, 2012

Bush violated US constitution by authorizing drone strikes

Filed under: Government, Law, Military, USA — Tags: , , , , , — Nicholas @ 09:50

At Reason, Judge Andrew Napolitano on the presidential “kill list” and the limits of presidential power under the constitution:

The leader of the government regularly sits down with his senior generals and spies and advisers and reviews a list of the people they want him to authorize their agents to kill. They do this every Tuesday morning when the leader is in town. The leader once condemned any practice even close to this, but now relishes the killing because he has convinced himself that it is a sane and sterile way to keep his country safe and himself in power. The leader, who is running for re-election, even invited his campaign manager to join the group that decides whom to kill.

This is not from a work of fiction, and it is not describing a series of events in the Kremlin or Beijing or Pyongyang. It is a fair summary of a 6,000-word investigative report in The New York Times earlier this week about the White House of Barack Obama. Two Times journalists, Jo Becker and Scott Shane, painstakingly and chillingly reported that the former lecturer in constitutional law and liberal senator who railed against torture and Gitmo now weekly reviews a secret kill list, personally decides who should be killed and then dispatches killers all over the world — and some of his killers have killed Americans.

[. . .]

The president cannot lawfully order the killing of anyone, except according to the Constitution and federal law. Under the Constitution, he can only order killing using the military when the U.S. has been attacked, or when an attack is so imminent and certain that delay would cost innocent American lives, or in pursuit of a congressional declaration of war. Under federal law, he can only order killing using civilians when a person has been sentenced lawfully to death by a federal court and the jury verdict and the death sentence have been upheld on appeal. If he uses the military to kill, federal law requires public reports of its use to Congress and congressional approval after 180 days.

May 6, 2012

The free speech baby with the Citizens United bathwater

Filed under: Government, Law, Liberty, Media, USA — Tags: , , , , , , — Nicholas @ 10:32

George Will on the rather impressive sweep of a new proposal to circumvent the US Supreme Court’s decision in Citizens United:

Now comes Rep. Jim McGovern, D-Mass., with a comparable contribution to another debate, the one concerning government regulation of political speech. Joined by Minority Leader Nancy Pelosi, 26 other Democrats and one Republican, he proposes a constitutional amendment to radically contract First Amendment protections. His purpose is to vastly expand government’s power — i.e., the power of incumbent legislators — to write laws regulating, rationing or even proscribing speech in elections that determine the composition of the legislature and the rest of the government. McGovern’s proposal vindicates those who say most campaign-finance “reforms” are incompatible with the First Amendment.

His “People’s Rights Amendment” declares that the Constitution protects only the rights of “natural persons,” not such persons organized in corporations, and that Congress can impose on corporations whatever restrictions Congress deems “reasonable.” His amendment says it shall not be construed “to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, freedom of association and all such other rights of the people, which rights are inalienable.” But the amendment is explicitly designed to deny such rights to natural persons who, exercising their First Amendment right to freedom of association, come together in corporate entities to speak in concert.

McGovern stresses that his amendment decrees that “all corporate entities — for-profit and nonprofit alike” have no constitutional rights. So Congress — and state legislatures and local governments — could regulate to the point of proscription political speech, or any other speech, by the Sierra Club, the National Rifle Association, NARAL Pro-Choice America, or any of the other tens of thousands of nonprofit corporate advocacy groups, including political parties and campaign committees.

Newspapers, magazines, broadcasting entities, online journalism operations — and most religious institutions — are corporate entities. McGovern’s amendment would strip them of all constitutional rights. By doing so, the amendment would empower the government to do much more than proscribe speech. Ilya Somin of George Mason University Law School, writing for the Volokh Conspiracy blog, notes that government, unleashed by McGovern’s amendment, could regulate religious practices at most houses of worship, conduct whatever searches it wants, reasonable or not, of corporate entities, and seize corporate-owned property for whatever it deems public uses — without paying compensation. Yes, McGovern’s scythe would mow down the Fourth and Fifth Amendments, as well as the First.

May 4, 2012

Gordon O’Connor on the abortion debate

Filed under: Cancon, Government, Health, Law — Tags: , , , , — Nicholas @ 13:04

A fascinating moment in the House of Commons, as related by the editors at Maclean’s:

And then Gordon O’Connor rose from his seat on the government side, immediately behind the Prime Minister. O’Connor, a retired brigadier-general, is the chief Conservative whip — the living symbol, in other words, of the ministry’s discipline and unity. His words bit with surprising sharpness. “The House of Commons . . . is not a laboratory,” he admonished Woodworth. “It is not a house of faith, an academic setting or a hospital. It is a legislature, and a legislature deals with law.” The Criminal Code definition of a human being, he said, is not a medical one; it is a purely legal test defining the moment when personal rights receive protection independent from those of the mother. It is quite reasonable, he added, that this should happen at the moment of their physical separation.

O’Connor went further. He denounced the oft-repeated right-wing heckle that abortion is “unregulated” in Canada. It happens to be absent from the criminal law, O’Connor observed, but the provinces regulate their medical professions, and the doctors in turn regulate their own conduct. The provincial governments and the medical colleges have agreed that since abortion cannot be abolished, it ought to be provided safely by, and to those whose private judgment allows for it. “The decision of whether or not to terminate a pregnancy is essentially a moral decision,” said the whip, “and in a free and democratic society, the conscience of the individual must be paramount and take precedence over that of the state.”

O’Connor concluded by reaffirming that the Conservative determination not to reopen Canada’s abortion debate is unwavering. “Society has moved on and I do not believe this proposal should proceed,” he said. “As well, it is in opposition to our government’s position. Accordingly I will not support [this] motion. I will vote against it and I recommend that others oppose it.” [. . .]

What is interesting about O’Connor’s brief speech is that it frames reproductive choice as a matter of small-C conservative principles. He appealed not only to libertarian considerations of individual conscience, but to the idea that regulations should be made at the political level closest to the citizen. Viewed in this light, the Harper rule against legislating on abortion is not just a convenient, cynical means to social peace and election success. It suggests the influence within the government caucus of a Charter-friendly breed of conservative, one whose first instinct is not always to “stand athwart history yelling, stop.”

May 2, 2012

We must make internet freedom the new “third rail” of politics

Filed under: Government, Liberty, Politics, USA — Tags: , , , , , — Nicholas @ 08:05

L. Neil Smith on the most recent attempt by the US government to get formal control over the internet:

After many previous attempts on the part of different groups for a variety of reasons, the United States House of Representatives has passed a bill that could result in the destruction of freedom on the Internet.

And the erasure of the First Amendment.

I won’t bother you with this week’s misleading acronym for such an atrocity. This specimen is likely to fail in the Senate — because it doesn’t go nearly as far in muzzling each of us as that “parliament of whores” wants it to. The Faux President declares he will veto it, but we’ve heard that before from a criminal imposter who couldn’t move his mouth to speak the truth if his life depended on it — because he couldn’t recognize the truth if it came up to him and pissed in his ear.

What I will tell you is what a lifetime of fending off similar assaults on the Second Amendment — and the unalienable individual, civil, Constitutional, and human right of every man, woman, and responsible child to obtain, own, and carry weapons — has taught me. I know what has to be done now, and what will happen if we don’t do it.

First, don’t be relieved or satisfied if this particular bill doesn’t pass this time. Others will be introduced, one after another, until they wear down our resistance, unless we make every attempt cost them something they can’t afford to lose. We must make our freedom to communicate a political “third rail” and aim for nothing less than total eradication of the very notion of censoring the Internet in any way.

April 7, 2012

Arizona’s internet-trolls-go-to-jail bill

Filed under: Law, Liberty, Media, Technology, USA — Tags: , , , , , — Nicholas @ 11:21

Interestingly, aside from the occasional mention of the Arizona Cardinals, almost every post I’ve marked with the Arizona tag over the last three years is about stupid laws or bills that infringe constitutional rights. What up, Arizona?

April 3, 2012

Popehat tells Arizona “Come Get Me, Coppers!”

Filed under: Law, Liberty, Media, Technology, USA — Tags: , , , , , , — Nicholas @ 12:44

Arizona has a law on the books that should replace the old chestnut about King Canute and the tide: they’ve criminalized annoying and offending people on the internet:

Dear Members of the Arizona State Legislature,

By this post, it is my specific intent to use this digital device — a computer — to annoy and offend you.

I do so because you have passed Arizona H.B. 2549, which provides in relevant part as follows:

    It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to use a telephone ANY ELECTRONIC OR DIGITAL DEVICE and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person.

OK. I certainly don’t intend to convey any physical threat. And I can’t terrify or intimidate you, even with the prospect of revealing you for a pack of morons who ought to be voted out of office — after all, you’re in Arizona, where prolonged lawlessness, venality and idiocy seem to be sure paths to electoral victory.

I certainly do mean to annoy and offend you, though. You’ve been swept up in the moronic and thoughtless anti-bullying craze and consequently passed a bill that is ridiculous on its face, a bill that criminalizes annoying and offending people on the internet. That’s like criminalizing driving on the road. By so clearly violating the First Amendment, you’ve violated your oaths of office. You should be ashamed of yourselves. What kind of example are you setting for the children of Arizona by ignoring the law to pass fashionable rubbish? It is no excuse that you are merely modifying an archaic law to apply it to the internet — you’re still enacting patently unconstitutional legislation.

That’s Ken at Popehat, inviting the Arizona state legislature to “snort my taint, go to Hell, and go fuck yourselves”.

March 26, 2012

Court rules that prostitution is still legal in Canada, strikes down other parts of law

Filed under: Cancon, Law, Liberty — Tags: , , , , — Nicholas @ 10:32

Yes, prostitution is still legal … but some of the worst restrictions hedging it around have been declared unconstitutional:

The Court of Appeal for Ontario has swept aside some of the country’s anti-prostitution laws saying they place unconstitutional restrictions on prostitutes’ ability to protect themselves.

The landmark decision means sex workers will be able to hire drivers, bodyguards and support staff and work indoors in organized brothels or “bawdy houses,” while “exploitation” by pimps remains illegal.

However, openly soliciting customers on the street remains prohibited with the judges deeming that “a reasonable limit on the right to freedom of expression.”

The province’s highest court suspended the immediate implementation of striking the bawdy house law for a year to allow the government an opportunity to amend the Criminal Code.

[. . .]

The appeal stems from the legal oddity that while prostitution was not illegal, many activities surrounding it were, including running a brothel or bawdy house, communicating for the purpose of prostitution and living on money earned by a prostitute.

That disconnect led to a constitutional challenge mounted by three sex trade workers who say the laws prevented them from taking basic safety precautions, such as hiring a bodyguard, working indoors or spending time assessing potential clients in public.

March 25, 2012

Reason.tv: 3 Reasons to End Obamacare Before it Begins!

Filed under: Economics, Government, Health, Law, USA — Tags: , , , , , — Nicholas @ 08:36

March 1, 2012

A “Confederation theme park”? The jokes write themselves

Filed under: Cancon, Government, History, Humour — Tags: , , , , , — Nicholas @ 10:59

In the National Post, Lorne Gunter has a bit of fun with the notion of what kind of attractions to put in a theme park celebrating Confederation:

“It’s easy to mock Preston Manning’s idea for a Confederation Theme Park … for starters, it’s somewhat odd to see the pro-small-government, West-wants-in Reform Party founder to be proposing a large government expenditure on a historically slanted amusement park to be located, of all places, in Ottawa.”

So said the Ottawa Citizen’s Mark Sutcliffe — two years ago!

It’s still easy to mock.

Although ultimately endorsing Mr. Manning’s idea (in his own altered form), Sutcliffe called the project “Epcot Centre on the Ottawa River,” a dig at the multinational exposition at Disney World in Orlando, Fla. (The one lasting impression I have of Epcot is that every pavilion was tedious and getting from one to the other required a lot of uncomfortable, fruitless walking. Hey, maybe that would be a good blueprint for a celebration of Confederation after all.)

Sutcliffe had his own satirical ideas of what rides a Confederation Park might offer. There could be “Universal (Health Care) Studios” and the “Sovereignty Movement Roller Coaster” that soared to the same dizzying highs and plunged to the same gut-turning lows as Quebec nationalism has experienced over the past 40 years. Patrons could also “board the Avro Arrow as it sits on the runway and never takes off!”

[. . .]

Imagine the joy on tots faces when Mom and Dad tell them that instead of going to central Florida for Pirates of the Caribbean, It’s a Small World (gad, I still have that cloying song stuck in my head), Space Mountain, Splash Mountain and Typhoon Lagoon, they’ll be heading to Ottawa in February to watch an animatronic debate between robot John A. Macdonald and robot Joseph Howe over the British North America Act’s division of federal and provincial powers at the authentic recreation of Charlottetown’s Founders’ Hall at the PEI display.

Then there’ll be a ride on the Drop of Western Alienation Doom; the Endless Trip to the Sovereignty-Association Dentist (sponsored by “money and the ethnic vote”); the Constitutional Reform Merry-go-round (also dubbed the Canada Round); topped off by the Centre-of-the-Universe Centrifuge where riders strap themselves into cars resembling Canada’s regions and the entire contraption revolves around Toronto.

February 12, 2012

Daniel Hannan at CPAC 2012

Filed under: Britain, Government, Politics, USA — Tags: , , — Nicholas @ 11:11

If you want to hear from someone who unmistakably understands the profound impact of America’s founding and believes there is still time for its citizens to take hold of its bureaucratic laden government and return it back to the will of it’s founding, then you must hear this speech from Daniel Hannan. You’ll appreciate America all the more afterwards, I assure you.

H/T to John Ward for the link.

February 11, 2012

“Courts are often the state’s battering rams, used for breaking down individual rights and freedoms”

Filed under: Cancon, Government, Law, Liberty — Tags: , , , — Nicholas @ 11:00

George Jonas explains why Canadians were more free before their rights and freedoms were codified in the Charter:

The Canada in which I landed in 1956 may not have had a Charter of Rights and Freedoms, but it had rights and freedoms galore, making it the envy of the world. The Canada in which I make my home today has a Charter, but Canadians who say they had more rights and freedoms 50 years ago aren’t paranoid: They did.

There seems to be an inverse relationship between written instruments of freedom, such as a Charter, and freedom itself. It’s as if freedom were too fragile to be put into words: If you write down your rights and freedoms, you lose them. Minimally, governments will try to take away every freedom you haven’t remembered to include.

“Where does it say you have a right to breathe, sir? Surely it’s not a fundamental right. If it were, it would be in the Charter.”

The 19th century British constitutional scholar, A.V. Dicey, foresaw this. He cautioned against written constitutions for this very reason, among others.

Part of the reason for the inverse relationship between written rights and actual freedom is the court system:

When I came to Canada, a court of law was often a place where individuals went for protection against the state. These days, they’d be taking a chance. Courts are often the state’s battering rams, used for breaking down individual rights and freedoms. Climate trumps the law, obviously, considering the law isn’t the law until a judge says it is. There is global warming, as the world is warming to tyranny. A judicial climate change has turned Canada’s courts from frequent champions of individual liberty to near-permanent defenders of social policy.

A judicial expression used to call policy “an unruly horse.” If you’ve time for only one book to see how events unfold when policy starts driving the law, pick up Christie Blatchford’s account of the native land-claim standoff at Caledonia, Ont., called Helpless. It shows what happens when the justice system becomes a branch of social engineering.

January 31, 2012

Gary Johnson calls for the immediate repeal of the Patriot Act

Filed under: Government, Law, Liberty, USA — Tags: , , , , , , — Nicholas @ 00:09

Posted at the Gary Johnson campaign website:

Speaking Sunday night to a national ACLU conference, former New Mexico Governor Gary Johnson called for repealing the Patriot Act in its entirety. The two-term governor and presidential candidate’s remarks were delivered in Orlando, FL, at the ACLU’s annual National Staff Conference.

Johnson said, “Ten years ago, we learned that the fastest way to pass a bad law is to call it the ‘Patriot Act’ and force Congress to vote on it in the immediate wake of a horrible attack on the United States. The irony is that there is really very little about the Patriot Act that is patriotic. Instead, it has turned out to be yet another tool the government is using to erode privacy, individual freedom and the Constitution itself.

“Benjamin Franklin had it right. ‘Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety’.

“Absolutely, protecting the American people from those who would do us harm is the federal government’s most basic duty. Everyone gets that. But when harm is done, as on 9-11, it is the nature of government to ask for more power and more authority in order to protect us. That’s how we get laws like the Patriot Act.

« Newer Posts — Older Posts »

Powered by WordPress