Category Archives: Law

UPDATE II: Conned About Marriage, Constitution And ‘States’ Rights’ (Constitution’s About Process)

Conservatism, Constitution, Federalism, Founding Fathers, Gender, Homosexuality, Law, The Courts

“Conned About Marriage, Constitution And ‘States’ Rights'” is the current column, now on WND. An excerpt:

The ban on the ban is unconstitutional.

This was the gist of broadcaster Mark Levin’s angry tirade against the humdrum, and certainly predicable, decision of a federal judge to strike down “Oklahoma’s voter-approved ban” on gay marriage.

At the center of conservative contretemps are similar decisions in California, New Mexico and Utah, following on which U.S. District Judge Terence Kern had “determined that Oklahoma’s constitutional amendment” violated the 14th Amendment’s Equal Protection Clause. It stipulates that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Broadly speaking, WND’s Alan Keyes concurred with Levin, alluding to the Constitution’s 10th and Ninth Amendments by which “the judges and justices of the federal judiciary are forbidden to … deny the antecedent rights retained by the people.”

Indeed, “the prevailing view in 1791,” observed The Honorable Robert T. Donnelly, former chief justice of the Supreme Court of the state of Missouri, “was that the national government had only delegated powers and that reserved to the people was an undefined sphere of non-government within which people may not be interfered with by government.”

But that was then.

In voiding “voter-approved law,” Justice Kern has resorted to perfectly proper 14th Amendment judicial activism. Deploying the Equal Protection Clause of the 14th Amendment, Kern nullified the 10th. It specifies that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

As expressed in the once-impregnable 10th Amendment, the Constitution’s federal scheme has long since been obliterated by the 14th Amendment and the attendant Incorporation Doctrine.

What does this mean?

If the Bill of Rights was intended to place strict limits on federal power and protect individual and locality from the national government—the 14th Amendment effectively defeated that purpose by placing the power to enforce the Bill of Rights in federal hands, where it was never intended to be. …

… Either way, the freedoms afforded by federalism are no longer because American federalism is no longer. …

… Conservatives as astute as Mr. Levin, Esq., ought to quit misleading their readers and listeners about the restoration of a constitutional structure that has suffered death by a thousand cuts, long before the dreadful cur Obama appeared on the scene. …

Read the complete column. “Conned About Marriage, Constitution And ‘States’ Rights'” is now on WND.

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UPDATED I (1/24): American constitutional federalism is about process, rather than what law you like or don’t. The process is clear. The Courts were never meant to tell people how to run their homes and communities. It’s a column I’ve been wanting to write for a while. It’s quite disturbing how little people understand about a structure/scheme that is no longer and that was intended to protect liberty. The 14th is a real problem, as it killed the 10th.

UPDATE II: Facebook thread:

Todd Frank: The post-civil war Republicans did not think several things through when they drafted the 14th amendment. That said, there still has to be some sort of remedy when states themselves trample on the rights of the individual short of giving the US government carte-blanche to do whatever they want to us.

Ilana Mercer : Todd Frank, you make a good point. But just about every state had itself a constitution with a bill of rights.

The Sweet Sounds of Secession

Constitution, Homosexuality, Law, States' Rights, The State

Contra broadcaster Mark Levin, the healthiest and most intuitive response to deep-seated unhappiness—political or personal—is not to hold a constitutional convention, but to leave; to exit the abusive relationship.

In Utah, it was U.S. District Judge Robert Shelby who did the honors of striking down “Utah’s voter-approved law defining marriage as between a man and a woman.”

In response, a “constitutional attorney” named Joe Wolverton spoke stirringly about secession:

The federal government does hundreds of things every day that are not in the “contract,” so states have the right to rescind it, he said.

“We are absolutely within our right to secede from a political union that no longer answers to the demands of liberty and justice,” he said.

Wolverton also went after elected officials who he says have betrayed the country.

“Have we elected traitors? Yes we have, absolutely. Both parties continue to grow the federal government and burden the states and the people.”

Mark Levin has trashed secession but looks to the states for salvation:

To reclaim the republic, Levin and his listeners look to the states and their role in the amendment process, as stipulated in Article V of the Constitution. Never mind that the states, contrary to the mistaken predictions and hopes of the Constitution makers, have never initiated a constitutional amendment; and never mind that even in the event that the states demand a constitutional convention, there is no mechanism to compel Congress to act.

The great constitutional scholar James McClellan was no “neo-confederate.” Yet even an ardent defender of the Constitution as McClellan conceded that, sadly, “the Framers relied on the good faith of Congress for the observance of the requirement” and that “there was no way to force Congress to act.” (“Liberty, Order, And Justice: An Introduction to the Constitutional Principles of American Government,” p. 310.)

Levin and his listeners are deluded if they think that from the “free” states—all four of them (New Hampshire, Colorado, South Dakota and Alaska)—will come our salvation. The legislatures of two-thirds of the states have to unite to call on Congress to hold a national Constitutional convention for the purpose of amending the dead-letter Constitution.

Incidentally, as a libertarian, I want to keep the state out of marriage altogether. “In furtherance of liberty, Uncle Sam’s purview must be curtailed, not expanded. On this score, let our gay friends and family members lead the way. Let them solemnize their commitment in contract and through church, synagogue and mosque (that will be the day!).”

UPDATED: Liars at Labor (40,000 New Reasons For More Joblessness)

Economy, Labor, Law, Regulation

As a more realistic index of unemployment, we’ve always reported the U-6 unemployment index, which includes the unemployed and people who would like to work but who have not looked for a job recently, as well as those involuntarily working part-time. But at 13.1 percent, the U-6 is overly optimistic. The “actual unemployment rate is 37.2 percent.”

Via Washington Examiner:

David John Marotta calculates the actual unemployment rate of those not working at a sky-high 37.2 percent, not the 6.7 percent advertised by the Fed, and the Misery Index at over 14, not the 8 claimed by the government.

Marotta, who recently advised those worried about an imploding economy to get a gun, said that the government isn’t being honest in how it calculates those out of the workforce or inflation, the two numbers used to get the Misery Index figure.
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“The unemployment rate only describes people who are currently working or looking for work,” he said. That leaves out a ton more.

“Unemployment in its truest definition, meaning the portion of people who do not have any job, is 37.2 percent. This number obviously includes some people who are not or never plan to seek employment. But it does describe how many people are not able to, do not want to or cannot find a way to work. Policies that remove the barriers to employment, thus decreasing this number, are obviously beneficial,” he and colleague Megan Russell in their new investors note from their offices in Charlottesville, Va.

MORE.

UPDATE: Here are 40,000 new reasons for more unemployment. These lousy laws will also make you an outlaw, if violated.

Mass Surveillance Based On Nothing But Prior-Restraint Argument

Government, Homeland Security, Law, Regulation, Terrorism

Mass surveillance is based on nothing but a prior-restraint argument: Violate everybody’s rights in the hope of nabbing a few terrorists. That’s if you buy the government’s good intentions; its real goal—reflexive inclination, really—is to use every method conceivable to increase its sphere of control.

Glenn Greenwald puts it a little mildly for my taste, but the heroic investigative journalist, also first “to use information given to him by Snowden to break stories of NSA surveillance,” explained a similar concept to CNN’s JAKE TAPPER:

GLENN GREENWALD: “… We could eliminate all sorts of crimes, Jake, like rape and murder and kidnapping and pedophilia if we just do away with the requirement that police officers first get a search warrant before entering our house, or if we let the government put video cameras in all of our homes and offices and watch what we are doing all the time. We make the choice that we’d rather not do that because we’d rather live with a greater risk of crime than let the government invade our privacy. The fact that there’s a half of 1 percent chance that it could have helped a terrorist plot 11 years ago in terms of detection is hardly a reason to do this massive, ubiquitous surveillance program.”

In a new piece for The Guardian, Greenwald looks at the history and dynamics of the NSA scam tactics:

The crux of this tactic is that US political leaders pretend to validate and even channel public anger by acknowledging that there are “serious questions that have been raised”. They vow changes to fix the system and ensure these problems never happen again. And they then set out, with their actions, to do exactly the opposite: to make the system prettier and more politically palatable with empty, cosmetic “reforms” so as to placate public anger while leaving the system fundamentally unchanged, even more immune than before to serious challenge.
This scam has been so frequently used that it is now easily recognizable. In the mid-1970s, the Senate uncovered surveillance abuses that had been ongoing for decades, generating widespread public fury. In response, the US Congress enacted a new law (Fisa) which featured two primary “safeguards”: a requirement of judicial review for any domestic surveillance, and newly created committees to ensure legal compliance by the intelligence community.
But the new court was designed to ensure that all of the government’s requests were approved: it met in secret, only the government’s lawyers could attend, it was staffed with the most pro-government judges, and it was even housed in the executive branch. As planned, the court over the next 30 years virtually never said no to the government.
Identically, the most devoted and slavish loyalists of the National Security State were repeatedly installed as the committee’s heads, currently in the form of NSA cheerleaders Democrat Dianne Feinstein in the Senate and Republican Mike Rogers in the House. As the New Yorker’s Ryan Lizza put it in a December 2013 article on the joke of Congressional oversight, the committees “more often treat … senior intelligence officials like matinee idols”.
As a result, the committees, ostensibly intended to serve an overseer function, have far more often acted as the NSA’s in-house PR firm. The heralded mid-1970s reforms did more to make Americans believe there was reform than actually providing any, thus shielding it from real reforms.
The same thing happened after the New York Times, in 2005, revealed that the NSA under Bush had been eavesdropping on Americans for years without the warrants required by criminal law. The US political class loudly claimed that they would resolve the problems that led to that scandal. Instead, they did the opposite: in 2008, a bipartisan Congress, with the support of then-Senator Barack Obama, enacted a new Fisa law that legalized the bulk of the once-illegal Bush program, including allowing warrantless eavesdropping on hundreds of millions of foreign nationals and large numbers of Americans as well.

The ACLU’s executive director Anthony Romero had a line almost as neat as Rand Paul’s “If you like your privacy you can keep it” (and here I add the soundtrack of villainous laughter: “NHAHAHAHAHAHA”). It is:

The president should end – not mend – the government’s collection and retention of all law-abiding Americans’ data. When the government collects and stores every American’s phone call data, it is engaging in a textbook example of an ‘unreasonable search’ that violates the constitution.