Signs of Supreme Court activism worry Reagan administration lawyers
[Posted by Karl] David Bernstein correctly notes a more accurate title for this page one propaganda would be “ Lawyers Who Voted for Obama Want his Health Care Law to be Upheld “: It turns out that the only “Reagan Administration lawyers” they are able to quote are Charles Fried and Doug Kmiec, both of whom quite publicly endorsed candidate Obama in 2008. Kmiec, in fact, was rewarded with an ambassadorship for his service. As for Fried, one of his former constitutional law students, Dan McLaughlin , observes: It is fair and accurate to describe Prof. Fried as a former Reagan official and former member of the GOP legal establishment. But it is deeply misleading to suggest that he speaks today for some element of mainstream thought on the Right, or to tout his views on Obamacare without presenting to readers his support for Obama, his effective divorce from the modern GOP, and the extreme nature of his views on the government’s ability to make you buy broccoli. The L.A. Times bias here is probably not merely ideological. After all, they could certainly use a newspaper mandate. –Karl
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Signs of Supreme Court activism worry Reagan administration lawyers
I appreciate it when Dahlia Lithwick writes more often for Slate Magazine. It’s hard arguing that Liberals lack any fundamental gravamen or intellectual perspicacity without compelling, in print, visual evidence. She entitled her 22 March missive “It’s Not About the Law, Stupid…. Next week’s health care argument before the Supreme Court is all about optics, politics, and public opinion.” In so doing, she just summed up her entire contribution as a legal analyst for Slate Magazine. Mention the word irony to Dahlia Lithwick, and she’s liable to tell you to iron your own [expletive] dress shirt. She is woman, and you can hear her pseudo-sapient roar! Lithwick seems particularly miffed that anyone would imply that Individual Mandates could run afoul with the boring, stodgy and out-of-date United States Constitution. She displays her Aristotelian flair for reasoning below. That the law is constitutional is best illustrated by the fact that—until recently—the Obama administration expended almost no energy defending it. Back when the bill passed Nancy Pelosi famously reacted to questions about its constitutionality with the words, “Are you serious?” She then offers up a properly shamanistic bow to the Commerce Clause Cargo Cult. She mentioned the one paragraph of the Constitution still taught in the modern law school without a compulsory condescending sneer. The law is a completely valid exercise of Congress’ Commerce Clause power, and all the conservative longing for the good old days of the pre-New Deal courts won’t put us back in those days as if by magic. So get with the pogram, oops, I mean program you silly conservatives. Who could possibly believe ObamaCare was a constitutional overreach? Lithwick continues with an ongoing appeal to authority. You see such and such a “CONSERVATIVE” jurist grumbled that ObamaCare probably drags itself coughing and sputtering across the finish line as constitutional. The science is settled you ignorant Tea-Bagger Hobbits. Go back to Middle-Earth and let the grown-ups like Nancy Pelosi administer the laws that they voted for without comprehending or even entirely reading. Other liberals appeal to the boogeyman. Michael Kinsley sets us up to play The Race Card if the Supreme Court fails to properly obey the liberal Zeitgeist. Ever since Wickard v. Filburn (1942), with only a couple of minor exceptions, the courts have upheld the use of federal power under the Commerce Clause, which gives the federal government the authority to “regulate commerce.” Even the 1964 Civil Rights Act is considered constitutional as a regulation of commerce.….Maybe the federal government’s authority under the Commerce Clause is much narrower. Maybe that authority doesn’t extend to requiring individual citizens to have health insurance or pay a fine. But if so, it is not only the future of Obamacare that will suddenly be shaky. Every piece of legislation for about the last 70 years that rested on the Commerce Clause will suddenly be up for grabs. This includes the Civil Rights Act. It includes laws protecting the environment and consumers. Having failed to mention the Klan or Senator Bilbo once, Kinsley had to throw !Civil Rights! into his scare piece twice. Everything the government has ever done through The Commerce Clause could now be open to challenge. I hear they paid for D-Day and The Inchon Landing with the Commerce Clause. Repeal ObamaCare today, and your little grandkids will be licking lead paint chips off their Chinese toys tomorrow! Your are instructed to be very afraid. Or maybe, just maybe, at least three of The USSC justices leaning towards complete ObamaCare nullification want there to be the equivalent of a CAT-5 legal feke storm. These jurists may have had it up to here with the government’s casual and ongoing usurpations that have been justified by the dexterous extension of the Commerce Clause. It almost seems to some Conservatives that the Commerce Clause has become a Trojan horse that is used to steadily and precipitously undermine the right of the average American to possess and enjoy their personal property.* What I think happened is exactly what Speaker Pelosi was describing. “We have to pass the bill to find out what is in it.” Now the Supreme Court has this detestable sick man of postmodern constitutional overreach on the diagnosis table. Having seen what is in it; they are trying to decide whether they should chain-saw out a few of the more obvious cancer tumors or put it out of its own convoluted misery. So Lithwick and Kinsley roll to disbelieve that the US Supreme Court could ever doubt the constitutionality of The Affordable Care and Patient Protection Act. Who could possibly be that crazy? This court case, like the 2010 midterm election, is all just an illusion that will go away. The practical people will reassert control, the Commerce Clause holds sway over all and the ignorant hicks will just shut up and go back to sleep. It could happen. Let’s just hope it couldn’t happen here in America. *-It’s almost like these people are crazy enough to view their JDs as something other than a license to steal without consequence. How whack-job is that?!
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Constitutionality And Thoughtcrime
On Massacres and Motivations
Commenting on the recent massacre of 17 Afghan civilians that was allegedly carried out by Staff Sergeant Robert Bales, Glenn Greenwald, a leading pundit on the American political left, wrote the following : There is, quite obviously, a desperate need to believe that when an American engages in acts of violence of this type, there must be some underlying mental or emotional cause that makes it sensible, something other than an act of pure hatred or evil. When a Muslim engages in acts of violence against Americans, there is an equally desperate need to believe the opposite: that this is yet another manifestation of inscrutable hatred and evil, and any discussion of any other causes must be prohibited and ignored. This is a typical example of how Greenwald engages in overblown rhetoric. To take just a couple of examples that refute his inaccurate generalizations here, no one attempted to rationalize the Mahmudiyah killings in 2006, which involved the massacre of an Iraqi family — including the gang rape and killing of a 14-year old girl — by some U.S. soldiers from the 502nd Infantry Regiment. Indeed, the unequivocal condemnation was entirely justified, and the motivation for the massacre was made clear for all observers: namely, a hatred for Iraqis as a people and a desire to engage in a punitive revenge attack. We know this because that is how one of the perpetrators — James P. Barker — explained it. As he said in an interview in 2009, ” Because I hated Iraqis. They smile at you, then shoot you in the face.” As for acts of violence perpetrated against Americans by individual Muslims, one need only look at the cases of Nidal Malik Hasan, who was responsible for the spree shooting at Fort Hood, and Faisal Shahzad — the failed Times Square bomber — to see how many commentators, officials, and media outlets tried to explain their actions in terms beyond “inscrutable hatred and evil.” For example, on NPR radio in the aftermath of the Fort Hood massacre, Tom Gjelten — covering the story for the outlet — referred to ” a phenomenon that you could maybe call a pre-traumatic stress disorder” as an underlying cause behind Hasan’s rampage. In a similar vein, Muqtedar Khan , writing in the Washington Post’s “On Faith” section, made the following argument: ” It is important to understand that Major Hasan is an isolated, alienated and sad individual who was clearly not well adjusted to his life. In a community that values family life, he was single at 39 and still looking desperately for a wife, according to his former Imam.… He was frequently taunted and harassed for being a Muslim by his own colleagues… [H]e did not feel as if he belonged and perhaps that was the key to why he could turn on his own.” It is hardly as though Khan was subject to widespread condemnation for what he wrote. Likewise, many observers were quick to note that Shahzad ” had faced the loss of his family home to bank repossession,” a supposed stepping-stone on his path to radicalization. Others primarily focused on Shahzad’s anger over American drone attacks in Pakistan. Greenwald’s writings on this matter come in the wider context of attempts to equate the Afghan massacre with the recent spree killing in Toulouse, the work of a French Muslim called Mohammed Merah. A case in point is a blog post by Harvey Morris at the New York Times, in which the author rhetorically asks: ” Robert Bales? Mohammed Merah? Maybe they were both mad.” The issue of massacres and motivations behind them needs to be clarified on several counts. When it comes to incidents of spree-killings, it is always good to start by asking whether the attack is planned in advance and the targets are intentionally chosen. In the case of Merah, who killed three Muslim paratroopers and then four Jews at a Sephardic school, it is clear that the perpetrator’s attacks were premeditated, and in keeping with al Qaeda’s jihadist ideology that not only deems non-Muslims who do not live under Sharia as legitimate targets for jihad — whether “offensive” or “defensive” — but also Muslims perceived to be apostates for serving in the armed forces of Western countries, inter alia . The latter concept is known as takfir , and is well illustrated in statements made by Islamist thinkers in the West aligned with al Qaeda. For example, Abu Izzadeen, a former spokesman for the banned Islamist group al-Ghurabaa, was filmed proclaiming that any Muslim who joins the British Army should be beheaded. Further, Merah proclaimed himself to be a “mujahideen,” and Jund al-Khilafah (“Army of the Caliphate”), a group linked to al Qaeda, took responsibility for the attacks . It is therefore evident that Merah’s acts were driven by his ideology. As for Robert Bales, the problem is that many details of the massacre have still been withheld from public disclosure, hence the wide variety of speculation on causes and motives and whether the attacks were premeditated. What might suggest premeditation is that Bales may have carried out the massacre in “two episodes, returning to his base after the first attack and later slipping away to kill again.” If this be the case, then it is plausible to suggest that Bales was driven by a desire to carry out what he saw in his mind as a punitive revenge raid on Afghans, not dissimilar to the perpetrators of the Mahmudiyah massacre. What will be crucial to determining Bales’ motivations is his own testimony at his forthcoming trial, where he could be facing the death penalty. In fact, the Bales affair demonstrates the failure of trying to draw equivalence between his actions and those of Mohammed Merah. The very fact that Bales is being prosecuted shows that the U.S. military does not have a policy of inciting hatred against Afghans, does not encourage soldiers to engage in revenge attacks on civilians, and does not promote any sort of supremacist ideology. On the contrary, the American armed forces pursue a policy of accommodation towards local cultures. If it turns out that Bales is simply “mad,” it does not follow that the same is true of Merah. It is untrue to claim, as Nicolas Sarkozy recently did , that the ” Islamic faith has nothing to do with the insane motivations of this man [Merah],” for the concept of takfir has a precedent in earlier Islamic thought, specifically in the works of Ibn Taymiyyah , while jihad against non-Muslims has much broader elements in traditional theology that justify it. To round off, it is worth coming back to Greenwald, who regards the likes of Faisal Shahzad as driven solely by political grievances (in Shahzad’s case, U.S. drone attacks in Pakistan) rather than any Islamist ideology. Where Greenwald errs is to assume that these grievances and ideology are mutually exclusive. Of course Shahzad is angry about American drones, but what he himself said in a video released by al-Arabiya illustrates that his motivations go beyond an aim to end drone strikes. In particular, Shahzad declared, ” You’ll see that the Muslim war has just started… until Islam is spread throughout the whole world .” This fits in with traditional ideas about jihad as warfare to expand the realm of Dar al-Islam. It is also notable that Shahzad affirmed his desire to avenge the death of Baitullah Mehsud, who was the leader of the Tehreek-e-Taliban until he was killed by a drone strike in August 2009. Mehsud outlined his goals as follows : Drive out the non-Muslims from Muslim lands, and then attack them in the West until they pay jizya or convert to Islam. Recognizing that the problem of Islamist terrorism is foremost an issue of ideology with roots in traditional theology does not amount to characterizing the actions of Islamist militants as manifestations of “inscrutable hatred and evil” (to use Greenwald’s words). Rather, it is simply based on examining what the militants themselves say they want to achieve. I am no fan of Obama’s “surge” in Afghanistan (based on the erroneous assumption that the primary cause of the decline in violence in Iraq from 2007 onwards was the increase of U.S. troop numbers and COIN strategy) or the use of drones, but these policies should not be changed merely because Faisal Shahzad is angered by them. It is difficult to think of a counter-terrorism measure against his fellow Islamist militants that would not similarly anger him. Instead, a policy of containment is needed, and on the understanding that Islamism is ultimately rooted in questions of identity and the role of Sharia in the modern world, it should be acknowledged that the burden of stopping Islamist terrorism lies in the hands of Muslims.
Scapegoating Zimmerman
“Then he shall take the two goats, and set them before The Lord at the door of the tent of meeting; and Aaron shall cast lots upon the two goats, one lot for The Lord and the other lot for Azazel. And Aaron shall present the goat on which the lot fell for The Lord, and offer it as a sin offering; but the goat on which the lot fell for Azazel shall be presented alive before The Lord to make atonement over it, that it may be sent away into the wilderness to Azazel.” (Leviticus 16:7-10 RSV) (www.keyway.ca) George Zimmerman shot Trayvon Martin in the chest and killed him on 26 February. Mr. Zimmerman was not charged and his actions remain under investigation by local and now Federal authorities. This has led to an outpouring of anger and several demonstrations by those who believe the American justice system has a strong racial bias against African Americans. Not all of this protest has remained within the bounds of civility. The New Black Panther Party has put a $10,000 price on George Zimmerman. The President has done nothing that would lead to calm or pacification. He informed us that if he had a son, the boy could look like Trayvon. His campaign has sought to monetize the tragic shooting by selling Obama Hoodies for campaign money. He reminds us to search our souls over this as we rummage in our pockets for the $40 tab for one of his hoodies. Even the Commander-In-Chief wants his take from the till on Justice For Trayvon™ (and I’m not just being snarky about the trademark ). Sadly and predictably, 75% of America wants George Zimmerman dragged forth and shot this afternoon. Just kidding, folks. They weren’t quite that forthcoming and honest. CNN polled on whether George Zimmerman should be arrested and75% of those asked agreed. Better that than get the Scarlet Letter R (RACIST!) tattooed on your forehead. Arresting George Zimmerman may or may not be the legally sanctioned and appropriate course of action. If the people investigating find reasonable evidence that the shooting of Trayvon Martin was not a defensive action or that if George Zimmerman had no legitimate reason to feel he was in mortal danger, he needs to be booked for manslaughter at the very least. Let the system operate and do its job. Scapegoating George Zimmerman to prove we’re all too big for bigotry accomplishes absolutely nothing. It proves absolutely nothing. Let’s say Repair_Man_Jack is so !RACIST! that he will only order White Pizza at the local Italian Restaurant (adding pesto or tomato sauce would make it Pizza of Color which would defile his highly attuned palate.) RMJ could fool you all be demanding that George Zimmerman be waterboarded for Trayvon. “Dunk ‘em for diversity,” RMJ always says! The immediate tendency to demand “justice” despite an incomplete grasp of the facts can only lead to travesty. Googling “Duke Lacrosse, Mike Nifong” and then reading a few of the links tells you far more than I could by belaboring the point. Try “Sharpton, Brawley” if you still remain unconvinced. I’ll make one more point out of respect for the dead. I find it irrelevant outside the setting of a trial whether or not Trayvon Martin was more likely to end up in Harvard University or Folsom Prison. His initial beatification was somewhat nauseating in a Crystal Mangum sort of a way. But as someone completely unassociated with George Zimmerman’s legal defense team, I really don’t care why Trayvon Martin wasn’t in school for ten days. People with no personal dog in this fight should allow the dead their peaceful sleep. In conclusion, nobody will really fix American society by joining The New Black Panthers’ in their jihad against George Zimmerman. If you were racist beforehand, you’re still a bigot whether they arrest Mr. Zimmerman over this sordid affair or not. More to the point, you will not make anyone who believes you are a racist think better of you at all by demanding Zimmerman’s head on a platter. Display equipoise and let the investigators investigate. Scapegoats do not work any sort of biblical magic in the modern world.
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Scapegoating Zimmerman
Today is March 15th — the Ides of March. On this date in 44 BC, Julius Caesar was murdered on the steps of the Roman Senate. He was stabbed 23 times by a group of senators as the result of a conspiracy that included up to 60 people. Today, Caesar is best known for his salad and his Vegas casino. Also on this date, in 2004, scientists announced the discovery of dwarf planet Sedna. The announcement sparked renewed discussion on the status of Pluto, which ended with Pluto eventually seceding from the planetary union and joining the ranks of the upstart dwarf planets. Et tu, Plute? And finally, today is the 245th anniversary of the birth of Andrew Jackson, the seventh President of the United States. Jackson was key in the formation of the modern democrat party. I forgive him, though. At the time, barely anyone had heard of Dennis Kucinich. Consider this an Open Thread. Clinton Compares Fluke to Pro-Democracy Women Sold Into Slavery | Red Alert Politics “When Hillary Clinton spoke at the Women in the World Summit in New York City on Saturday had the audacity to compare Georgetown Law Student Sandra Fluke to women activists in Burma who were beaten, sold into slavery and locked under house arrest.” True Confessions in Wisconsin | American Spectator “When debate over public unions flared up in Wisconsin last year, educators claimed Gov. Scott Walker’s austere reforms would require thousands of teachers to be laid off. They were wrong.” Romney-fication of health care reform | Washington Times “The move toward global budgets highlights the failure of Massachusetts’s 2006 health reform plan to make health care more affordable. Because the Bay State’s plan served as the template for President Obama’s health reform package, the consequences of that failure could soon be felt nationwide.” Schumer schemes to hit GOP | Politico “Republicans have several objections to the legislation, but instead of making changes, Schumer wants to fast track the bill to the floor, let the GOP block it, then allow Democrats to accuse Republicans of waging a ‘war against women.’” Today’s Word of the Day comes via Wordsmith.org. plurisignification (ploo-ri-sig-ni-fi-KAY-shuhn): noun The use of a word to convey multiple meanings at the same time.

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Daily Links – March 15, 2012