Category Archives: Courts

The Liberal Justice and the Birth Control Mandate

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Justice Elena Kagan had a number of questions—as did Justice Sonya Sotomayor—in Tuesday’s oral arguments on Obamacare’s Contraceptive Mandate.  Indeed, counsel for the mandate’s challengers, Paul Clement, wasn’t even allowed to get into his argument, so little were these Justices in a listening mode, but that’s for another post.  Kagan had one “question,” though, which was very telling:

One religious group would opt out of this and one religious group would opt out of that, and everything would be piecemeal.  Nothing would be uniform[.]

Yeah, and, Madam Justice?  So what?  Why must everything fit into a Liberal’s—or Big Government’s—Procrustean bed?  Opting out is part of the Free Exercise Clause—it goes right to the heart of it.  If things do get…piecemeal…where is the problem?  Government convenience is not a reason to deviate from the Constitution on the bench—or to truncate liberty from anywhere.

If it isn’t government convenience, then the Liberal just seems terrified of the noisiness of republican democracy.

Another Federal Judge

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…gets it right.  US District Judge Eric Melgren has ruled that Kansas and Arizona can, indeed, require proof of citizenship as a criterion for registering to vote in Federal elections: American elections are for American citizens only.  The second clause of the 14th Amendment is pretty clear on this.

Melgren ruled, in part,

Because the Court finds that Congress has not preempted state laws requiring proof of citizenship through the National Voter Registration Act, the Court finds the decision of the EAC denying the states’ requests to be unlawful and in excess of its statutory authority.  Since the Court’s decision turns on the plain statutory language, the Court need not resolve the question of whether the Constitution permits the EAC, or Congress, to disregard the states’ own determination of what they require to satisfactorily determine citizenship.

As the Kansas City Star pointed out,

Nationally, voting rights experts contend that the court’s ruling—if it survives on near-certain appeals—could open the door for more states to enact laws requiring voters to produce documents proving their citizenship.

One can certainly hope so.  Like I said: American elections are for American citizens only.

Melgren also noted

The Constitution gives each state exclusive authority to determine the qualifications of voters for state and federal elections.  Article I, section 2, clause 1—often called the Qualifications Clause—provides that the voters for the US House of Representatives in each state shall have the same qualifications required for voters of the largest branch of the state legislature.  The Seventeenth Amendment adopts the same requirement for voters for the US Senate.  The US Supreme Court has read these provisions to conclude that the states, not Congress, set the voter qualifications for federal elections.

Melgren went on to note that the same Clause also grants Congress the power to overrule the States’ rules statutorily—and that the Congress has not done so.  We can look forward to further Democratic Party efforts to sully our elections by attempting to get Congress to force the States to accept anyone as voter, citizen or not.

Melgren’s ruling can be read here.

Another Federal Agency

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…that needs to be eliminated and its work force returned to the private sector.  The Federal Election Commission believes that the 1st Amendment and inconvenient parts of the Federal Election Campaign Act don’t apply to it.

A Boston TV station [emphasis added]

had invited two congressional candidates (a Democrat and a Republican) into its studio to appear on “On the Record” in the weeks leading up to the 2012 election and formatted the joint appearance as a 30-minute debate.

Another candidate (a Libertarian) who was not invited filed a complaint alleging that the value of WCVB’s production costs and airtime constituted unlawful corporate contributions to the two candidates who were invited.  Corporate contributions to federal candidates are illegal and people who make them face stiff fines, injunctions, and can even go to prison.

The Federal Election Campaign Act, which established the FEC, regulates money in federal campaigns to protect American citizens from corrupt politicians.  It also expressly forbids the agency from regulating the press.  Congress enacted this “press exemption” to protect the profoundly important First Amendment right of the press to inform the public about campaigns and candidates without government interference.

WCVB invoked the First Amendment and the campaign act’s press exemption.  When the FEC considered the matter in November 2013, the staff recommended that the agency disregard both.

That the FEC ultimately—and officially—accepted the legitimacy of WCVB’s decision-making process for selecting those candidates simply emphasizes the arrogant mendacity of the agency.  As the WSJ so correctly notes,

A decision to approve implies the power to disapprove.

Neither are within the scope of FEC authority, and the FEC knows that.

Remember, too, that this is the same FEC that insisted that it had the authority to ban books.*  Such an agency has no place in the lives of Americans, much less in our government.

 

*This exchange involving Justice Samuel Alito and Deputy Solicitor General Malcolm Stewart, arguing for the FEC in Citizens United:

Alito: Do you think the Constitution required Congress to draw the line where it did, limiting [the “electioneering communications” ban] to broadcast and cable and so forth?  What’s your answer to [the] point that there isn’t any constitutional difference between the distribution of this movie on video [on] demand and providing access on the Internet, providing DVDs, either through a commercial service or maybe in a public library, providing the same thing in a book?  Would the Constitution permit the restriction of all of those as well?

Stewart: I think the Constitution would have permitted Congress to apply the electioneering communication[s] restrictions…to additional media as well.

Alito: That’s pretty incredible.  You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned.  …  The government’s position is that the 1st Amendment allows the banning of a book if it’s published by a corporation?

Stewart [In answer to a related follow-up question from Justice Anthony Kennedy]: [A] corporation could be barred from using its general treasury funds to publish the book….

Another Judge Gets One Right

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This one seems small, but it has large implications.

It seems that a motorist in Ellisville, MO, flashed his headlights at oncoming motorists to warn them of a speed trap.  An Ellisville police officer saw that and, in keeping with the city’s policy of suppressing such warnings, promptly arrested the motorist, who then faced a $1,000 fine and points against his driver’s license toward its suspension.

During the course of the motorist’s subsequent lawsuit over this violation of his 1st Amendment right, the city recognized the error of its policy and eliminated it.

Federal Judge Henry Autrey remained unimpressed, though, as he ruled against the city and for the motorist.  In his ruling, Autrey wrote that flashing one’s headlights

sends a message to bring one’s driving in conformity with the law—whether it be by slowing down, turning on one’s own headlamps at dusk or in the rain, or proceeding with caution.

There’s not even anything controversial about that form of speech.  Autrey also wrote, on the matter of Ellisville having corrected its policy,

The chilling effect of Ellisville’s policy and custom of having its police officers pull over, detain, and cite individuals who are perceived as having communicated to oncoming traffic by flashing their headlamps and then prosecuting and imposing fines upon those individuals remains, regardless….

Indeed.  The formality of the ruling was necessary to alleviate a bit of that effect.

A Conservative’s Thoughts on Rights and Duties, their Duality, and some Implications

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I have a new pamphlet out, A Conservative’s Thoughts on Rights and Duties, their Duality, and some Implications; a link to the Kindle version of it (the only version, currently) has been added to the sidebar at right.

I touched on rights and duties and their duality in my book A Conservative’s Manifesto, but only tangentially to a larger discussion of Conservative principles.  However, an understanding of individual rights and individual duties, especially their nature as individual endowments rather than as attributes of groups of men or as grants from some men acting in a “government’s” name, forms a critical part of Conservative thought.  Now, with us Americans broadly divided on what our rights and duties really are, or even whether the government should have them instead of us, is the time to expand on that peripheral discussion and to address the matter directly.

My central thesis is this: our inalienable rights and our inalienable duties, as endowments from and by our Creator, and as duals of each other, are a part of the fabric of our existence—both as individual rights and duties and in the capacity of those duals.  Further, just as importantly, our inalienable rights and our inalienable duties are in each of us as individuals; they are not in groups of us, they are not in the whole of us as a nation.  Each one of us is possessed of them entirely in ourselves.

This, of course, has implications for the role our government, and especially for the roles of “civil law” and “civil rights,” in our lives.

I hope you enjoy the pamphlet.