Topic: Law

Let's take a quick look at §1031, §1032, and §1033 of S.1867 (official text here). These are the three sections of the Senate's version of the 2012 Defense Authorization Act that deal with military detention of terrorists. This bill is causing the ACLU to blow a gasket, and their wild-eyed predictions of Constitution-shredding doom have ignited e-mail inboxes nationwide.

This is the proposed text as it stands today. All highlighting is mine. The parts that sound scary (at first) are in yellow. The parts that should calm you down are in green. The parts that the ACLU and its radical friends are actually upset about are in blue.

Easier asked than answered. There are a bajillion of them floating in limbo in the Congressional Record, including the most recent casualty, which failed to pass the House today (thank Heaven).

If you want to see a proposed BBA that harnesses human greed for productive use and restrains lawyers' attempts to twist the plain meaning of words, then I've got what you need.

debt tsunami

What is Ohio's Issue 3 all about?

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Here it is in a nutshell:

Do you want to keep health care decisions between patients and doctors, and not politicians and bureaucrats? Do you want the freedom to choose the care and insurance that best fits your own needs? If so, vote yes on Issue 3, the Ohio Healthcare Freedom Amendment.

Unless Issue 3 passes, this is what your health care system will look like.


And no, you will not get to keep your private insurance, because all private insurance plans will be crowded out by the government. You will be forced to join Obamacare if Issue 3 is defeated. If Issue 3 passes, we have a chance to defeat Obamacare and preserve your control over your relationship with your doctor, your insurer, and your employer.

Why vote "yes" on Ohio's Issue 2?

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Government employee unions are inherently corrupt, and they don't care that cities across Ohio are going broke under the weight of pensions and health care expenses demanded by fat cat union bosses. Don't fall for the myths they spread about the supposed evils of Issue 2. Don't accept their dishonest scare tactics blindly and emotionally without thinking it all the way through.

Here are five good reasons to vote yes in tomorrow's election:

  1. Strengthening Communities
  2. Safer Neighborhoods
  3. Rewarding Our Best Teachers
  4. Giving Teachers a Choice
  5. Restoring Power to Taxpayers

If Issue 2 fails to pass, you're going to feel it in your wallet (an average of $6150 for each Ohioan), and you're going to see it in layoffs of police, firemen, EMS crews, and teachers (because without Issue 2, cities cannot afford to employ them all).

Follow along with Emily Miller, a total gun novice, as she pursues a concealed carry permit in notoriously gun-averse Washington, DC:

Emily gets her gun

Emily Miller fires a SigI have no experience with guns. Although my father had a handgun while I was growing up -- Baltimore is less safe than D.C. -- he hid it from us and never talked about it. I only know that he had it because as a kid, I found a revolver under the driver's car seat. He told me never to touch it, and that was the end of the discussion.


In contrast, my editor's father taught the rules of gun safety and took him to a shooting range at 10 years old. So my editor offered to teach me the basic safety rules and skills and then shoot his guns at the range. Since he can't legally bring his guns to our office in Washington, I went to his house in Virginia for the lesson. It's remarkable how different the gun laws are once you step over the Potomac River.

...

My editor gave me a 22 caliber Browning Buckmark to start. I wasn't thrilled because it didn't look as cool as the other guns, but he insisted I learn with it. He put up the target and handed me a full magazine to load into the gun. He reminded me to keep my finger off the trigger until I was ready to shoot. I asked a female NRA aide who was about my size for help on the grip. She showed me how she held it -- left hand holding right hand.

When I felt ready, I held the gun up to the target, closed my left eye to line up the sights then slowly and nervously, pulled back on the trigger. POP! "I did it!" I yelled excitedly, turning around slightly.

"Don't turn around," my editor said. "Keep shooting until the magazine is empty." Pop. Pop. I pulled the trigger repeatedly, trying to carefully line up the gun after the kickback each time. After 10 rounds, I'd hit about half in the red. I was thrilled.

"Now try to group them, get the shots as close together to each other as you can," my editor said. I shot another 10 bullets and had improved already. This was easier than I expected.


Odds are, you'll learn something valuable.


Here's the text of Issue 2 (which is technically a Referendum on Senate Bill 5):


Here's the text of Issue 2 (which is technically a Referendum on Senate Bill 5):

Aw, not this again.

Look, I understand that the infamous Allahpundit is pretty liberal on social issues. That's fine. He's entitled to be wrong, and it's not at all surprising (he's an atheist based in New York City). There's nothing outrageously silly in this quote of his in a post about Rick Perry's support for two proposed amendments to the U.S. Constitution banning gay "marriage" and abortion:

Two caveats to his otherwise strict support for the Tenth Amendment, both of which happen to serve the agenda of social conservatives whose votes he's depending on. He backed away from his "states' rights" defense of legalizing gay marriage last week; here's the inevitable climbdown on abortion too, which he described as a states' rights issue a few days ago. Follow that last link and re-read the post to see why it was predictable. I'm surprised he didn't anticipate the tension his Tenther rhetoric on these issues would cause with his base, which he could have defused by mentioning his support for the amendments straightaway. There's nothing necessarily inconsistent in that position: You can be a strong federalist and still condone federal solutions for exceptionally grave evils like slavery which the states, for various reasons, can't be trusted to police as diligently as they should. That's the core of the pro-life argument for an anti-abortion amendment -- it's a matter, literally, of life and death. What's Perry's argument, though, for why gay marriage qualifies as an "exceptionally grave evil" warranting a nationwide ban? Is smoking, say, an evil sufficiently grave to require a constitutional amendment outlawing it? (Don't answer that, liberals.) He's not in a legal trap here but he is in a philosophical one. And a political one, of course, as the press will use this to throw him off his economic message. Specify, please, which behaviors are so pernicious that we can't risk letting parochial state legislatures deal with them.

What's outrageously silly -- or intentionally obtuse -- is the slug under the post on the home page. Here, click on the screen shot and look closely:

HotAir.com


Perry's current position does not conflict with his support for the Tenth Amendment, nor does it conflict with the doctrine of federalism. Amending the Constitution is inherently federalist, because every amendment must be ratified by the states. Read Article V yourself:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.


This is not the first or even the second time that Allah has tried this cute little assertion. Not buyin' it, pal. Find a new rhetorical trick.

Is a ban on mosques in our future?

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This post by DrewM over at Ace of Spades HQ has really stirred up a hornets' nest in the comments. Drew slammed Herman Cain for a remark about banning mosques, and that kicked off the brawl. It makes me wonder what circumstances, if any, would convince a majority of Americans to support a ban on mosques ... or even the internment of all Muslims in America.

Don't automatically think "Oh, that'll never happen." After all, Americans of Japanese descent were interned during World War II.

--

4:00 UPDATE: Imagine this federal response:

Be it resolved that the following Amendment to the Constitution be adopted:


Article I

The social/political/ideological system known around the world as Islam is not recognized in the United States as a religion.

The practice of Islam is therefore not protected under the 1st Amendment as to freedom of religion and speech.

Article II

As representatives of Islam around the world have declared war, and committed acts of war, against the United States and its democratic allies around the world, Islam is hereby declared an enemy of the United States and its practice within the United States is now prohibited.

Article III

Immediately upon passage of this Amendment all Mosques, schools and Muslim places of worship and religious training are to be closed, converted to other uses, or destroyed. Proceeds from sales of such properties may be distributed to congregations of said places but full disclosure of all proceeds shall be made to an appropriate agency as determined by Congress. No compensation is to be offered by Federal or State agencies for losses on such properties however Federal funding is to be available for the demolishing of said structures if other disposition cannot be made.

The preaching of Islam in Mosques, Schools, and other venues is prohibited. The subject of Islam may be taught in a post high school academic environment provided that instruction include discussion of Islam's history of violence, conquest, and its ongoing war on democratic and other non-Islamic values.

The preaching or advocating of Islamic ideals of world domination, destruction of America and democratic institutions, jihad against Judaism, Christianity and other religions, and advocating the implementation of Sharia law shall in all cases be punishable by fines, imprisonment, deportation, and death as prescribed by Congress. Violent expressions of these and other Muslim goals, or the material support of those both in the United States and around the world who seek to advance these Islamic goals shall be punishable by death.

Muslims will be denied the opportunity to immigrate to the United States.

Article IV

Nothing in this amendment shall be construed as authorizing the discrimination against, of violence upon, nor repudiation of the individual rights of those Americans professing to be Muslim. The individual right of conscience is sacrosanct and the practice of Islam within the privacy of home and self is strictly protected to the extent that such individuals do not violate the prohibitions described in Article III.

Like it or not, this approach would avoid First Amendment obstacles.

... some things are just nonsensical.

not a triangle

Shut up.For years Pastor Scott Rainey has participated in a Memorial Day prayer service at the Houston National Cemetery, which is administered by the United States Department of Veterans Affairs. Rainey has always prayed in the name of Jesus Christ, which should be no surprise coming from a Christian pastor. After all, Buddhist priests offer Buddhist prayers, Muslim imams offer Muslim prayers, and [insert faith here] clergymen offer [insert faith here] prayers.

As the 2011 Memorial Day prayer service approached, one of the event's organizers invited Rainey to deliver a prayer as usual. But this year the cemetery's director, Chicago native Arleen Ocasio, decided to stick her nose into the prayer service. She asked the organizer to forward Rainey's prayer to her ahead of time for approval. The organizer, being a helpful sort of person, did so.

After reading Rainey's prayer, Ocasio decided that she'd had just about enough of those icky Christians and their explicitly Christian prayers:

Oh no! Congressman Allen West sullied the American Flag and violated federal law by going on a scuba dive with Old Glory!

Allen West dives with American Flag   Allen West dives with American Flag

Golly, it sure is awful to see a retired U.S. Army Lieutenant Colonel behave so scandalously towards the flag. Surely no honorable military member would do such a thing, right?

Proposition Twenty

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With the debt ceiling fight heating up, there's talk of a Balanced Budget Amendment again, but some don't think it goes far enough. Here's an interesting idea from John McClaughry that he calls Proposition Twenty. It's a proposed amendment to the U.S. Constitution that would limit the national debt to $20 trillion:

Sec. 1. The total amount of gross federal debt shall not exceed the greater of twenty trillion dollars, or the amount outstanding as of the date this Article is ratified.


Sec. 2. No officer or employee of the United States, nor of any institution created by the United States, shall authorize the emission, issuance, sale or purchase of any security or obligation of the United States, its agencies or instrumentalities, which would increase the gross Federal debt above the foregoing limit.

Sec. 3. Any citizen of the United States shall have standing to enjoin the action of any officer or employee of the United States, or his or her successors in office, where such action is alleged to be in violation of Section 2. The Supreme Court shall have original jurisdiction to hear and decide any action brought under this section. If after one hundred and eighty calendar days following the filing of such an action, the Supreme Court has rendered no decision thereupon, Article XVI of the Amendments to this Constitution shall stand repealed at the beginning of the next ensuing calendar year.

Sec. 4. If the rate of increase of total receipts of the federal government for any fiscal year exceeds the average rate of increase in national income over the four year period ending not less than six months nor more than twelve months before such fiscal year, the Secretary of the Treasury shall within the ensuing fiscal year use the excess amount of such receipts to purchase and retire outstanding federal debt; and the limitation imposed by section 1 shall be reduced by a like amount.

Sec. 5. Congress may, by adopting a joint resolution declaring a state of war, suspend the effect of Sections 1 to 3 of this Amendment, but such suspension shall continue in force only during such period as the armed forces of the United States are engaged in actual armed hostilities against the armed forces of the nation against which the war was declared, and six months following the conclusion of those hostilities.

Now that's shifting the debate.

human embryo at 5-6 weeks gestationThanks to today's ruling in the DC Circuit Court of Appeals, your tax dollars will now fund the destruction of unborn children.

My stance on this has been unequivocal. It's wrong to heal the sick by killing the weak. They are people.

Look at how arbitrary, dishonest, forceful, and unresponsive a state government can be. This is why we conservatives constantly warn about federal power; it's even worse.


You want context? Here's your context.

That blonde state official in the grey sweatshirt sure is infuriating, isn't she? You'd hate to have to deal with people like her, wouldn't you? Well, just one word should hit you in the gut after watching this video and imagining similar interactions with overbearing government drones.

Obamacare.

Obamacare ruled unconstitutional

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Here's the entire text of Judge Roger Vinson's ruling. Onward towards the Supreme Court!

Predictions for gays in the military

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Here's what's coming next.

Watch for a *cough* *cough* totally unforseeable constitutional challenge to Section 2(e) of the bill, which states:

No Private Cause of Action - Nothing in this section, or the amendments made by this section, shall be construed to create a private cause of action.

Once that section's excised with surgical precision by a sympathetic lefty judge (Vaughn Walker to the lavender courtesy phone, please!) ... Katie bar the door.

The gay activists in uniform will then sue to be allowed to marry, notwithstanding Section 2(d) of this bill, which states:

Benefits - Nothing in this section, or the amendments made by this section, shall be construed to require the furnishing of benefits in violation of section 7 of title 1, United States Code (relating to the definitions of "marriage" and "spouse" and referred to as the "Defense of Marriage Act").

Once 2(d) is gone & a few suitable test couples get hitched, retire, & file for marriage-related benefits in the civilian world, guess what'll be next on the chopping block?

DOMA.

After that inconvenient law is out of the gay activists' way (phone call for Judge Walker on line 3) they'll demand more than "tolerance." They'll demand financial benefits & federal protection for gay "marriage," state laws be damned. Why? They can't cite national security, because effective national defense matters not one whit to these activists. No, they'll simply cite the full faith and credit clause found in Article IV Section 1 of the Constitution:

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

Game over. It'll be "Sit down, shut up, & hand over those wallets, you hateful bigoted Christianist breeders."

This. Is. Their. Goal.

U.S. military weakened by gay activists

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With the passage of today's lame duck bill, it would appear the ban on open homosexuals in the U.S. military will soon be repealed. Not long from now, it will be official military policy to endorse and celebrate homosexual behavior.

I find it interesting that none of the homosexual activists pushing this agenda of social engineering and the destruction of marriage have bothered to address what happens if things go horribly wrong, as many have predicted. If open homosexuals end up being a net burden on the military's ability to accomplish its mission (that is, to kill our enemies and break their stuff), then how do we undo this?

Flat out evil

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If this CNN report is accurate, then the military's got at least one ideal candidate for the death penalty.


Murder merits swift punishment. Next issue: why didn't any officers stop this?

Now that the U.S. Supreme Court has decided (in McDonald v. Chicago) that the right to keep and bear arms is a fundamental individual right that all state/county/city governments are obligated to protect, you're likely wondering what to add to your personal arsenal. Should you expand your shopping list beyond handguns and rifles?

In 2003 I wrote a detailed research piece for a law school class on firearms law. I went way back and looked at sources like the transcripts of the debates during the Constitutional Convention, the constitutions of various states, letters and speeches by the Founding Fathers, and I discovered what they thought about keeping and bearing arms. They understood the Second Amendment to allow the private ownership of military weapons. All military weapons. Period.

Here's a summary of my research:

The Right To Keep And Bear ... What?Everyone knows that rifles, pistols, and shotguns are "arms," but what about other weapons like clubs, knives, swords, artillery, bombs, missiles, or weapons of mass destruction? Although this question sounds silly at first, Larry Arnn of the Claremont Institute once remarked that if the courts interpreted the Second Amendment as they do the First Amendment, we would all have the right to own nuclear weapons. Some scholars think this kind of reading of the Second Amendment means that "individuals may keep and bear ... whatever 'arms' they desire."


So does our Constitution recognize your neighbor's right to park a brand new M-1 Abrams main battle tank in his driveway? Should we permit gun shops to hold tent sales offering great low prices on military-grade flamethrowers and nerve-gas-tipped artillery shells? Must the U.S. Government allow you to carry a "suitcase nuke" to avoid violating your fundamental Constitutional rights, even if you might trip while carrying it and level a city block?

Part I of this article summarizes the recent Fifth Circuit Court of Appeals decision that acts as the point of departure for this journey into the "what-ifs" of the right to keep and bear arms.

Part II looks at the decision's inconclusive treatment of what "arms" means, and explains why the "textualism" school of constitutional interpretation should control the search for the meaning of "arms," instead of the "living document" or "framer's intent" schools.

Part III explains what the Founders and their informed contemporaries understood "arms" to mean in their day: that the Second Amendment guarantees an individual's right to keep and bear any and all weapons, no matter how destructive.

Part IV brings that definition forward to modern times and identifies the unacceptable social risks posed by private citizens' possession and use of today's most powerful weapons.

Part V makes some tentative and preliminary suggestions for a Twenty-Eigth Amendment limiting individual access to excessively destructive weapons that threaten society, while preserving the common-sense meaning of the individual right protected by the text of the Second Amendment.

Read the whole thing and then tell me that "arms" doesn't include a .50 caliber machine gun or an M-1 tank. You probably won't like it (I don't completely like it myself), but unless you're willing to let the courts twist the meaning of the Constitution in whatever way they want, you'll have to agree with my conclusion.

Claiming to have fired in self defense, an American border guard on duty fatally shot a Mexican citizen trying to cross into our country. In response the U.S. Attorney General is conducting ... a civil rights investigation?!

Federal officials confirmed that a civil-rights investigation was opened into the shooting of Hernández, who died on the Mexican side of the river from a bullet wound to the head.


Civil-rights investigations can look into crimes committed by law enforcement officers in the course of their duties.

...

The video shows an encounter that begins when a group of men try to cross a border fence near the railroad Black Bridge, just west of the Paso del Norte Bridge connecting Juárez to Downtown El Paso.

A Border Patrol agent is seen arriving on a bicycle, and rocks are allegedly being thrown at the agent while he tries to detain a man on the U.S. edge of the river. The agent is seen pointing his handgun. Three gunshots are heard.

Hernández can then be seen lying on the ground at the foot of the Black Bridge on the Mexican side of the mostly dry river. It is not shown if Hernandez was throwing rocks.

Lionel HutzThere's no way he was in America when he was shot, and then ducked back across the border before dying. People with mortal gunshot wounds to the head aren't exactly renowned for climbing fences or crossing rivers.

The Department of Justice should definitely investigate the shooting, since the agent may have committed a crime and/or a human rights violation. But how can Holder accuse the agent of violating the dead kid's federal civil rights? The dead kid was not an American. He was a Mexican. In Mexico. Does 42 USC § 1983 cover him too?! Apparently our top cop learned the law from Lionel Hutz.

I move for a bad court thingy.

These were all ratified together, by the same people, at the same time, with the same understanding of English. You'll find my simple question below.

U.S. Constitution
Amendment I


Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

U.S. Constitution
Amendment II


A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

U.S. Constitution
Amendment IV


The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Constitution
Amendment IX


The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

U.S. Constitution
Amendment X


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.

The concept of a right retained by a state is clearly expressed in the Tenth Amendment. If the founding generation meant to restrict the right to keep and bear arms to the states alone and not to individuals, they could have have used that language in the Second Amendment. Instead, they used the language of individual rights.

How could the term "the people" have meant "individuals" to the founding generation in all of these Amendments except the Second?

Watch the clip and you'll see yet another example of an elected official who doesn't bother to understand his job.

Article I, Section 1
U.S. Constitution


All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Amendment I
U.S. Constitution


Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Shame on Frank LoBiondo for not even having a pocket U.S. Constitution handy. Nobody would have objected if he had pulled out a copy of the document, because it would have demonstrated that he cared enough to check it. What a fool.

I hope moments like these happen at every town hall meeting in America for the next ten years.

3/18/10, 2:42 PM Update: Here it is, folks.

-----

This is what Congress plans to ram down your throat before you have a chance to stop them.

[document superseded]

More information:
Doctors For Patient Care
Fix Health Care Policy
Horror Stories
Patients First
Patients United Now
GOP Health Care Solutions

I say the following as a retired U.S. Coast Guard commissioned officer who swore and upheld a solemn oath to defend the Constitution.

Newsmax's John L. Perry is either nuts, a naïve fool, or a childish attention-seeker. His latest column speculating on the possibility of a U.S. military coup to unseat President Obama fails the most basic B.S. test. Perry hasn't the first clue about how our military's leadership understands its oath of office, nor does he demonstrate even the most rudimentary comprehension of our Constitution.

By publishing this bilge the editors at Newsmax have forever beclowned themselves.

More commentary:
Cassandra cracks open a can o' whupass

Try actually reading the Constitution

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Washington Post reporter Alec MacGillis doesn't like the power wielded by U.S. Senators from states with small populations. He writes:

The Senate Finance Committee's "Gang of Six" that is drafting health-care legislation that may shape the final deal -- without a public insurance option -- represents six states that are among the least populous in the country: Montana, Wyoming, North Dakota, Maine, New Mexico and Iowa.

Between them, those six states hold 8.4 million people -- less than New Jersey -- and represent 3 percent of the U.S. population. North Dakota and Wyoming each have fewer than 80,000 uninsured people, in a country where about 47 million lack insurance. In the House, those six states have 13 seats out of 435, 3 percent of the whole. In the Senate, those six members are crafting what may well be the blueprint for reform.

Climate change legislation, which passed in the House, also faces daunting odds. Why? Because agriculture, coal and oil interests hold far more sway in the Senate. In the House, the big coal state of Wyoming has a single vote to New York's 29 and California's 53. In the Senate, each state has two. The two Dakotas (total population: 1.4 million) together have twice as much say in the Senate as does Florida (18.3 million) or Texas (24.3 million) or Illinois (12.9 million).

Was this really what the founders had in mind? One popular story tells of Thomas Jefferson asking George Washington what the Senate's purpose is. "Why did you pour that coffee into your saucer?" Washington asked in return. "To cool it," Jefferson replied. To which Washington said, "Even so, we pour legislation in the senatorial saucer to cool it." A nice tale. But what if the coffee gets so cold that no one bothers to drink it? Or if the Senate takes its coffee black in a country that opted overwhelmingly for sugar and cream?

Kent Conrad, Democrat from North Dakota (pop. 641,481, third smallest), chairman of the Budget Committee and one of the Gang of Six, does not see any problem. Asked whether it is appropriate that his vote counts as much as those of senators from states 20 times as large, he was flummoxed. "One would hope that people would support the Constitution of the United States," said Conrad, who was reelected with 150,000 votes in 2006, when Virginia's Jim Webb needed 1.2 million votes to win. "This was the grand bargain that was struck when the Founding Fathers determined the structure and form of the United States Congress." He added: "Are you proposing changing the Constitution?"

Well, maybe. Regardless, there's nothing wrong with taking a closer look at how things came to be the way they are. The fact remains that, hallowed as it is, the Senate is as much a product of bare-knuckled, self-interested politics as last week's fight over military earmarks.

This is so damn simple to refute that my head hurts (probably due to banging it on my keyboard after reading this garbage). Apparently, neither MacGillis nor his trusty fact-checking editors bothered to read Article V of the U.S. Constitution, which sets forth the rules for changing that Constitution:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Mr. MacGillis, your entire essay was an exercise in futility. To answer your question, yes, the Founding Fathers did actually construct the Constitution with ironclad protection for each State's equal representation in the Senate, even if every other State wants to strip it away through the amendment process.

This ain't rocket science.

Hat tip: This Ain't Hell

Since we presumably still live in a nation of laws and not of men, and since the U.S. Constitution is still the supreme law of the land, I ask you to first read these small portions of that document, after which I'll pose my question.

U.S. Constitution

Article I, Section 8

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

U.S. Constitution

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

U.S. Constitution

Amendment X

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.

Given the above supreme law of the land that sets out the enumerated powers of Congress, on what basis does Congress have the authority to enact Obamacare?

Don't tell me it's justified because it's a good idea, because it's fair, because it's in my interest to want it, because Medicare/Medicaid/SCHIP already exist, because Obamacare will save money, because I'm a heartless hateful warmongering homophobic puppy-killing raaaaacist, because America wants Hopenchange© ... just tell me how Congress can possibly have the constitutional authority to enact Obamacare.

Wisdom from a master of the obvious

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From the blog of the lefty group Upper Arlington Progressive Action:

We know how important the Supreme Court is to the success of progressive initiatives. We need to keep our eye on where the top nine are moving.

Of course it's important to you nutballs. It's the only way to advance your most cherished agenda items, since they'd never pass muster in Congress (much less any public initiative or referendum).

It might read something like this:

No law, bill, resolution or any act of Congress shall exceed 2000 words, including all footnotes, amendments and signatures. Congress shall not vote on any item longer than that. Each item requiring a vote shall be read aloud in its entirety in session to a majority of members. Those not in attendance may not vote on the item.

Certainly worth discussing, no?

On the loss of $800+ worth of plants

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I just caught the lawn care company applying Round-Up to every plant under 2' tall in my beds. Just lost $400+ of wildflowers, perennials, baby shrubs, and any large plants hit by the windblown spray. No wonder last year's starts (also $400+) all died too.

I'm drafting an itemized bill now. If they refuse to reimburse me, they'll learn how foolish it is to pick a fight with someone who buys bandwidth by the megabit.

Thank you for playing, Valerie Plame

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You lose. Now take your frivolous lawsuit and your lying husband and go crawl under a rock somewhere.



Osama's right to remain silent

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It's been said that the Constitution is not a suicide pact. Unfortunately, President Obama's loosey-goosey "living Constitution" apparently has a brand new iron-clad principle: Miranda rights for terrorists.

Obama's wussified seal

Seal by Rusty

This isn't just Obama's fault, either. Thank you, John McCain.

Since when does this ...

The President . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law. . . .

... mean "rubber stamp approval"?

Here's another disturbing quote from Sonia Sotomayor's infamous speech in 2001:

I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.


There is always a danger embedded in relative morality, but since judging is a series of choices that we must make, that I am forced to make, I hope that I can make them by informing myself on the questions I must not avoid asking and continuously pondering. We, I mean all of us in this room, must continue individually and in voices united in organizations that have supported this conference, to think about these questions and to figure out how we go about creating the opportunity for there to be more women and people of color on the bench so we can finally have statistically significant numbers to measure the differences we will and are making.

The emphasis is mine. What in the world does she mean by "relative morality" here? Moral relativism? If so, how can she be trusted to impartially uphold the law?

The problem with judicial empathy

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How would Associate Supreme Court Justice Sonia Sotomayor react to this dispute?

Update: Brilliant!

Update 2: Also brilliant!

All bark, no Bork

Update 3: More from Power Line

How can the following quote from Sonia Sotomayor not be a racist statement?

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

The emphasis is mine. So, how about it, lefties?

Update: Consider this, too.

Update 2: Could Judge Sotomayor even serve on a jury?

Allah swings and misses. Again.

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In a post on RNC Chairman Michael Steele's mealy-mouthed answers about abortion, Allahpundit restates his own reservations about a human life amendment to the U.S. Constitution ... based on his understanding of federalism. Here's the money quote (emphasis mine):

In fairness, if you look at the full quote, you'll see Steele recovered quickly from the "individual choice" gaffe to emphasize that he meant the individual choice of each state to regulate abortion as it sees fit -- i.e. the federalist position. That's an evolution in thinking from what he told "Meet the Press" three years ago, when he said that the states should have been allowed all along to handle the matter but now that we've got Roe on the books, we'd best abide by it. What I don't get, though, is how he squares what he told GQ with his statement this morning about supporting the GOP's call for a Human Life Amendment. If he believes in federalism, why's he trying to impose a constitutional solution that would prohibit states from authorizing abortion?

Back in October, I first noticed that Allah misunderstood the concept ... and he still doesn't get it. Once again, I must emphasize that amending the Constitution is an inherently federalist process.

If he'd study the Constitution he'd understand why (emphasis mine):

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
U.S. Constitution, Article V

Through their legislatures, the states get the last word on any proposed amendment, and the citizens of the states have a helluva lot of influence over state legislators. If a federally-introduced amendment does not have the support of the vast majority of the citizenry, it will not be ratified.

That's called federalism.

On piracy in the Gulf of Aden

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Modern Somali pirateThe U.S. Naval Institute's new blog features some heavy hitters posting on America's response to modern day pirates in the Gulf of Aden. How come? Well, those pesky Somali pirates have kept themselves in the headlines long enough to draw the attention of the UN Security Council (I'll bet the pirates are terrified). After a recent close call, cruise ship passengers have now begun debarking before their ships reach the danger area, then flying to the next port of call to rejoin the cruise in safer waters.

At the USNI blog, the Navy's current tactics catch flak from Chuck Spinney, while Coast Guard Commandant Thad Allen asks about the counter-piracy endgame. The latest missive from the Department of Crazy Ideas (courtesy of lawyer and retired Navy Captain "Eagle1") suggests a cheap inshore fleet. All well and good, but something's missing.

Let's convince Congress to issue Letters of Marque & Reprisal. This isn't as quaint or old-fashioned as you might think, and I'm not in the middle of a Walter Mitty daydream about Sir Francis Drake. The most recently-issued letter of marque allowed the civilian blimp Resolute to operate as an Anti-Submarine Warfare privateer, patrolling out of Los Angeles in 1941-42.

To curb the Somali pirates, our Congress could simply turn loose civilian contractors like Blackwater, Paratus World Wide Protection, or Triple Canopy. Quick, easy, no muss, no fuss. The Democrats in DC would only need to handle the paperwork and make belligerent speeches, leaving the private military companies to figure out the messy details. There would be minimal risk to our military personnel, who would only have to assist the contractors with surveillance and intelligence gathering.

If the sea services insist on taking part, or if the DC crowd pushes them into the fray, they should resist the urge to charge right up the middle with conventional forces. They should first look carefully at the capabilities of the Coast Guard's MSSTs (and the MSRT), as well as the Navy's SEALs, SWCC Teams, and Maritime Expeditionary Security Force. There's not much sense in trying to swat flies with a sledgehammer.

Sarah Palin's comments opposing gay "marriage" in a recent interview:

Allah over at Hot Air worries about the federalism implications of a federal marriage amendment:

Normally I'd call this another reason for the base to love her, but the implications for federalism make me wonder how reaction will shake out. Althouse, who's been pretty high on her (but isn't a member of the base, needless to say), finds it "genuinely dismaying." I find it more perplexing than anything else given that she's on record recently as supporting a federalist approach to abortion. I can understand the opposite position, of banning abortion at the federal level via amendment (as Huckabee wants to do) but letting the states handle marriage on grounds that the dire moral imperative in protecting innocent life should trump normal conservative inclinations towards state rights, but what's the argument for Palin's vice versa? Is it simply a question of identifying which issue federal judges are more likely to tinker with at this point and taking that issue out of their hands before they can act? McCain shares that concern -- but thinks that any amendment can and should come after a problematic ruling, not before.

Allah needn't worry. Amending the Constitution is an inherently federalist process (emphasis mine):

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
U.S. Constitution, Article V

Through their legislatures, the states get the last word on any proposed amendment, and the citizens of the states have a helluva lot of influence over state legislators. If a federally-introduced amendment does not have the support of the vast majority of the citizenry, it will not be ratified.

A registered independent voter and professional filmmaker by the name of Molotov Mitchell has put together an 11-minute video that summarizes a brewing controversy about Barack Obama's eligibility to be President. A lifelong Democrat named Philip Berg is suing Obama to force him to prove that he satisfies the Constitution's minimum eligibility requirements for the highest office in the land.

Here's the relevant citation from Article II:

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

Mitchell's video frames the dispute and asks Berg to explain the situation. As you watch it, focus on one key question: if Barack Obama can instantly defeat Berg's lawsuit by handing the judge his original Hawaiian birth certificate, why doesn't he do so?

If Barack Obama is a natural born U.S. citizen, why is he acting like he can't prove it? What is he hiding?

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Update: A rebuttal

A couple of years ago I wrote a detailed research piece for a law school class on firearms law. I went way back and looked at sources like the transcripts of the debates during the Constitutional Convention, the constitutions of various states, letters and speeches by the Founding Fathers, and I discovered what they thought about keeping and bearing arms. They understood the 2nd Amendment to allow the private ownership of military weapons. All military weapons. Period.

Here's a summary of my research:

The Right To Keep And Bear ... What?Everyone knows that rifles, pistols, and shotguns are "arms," but what about other weapons like clubs, knives, swords, artillery, bombs, missiles, or weapons of mass destruction? Although this question sounds silly at first, Larry Arnn of the Claremont Institute once remarked that if the courts interpreted the Second Amendment as they do the First Amendment, we would all have the right to own nuclear weapons. Some scholars think this kind of reading of the Second Amendment means that "individuals may keep and bear . . . whatever 'arms' they desire."


So does our Constitution recognize your neighbor's right to park a brand new M-1 Abrams main battle tank in his driveway? Should we permit gun shops to hold tent sales offering great low prices on military-grade flamethrowers and nerve-gas-tipped artillery shells? Must the U.S. Government allow you to carry a "suitcase nuke" to avoid violating your fundamental Constitutional rights, even if you might trip while carrying it and level a city block?

Part I of this article summarizes the recent Fifth Circuit Court of Appeals decision that acts as the point of departure for this journey into the "what-ifs" of the right to keep and bear arms.

Part II looks at the decision's inconclusive treatment of what "arms" means, and explains why the "textualism" school of constitutional interpretation should control the search for the meaning of "arms," instead of the "living document" or "framer's intent" schools.

Part III explains what the Founders and their informed contemporaries understood "arms" to mean in their day: that the Second Amendment guarantees an individual's right to keep and bear any and all weapons, no matter how destructive.

Part IV brings that definition forward to modern times and identifies the unacceptable social risks posed by private citizens' possession and use of today's most powerful weapons.

Part V makes some tentative and preliminary suggestions for a Twenty-Eigth Amendment limiting individual access to excessively destructive weapons that threaten society, while preserving the common-sense meaning of the individual right protected by the text of the Second Amendment.

Read the whole thing and then tell me that "arms" doesn't include a .50 caliber machine gun or an M-1 tank. You probably won't like it (I don't completely like it myself), but unless you're willing to let the courts twist the meaning of the Constitution in whatever way they want, you'll have to agree with my conclusion.

It's about time. The case is District of Columbia v. Heller.

Video: When does life begin?

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Why is the question of John McCain’s citizenship being brought up now? Not meaning to sound like a conspiracy theorist, but it sure seems like the NY Times has suddenly made it their mission to bring up the most asinine of charges against the presumptive Republican nominee. Here is the article McCain’s Canal Zone Birth Prompts Queries About Whether That Rules Him Out.

This issue hits a little close to home for me. My daughter was born overseas, specifically in the US Military Hospital in Wuerzburg, Germany while my wife was assigned there as a member of the US Army. If you follow the argument set out by the NY Times (and now floating around the blogs), she would be ineligible to become the President of this country, while the child of an illegal immigrant born in an Arizona hospital could someday become the Commander-in-Chief. Now I’m not a Constitutional Scholar, but I believe that the common sense definition needs to come into play.

Why was John McCain born in Panama? His father was a career US Navy Officer, stationed at the US Military Base in Panama at the time he was born. By pushing this argument, it means that the child of any military member, ambassador, embassy worker, or citizen serving their country outside the US borders born overseas is ineligible for this nation’s highest office. This is just flat out stupid.

On January 11th the former publisher of The Western Standard was hauled before the Alberta Human Rights Commission to answer for his decision to publish the "offensive" Danish cartoons of Mohammed. Ezra Levant's editorial decision got under the skin of hypersensitive islamist imam Syed Soharwardy. The whiny radical filed a complaint with the AHRC demanding a public apology from Mr. Levant.

Dude picked the wrong target.

There may be hope for Canada yet. More details at EzraLevant.com.

King George6/26/08 Update: I've posted the text of the U.S. Supreme Court's gun rights decision District of Columbia v. Heller, as well as an analysis of which "arms" we can keep and bear.

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The Second Amendment to the U.S. Constitution reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Since the U.S. Supreme Court recently agreed to hear an appeal (District of Columbia v. Heller) that will likely settle whether the right to keep and bear arms is an individual right, partisans on both sides of the issue are busily dissecting and spinning every word of the Second Amendment.

Most bloggers and pundits try to predict the outcome of the case by reviewing Supreme Court decisions and then trying to guess which side each current Justice will choose. Not only do the chattering classes speculate on exactly which kinds of "arms" we're entitled to keep and bear (all of them, in my opinion), they also dig through reams of federal case law to argue that the right to keep and bear arms applies either to the "well regulated Militia" (supposedly meaning the National Guard) or to "the people" (individual citizens).

Well here's a weird idea: maybe it's not an either/or situation. I wonder whether any existing federal law has anything to say about the matter?

United States Code, Title 10 § 311

Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are --

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

Gosh. It seems Congress and the President have already arranged for a well regulated National Guard and for armed civilians. It's amazing what you can learn by actually reading the law, isn't it?

Of course there's a very real possibility that the Supreme Court will twist the Constitution, completely ignore the text of a law properly enacted by the other two branches of the federal government, and impose its own gun control policy preferences on the rest of us. It wouldn't be the first time, and you just know that Anthony Kennedy loves sitting in the catbird seat.

It would be comforting if the Court simply cited 10 USC § 311 and said "here endeth the lesson", but somehow I doubt it'll be that straightforward. Stand by for heavy seas.

Break out your hip waders, people. Governor Strickland's first crack at re-regulating Ohio's energy industry just hit the legislature as Senate Bill 221, and the B.S. is knee-deep and rising.

Turd mealThe bill's long, jargon-packed, and hard to understand, which shouldn't be a surprise to anyone familiar with government's attempts to extend its tentacles further into our lives. I know that legislation is mind-numbingly boring and makes your eyes glaze over. Believe me, I feel your pain. But if you're worried about your electricity bill going up and yet you don't want to experience the joy of rolling blackouts, you need to pay attention to this stuff.

Here's a change to Section 4928.02 of the Ohio Revised Code that jumped out at me when I skimmed the bill (deleted text is struck through, added text is in boldface type):

Sec. 4928.02. It is the policy of this state to do the following throughout this state beginning on the starting date of competitive retail electric service:


(A) Ensure the availability to consumers of adequate, reliable, safe, efficient, nondiscriminatory, and reasonably priced retail electric service;

(B) Ensure the availability of unbundled and comparable retail electric service that provides consumers with the supplier, price, terms, conditions, and quality options they elect to meet their respective needs;

(C) Ensure diversity of electricity supplies and suppliers, by giving consumers effective choices over the selection of those supplies and suppliers and by encouraging the development of distributed and small generation facilities;

(D) Encourage innovation and market access for cost-effective supply- and demand-side retail electric service including, but not limited to, demand-side management, time-differentiated pricing, and implementation of advanced metering infrastructure;

(E) Encourage cost-effective and efficient access to information regarding the operation of the transmission and distribution systems of electric utilities in order to promote both effective customer choice of retail electric service and the development of performance standards and targets for service quality for all consumers, including annual achievement reports written in plain language;

(F) Recognize the continuing emergence of competitive electricity markets through the development and implementation of flexible regulatory treatment;

(G) Ensure effective competition in the provision of retail electric service by avoiding anticompetitive subsidies flowing from a noncompetitive retail electric service to a competitive retail electric service or to a product or service other than retail electric service, and vice versa;

(H) Ensure retail electric service consumers just and reasonable rates and protection against unreasonable sales practices, market deficiencies, and market power;

(I) Preclude imbalances in knowledge and expertise among parties in a proceeding under this chapter to eliminate any appearance of disproportionate influence by any of those parties;

(J) Ensure that consumers and shareholders share the benefits of, as well as the responsibility for, electric utility investment in facilities supplying retail electric generation service;

(K) Provide coherent, transparent means of giving appropriate incentives to technologies that can adapt successfully to potential environmental mandates;

(L) Protect at-risk populations when considering the implementation of any new advanced energy technology;

(M) Encourage implementation of distributed generation across customer classes through regular review and updating of rules governing critical issues such as, but not limited to, interconnection standards, standby charges, and net metering;

(N) Facilitate the state's effectiveness in the global economy.

What's that warm and fuzzy bilge in part (H) about "just and reasonable rates", you ask? Why, that means government-imposed price controls of course. Price controls cause shortages. Are you ready for brownouts?

I have no idea what part (J) is supposed to do. Consumers already benefit from utility company investments in new power generation facilities: they get more power produced more efficiently. As for "sharing responsibility", consumers do that now by paying their electric bills, which helps to fund capital improvements by utility companies. So what new consumer "benefits" and "responsibilities" are we talking about here?

Parts (K) and (L) look like euphemistic ways of saying to utility companies: "We'll make it crystal clear that if you don't appease environmentalist wackos (including government officials), we'll hurt your business." Say hello to higher taxes and burdensome new environmental regulations. Such costs would normally be passed on to consumers in the form of higher rates, but with price controls that won't happen now. Instead, these government-imposed costs will eat into the utility companies' profits. If there's no way to recoup the losses by increasing the rates charged to consumers, the power companies can't provide enough power. Now throw in the other predictable effect of price controls on electricity: artificially high demand for power. What we'll get is a repeat of California's blackouts in 2001. Among sentient humans, this is commonly referred to as "a bad thing."

I don't understand the jargon in part (M). Can anybody translate it into plain English for me?

This is Ted Strickland's idea of "improving" the production of electricity in Ohio. God help us.

Man sues God, gets response

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You don't tug on Superman's cape, you don't spit into the wind, you don't pull the mask off the ol' Lone Ranger, and you don't mess around with ... God?

A legislator who filed a lawsuit against God has gotten something he might not have expected: a response.

...

State Sen. Ernie Chambers of Omaha sued God last week, seeking a permanent injunction against the Almighty for making terroristic threats, inspiring fear and causing "widespread death, destruction and terrorization of millions upon millions of the Earth's inhabitants."

Chambers, a self-proclaimed agnostic who often criticizes Christians, said his filing was triggered by a federal lawsuit he considers frivolous. He said he's trying to makes the point that anybody can sue anybody.

Not so, says "God." His response argues that the defendant is immune from some earthly laws and the court lacks jurisdiction.

...

There was no contact information on the filing, although St. Michael the Archangel is listed as a witness

FYI, here's the original complaint: PDF documentErnest W. Chambers v. God

If our politicians in Columbus can find a way to enact H.B. 314, the state medical board will be able to "limit, revoke, or suspend an individual's certificate to practice, refuse to register an individual, refuse to reinstate a certificate, or reprimand or place on probation the holder of a certificate" if that individual violates this new language in the Ohio Revised Code (emphasis added by Yours Truly):

Sec. 2317.561. In addition to the requirements in section 2317.56 of the Revised Code, if an obstetric ultrasound examination is performed at any time prior to the performance or inducement of an abortion or the physician performing or inducing the abortion determines that an ultrasound examination will be performed as part of the abortion procedure, the physician shall do both of the following prior to the performance or inducement of the abortion:


    (A) Provide the pregnant woman receiving the abortion the opportunity to view the active ultrasound image of the embryo or fetus;

    (B) Offer to provide the pregnant woman with a physical picture of the ultrasound image of the embryo or fetus.

The requirements of division (A) of this section shall be performed at no additional charge to the pregnant woman.

4-dimensional ultrasoundI looked through the Ohio Revised Code for any other mentions of the word "ultrasound" and found nothing that requires an abortionist to perform one. I'd bet that the standards of practice for an Ohio Ob/Gyn require an ultrasound before an abortion, but I'll confirm my hunch with my sister-in-law since she's an Ob/Gyn resident.

I'll check the Ohio Administrative Code in a bit.

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Update 1: My search for the word "ultrasound" in the Ohio Administrative Code yielded 13 hits. Only the first five look like they're worth examining. More on this later.

Update 2: I found nothing in the Ohio Administrative Code about requiring Ambulatory Surgical Facilities (a term that includes abortion clinics) to do an ultrasound before performing an abortion. Unless you choose to interpret Administrative Rule 4731-18-01(A)(1) really really broadly:

4731-18-01 Standards for surgery.


(A) The surgeon of record in an operative case shall personally:

(1) Evaluate the patient sufficiently to formulate an appropriate preoperative diagnosis;

Too general to hang your hat on, in my opinion. Now it's on to the Ohio Medical Board Rules.

Update 3: I found nothing in the Ohio Medical Board Rules requiring an abortionist to perform a pre-abortion ultrasound. Now I'll try the National Abortion Federation's Clinical Policy Guidelines, which serve as the abortion industry's self-published minimum standards of care for abortion providers. I haven't found any comparable document published by any regulatory body or professional association in Ohio that would set the minimum standards of care for Ohio's abortionists. Unless someone can prove me wrong, I'm forced to conclude that Ohio abortionists are governed by the NAF's Clinical Policy Guidelines.

Are you sitting down? Read page 17 of today's majority opinion in Carhart v. Gonzales:

The Act does apply both previability and postviability because, by common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb. ... We do not understand this point to be contested by the parties.

Did you catch that? According to the explicit and undisputed wording of Supreme Court, a fetus in the womb is a living organism. The fetus is not a "potential life." It's a life.

The obvious follow-up is to ask what kind of organism the fetus is, and the answer is as straightforward as it is undeniable. The fetus is a human organism. A human being.

That's a huge legal victory. Common sense and science finally enjoy the muscle of the Supreme Court to back up what every honest person with half a brain knows: the unborn are human beings.

Now we can really start to undermine the silly pro-abort argument about the unborn being human but not "persons."

Hugh Hewitt and Newt Gingrich discussed the "assault weapons" ban yesterday, and both agreed that the 2nd Amendment doesn't permit individuals to own high powered military weapons. While I sympathize with their desired policy, the cold hard Constitutional fact is ... they're wrong.

A couple of years ago I wrote a detailed research piece for a law school class on firearms law. I went way back and looked at sources like the transcripts of the debates during the Constitutional Convention, the constitutions of various states, letters and speeches by the Founding Fathers, and I discovered what they thought about keeping and bearing arms. They understood the 2nd Amendment to allow the private ownership of military weapons. All military weapons. Period.

Here's a summary of my research:

The Right To Keep And Bear ... What?Everyone knows that rifles, pistols, and shotguns are "arms," but what about other weapons like clubs, knives, swords, artillery, bombs, missiles, or weapons of mass destruction? Although this question sounds silly at first, Larry Arnn of the Claremont Institute once remarked that if the courts interpreted the Second Amendment as they do the First Amendment, we would all have the right to own nuclear weapons. Some scholars think this kind of reading of the Second Amendment means that "individuals may keep and bear . . . whatever 'arms' they desire."


So does our Constitution recognize your neighbor's right to park a brand new M-1 Abrams main battle tank in his driveway? Should we permit gun shops to hold tent sales offering great low prices on military-grade flamethrowers and nerve-gas-tipped artillery shells? Must the U.S. Government allow you to carry a "suitcase nuke" to avoid violating your fundamental Constitutional rights, even if you might trip while carrying it and level a city block?

Part I of this article summarizes the recent Fifth Circuit Court of Appeals decision that acts as the point of departure for this journey into the "what-ifs" of the right to keep and bear arms.

Part II looks at the decision's inconclusive treatment of what "arms" means, and explains why the "textualism" school of constitutional interpretation should control the search for the meaning of "arms," instead of the "living document" or "framer's intent" schools.

Part III explains what the Founders and their informed contemporaries understood "arms" to mean in their day: that the Second Amendment guarantees an individual's right to keep and bear any and all weapons, no matter how destructive.

Part IV brings that definition forward to modern times and identifies the unacceptable social risks posed by private citizens' possession and use of today's most powerful weapons.

Part V makes some tentative and preliminary suggestions for a Twenty-Eigth Amendment limiting individual access to excessively destructive weapons that threaten society, while preserving the common-sense meaning of the individual right protected by the text of the Second Amendment.

Read the whole thing and then tell me that "arms" doesn't include a .50 caliber machine gun or an M-1 tank. You probably won't like it (I don't completely like it myself), but unless you're willing to let the courts twist the meaning of the Constitution in whatever way they want, you'll have to agree with my conclusion.

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Update: I just unearthed a somewhat similar take on the definition of "arms."

Update 2: Publicola asks some pointed questions.

*** Update: it's a hoax (or so they claim). Be sure to read the comments. ***

You read that headline right. Liberal bloggers Buckeye State Blog and Plunderbund have had something in the works for awhile now. The right side of the blogosphere detected the problem on FreeRepublic. Right on the Right sounded the alarm, followed by BizzyBlog and NixGuy.

Michelle Malkin is watching the story. Jonathan Adler at Volokh looks at the criminal implications, and notes that Buckeye State Blog's "Operation Infiltration" might be a hoax.

By vetoing the bill that would have authorized federal funds for embryonic stem cell research, President Bush is not "banning" anything.

Embryonic stem cell research remains legal under federal law. You are free to destroy embryos and harvest their stem cells without fear of federal prosecution. You just can't get federal tax dollars to fund your research; you have to fund it yourself, or get a state or local government to foot the bill.

In fact, the federal government will fund your research on embryonic stem cells as long as you use the cell lines derived before August 9, 2001.

Today the U.S. Senate will vote on H.R.810, a bill which would allow Uncle Sam to spend your tax dollars to help researchers destroy human embryos in the name of science. Here are three basic reasons to call your Senator and ask him or her to vote against spending tax dollars on research that destroys human embryos:

  1. It's immoral because it unneccessarily kills human beings.
  2. It's unnecessary because adult stem cell research is already more successful and holds more promise ... and all without killing any human beings.
  3. It's politically unpopular when it's explained clearly.

Defeating this bill would not ban stem cell research. It would only prevent the federal government from spending your tax dollars to fund research that destroys human embryos. Destructive embryo research would still be legal as long as it's funded privately or funded by a state or local government.

Contact your Senator and urge him or her to vote "no" on H.R.810. If you're interested in watching today's Senate debate live, C-SPAN2 has you covered.

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Update: Evangelical Outpost understands things quite clearly.

This fall the U.S. Supreme Court will be tackling partial birth abortion again. Two cases overturning the Partial Birth Abortion Ban Act of 2003 will get a final hearing, and we'll get to see where our two newest Justices stand on abortion. SCOTUSblog has posted a summary of what's in dispute. I dug up the published opinions from both Courts of Appeals, so you don't have to rely on the mainstream media to tell you what's in them (both are Adobe PDF files):

8th Circuit:
Gonzales v. Carhart
9th Circuit:
Gonzales v. Planned Parenthood
(Kook Warning: this is a Judge Reinhardt opinion!)

Here's the conventional wisdom on who supports the ban on partial birth abortions:

SCOTUS vote prediction

Kennedy is the wild card here. While he's pro-abortion in general, he joined the conservatives in the Court's first crack at partial-birth abortion (too bad there were only three plus Kennedy, because they lost):

The Court's decision today, in my submission, repudiates this understanding by invalidating a statute advancing critical state interests, even though the law denies no woman the right to choose an abortion and places no undue burden upon the right. The legislation is well within the State's competence to enact.
Justice Kennedy, dissenting
Stenberg v. Carhart

Kennedy's dissent encourages pro-lifers and hints that he might join the conservatives again this time around. Unfortunately, it was also written six years ago. Kennedy has been sliding steadily leftward during his tenure on the Court, and it's anybody's guess how much "evolving" or "growing" he's done since 2000. With Justice Sandra Day O'Connor's retirement, he has assumed the role of the swing voter, and that kind of power is very seductive to any Justice with no discernable judicial philosophy.

There's plenty of reason to worry. In an abortion case eight years before he confronted partial-birth abortion, Kennedy penned this doozy:

At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

The man's unpredictable. He overturned a state constitutional amendment denying special rights for homosexuals because he deemed it "inexplicable by anything but animus." Magic 8-ballHe overturned an anti-sodomy law. He agreed with Justice Scalia that juveniles should be eligible for the death penalty ... but then he flip-flopped. He opposed the McCain/Feingold muzzle on free speech. He supported government redistribution of private property. He opposed a federal anti-gun-possession law. He supported ending the Florida recount in the 2000 presidential election. He upheld Oregon's institution of doctor-assisted suicide.

Enough! My brain hurts. If anyone can assemble Kennedy's opinions into a coherent judicial philosophy, it'll be news to me. For all we know he uses a ouija board to help him decide.

So will Anthony Kennedy object to infanticide again? I can't shake the sinking feeling that it all depends on how much his wife values those cocktail party invitations from Washington's liberal "in crowd."

Most Americans think that abortions after the first trimester are illegal, but that's not true. Thanks to rulings by the U.S. Supreme Court, a pregnant woman can get an abortion at any time through all nine months of pregnancy, for any reason. The window below summarizes how the Court built its machinery of death. Click anywhere inside the window to cycle through the cases:

That's the short version. Here's a bit more detail if you're curious.

In Griswold v. Connecticut, the Court ruled a Connecticut law prohibiting contraceptive use was unconstitutional because it violated the 14th Amendment's implied "right to privacy" enjoyed by married couples in the home.

Eisenstadt v. Baird extended Griswold's reasoning and held that a Massachusetts law prohibiting distribution of contraceptives and contraceptive information was an unconstitutional invasion of the privacy of unmarried people, and unfairly treated them differently from married people.

Roe v. Wade expanded the "right to privacy" to include a "right to abortion," which overturned a Texas abortion ban statute. Roe established the infamous trimester framework: in the first trimester, there were no abortion restrictions of any kind; in the second trimester, states could only limit abortions in ways that protected the mother's health; in the third trimester, states could supposedly ban abortion.

In Doe v. Bolton, a case handed down on the same day as Roe, the Court expanded the right to abortion by striking down a Georgia statute which prohibited abortion unless the mother's life was in danger, the preborn child was severely deformed, or the preborn child was the product of rape. In striking down Georgia's abortion statute, the Doe court required that all abortion statutes include a "health of the mother" exception. The factors to be considered in determining "health risk" involved "physical, emotional, psychological, and familial factors, as well as the woman's age."

Obviously, any woman can use this enormous loophole to get an abortion at any point in her pregnancy. All she has to do is claim that the thought of motherhood is depressing, or that she isn't ready to enlarge her family, or that she's too old to bear another child, or ... well, you see the point. Always remember Doe v. Bolton and its all-encompassing "health exception." It's what opened the door to abortion on demand.

Nineteen years later, Planned Parenthood v. Casey did away with Roe's trimesters and concentrated on viability as the key issue, with the majority opinion stating, "We reject the trimester framework, which we do not consider to be part of the essential holding of Roe." Casey struck down most of a complex Pennsylvania abortion statute, and created an "undue burden" test for balancing a state's interest in protecting the preborn against a mother's wish to abort her child. Under this test, any state regulation that "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus" is an unconstitutional "undue burden" on a woman's right to seek an abortion. Most significantly, though, the Casey decision left the "health exception" requirement untouched, so abortion on demand was preserved. Silence can be deadly when a court refuses to undo injustice.

Most recently, Stenberg v. Carhart held that a Nebraska law criminalizing partial-birth abortions was unconstitutional for two reasons: 1) it placed an "undue burden" on a woman's right to an abortion because the ban was supposedly too vague and could therefore be stretched to ban other types of abortion; and 2) it lacked a Doe-style "health of the mother" exception. Again, abortion on demand remained sacrosanct, much to the delight of pro-abortion radicals.

So there you have it. Any woman in America can get an abortion at any time in her pregnancy, for any reason. Spread the word, and let's puncture the ignorance of our fellow Americans. It'd be a worthy step toward protecting the most vulnerable human beings on Earth.

Text of Ohio's proposed abortion ban

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The Ohio House is debating a bill that would ban abortion, but rather than relying on what the media tells you is in the bill, why not read it for yourself? House Bill 228 is very long, and a lot of it deals with lawsuits. Here are the relevant chunks that would rewrite the criminal penalties related to abortion.


Sec. 2919.12

(A) No person shall do any of the following:

(1) Perform or induce an abortion;

(2) Transport another, or cause another to be transported, across the boundary of this state or of any county in this state in order to facilitate the other person having an abortion.

(B) Whoever violates division (A)(1) of this section is guilty of unlawful abortion. Whoever violates division (A)(2) of this section is guilty of facilitating an abortion. Unlawful abortion or facilitating an abortion is a felony of the second degree or, if the offender previously has been convicted of or pleaded guilty to a violation of this section, sections 2919.123, 2919.13, or 2919.14 of the Revised Code, or former sections 2919.121, 2919.151, 2919.17, or 2919.18 of the Revised Code as they existed prior to the effective date of this amendment, a felony of the first degree.

(C) Whoever violates this section is liable to the pregnant woman, to the person who was the father of the fetus or embryo that was the subject of the abortion, and, if the pregnant woman was a minor at the time of the abortion, to her parents, guardian, or custodian for civil compensatory and exemplary damages.

(D) Division (A)(1) of this section does not apply to a person who provides medical treatment to a pregnant woman to prevent the death of the pregnant woman and who, as a proximate result of the provision of that medical treatment but without intent to do so, causes the termination of the pregnant woman's pregnancy.


Sec. 2919.123

(A) No person shall knowingly give, sell, dispense, administer, otherwise provide, or prescribe RU-486 (mifepristone) to another for the purpose of inducing an abortion in any person or enabling the other person to induce an abortion in any person.

(B) No physician who, prior to the effective date of this amendment, provided RU-486 (mifepristone) to another for the purpose of inducing an abortion as formerly authorized under division (A) of this section as it existed prior to the effective date of this amendment shall knowingly fail to comply with the applicable requirements of any federal law that pertained to follow-up examinations or care for persons to whom or for whom RU-486 (mifepristone) was provided for the purpose of inducing an abortion.

(C)

(1) The state medical board shall compile and retain all reports it receives under division (C)(1) of this section as it existed prior to the effective date of this amendment. Except as otherwise provided in this division, all reports the board receives under division (C)(1) of this section as it existed prior to the effective date of this amendment are public records open to inspection under section 149.43 of the Revised Code. In no case shall the board release to any person the name or any other personal identifying information regarding a person who uses RU-486 (mifepristone) for the purpose of inducing an abortion and who is the subject of a report the board receives under division (C)(1) of this section as it existed prior to the effective date of this amendment.

(2) No physician who provides RU-486 (mifepristone) to another for the purpose of inducing an abortion as formerly authorized under division (A) of this section as it existed prior to the effective date of this amendment shall knowingly fail to file a report required under division (C)(1) of this section.

(D) Whoever violates this section is guilty of unlawful distribution of an abortion-inducing drug. Unlawful distribution of an abortion-inducing drug is a felony of the second degree or, if the offender previously has been convicted of or pleaded guilty to a violation of this section, section 2919.12, 2919.13, or 2919.14 of the Revised Code, or former section 2929.121, 2919.151, 2919.17, or 2919.18 of the Revised Code as they existed prior to the date of this amendment, a felony of the first degree.

If the offender is a professionally licensed person, in addition to any other sanction imposed by law for the offense, the offender is subject to sanctioning as provided by law by the regulatory or licensing board or agency that has the administrative authority to suspend or revoke the offender's professional license, including the sanctioning provided in section 4731.22 of the Revised Code for offenders who have a certificate to practice or certificate of registration issued under that chapter.

(E) As used in this section:

(1) "Federal law" means any law, rule, or regulation of the United States or any drug approval letter of the food and drug administration of the United States that governs or regulates the use of RU-486 (mifepristone) for the purpose of inducing abortions.

(2) "Physician" has the same meaning as in section 2305.113 of the Revised Code.

(3) "Professionally licensed person" has the same meaning as in section 2925.01 of the Revised Code.



Sec. 2919.13

(A) No person shall purposely take the life of a child born by attempted abortion who is alive when removed from the uterus of the pregnant woman.

(B) No person who performs an abortion prior to the effective date of this amendment or who, on or after the effective date of this amendment, performs or induces an abortion in violation of section 2919.12 or administers RU-486 (mifepristone) to another for the purpose of inducing an abortion in violation of section 2919.123 of the Revised Code, shall fail to take the measures required by the exercise of medical judgment in light of the attending circumstances to preserve the life of a child who is alive when removed from the uterus of the pregnant woman.

(C) Whoever violates this section is guilty of abortion manslaughter, a felony of the first degree.


Sec. 2919.14

(A) No person shall experiment upon or sell the product of human conception which is aborted. Experiment does not include autopsies pursuant to sections 313.13 and 2108.50 of the Revised Code.

(B) Whoever violates this section is guilty of abortion trafficking, a felony of the first degree.


Sec. 2919.24

(A) No person, including a parent, guardian, or other custodian of a child, shall do any of the following:

(1) Aid, abet, induce, cause, encourage, or contribute to a child or a ward of the juvenile court becoming an unruly child, as defined in section 2151.022 of the Revised Code, or a delinquent child, as defined in section 2152.02 of the Revised Code;

(2) Act in a way tending to cause a child or a ward of the juvenile court to become an unruly child, as defined in section 2151.022 of the Revised Code, or a delinquent child, as defined in section 2152.02 of the Revised Code;

(3) If the person is the parent, guardian, or custodian of a child who has the duties under Chapters 2152. and 2950. of the Revised Code to register, register a new residence address, and periodically verify a residence address, and, if applicable, to send a notice of intent to reside, and if the child is not emancipated fail to ensure that the child complies with those duties under Chapters 2152. and 2950. of the Revised Code.

(B) Whoever violates this section is guilty of contributing to the unruliness or delinquency of a child, a misdemeanor of the first degree. Each day of violation of this section is a separate offense.

(C) For the purposes of this section, a child is "emancipated" if the child has married, entered the armed services of the United States, become employed and self-subsisting, or otherwise become legally independent from the care and control of the child's parent, guardian, or custodian.

Sullivanism rejected again

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Joe Carter parodies an Andrew Sullivan essay on "Christianism" ... and simultaneously defangs the gay rights zealot:

So let me suggest that we take back the word conservative while giving this type of wishy-washy posturing a new adjective: Sullivanism. Sullivanism, in this view, is simply a faith. Sullivanism is an ideology, politics, an ism. The distinction between a conservative and a Sullivanist echoes the distinction we make between consistent and inconsistent. Conservatives are those who consistently follow a conservative political philosophy. Sullivanists are those who call themselves conservatives yet rarely embrace conservative policies, always do so inconsistently, and believe that all issues must be subordinated to the uber-issue of same-sex marriage.

...

That's what I dissent from, and I dissent from it as a conservative Christian. I dissent from the intolerance of sincere, personal faith. I dissent most strongly from the attempt to argue that one British man represents Christianity and that millions of Americans who do not agree with his views are all "Christianists." I dissent from having both my faith and political outlook co-opted and wielded by a man whose politics I do not share and whose intolerance I abhor. The words conservative and Christian are not the sole property of Andrew Sullivan. It's time the quiet majority of believers took the terms back.

Will St. Andrew of The Aggrieved Essay respond?

Gregory Borse noticed Andrew Sullivan's logical inconsistency, too:

Non-moral morality

Andrew Sullivan's second fiskable quote:

My belief in this boundary for political debate is not based on morality as such. It's based on a political judgment. That judgment is that in a society where so many people differ on so many vital, irresolvable issues - especially the meaning of life, the fate of our souls, the morality of sex, the salience of gender, the true beginning and end of life - we should keep the law as neutral as possible, so it does not become oppressive of people's freedom to decide for themselves what is true or untrue, right or wrong. This requires certain virtues - the ability to tolerate immorality in one's neighbors, moderation, restraint, openness to debate.

This statement refutes itself.

Read that again, and this time notice the use of moral terms like "should" and "virtues." Sullivan disclaims any moral basis for his recommendations, but before the paragraph ends he can't help but slip back into moral language. If moral arguments on these issues are truly out-of-bounds, why should anyone take Sullivan's recommendations seriously? By definition, the opposite viewpoint would be equally moral.

So why the use of "should" and "virtues"? Here's why. Sullivan can't honestly remain neutral and also hold any views at all. Neutrality isn't possible.

Andrew's making moral claims of his own, but he won't come right out and say so. He labels his advocacy as amoral "political judgment" to conceal his own moral judgments. Why? I suspect he worries that in an argument acknowledging the existence of moral standards, his own beliefs will be found wanting. In a situation like that, it's much easier to disparage your opponents and sling epithets at them than it is to admit that you're mistaken. Then, after writing your views into law (either by legislation or by lawsuit), you can unleash the raw power of the government against your opponents ... while comforting yourself with rationalizations about your own "neutrality."

Non-neutral "neutrality"

Here's the first quote that needs a good fisking:

My issue with Christianism is not "intolerance." In a free society, I'm quite happy to live among people who are intolerant of me, who decide not to associate with me, and generally disapprove of me, for whatever reason they decide. My point is that such intolerance not be enforced by the civil law; and that the civil law be restricted to reflect non-sectarian moral arguments that can be assessed and debated by Christian and non-Christian, Jew or Muslim, Mormon or atheist alike. If we can achieve a broad moral consensus, good. If we cannot, especially over divisive religious disagreements, then neutrality is the better option. And neutrality exists. A law that allows legal abortion or gay marriage as well as adoption and straight marriage is neutral with respect to its citizens' choices. It is not biased in favor of any one of them. If you have a moral objection, persuade and proselytize, don't legislate.

Sullivan's neutrality is anything but. Sullivan thinks that there are three choices available to civil government in a debate over moral issues: promote the behavior in question, prohibit it, or allow it without comment (the supposedly "neutral" option). But the "neutral" choice is actually a mild variety of promotion. A debate over what's right and what's wrong has only two choices by definition. To allow something is to say "it's not wrong", and that's identical to saying "it's right."

Sullivan's neutrality is misleading on another ground too. He says he wants civil government's neutrality when he actually wants promotion. He wants the availability of abortion or gay marriage to be protected by civil government, not simply allowed. If any coalition of like-minded citizens decides to oppose what Sullivan wants, then he expects civil government to step in and force those people out of his way. That is not neutrality. That is outright promotion.

Where government is concerned, moral neutrality is a myth. Sullivan uses "neutrality" as a weapon to demonize and demoralize conservative Christians for holding views that he doesn't like, while exempting his own views from criticism. Talk about selective application!

--

Update: Melinda at Stand To Reason accurately identifies Sullivan's tactic:

Sullivan is trying to disqualify some arguments from the political realm by labeling them extreme and religious. Look, everyone has a worldview that has consequences for political positions they hold. We don't exclude some citizens by labeling them and disquaifying them. We all get to bring our views, the whole variety of them, to the public square, express our opinions, agree and disagree, argue and dispute, and vote. The non-establishment Constitutional clause was one-way, meant to keep the government out of religion, not Christians out of politics.

I'm going to remember that remark about the one-way clause! Very nice!

Andrew Sullivan is trying to defend his recent accusations against "Christianists" (his term, which sounds an awful lot like "Islamists"), but a recent post on Time Magazine's site illustrates his inability to hide his disdain for conservative Christians behind repeated professions of "neutrality."

The preliminaries

I have two key points to raise before I attack Andrew Sullivan's neutrality, and he'd be wise to answer them if he wants to be taken seriously by anyone other than the radical left and those who oppose all religious expression.

First, let me point out that Sullivan hasn't identified who these "Christianists" are, other than one man* whose nationwide influence Sullivan fails to demonstrate. What is a "Christianist", exactly? Does it depend on the fervency of one's Christian faith? Or is it a belief that faith-based morals should inform one's policy preferences? Sullivan doesn't say ... and the mind is left to imagine a vast seething horde of secretive "Christianists" lurking in the shadows. Please, Andrew, more details.

Second, which current civil laws are enforcements of "Christianist" religious beliefs? Sullivan doesn't say. We can guess, but there's not much point in doing his work for him; let him make a full accusation so we can identify who the accused really are. Veiled insinuations won't cut it. The universal legal prohibition of murder finds its root in religious beliefs. So do the prohibitions of theft, rape, pedophilia and fraud. Would these laws fall under the "Christianist" umbrella and therefore be invalid?

If it's unacceptable to base laws on morals conveyed by any divine law-giver, then I wonder what basis Sullivan uses for his non-sectarian "moral" arguments? Why should I take him seriously if there's no divine sanction to back it up? All I have to do is find enough people to agree with me, and we can enforce our own non-sectarian argument over Andrew's. What recourse would he have then? None ... if he's intellectually honest.

* Correction: Besides David Barton, Sullivan also labels Ramesh Ponnuru, Hugh Hewitt, Robert P. George, Senator Rick Santorum, and Eric Cohen (who's Jewish) as "Christianists." However, my point remains. What, exactly, marks a person as a "Christianist", other than opposition to Andrew Sullivan's agenda?

UPDATE: Mel Gibson's a Christianist too, now.

Kelo comes to Cleveland

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WTAM just mentioned that the Cleveland-Cuyahoga County Port Authority voted in support of the City of Cleveland exercising eminent domain to take several commercial properties and turn them over to a private developer.

Keep in mind that this vote does not trigger the city's eminent domain powers; only City Council can do that, not the Port Authority. But today's vote tosses the issue squarely into City Council's lap, which is clearly a heavy-handed negotiating tactic. The eminent domain threat is designed to pressure the last hold-outs to sell their properties to Scott Wolstein for a multi-million-dollar redevelopment venture. It's a pretty blatant strong-arm job, but hey ... that's Cleveland politics for you.

I found the CCCPA news release, which includes the following:

The Cleveland-Cuyahoga County Port Authority voted unanimously to authorize eminent domain proceedings if further negotiations do not result in the acquisition of several properties identified for redevelopment in the Flats east bank.

Eminent domain is always a last resort, but the agency must be prepared when all good faith efforts to reach an agreement have been exhausted, Chairman John Carney said today at the port's board meeting.

"We are still hopeful we can resolve this situation before it actually goes to the courts. That is still our desire," he said.

...

"The [Uniform Relocation Act] very clearly spells out the rules for acquiring property for redevelopment. We are not given a choice in the matter. Either we follow the letter of the law, or the project could be in jeopardy," Loftus told board members.

Note the phrase "acquiring property for redevelopment." This is exactly the kind of eminent domain taking that sparked the lawsuit in Kelo v. New London. If approved by City Council, this will be another example of a local government seizing private property from one private citizen and giving it to another.

Cleveland-Cuyahoga County Port Authority Chairman John Carney said:

"The project will transform a crime-ridden area plagued with neglected buildings and deserted streets into a thriving lakefront neighborhood. This will result in millions of dollars in revenue for the region and thousands of construction and full-time permanent jobs."

Ah, yes. The famously elastic "blight" loophole is back again. Eminent domain seizures often target "blighted" areas that are declared to be unsafe or hazardous to the public in some major way. The catch is that the definition of "blight" has never been firmly settled. If the government wants your property badly enough, it will find a way to declare it "blighted."

The Cleveland City Council had better beware, though. The Ohio Legislature's moratorium on these types of eminent domain takings will not expire until December 31st. The penalties for violating the moratorium are pretty stiff.

I'll have more to say about this shortly.

5th Amendment textThe Ohio task force on eminent domain has released its preliminary report, and it's missed the most important point of the exercise. I'm not interested in a fairer procedure for the government to use as it takes my home. I'm not interested in a clearer definition of "blight" that spells out exactly when the government can take my home. You see, I don't want the government to take my home at all. Why is that so hard to understand?

A local or state government can exercise its eminent domain powers to take private property from its owner, if the government does so for a "public use" and pays "just compensation" (see the Fifth Amendment, at right). Until very recently, the term "public use" meant what you'd expect: building a school, putting in a highway, laying railroad tracks, and other projects that the public has access to.

We used to think of private building projects as a "private use" of property, since the public doesn't have guaranteed access. But no more. Thanks to the U.S. Supreme Court's ruling in Kelo v. New London last summer, the definition of "public use" has expanded to include the government seizing your land and giving it to another private owner for "economic development" (which means the new owner's project yields higher property taxes than you do, or creates jobs, or some similar rationalization).

Liberals and conservatives alike blew a collective gasket over the ruling, and angry voters have already pressured several state legislatures into passing laws prohibiting these takings through eminent domain.

I just e-mailed the gubernatorial campaigns of Ken Blackwell and Jim Petro and asked the following question:

Would [candiate name here] support Ohio legislation to permanently prohibit the use of eminent domain for economic development purposes (see Kelo v. New London)?

I realize that the Ohio legislature passed a temporary moratorium on this kind of government taking, which expires in December. I asked instead about a permanent ban.

I'll let you know how the candidates reply, if at all. My guess is that at least one (and maybe both) will duck the issue and defer to the "Legislative Task Force to Study Eminent Domain and Its Use and Application in the State", which will release its first report on April 1st.

Harriet Miers roundup

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The arguments over Supreme Court nominee Harriet Miers show no sign of cooling off. Fortunately for those of us clamoring for more information, some of her writings are now available online thanks to That School Up North (Hat tip: The Volokh Conspiracy). I've not read them yet, but maybe there'll be something there that can reassure me that Miers really is a strong constitutional originalist.

The entire SCOTUS nomination process sure has become a mess, hasn't it? Mark Levin lays a big chunk of the blame for this latest trainwreck at the feet of the Gang of Fourteen, and I have to agree. Paul at Power Line isn't too keen on this bunch either.

While I keep thinking about this, here's a roundup of opinions from conservatives on both sides of the fight:




 
Con
 
Charles Krauthammer: "It will be argued that this criticism is elitist. But this is not about the Ivy League. The issue is not the venue of Miers's constitutional scholarship, experience and engagement. The issue is their nonexistence."
Daniel Henninger:

"Across these many years conservatives have been creating a structured legal edifice to stand against a liberal trend toward aggrandized federal power that began in the 1930s. Chief Justice William Rehnquist's "New Federalism," which devolves many powers back to the states, was one such example. Harriet Miers may share these reformist views, but her contribution to them is zero. Conservatives are upset because they see this choice as frittering away an opportunity of long-term consequence. ... A Miers confirmation validates nothing, gives voice to nothing."



David Limbaugh deflates charges of elitism:

"One wonders whether those crying "elitism" would choose the best available lawyer to represent them if their neck were on the line -- in a criminal or civil matter. If they deserve the best in their individual struggles, don't all Americans in their collective struggle to remain free?

"Picking a justice isn't about rewarding individuals or satisfying gender, race or diversity concerns. It's about protecting our sacred liberties. Since the best way to do that is to find the brightest constitutional scholars with the requisite character and sound judgment, then that is precisely what the president should do. That's not elitism; it's essential constitutional stewardship."



Peggy Noonan, who wraps up with these observations:

"I've noticed that we live in an age in which judges and legal minds seem to hide their own judicial philosophy from themselves. And that might explain why a Harriet Miers has reached the age of 60 and no one seems to know what she thinks. ... Supreme Court justices are more powerful than ever while who and what they are is more mysterious than ever. We have a two part problem. The first is that no one knows what they think until they're there. The other is that they're there forever."



Bill Kristol, who called for Miers to withdraw on this morning's Today Show.


Professor Bainbridge and his baseball analogy


Instapundit isn't impressed:

"Bush raised the bar with Roberts, and then, having set the stage brilliantly for a McConnell, gave us a non-McConnell. Miers might turn out to be a great Justice, of course, but at the moment there's absolutely no reason to expect that. Hope, maybe, but not expect. This isn't the blogosphere's fault, but the Administration's."



Confirm Them, where you shouldn't miss this post, with this key graph:

"All we know is that we must trust the President who tells us that on a checklist of issues, Miers will check the right box. What about the issues that aren�t on the checklist? What about the issues that do not exist now, but will in ten years? By what standard are we now to form an opinion by which we can predicate our current support of her? To which judicial philosphy is Harriet Miers anchored so that she will avoid drifiting like Anthony Kennedy? For now, the President seems to tell us we�ll know it when we see it, but trust him."



Ann Coulter (who even opposed John Roberts' nomination, so this was a guaranteed punching bag for her)

Pro

Beldar: just start at the top and keep scrolling, but don't miss this response to Krauthammer:

"This is not an argument in favor of mediocrity. This is an argument in favor of adding some different kinds of smarts to the Court. Until fairly recently, it was the rule rather than the exception to draw some new Justices from the ranks of practicing lawyers who've been successful and who've demonstrated character, devotion to profession and community, and sound judgment as measured in a wide variety of contexts. I respectfully submit that if you think your menu has only three choices � circuit judges in column A, law professors in column B, and law professors turned circuit judges in column C � then you are indeed being either elitist, unimaginative, or both." (emphasis in original)



Hugh Hewitt, the chief cheerleader for the Miers nomination. Just keep scrolling; he's been prolific this week. I don't buy his worries over an impending electoral implosion for the Republicans if Miers' critics keep complaining:

"There are many persuasive reasons beyond "Party" to support Harriet Miers, but "Party" ought to have at least tempered some of the most strident critics of the nominee. Nothing lasting will be accomplished with SCOTUS unless the GOP remains in power beyond 2008 and 2012. If the current seven veterans linger, and the GOP is crippled because of intra-party quarrels, how will President Hillary's and Vice President Obama's justices rule? There is a great deal to be said for "Party," including the willingness to accept that the good must not be the enemy of the perfect, and that at least 25% of the time you are going to be disappointed with the Party's decision."

...

"The debate ought rather to be an occasion for asking "What does the president know that I do not know?" and even, "Has the president earned my trust in this area?" ... The series of posts she has held -- Texas Bar president, Dallas City Council, and especially managing partner of a large law firm -- all speak to her abilities which disappointment seems to forbid critics from recognizing. There are many hundreds of thousands of GOP faithful who have held similar posts. How wonderful to telegraph to them that their efforts are fine, for a certain class of people."



President Aristotle offers nine reasons to support the nomination.


Marvin Olasky offers a variation of "c'mon, she's an evangelical Christian, she's conservative" ... to which I say "Jimmy Carter's an evangelical Christian."

I'm still willing (barely) to give Bush the benefit of the doubt on this nomination, but my support keeps eroding. After my inital reaction ("Harriet who? What happened to Luttig and McConnell and Alito and ... ?"), I moved toward a position reflected in Fred Barnes' ambivalent column on Monday:

If all goes well, Harriet Miers will turn out to be a less impressive version of John Roberts: that is, a judicial conservative, or constitutionalist, who will cause the ideological balance on the Supreme Court to shift to the right. ... All she needs to do is come off as a credible mainstream conservative, avoid the questions that Democrats will try to trick her on, and persuade senators she's not merely a Bush crony. That accomplished, she should be confirmed.

She'd better be able to do this. If she can't -- if she's not really a conservative -- the political effect will be to shatter President Bush's still-strong relationship with his base. The love affair will be over. The president will have dashed the hopes cherished by conservatives for a conservative Supreme Court. And he will be far weaker as a national political leader as a result.

...

Conservatives shouldn't throw up their hands in despair, at least yet. They should wait until they hear from Miers as a witness before the Senate Judiciary Committee. It's then that we'll begin to find out if Bush was correct in his view that she's the person to fulfill the dreams of so many conservatives and finally shove the Supreme Court to the right.

President Bush had better offer more than "I know her, she's smart, she's conservative ... trust me." And he'd better offer it soon, because movement conservatives like me are getting ready to jump ship over Miers.

I'm still deciding whether to support Harriet Miers, President Bush's nominee to fill Sandra Day O'Connor's seat on the U.S. Supreme Court. However, I just spotted a column by Charles Krauthammer in the Washington Post that aims blistering criticism at the nominee and at the president, and demands a withdrawal of the nomination.

Watch Krauthammer fire both barrels:

For half a century, liberals have corrupted the courts by turning them into an instrument of radical social change on questions -- school prayer, abortion, busing, the death penalty -- that properly belong to the elected branches of government. Conservatives have opposed this arrogation of the legislative role and called for restoration of the purely interpretive role of the court. To nominate someone whose adult life reveals no record of even participation in debates about constitutional interpretation is an insult to the institution and to that vision of the institution.

There are 1,084,504 lawyers in the United States. What distinguishes Harriet Miers from any of them, other than her connection with the president? To have selected her, when conservative jurisprudence has J. Harvie Wilkinson, Michael Luttig, Michael McConnell and at least a dozen others on a bench deeper than that of the New York Yankees, is scandalous.

It will be argued that this criticism is elitist. But this is not about the Ivy League. The issue is not the venue of Miers's constitutional scholarship, experience and engagement. The issue is their nonexistence.

...

But what does she bring to the bench?

This, say her advocates: We are now at war, and therefore the great issue of our time is the powers of the president, under Article II, to wage war. For four years Miers has been immersed in war-and-peace decisions and therefore will have a deep familiarity with the tough constitutional issues regarding detention, prisoner treatment and war powers.

Perhaps. We have no idea what her role in these decisions was. But to the extent that there was any role, it becomes a liability. For years -- crucial years in the war on terrorism -- she will have to recuse herself from judging the constitutionality of these decisions because she will have been a party to having made them in the first place. The Supreme Court will be left with an absent chair on precisely the laws-of-war issues to which she is supposed to bring so much.

By choosing a nominee suggested by Senate Democratic leader Harry Reid and well known only to himself, the president has ducked a fight on the most important domestic question dividing liberals from conservatives: the principles by which one should read and interpret the Constitution. For a presidency marked by a courageous willingness to think and do big things, this nomination is a sorry retreat into smallness.

Wow. I'll bet that this column makes Laura Ingraham's show today. And Rush's.

Need the latest odds on who President Bush will nominate to fill Sandra Day O'Connor's seat on the U.S. Supreme Court? New World Man is liveblogging the oddsmaking that's constantly taking place over at Tradesports.

Also, check the latest rumors at ConfirmThem.

This morning two friends and I were discussing the conflict between individual privacy and government searches, and we observed that individual privacy seems to be shrinking too fast for our liking. So a few hours later when I read a post on anticipatory search warrants at The Volokh Conspiracy (via Instapundit), I got very interested.

The debate centers on a federal case called United States v. Grubbs, which the Ninth Circus Circuit Court of Appeals decided in July of 2004. The Grubbs decision held that anticipatory search warrants are constitutional. What's the difference between a regular old search warrant and an anticipatory warrant, you ask? Take a look at the plain vanilla version first.

Let's say the FBI wants to search your house for documents showing that you gave megabucks to the 2005 Islamic Jihad Recruiting Drive and Cookie Bake-Off. To raid your home legally under the Fourth Amendment to the U.S. Constitution, the FBI would first have to convince a neutral magistrate to issue a search warrant. That means they'd have to show probable cause (which roughly means "enough evidence to convince a reasonable person") that those documents are in your house. They'd sign an affidavit to that effect, after which the magistrate might issue a warrant allowing them to enter your home to grab the documents.

So the order is:

  1. Probable cause shown
  2. Magistrate makes judgment call
  3. Warrant issued
  4. Cops conduct search

Well, last year in the Ninth Circuit, Judge Stephen Reinhardt (a Carter appointee and liberal judicial activist) upheld "anticipatory warrants", which rearrange the steps like so:

  1. Warrant issued
  2. Probable cause shown
  3. Cops make judgment call
  4. Cops conduct search

Sounds unconstitutional, right? Not to worry, says Judge Reinhardt. You see, although anticipatory warrants are issued without probable cause because the cops haven't presented all the required evidence yet, the boys in blue anticipate that the last bits of evidence will fall into place at some point.

So our trusty magistrate writes out the warrant with a special triggering clause, so that it only takes effect after the cops find those last bits of evidence. At that point, the theory goes, the cops have cleared the probable cause hurdle and can conduct their search. In other words, the cops wait for the "triggering event" written into the warrant, and when they are satisfied that everything's kosher they raid your house ... while our friend the progressive magistrate is already out on the golf course.

Orin Kerr isn't comforted:

Maybe I am missing something, but I find this line of cases quite troublesome. The whole point of a warrant requirement is to have a neutral magistrate decide when probable cause exists. The decision to authorize the search is up to the judge, not the police officer. The addition of a condition precedent [Ed: in other words, the "triggering event"] delegates that decisionmaking authority to the law enforcement officer, at least in part. Because the officer decides when the triggering event has occurred, the probable cause determination is no longer made entirely by the neutral magistrate.

...

I think Justices Scalia and Thomas are going to have serious problems with anticipatory warrants. The Fourth Amendment states that "no Warrants shall issue, but upon probable cause." Anticipatory warrants are warrants that issue without probable cause; the probable cause comes after the warrant has been issued. ... Scalia and Thomas will probably say that this is a no-no. And when Scalia and Thomas have pro-defendant inclinations in criminal cases, there are usually a few more votes from liberal Justices ready to join them.

Joining the I-ain't-buying-it chorus is Kevin Drum, a liberal blogger who a bit more than a year ago accurately summarized the biggest problem with anticipatory warrants:

... the problem with this is that a "future event" isn't necessarily a simple, clear-cut incident. It might be something that's unmistakably black-and-white, but it also might be something based on the suspect's behavior that's a bit of a judgment call.

And that's disturbing. The whole point of a warrant is that it prevents police from making their own judgment calls and requires them to make their case to a neutral judge if they want to execute a search. I wonder how long this has been going on and how common it is?

Too long and too often, I'll bet. Most Fourth Amendment judgment calls ought to be reserved for, um, judges. I'll be watching this case closely to see whether the Supreme Court swallows Reinhardt's goofy and unconstitutional reasoning. God willing, they'll follow their past habits and send him packing.

So are you interested in who President Bush nominates to replace Justice O'Connor yet?

More blogging:

New World Man
Crime & Federalism

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UPDATE: This post has merged into today's Beltway Traffic Jam.

Pack your bags, Justice Souter

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This is priceless:

Press Release

For Release Monday, June 27 to New Hampshire media
For Release Tuesday, June 28 to all other media

Weare, New Hampshire (PRWEB) Could a hotel be built on the land owned by Supreme Court Justice David H. Souter? A new ruling by the Supreme Court which was supported by Justice Souter himself itself might allow it. A private developer is seeking to use this very law to build a hotel on Souter's land.

Justice Souter's vote in the "Kelo vs. City of New London" decision allows city governments to take land from one private owner and give it to another if the government will generate greater tax revenue or other economic benefits when the land is developed by the new owner.

On Monday June 27, Logan Darrow Clements, faxed a request to Chip Meany the code enforcement officer of the Towne of Weare, New Hampshire seeking to start the application process to build a hotel on 34 Cilley Hill Road. This is the present location of Mr. Souter's home.

Clements, CEO of Freestar Media, LLC, points out that the City of Weare will certainly gain greater tax revenue and economic benefits with a hotel on 34 Cilley Hill Road than allowing Mr. Souter to own the land.

God willing, the town selectmen of Weare will approve the request.

Hat tip: Rush Limbaugh

More reaction to Kelo

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Don't miss Michelle Malkin's survey of the Kelo blogstorm.

Glenn Reynolds rounds up some great commentary on property rights, all posted since yesterday's decision in the Kelo case. I found Zach Wendling's idea scary but fascinating: he suggests using environmental laws and regulations to protect your land from developers.

George Will distills the gigantic problem the Supreme Court dumped on us yesterday:

During oral arguments in February, Justice Antonin Scalia distilled the essence of New London's brazen claim: "You can take from A and give to B if B pays more taxes?'' On Thursday the court said that the modifier "public'' in the phrase "public use'' does not modify government power at all.

...

Liberalism triumphed Thursday. Government became radically unlimited in seizing the very kinds of private property that should guarantee individuals a sphere of autonomy against government.

Conservatives should be reminded to be careful what they wish for. Their often-reflexive rhetoric praises "judicial restraint'' and deference to -- it sometimes seems -- almost unleashable powers of the elected branches of governments. However, in the debate about the proper role of the judiciary in American democracy, conservatives who dogmatically preach a populist creed of deference to majoritarianism will thereby abandon, or at least radically restrict, the judiciary's indispensable role in limiting government.

If you're still looking for more, one nice way to track who's saying what about Kelo is N.Z. Bear's topic page on the case. Plus, there's Google News and Technorati.

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UPDATE: This post about Zimbabwe isn't actually a reaction to the Kelo ruling, but it does demonstrate what happens when a nation guts the concept of private property rights.

UPDATE 2: Ever wondered what you can look forward to after this outrageous ruling? Wonder no more.

UPDATE 3: Pros and Cons predicts many communities will see a rise in homelessness, a spike in government subsidized housing residents, and a drop in the number of low-income workers available to employers.

Meanwhile, Wizbang's Jay Tea tiptoes through the Bill of Rights in a property rights retrospective.

UPDATE 4: Lawrence White at Division of Labour predicts more empty big box shopping centers and strip malls, thanks to Kelo's anti-competitive side effects.

I think we might be able to contract around the problem.

UPDATE 5: Eric's Grumbles Before The Grave has a good roundup, including a Canadian's perspective.

You know it's a bad decision ...

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... when the denizens of The Democratic Underground agree with their arch enemies at FreeRepublic: the U.S. Supreme Court's ruling in the Kelo v. New London case stinks like week-old fish.

Watch those parking lots disappear

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Since your local government is now allowed to take Citizen A's property and sell it to Citizen B because the government believes Citizen B will generate more tax revenue, I predict it'll be less than six months before the City of Cleveland snatches up the privately-owned parking lots in the Warehouse District.

Cleveland's downtown area is badly run down, and the city government has been unsuccessfully trying to spur growth there for decades. The owners of those downtown parking lots have long refused to sell them to developers (who want to build apartments and condominiums), because the parking lots are much more profitable than other uses would be. But now that the U.S. Supreme Court has removed all restraints from the government's use of its eminent domain power, Cleveland will grab those parking lots for a song, then turn around and sell them to somebody willing to build some glitzy high-rises that'll generate higher property taxes than the city currently collects.

You heard it here first.

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