A federal appeals court overturned hard-fought campaign finance reform regulations in a ruling on Friday that will make it easier for independent political groups to raise and spend money to influence elections.

The three-judge panel struck down regulations intended to blunt the power of such organizations, including the controversial Swift Boat Veterans for Truth and MoveOn.org, which drew heavy criticism for spending tens of millions of dollars on aggressive advertisements during the 2004 presidential campaign.

The ruling, if it stands, could provide a boost to Republicans and their allies as they try to win back Congress in 2010 and the White House in 2012. Outside conservative groups could become particularly important in countering the fundraising juggernaut of President Obama, who shattered past records by raising more than $750 million during his 2008 campaign.

Well, it's nice to know that the appeals court is working to free conservatives to bag more scalps. But of course the party bringing the suit was brought by an organization that isn't exactly conservative, as we learn several paragraphs down the page.

The decision by the U.S. Court of Appeals for the D.C. Circuit came in a lawsuit brought by Emily's List, a nonprofit political organization that backs female Democratic candidates who support abortion rights.

There's a little goose and gander for you in this story. I gather that two of the judges rested their decision both on the federal law that the FEC (Federal Election Commission) was interpreting, and on the Constitution. One of the judges would have restricted the decision to an interpretation of the statutes. That is a big difference for the obvious reason that the Constitution trumps all other regulation.

We have a statutory regime that heavily regulates the raising and spending of hard money (by campaign organizations) and soft money (by parties and independent political organizations). The purpose of such regulations is to limit the influence of money (unions, corporations, etc.) in American elections. But such regulation clearly works by limiting political speech.

If someone says "Obama is a Nazi" in a public forum, that is protected speech under the First Amendment. If he buys a can of paint, a brush, and a poster board and writes the same slogan, both the purchases and the calligraphy are protected speech. But what if a bunch of his buddies get together, pool their cash, and buy airtime on the local radio station to advertise the same message? Now they are potentially subject to FEC regulation. The FEC can limit their ability to raise money and run ads in order to influence an election.

Here is what United States District Court for the District of Columbia said:

The First Amendment, as interpreted by the Supreme Court, protects the right of individual citizens to spend unlimited amounts to express their views about policy issues and candidates for public office. Similarly, the First Amendment, as the Court has construed it, safeguards the right of citizens to band together and pool their resources as an unincorporated group or non-profit organization in order to express their views about policy issues and candidates for public office. We agree with EMILY's List that the new FEC regulations contravene those principles and violate the First Amendment.

Well…yes. All incorporated or unincorporated groups are groups: individuals who poll their resources but retain their rights under the Constitution. If the First Amendment means anything, it means that they are free to express their views in any public forum.

The USDCDC got it right. I just hope the Supreme Court confirms it.

The nomination of Judge Sonia Sotomayor to sit on the Supreme Court has generated a vigorous sidebar discussion among conservatives about the proper way of reading the Constitution. Ramesh Ponnuru, a senior editor at the conservative flagship publication, the National Review, has this:

Many conservatives oppose Judge Sotomayor's nomination because she does not appear to support originalism, the notion that legal texts, including the Constitution, should be interpreted according to the meaning that the informed public assumed them to have when they became law. We argue as well that judges should try to overcome the biases of their backgrounds in the name of self-restraint. But when it comes to the race cases before the Supreme Court, too many conservatives abandon both originalism and judicial restraint.

This strikes me as correct. The Constitution is a contract. It has held intact for more than two hundred years. If it doesn't mean what it meant originally, or as amended according to proper Constitutional form, then it doesn't mean anything.

But how do we determine its original meaning? One way is to look at the documentary record. Antonin Scalia presents a magnificent example of this in the D.C. v. Heller case, and found a constitutional right to possess firearms. I think Scalia's argument was air tight, but that was because in this case the documentary evidence was unambiguous. But what does one do when the documentary evidence is ambiguous, which is usually the case?

A second way to determine the meaning of the Constitution is to look to Constitutional forms. The only unambiguous statement of the Founding Father's original intent is the Constitution itself, and by this I mean not the parchment document, but the regime. Voters, states, the Executive, Legislative, and Judicial Branches, constitute the real Constitution. Whatever that regime does, so long as the basic forms are intact, is constitutional. That, I believe, is what the Constitution is and has always been.

I'd love to tell you that Roe v. Wade was "unconstitutional." It was certainly a very bad decision. It was ungrounded in the text of the Constitution. It created a very controversial right that depends on the whim of five judges to maintain, and thus has politicized the nomination process to an unprecedented degree. It is also, I would add, a moral abomination rivaling that of Dred Scott. But it wasn't unconstitutional. The Court put its own political preferences into basic law by doing nothing more than using the powers that the Constitution gave the Court.

Both liberals and conservatives want to declare that transcendental principles decide each case in their respective favor. For better or worse, the only transcendental principles in the American regime that have any force are those that fix the powers of each office. Of course, the arrangement of powers was designed to serve more important ends: the protection of unalienable rights. But what is constitutionally legitimate, as opposed to what is just simply, is what the constitutional regime does. Maybe we will have to make do with that, as we have hitherto done.

The provision pushed by our own Senator John Thune to expand gun rights was defeated in the Senate. The provision was inserted into a military authorization. It would have required each state to recognize valid gun permits issued to citizens by other states. From the New York Times:

Every state except Illinois and Wisconsin allows concealed weapons, but the statutes concerning who is eligible to carry one vary widely by state. The amendment defeated Wednesday would have allowed gun owners with permits from states with looser restrictions to transport their guns to states with tougher restrictions; it would not have allowed the use of concealed weapons in Illinois and Wisconsin.

The provision gathered 58 votes, two short of the 60 needed for passage. Two Republicans (Richard Lugar and George V. Voinovich) joined 35 Democrats and 2 Independents to block it. It was the first significant defeat for gun rights advocates after a string of victories.

The measure raises interesting questions concerning American Federalism. Each state can make its own laws, but the Full Faith and Credit clause (Art. 4, Sec. 1 of the Constitution) states this, from ePublius:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

This is one of the unifying clauses in the Constitution, intended to keep a state from discriminating against the legal rights of persons from other states. There is an argument, separate from issues of gun control, for the gun rights measure. When I drive across state lines, my driver's license will be recognized as valid by the state cop on the other side.

But a too broad interpretation of the Full Faith and Credit clause would clearly undermine the right of states to manage their own internal affairs. This reminds me of the slavery issue in pre-Civil War America. If Free States had been forced to recognize the property rights of slave holders who crossed their borders with their chattel, they would cease to be free states. The possibility of such an interpretation, a super-Dred Scott decision, was, I believe, a significant if silent cause of the national crisis in 1860.

Despite my admiration for Senator Thune, I think he was wrong on this one. The Supreme Court has recognized a constitutional right to possess firearms for self-defense, but it seems to me that states should be allowed to make their own rules for carrying arms about. It has been observed that Republicans are usually defenders of state's rights, but in this case they seem to back federal intrusion into state prerogatives. Again this reminds me of the slavery issue in antebellum America. Southerners were all for state's rights except when it came to the fugitive slave clause. On that issue, they wanted Federal Courts to overrule Free State protections for escaped slaves.

I think each state should be free, within reason, to determine who can carry a concealed weapon about. But I note that this has implications for the Gay Marriage issue. Should a state that does not recognize same sex marriages be required to recognize such a marriage contracted in another state? Maybe state's rights conservatives are contradicting themselves when the back the gun rights measure. But those who voted against the bill will face the same charge if they insist that same sex marriages in one state have to be recognized as valid in other states.

The U.S. Supreme Court ruled in favor of Ricci (pronounced Ree Chee, or sometimes Rich ee) and against the City of New Haven, Connecticut. The case has important implications for affirmative action, and less important though interesting implications for the confirmation hearings of Sonia Sotomayor.

The Case.

The city of New Haven instituted an exam for firefighters seeking promotion to lieutenants and captains. The exam was specifically designed to be race neutral and involved a lengthy process of fitting the test to the relevant manuals and the experiences of firefighters. The exam included an oral portion. The assessors were drawn from firefighters outside Connecticut, holding higher ranks than the positions open. Sixty percent of the assessors were minorities.

Frank Ricci suffers from dyslexia. He spent $1,000 on books, studied 13 hours a day, and hired a tutor to read him the material. He placed sixth on the lieutenant's exam, qualifying him for immediate promotion. Here is the Court's description of the results.

Candidates took the examinations in November and December 2003. Seventy-seven candidates completed the lieutenant examination—43 whites, 19 blacks, and 15 Hispanics. Of those, 34 candidates passed—25 whites, 6 blacks, and 3 Hispanics. Eight lieutenant positions were vacant at the time of the examination. [The] top 10 candidates were eligible for an immediate promotion to lieutenant. All 10 were white. Subsequent vacancies would have allowed at least 3 black candidates to be considered for promotion to lieutenant.

Forty-one candidates completed the captain examination—25 whites, 8 blacks, and 8 Hispanics. Of those, 22 candidates passed—16 whites, 3 blacks, and 3 Hispanics. Seven captain positions were vacant at the time of the examination. Under the rule of three, 9 candidates were eligible for an immediate promotion to captain—7 whites and 2 Hispanics.

So, although several black candidates qualified for eventual promotion, none qualified for immediate promotion to open positions.

The City of New Haven threw out the test results on the grounds that no immediate promotion for any Black applicants would open them to lawsuits under Title VII of the Civil Rights Act. Ricci and 19 others sued.

The Supreme Court ruled 5 to 4

that race-based action like the City's in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. The respondents, we further determine, cannot meet that threshold standard.

The Court reached that decision on fairly narrow grounds, and did not ask whether the City's actions violated The Equal Protection Clause of the 14^th Amendment.

Comment

Ricci was denied a promotion he had worked very hard to obtain and which he was entitled to under the rules the city had set up. He was denied his promotion solely on the grounds that the results of the exam had a disparate impact on Blacks, i.e., that the racial mix of those who qualified for immediate promotion was not to the City's liking.

This looks to me like a de facto quota system. A quota system, as defined in previous cases such as Bakke, is one which sets aside a number of seats or positions for which only persons of a certain racial identity are allowed to compete. Here we have to assume a de facto requirement that at least one immediate-hire position was reserved for a Black applicant (or one each for lieutenant and captain). That would mean that at least two such positions were not open to persons who were White or Hispanic, or anything other than Black. The fact that the failure to fill the quota resulted in throwing out the whole test, rather than in the preferential promotion of a targeted minority, clouds the issue but doesn't make it any cleaner. Unfortunately, the Court did not address this question.

All the results mean is that the City cannot discriminate against White and Hispanic applicants solely on the basis of their racial identification merely because it imagines it might be sued under Title VII. It has to prove that the results were a violation of Title VII. But the Court also indicated that it thinks that the city cannot make such a case. That's not chopped liver. It provides significant protection for city governments trying to find legitimately race neutral modes of promotion. But it leaves four votes in favor of discriminating against Mr. Ricci just because he's the wrong color.

The case has only small consequences for Judge Sotomayor. Four votes side with her on the substantive issue, which supports the claim that she was in the mainstream on this one. On the procedural issue (she heard this case on the lower court, and voted to dismiss it without examination) the result was more embarrassing. None of the Justices agreed that the case did not deserve to be heard. None of this is likely to affect her confirmation.

Frank Ricci and Sonia Sotomayor both rose from humble positions through very hard work. But under the racialist law of affirmative action, they are not equally disadvantaged.

I believe that all human beings are created equal: male and female, rich and poor, Black and White, born and not yet born.  While I think that the wrongness of abortion is a matter of simple logic, I recognize that logic can be obscured by political passions and I acknowledge the possibility (at least in the abstract!) that this might sometime happen to me.  For this reason, I can respect people who disagree with me on this matter and hope for the same courtesy from those who think I am obviously wrong. 

There are limits to respect.  Some people consider waterboarding to be a grave crime against humanity, and I can understand if such a person refused to sit with an interrogator who was known to have done such a thing.  I would not sit down with someone who admitted to practicing late term abortions.

I write these things now only for the sake of showing that my opinions about domestic terrorism are not colored by any pro-choice sympathies.  The United States is a Republic, for Heaven's sake!  As citizens we have enormousand perhaps unprecedented liberties, to think for ourselves, to express our thoughts in speech and writing and in lawful political action.  But liberty is not mere freedom, it is freedom with responsibility.  However much it may hurt, citizens in a Republic are responsible for abiding by the law and accepting the decisions of electorates, legislatures, and courts until such time as minds can be changed. 

There is no possible excuse for terrorism, none, and that is what the murder of an abortion provider amounts to.  Someone might think that the late George Tiller, one of the few medical professionals who "provided women with abortions even late into their pregnancies", in fact murdered children for a living.  I would like to say I disagree, but I cannot.  In this case, it doesn't matter.  Murderous violence against one's fellow citizens points toward a darkness much greater than any it might remedy.  If unchecked, it invites violence and fear without end, and ultimately tyranny. 

Socrates argued, in the Crito, that it is never right to do evil in return for evil, and that those who believe it is can never have common ground with those who do not.  This is hard reasoning, but as usual with Socrates, it is right reasoning.  I think that slavery was a great evil.  I also think that John Brown deserved to be hanged, if anyone ever did.  I think abortion is wrong to the same degree and for the same reasons as slavery.  I also think that George Tiller's murderer should be prosecuted to the full extent of the law.  If this was a political murder, as seems obvious, then the perpetrator is an enemy of liberty and decent government.  If anyone deserves a good hanging, he does.  

Friend of and valuable contributor to this blog, A.I., posted a comment on the Prop. 8 case before the California Supreme Court. It seemed to me that with all the attention I reproduce it in whole here:

Ken. It appears one of us will eventually have gloating rights over our arguments regarding laws against same sex marriage being discriminatory. I refer to the Ted Olsen/Davide Boies (unlikely duo extraordinaire) case being brought in federal court in California to strike down Prop. 8.

In part, they will argue what has been more-or-less my point all along, that: "Prop. 8 violates the Equal Protection Clause of the Fourteenth Amendment because it singles out gays and lesbians for a disfavored legal status, thereby creating a category of second-class citizens." Of course, that is only part of the case.

So will you or will you not gloat if your opinion prevails in this case. I should be a big enough person to say I will not gloat should my side prevail--I should be, but...

A.I.: I am not sure I earn any gloating rights here, and I am in no mood to gloat. The CA Court by a 6 to 1 vote did indeed uphold Proposition 8, which restricted marriage in California to a union of a man and a woman. As I understand the decision, it turned entirely on a procedural question concerning what kind of amendment is valid under the state constitution. . The Court ruled that Prop. 8 "was a limited constitutional amendment, not a wholesale revision that would have required a two-thirds vote of the Legislature to be placed before voters." That hardly validates my position, nor does it contradict yours.

I continue to say that your argument is wrong for the simple reason that it is logically incoherent. The other sex marriage restriction applies in exactly the same way to all citizens of California. For that reason it cannot be said to "single out gays and lesbians." Singling out is logically exclusive of equal applicability.

Consider an example: Marriage is sometimes used for other purposes than a loving union. Sometimes immigrants marry only in order to gain legal residence in the United States. What if two women wished to marry not because they were a homosexual couples, but only so one partner could extend her public insurance benefits to the other? They would be barred from marriage under the law even though they are neither gay nor lesbian. Therefore: no singling out.

This is a matter of simple logic. If no A is B, then all A are not B. If A stands for any person, and B stands for persons legally allowed to marry someone of the same sex, then under Prop. 8., all A are not B. There is no way that "all A" singles out "some A".

The people of California, including 70% of Blacks and 53% of Hispanics, admire traditional, i.e., opposite sex marriage and want to keep it at that. You admire same sex marriage just as much, and wants it to be legal, but I do not see you arguing for other possible forms of marriage, such as polygynous or polyandrous marriage. Those who believe in such forms, for religious or other reasons, probably see you as singling them out for disfavored status. What you want is for the Courts to bless your sentiments and not those of California's Black and Hispanic (excuse me, Latino) populations. There are no constitutional grounds on which to do so.

But if the passing and sustaining of Proposition 8 was good in terms of constitutional law, it was not good, I think, for the institution of marriage. The Court made it rather clear that all the tangible benefits of marriage have to be available to same sex couples (in effect singling out radical Mormons and polygynous Islamists). That means the creation of an institution parallel to marriage with all of the same legal consequences. I think that dilutes marriage and renders it less meaningful. That is one of the reasons I am in favor of same sex marriage. I think it would support rather than diminish the importance of this very important institution.

So as I said, A.I., I am not in any mood to gloat.

There are basically three things a President looks for in a Supreme Court Nominee. First, he wants someone who shares his approach to constitutional questions. What is Obama's approach? This, he said, was his second criteria for making his selection:

a recognition of the limits of the judicial role, an understanding that a judge's job is to interpret, not make law, to approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand.

Now the trouble with that is that either Obama is closet conservative or he is lying. I am guessing the latter, as his previously stated desire for a judge with "empathy" is at odds with the idea of "impartial justice." You simply can't be empathetic and impartial at the same time. Besides, if Obama really did believe in the above things, he wouldn't have nominated Sotomayor. For we know what she thinks the role of a justice is, from YouTube:

Um, all of the legal defense funds out there, um, they're looking for people out there with court of appeals experience, because court of appeals is where policy is made. And I know, I know this is on tape and I should never say that because we don't make law, I know. Um, um — [laughter] — I know. I'm not promoting it, I'm not advocating it, and, I'm … you know. [laughter]

Hat tip to Hot Air. Sotomayor is both admitting, in a nod, nod, wink, wink, so or way what everyone knows: that Judges do make policy and law, and that the left thinks that's precisely what they ought to do. President Obama now understands that he has to say exactly the opposite of what he thinks and intends, and that the major press won''t cause him any troubles about it. The Sotomayor nomination tells us more about Obama than about the nominee: that his judicial views are on the radical end of the spectrum.

The second thing a President wants is a nominee who will win political points. Think Bush 41 and Clarence Thomas. Sotomayor may help the President with Hispanics (as if he needs help), but more importantly it shores up with support on the left. Sotomayor's identity politics, as in:

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life.

This will be music to the ears of folks who are appalled at Obama's Bush 3 antiterrorism policies. To reach the best conclusions, you have to be the right kind of person: female, Latina, born in the Bronx, etc. One can only wonder what would have been the fate of a nominee who was on record as saying that White men who belong to the Little Rock Country Club are more trustworthy.

The last thing a President might look for is a Judge who is effective on the Court. This consists first of all in a sharp legal mind, and second, and perhaps more importantly, in the ability to persuade her fellow judges.

The trouble is that it's hard to find one candidate who is really in the top 1% in all three categories. President Obama clearly made the job harder by limiting his search to female judges. That summarily excludes half (or more than half, given the history of gender distribution) of otherwise qualified nominees. Putting a lot of number two emphasis on a compelling story makes the job even harder. What are the odds that the person with the best qualifications and intellect, combined with the greatest powers of consensus building, will also be the person with the most compelling personal story? Only in the movies.

By all accounts, Sotomayor is qualified for the job. No evidence has surfaced so far that she is at or even near the top in legal thinking and writing, or in the ability to persuade her brethren on the Court. She is almost assured of confirmation. Republicans can't mount a filibuster, and they shouldn't. That device, when it is available, should be reserved for the direst emergencies. Otherwise, the judicial nomination process breaks down. Republicans who object to her judicial thinking should vote no. That's enough.

George W. Bush was vulnerable in 2004 because national building in Iraq was turning out to be a lot more trouble than he had expected. He was reelected not because John Kerry was a bad campaigner, or because Bush was an unscrupulous one. Bush won reelection because John Kerry could never formulate a coherent alternative to Bush's policy on Iraq, or anything else that mattered. I have been looking, since then, for any signs that the Democratic Party is capable of generating an alternative foreign policy.

So far, there is nothing. Take Iraq. Please. President Obama is reducing U.S. troop strength there, as the situation seems mostly stable and the Iraqis seem to want it. What would Dubya have done, if he had had a third term? Pretty much the same. President Obama is shifting troops to Afghanistan. Good idea, maybe. What would Bush have done? Well, I am guessing he would have done the same. Bush replaced Secretary of Defense Donald Rumsfeld with Robert Gates. Good idea. President Obama's Secretary of State is so much like Robert Gates that he is in fact Robert Gates. Another good idea, maybe. But not exactly change.

And then there are the questions arising from Bush policies on terrorism. Speaker of the House Nancy Pelosi accused the CIA of lying to Congress about the "enhanced interrogation" of terrorist suspects. The Obama Administration sided against her, with CIA Director Leon Panetta insisting that the CIA doesn't mislead Congress. What would a Bush appointed CIA Director have done? President Obama said he was going to release a gob of photos showing abuse of prisoners in Iraq. That is what the Left was craving. But no, he changed his mind. Good idea, I'm thinking, but not change, so much.

And then there is this business of prisoners held at Guantanamo Bay. Obama piously announced that he would close the detention facility there. But what do you do with the cliental? The President has clearly tried to get some of our European allies to take some of the detainees. Since he is so much more understanding, and so much less cowboy, you'd think they would melt. So far no hotel rooms in Paris or Frankfurt have opened up. Strangely enough, Democrats in Congress don't seem to be any more willing to host the detainees in their own states. If President Obama has any idea what to do with these folks, he hasn't said on Meet the Press.

A lot of the detainees were captured in war, which is not exactly the same thing as being arrested. When the police make an arrest, they have to be careful to gather evidence. When soldiers capture an enemy combatant, they have to be careful he doesn't blow them away, or alter the other insurgents, etc. Evidence isn't first on the mind of an American soldier. That means that a lot of the capture terrorists can't be tried in civil courts.

The Bush Administration solution was to try them in military courts. Barack Obama thought this was a terrible violation of human rights. Then he got elected. Apparently he now is planning to reinstitute the military courts that he suspended upon his election.

I am not sure what John McCain might have done differently, but on all the items mentioned above President Obama is channeling for George W. Bush. It's not that Obama lacks imagination, or that he doesn't care enough or than he isn't courageous enough. It's just that foreign policy is hard and doesn't always offer a lot of attractive options. It might be a good idea to recognize this. A lot of people who voted for Obama never suspected it.

Update! 

On the same day that I posted the above words, Jack Goldsmith wrote a column in the New Republic defending President Obama against Dick Cheney on this very question. 

There is a different problem with Cheney's criticisms: his premise that the Obama administration has reversed Bush-era policies is largely wrong. The truth is closer to the opposite: The new administration has copied most of the Bush program, has expanded some of it, and has narrowed only a bit. Almost all of the Obama changes have been at the level of packaging, argumentation, symbol, and rhetoric. This does not mean that the Obama changes are unimportant. Packaging, argumentation, symbol, and rhetoric, it turns out, are vitally important to the legitimacy of terrorism policies.

This paragraph obviously confirms my argument above.  Also interesting is this passage:

A good example of [Obama's] strategies in action is the administration's "new" rationale for detaining enemy forces indefinitely without charge or trial. The administration took the same basic position as its predecessor but placed it in prettier wrapping. It eliminated the dreaded label "enemy combatant." It narrowed the scope of those who can be detained from persons who "support" al Qaeda and its affiliates to persons who "substantially support" them--a change without large practical consequences, but a change nonetheless. And it grounded its authority to detain in Congress's authorization for the war and the international laws of war, showing that the president's detention powers were approved by bodies outside the presidency. This was the Bush position as well, but with an important difference: The Bush administration argued that it could detain enemy soldiers on its own constitutional authority, and without congressional support. The Obama administration dropped this argument (but did not reject it), and won favorable press coverage for its "departure" from the Bush position even though the change affected nothing in the president's present power to detain.

This is the substance of Goldsmith's defense of Obama: Bush 3 in prettier wrapping.  My position may be absurd, as commenter Jon says, but the absrudity seems to be catching even among Obama's defenders. 

I am not now nor have I ever been a part of the Roman Church. I was raised a Methodist. I am not qualified to say whether inviting President Barack Obama to give ND's commencement speech and receive an honorary degree was a violation of Catholic protocol. But I gather that the Catholic Church has more rules than the Methodist Church, which is an easy call since the former has at least some rules and the latter, so far as I can tell, has none. I like having a lot of different kinds of religious communities in the neighborhood. That's diversity. But that means that each community has to insist on being what it is. If Obama's invitation was a violation of the rules, as some allege, that represents a threat to diversity. How's that for a politically correct defense of staunch Catholics?

I listened to President Obama's speech this morning, and commented on it on South Dakota Public Radio. I thought it was a fine commencement speech, as such things go. The issue of abortion was obviously the center of gravity around which the whole affair revolved. I thought President Obama's handling of that issue was very interesting.

He said one thing that needs saying, and said it well.

One of the vexing things for those of us interested in promoting greater understanding and cooperation among people is the discovery that even bringing together persons of good will, bringing together men and women of principle and purpose -- even accomplishing that can be difficult.

The soldier and the lawyer may both love this country with equal passion, and yet reach very different conclusions on the specific steps needed to protect us from harm. The gay activist and the evangelical pastor may both deplore the ravages of HIV/AIDS, but find themselves unable to bridge the cultural divide that might unite their efforts. Those who speak out against stem cell research may be rooted in an admirable conviction about the sacredness of life, but so are the parents of a child with juvenile diabetes who are convinced that their son's or daughter's hardships can be relieved. (Applause.)

Yes. There are people of intelligence and good will on both sides of these issues. I wish he had made that the central theme of his speech. I liked this part as well:

Now, understand -- understand, Class of 2009, I do not suggest that the debate surrounding abortion can or should go away. Because no matter how much we may want to fudge it -- indeed, while we know that the views of most Americans on the subject are complex and even contradictory -- the fact is that at some level, the views of the two camps are irreconcilable. Each side will continue to make its case to the public with passion and conviction. But surely we can do so without reducing those with differing views to caricature.

So how do we deal with such irreconcilable differences on abortion? The President had some suggestions:

Let us work together to reduce the number of women seeking abortions, let's reduce unintended pregnancies. (Applause.) Let's make adoption more available. (Applause.) Let's provide care and support for women who do carry their children to term. (Applause.) Let's honor the conscience of those who disagree with abortion, and draft a sensible conscience clause, and make sure that all of our health care policies are grounded not only in sound science, but also in clear ethics, as well as respect for the equality of women." Those are things we can do. (Applause.)

Now I liked one thing there: the "sensible conscience clause" part. I don't think that doctors or pharmacists who are opposed to abortion for religious reasons or reasons of moral conscience should be forced to choose between conscience and livelihood.

But it is also important to recognize that position regarding people who disagree with him on abortion is one of tolerance. Tolerance was the mechanism by which the great politico-theological controversies of the Protestant Reformation were ultimately, if very gradually, resolved. The mechanism works like this: we, the people in power, will stop burning you guys and the stake; heck, we might even let you into the colleges. But in turn, you guys will accept that we are in power. It worked for Queen Elizabeth. Maybe it works for Obama.

The United States has a much more liberal abortion policy than most developed countries. A woman five days from natural birth can get an abortion if she has a doctor and a lawyer behind her. A healthy baby who survives an attempted abortion, well we know that Obama does not think that such a biological entity deserves protection. President Obama's bottom line is that this regime is no more negotiable than the Protestant Succession was for the Elizabethan regime. Accept that, and he will negotiate on other details. This is appalling. But for a political scientist, it is very interesting.

Reader Miranda adds a fifth comment to a recent post of mine that is worth responding to in a separate post.  In one of the comments I appended to the post, I said this:

This morning Miranda shot back this comment:

To the contrary it is reasonable to say precisely that, if one is talking about Court cases.  Under the rule of stare decisis, Courts are obligated not to decide a case in a way that contradicts a rule established in an earlier decision unless (and this is a big unless) there are compelling reasons to do so.  Among the latter would be either a finding of a basic and systematic miscarriage of justice (see Brown v. Board of Education), or a finding that changes in circumstances have rendered the previous decision unworkable (see Brown v. Board of Education again).  In practice, the Court almost always argues the latter rather than the former. 

The rule is certainly well-established in American law, and there are good reason for it.  It gives assurance that the law will remain stable, which allows citizens to know what the law is and when they are afoul of it.  That is a basic element of the rule of law.  Moreover, the longer a precedent is observed, the stronger the argument in its favor becomes; a body of case law may develop around the precedent so that it cannot be overturned without throwing large areas of the law into doubt.

Both of these considerations create a very strong presumption in favor of the incorporation doctrine.  The citizens have come to understand their rights under state governments in terms of the doctrine.  Vast realms of case law rest on it.  Nor can I see any compelling argument for overturning it.  It is not unworkable in any sense, and it involves no miscarriage of justice as generally applied.  To be sure, I might disagree with certain applications, but the same is true where the First Amendment is applied to acts of Congress, where it is explicitly legitimate. 

Miranda makes a familiar argument, much beloved by my fellow conservatives:

Conservatives tend to believe that the Courts should construe the Constitution very narrowly, to mean just what it says, no more, no less.  They also think that the meaning of its terms should be what the Founders intended those terms to mean.  But there is an obvious problem with this view: strict construction may be the right principle, but it isn't in the Constitution.  Nowhere doe the document tell you how to read it.  Likewise, it is not at all clear that the Founders intended for their "original intent" to be decisive. 

The evidence goes the other way.  The first great Supreme Court Chief Justice, John Marshall, was a Federalist if ever there was one.  He clearly used the powers of the Court to mold American Constitutional Law in a creative way.  One can make a good argument that he was right on all counts, but he was still going far beyond what the text said.  Perhaps the Court was doing the same when it first applied the Bill of Rights to the States; but if so,  they were following Marshall's lead.  This is in fact the only kind of Court we have ever had. 

The Constitution says very little about the powers of the Court.  It limits those powers to "cases and controversies" but that is about it.  So long as the Court remains within those limits, it is difficult to prove usurpation. 

Also: the incorporation doctrine looks like a sensible reading of the Constitution.  The Fourteenth Amendment says this:

But what are "the privileges and immunities of citizens of the United States"?  And what does "due process" mean?  The Constitution does not say.  Fortunately, the Bill of Rights gives us a lot of hints.  It means protection against unreasonable search and seizure, and a warrant requirement.  It means a right against self-incrimination, a right to confront accusers, a right against cruel and unusual punishment.  Deriving the meaning of the Due Process Clause of the Fourteenth Amendment from the Fourth, Fifth, and Sixth Amendments seems to me to involve more fidelity to the Constitution than any alternative. 

Once the Court started to read some of the Bill of Rights into Fourteenth Amendment Due Process, where were they to stop?  If a state government should abridge the freedom of speech of some person under its jurisdiction simply because it dislikes the content of his speech, is that a violation of due process?  I think it is altogether consistent with the design and function of the Constitution to say so.  Of course this is a judgment call, but the Court has to interpret Fourteenth Amendment Due Process to means something, and I see no alternatives that don't involve judgment calls. 

I am a conservative with regard to judicial principles because I think judges should act like umpires, enforcing the rules of the game.  But umpires do shape the way the game is played, guided by their best understanding of what makes the game work.  What the courts should not do is act like angels in the outfield, intervening in the game so the right team wins.  Much less should they employ their power for the sake of social engineering.  The courts have no wisdom or expertise to guide them in such adventures, and the results are nearly always terrible.  I happen to think that the incorporation doctrine, though questionable, is still respectable umpiring. 

My NSU colleague (and SDP colleague) Professor Jon Schaff has a piece in the American News on gay marriage.  He will probably post it here, as he usually does, but let me spoil part of the surprise: he presents no strong argument in favor of it.  His column is clever and guarded, so much so that one can not exactly say he is against it either.  But the column surely looks like a list of reservations. 

As such it is very good, and I think I agree with everything he says.  Consider this:

Is there a rational defense of traditional marriage? Marriage teaches us to love someone who is truly an other, as someone of the opposite sex is of a different sexual nature. Further, traditional marriage, open to children, is obviously necessary for the continuation of a civilization. Finally, marriage and family are the best institutions to raise responsible citizens.

Same-sex marriage will perpetuate disconnect between marriage and children. Forty percent of all children in America are born outside of marriage. Children born in this situation are statistically more likely to be poor, struggle in school, get involved in drugs and crime, and suffer a number of other pathologies. Having a mother and a father in the home divides the work of parenthood and brings complementary gifts to raising children. When society endorses a view of marriage as self-fulfillment rather than self-giving, these familial habits get that much weaker.

As a defense of traditional marriage, this is very good.  It represents the best side of traditional conservatism. 

The trouble is, it doesn't add up to an argument against gay marriage.  To be sure, traditional marriage pairs the only two kind of human beings who are biologically distinct, and it exists because, as Aristotle pointed out, men don't know who their children are.  Marriage provides assurances to the male that these children are his children, thus encouraging him to invest in them.  It provides both a mother and a father as influences for sons and daughters.  But many traditional institutions get adapted to new purposes without the old ones being undermined.  The use of Black churches as rallying points in the Civil Rights Movement comes to mind. 

I think Professor Schaff is right on target when he criticizes "a view of marriage as self-fulfillment rather than self-giving," but it is not obvious to me why homosexual marriage necessarily involves or promotes such a view.  Marriage is about mutual obligations more than self-fulfillment or rights.  Anything short of that is not marriage, but something else.  It is an unfortunate feature of the campaign for gay marriage that it has been almost totally oblivious to this fact. 

But I see no reason why gay marriage cannot be defended on traditional grounds.  Gay thinkers like Andrew Sullivan have argued (if I remember correctly) that marriage would promote more responsible sexual behavior among gay males.   A "monogamous" same sex marriage would be a bulwark against veneral diseases just as monogamous heterosexual marriage is, when the partners honor one another with a sacrifice of fidelity. 

I am not here arguing with Professor Schaff, as he takes no explicit position against gay marriage in his essay, but I think that his arguments represent the best grounds that conservatism (unassisted by Divine law) has for a rejection of gay marriage, and it seems to me that they are weak for that purpose. 

              * * *

The arguments for gay marriage are, in general, similarly wanting.  As I have argued many times here, restrictions on marriage to heterosexual relationships do not violate equal protection for they are generally applicable.  A homosexual man cannot marry another man, but neither can a non-homosexual man. 

My cherished interlocutor, A.I., makes a good point in a comment that I believe I never got around to replying to.  But I remember it: he asked about poll taxes.  Poll taxes were fees that a person had to pay in order to vote.  These were generally applicable; does that mean they are okay?  No, I reply, it just means that whatever is wrong with them, it can't be selective application.  Polls taxes were specifically designed to keep Black voters, who were disproportionately poor, from voting.  Like laws against miscegenation, the purpose of poll taxes was to keep a certain subpopulation "discrete and insular."  On in the words of the majority opinion in Plessy, to keep the races from "commingling." 

By contrast, traditional restrictions on marriage cannot function to keep the homosexual population more isolated.  If anything, such restrictions invite commingling.  Similarly, such restrictions cannot be a violation of the right to marry whomever one wants to, since no such right exists or should exist.  Lots of restrictions on marriage are valid.  One cannot marry one's sister, or someone under age, or a third person, or a horse.  Apart from racial restrictions, the Constitution offers no guidelines as to which restrictions are valid and so the question is political rather than legal.  Courts that have ruled otherwise are merely writing their own political opinions into the law. 

With no decisive arguments for or against gay marriage, I suspect that its eventual legalization is inevitable.  But it seems to me that the gay rights movement and conservatives might find common ground on this one.  Both have an interest in seeing that marriage means "self-giving" more than "self-fulfillment."  I have little hope for this. 

In the first place, it would split both sides of the chamber.  Religiously motivated conservatives would never forgive more libertarian minded conservatives (like myself) for giving up, and a large part of the gay activist community is not the least bit interested in any sort of marriage that implies restrictions on behavior.  Moreover, both the left and the right are probably less interested in the issue than they are in disappointing the other side.  In the current climate, that means that conservatives lose twice.  Gay marriage becomes a reality, and as Professor Schaff predicts, the institution of marriage is futher diluted. 

My last post on this topic attracted some very thoughtful comments, and I thought it best to give them the visibility of a new post.  In C.F. V Capistrano Unified School District, a Federal District Court in California found that a high school teacher (James Corbett) violated the Establishment Clause of the Constitution when he said that "creationism" was "superstitious nonsense."  I thought this a bad decision for reasons I stated there, but I also thought that the District Court has an argument based on recent Supreme Court Jurisprudence.  The best question was stated by A.I. this way:

Miranda asks the same question:

Now I don't know the law on this question very well, but here goes nothing:  the Establishment Clause, like the rest of the Constitution, places limits only on governments and never on private persons.  In such cases as the Constitution makes something illegal altogether (like slavery), it is directing federal and state governments to control the activity by ordinary law. 

However, governments are composed of people, and "people" of persons.  A person may be controlled by the Constitution if he or she is acting in a public capacity.  Mr. Corbett is, I presume, an employee of the State of California.  So it is not out of the question that his conduct might be proscribed by the First Amendment.  For the same reason, the teacher has limited recourse to a freedom of speech appeal.  Government speech clearly can be controled by the Constitution.  Free speech would enter the picture only if some government tried to interfere with the teacher in a manifestly partisan way. 

Miranda goes on:

The High Court's Establishment Clause jurisprudence has frequently involved collisions between school and school board policies and the Constitution.  Like Miranda, I think that a lot of this jurisprudence is ill-advised and poorly constructed; but it is not student prayers that are said to violate the E.C., it is such policies as mandated, teacher-led prayer or Bible reading at the beginning of the school day, or at graduation ceremonies, etc.  Off hand, I don't know of another case where a teacher's choice of words in the conduct of his class has come under First Amendment scrutiny.  I think that this is a very bad precedent, and I am guessing this case is headed uphill. 

Miranda corrects me on one point.  I said:

"Creationism" isn't religion.  It is a doctrine which holds that scientific facts support the literal truth of the Old Testament creation story.  I agree with Cory that this is nonsense, and that it distorts both science and the Biblical text. 

Miranda says:

I disagree with you, Dr. Blanchard, on the issue of the lemon test.  The word "Creationism" dates back to the 1800s. It's meaning, according to The Random House Dictionary, is, "The doctrine that matter and all things were created, substantially as they now exist, by an omnipotent Creator, and not gradually evolved or developed." A doctrine is merely a teaching. The word often has religious connotation. But the definition says nothing of creationism being a "scientific theory." Creationism itself might not be a religion, but it is PART of a religion. Attacking it is like attacking someone for praying, or washing their feet.

I concede that the word "Creationism" sometimes means a belief the Biblical story of creation. 

But the "ism" implies, as Miranda points out, a doctrine about matters on which science is competent to speak.  To say that the doctrine that "matter and all things were created, substantially as they now exist, by an omnipotent Creator, and not gradually evolved or developed" is nonsense, is a perfectly reasonable thing for a history or biology teacher to say.  It has firm secular ground, as the said doctrine flys in the face not just of Darwinism but of geology, astronomy, and physics.  If saying such a thing violates the E.C., then so does illustrating it by teaching those subjects.  

In my defense I would point out that "Creationism" in the context of Constitutional Law almost always means Creation Science, which is all or mostly all nonsense.  The Grand Canyon was formed sometime in the last six thousand years when the universal flood receded?  Where did all that water go? 

At any rate, C.F. v. Capistrano has exposed a logical problem in the Court's E.C. jurisprudence.  In Edwards v. Aguillard and the Dover case, the Supreme Court identified the mandated teaching of Creation Science and Intelligent Design Theory respectively as promoting religion.  Okay.  But the E.C. forbids either promoting or inhibiting religion.  So isn't anything in a classroom that explicitly criticizes Creation Science and Intelligent Design Theory inhibiting or siding against religion?  On the question whether the Constitution forbids states to mandate such teachings, I am conflicted.  I think such things surely should not be taught in public schools.  That is because I think that they amount to bad science.  But as Scalia points out in his dissent in Edwards, the Constitution doesn't prohibit bad science. 

Cory and I agree with Miranda's theologically careful statement:

And if there is any doubt over whether or not Mr. Corbett was attacking the religion or what he saw as a scientific theory, one has only to look at his comment about the "Jesus glasses." Jesus has nothing (at least nothing obvious) to do with the Creation story.

Miranda is speaking of this comment by teacher Corbett:

When you put on your Jesus glasses, you can't see the truth.

That crosses two lines.  It is obviously a direct attack on the Christian viewpoint and it seems calculated to single out religious believers in class.  But I think there is general agreement among us in this exchange that this is not a matter for the courts.  The school authorities should have reined in Mr. Corbett.  Since they apparently failed to do so, there were other avenues of redress for students and their parents.  Bringing a teacher under First Amendment scrutiny looks to me like an unprecedented interference in the teacher's business. 

Finally, A.I. adds:

that Mr. Corbett's student also appears to be an ass and an anti-science bigot. That does not excuse Corbett's "assiness", but it may explain his frustrations with the student.

A.I. is heroically trying to find some disagreement with me here, for which effort I applaude him.  As he says, where's the fun in agreeing?  So I will go along and say that the student is entitled to be an ass.  Education should, on occasion, be offensive.  Otherwise it is not genuinely challenging.  But if so, we can hardly blame a student for being offended. 

U.S. District Judge James Selna issued the ruling Friday after a 16-month legal battle between student Chad Farnan and his former teacher, James Corbett.

Farnan sued in U.S. District Court in 2007, alleging that Corbett violated the establishment clause of the First Amendment by making repeated comments in class that were hostile to Christian beliefs.

Cory provides a very helpful list of all the objectionable things that the teacher, Corbett, said in his class.  Cory takes issue with one in particular: "When you put on your Jesus glasses, you can't see the truth."  But the Court took issue with the remark about creationism being superstitious nonsense. 

I don't disagree with much that Cory says, but I find the ruling very disturbing.  From a quick glance at the opinion, the California Federal District Court employed the Lemon Test.  The First Amendment says that

Congress [and the States, under the incorporation doctrine] shall make no law respecting an establishment of religion.

Under the Lemon Test, a law violates this clause if 1) it has no secular purpose; 2) it's primary effect is to either to advance or inhibit religion; or 3) it involves and excessive entanglement with religion.  As The Volokh Conspiracy argues, for Mr. Corbett, a state employee, to say that creationism is superstitious nonsense, does not violate the first "prong" of the test.   Corbett was teaching science and wished to convince his students that the theory of evolution was true and challenges to it from creationism were false.  Whether one agrees or not, trying to encourage a belief in science among students qualifies as a secular purpose. 

But the Court found that the statement about creationism violated the second prong: Corbett was taking sides against religion in general and Christianity in particular.  I respectfully dissent. 

"Creationism" isn't religion.  It is a doctrine which holds that scientific facts support the literal truth of the Old Testament creation story.  I agree with Cory that this is nonsense, and that it distorts both science and the Biblical text.  To say as much is to take a position regarding what is and what is not science.  There are a lot of ways to reconcile Biblical creation with evolution that do not involve creationism.  Unfortunately, the Court has identified creationism and intelligent design theory with religion in cases involving state-mandated teaching such doctrines.  So the California court had a point.  But I don't think that such a remark in class is on the same level as curriculum design. 

And that is the rub.  Mr. Corbett's many statements suggest that he is an anti-Christian bigot.  When bigotry of any kind is focused on particular students or groups of students in a public school classroom, there is a real problem.  The school authorities are certainly allowed, and may be required by law, to shut that behavior down.  In particularly egregious cases, a student or group of students may have cause for legal action.  Short of that, it's a matter of policy, and as such, I think the school should have given Mr. Corbett's leash a good hard yank. 

But when a court ends up combing over a teacher's statement of opinions in the classroom a dangerous line has been crossed.  Teachers have to be free to state their opinions in class; in the absence of final knowledge on all or almost all subjects, teachers do nothing else.  To be sure, students will sometimes be offended by these opinions.  There is no constitutional right not to be offended.  Classrooms must be open to offensive thought.  If a teacher needs to be admonished, it should be by the school itself.  If the school fails to act, there are political channels available.  To extend First Amendment protections to cover what a teacher says in the classroom threatens the very idea of a classroom. 

Mr. Corbett is an ass.  I believe in the theory of evolution, but I have found many Darwinists to be among the most pig-headed people I have ever met.  Mr. Corbett's pig-headedness may have succeeded in striking a blow against freedom of thought in education. 

As was appropriate, the President's remarks on the impending retirement of David Souter from the high court are gracious.  Whatever one thinks about his jurisprudence, Justice Souter is due respect for his position and his public service.  It is not unfair or unreasonable to expect that the President's remarks would involve political calculations.  This is when he begins to make his case for his next appointment.  But was it really necessary to begin his remarks with a load of utter nonsense?  For example:

To say that Souter "came to the bench with no particular ideology" and that he "consistently defied labels" suggests either cluelessness or dishonesty.  Souter was very easy to label: he acted as a judicial liberal from the moment he joined the court.  Unless you are willing to imagine that he was struck down on the road to Damascus, he was probably a good judicial liberal before his nomination by Bush 41.  There is no blame for Souter in this; it was papa Bush's job to get it right and in fine family tradition he didn't. 

More disturbing were the President's comments on the kind of judge he wants to put in Souter's place. 

Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President.  So I will seek somebody with a sharp and independent mind and a record of excellence and integrity.  I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book.  It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes.  I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role.  I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.

Here's the problem: "abstract legal theory" and "footnotes in case books" are what constitutional law is all about.  Every time the High Court decides a case, it formulates rules that have to be abstract because they have to be applied by lower courts to a range of cases, many of which involve situations that cannot be anticipated.  When the Court decided (correctly) in Texas v. Johnson that the First Amendment freedom of speech protects the right to burn an American flag as an act of protest, the Court wasn't just thinking about the "daily realities" of Texas or Johnson.  It was of necessity thinking about any person who might come into a similar collision with some governmental power.  Is the President really as clueless about the nature of constitutional law as he seems to be? 

Worse still, the President's invocation of "empathy" is offensive to three or four hundred years of judicial tradition.  Has President Obama never seen an image of blind justice?  What is the point of the blindfold that the Goddess of Equity wears?  She wears it precisely so she can't "identify with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes," but instead must see every person as the same regardless of his or her status and fortune.  

Let's take an example.  Suppose a judge believes that a man was wrongly convicted of raping and murdering a child, even though the man is obviously guilty.  Let us say he confessed and revealed knowledge that he could only have had if he were the perpetrator.  But the evidence on which he was convicted was tainted by an illegal interrogation.  Should the judge be swayed by her empathy for the parents of the child victim (not to mention possible future victims), or should she uphold products of abstract legal theory like the exclusionary rule and the Miranda rule?  Does the President really want a judge who would abandon the latter out of a concern for whether people "feel safe in their homes"? 

The President does not seem to realize that his desire to factor in empathy in judicial decisions runs directly contrary to "the rule of law" that he also claims to believe in.  The "rule of law" means that the law as it stands must overrule the personal feelings and agendas of the people who administrate it.  That includes even those empathetic good persons that Obama wants to put on the Court.  

President Obama claims to believe in "our constitutional traditions," and the "constitutional values on which this nation was founded."  Let us hope that whoever he appoints will not be as clueless about these traditions and values as he is. 

Signing statements are notes attached by a President to a bill he is signing, indicating his understanding of what he is committing himself to.  There are two obvious reasons for including such a statement with his signature: first, he wants to control the way the law will work and give him some leverage if his interpretation differs from that of Congress; and second, he wants to control his responsibility for the way the law turns out to work. 

I am not sure when this practice began, but President Clinton included such statements on a regular basis, Bush followed suit, and now President Obama has issued his first.  See the Volokh Conspiracy.  Bush came under a lot of criticism for his use of this device, especially by Charlie Savage at the Boston Globe, who won a Pulitzer for it.  The complaint was that Bush was trying to get the power to interpret the law as he pleased. 

Well, let’s take a look at Obama’s signing statement, attached to the Omnibus Spending Bill.  I note this provision:

Foreign Affairs. Certain provisions of the bill, in titles I and IV of Division B, title IV of Division E, and title VII of Division H, would unduly interfere with my constitutional authority in the area of foreign affairs by effectively directing the Executive on how to proceed or not proceed in negotiations or discussions with international organizations and foreign governments. I will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations.

So Obama is telling us in advance how he will read the bill as it applies to himself.  Okay.  And then there is this one:

Executive Authority to Control Communications with the Congress. Sections 714(1) and 714(2) in Division D prohibit the use of appropriations to pay the salary of any Federal officer or employee who interferes with or prohibits certain communications between Federal employees and Members of Congress. I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.

So Obama is telling us in advance that he will control communications between his executive branch officials and employees and Congress, regardless of what the law seems to say. 

Now I have no problem with either of Obama’s qualifications.  They both seem to me to protect the President’s power to do his job: negotiate with other powers, and control the executive branch.  But this is the very thing that seemed so ghastly to the MSM when Bush did it.  If you were looking for different kind of chief executive in this regard, well, look again. 

Signing statements don’t matter much.  Short of a court case, the President can do what he wants in such matters, and Congress can control him only by refusing to give him what he wants by way of legislation, authorization, and confirmation.  That is the way the system is supposed to work. 

In the event of adjudication, courts don’t pay much attention to signing statements.  That is also how it should be.  The President is given the power to veto a bill or sign it, not the power to amend it.  Signing statements are useful as means of dialogue between the White House and Congress.  They are nothing more. 

My Keloland colleagues, David Newquist and Tim Gebhart have some comments on the status of bloggers as journalists.  Tim raises the question in the context of a recent federal bill.

The question of whether bloggers are journalists is raised indirectly by differences in legislation introduced this month in the U.S. House and the U.S. Senate to provide certain legal protections to journalists.

Both bills call themselves the Free Flow of Information Act and seek to create a federal "shield law." Broadly speaking, shield laws protect reporters from having to disclose confidential or unpublished information in response to subpoenas or court orders unless certain conditions are met. It has been an ongoing debate for several decades and the advent of blogs adds another layer to the debate.

David Newquist replies:

I am not sure such protections should always be extended to reporters.

I share Professor Newquist’s skepticism, though perhaps for different reasons.  He is concerned that bad people saying bad things will get protections that they do not deserve.  He has this:

For real journalists, shield laws will be a benefit. For those who practice journalistic shysterism, they will shield the mendacious and incompetent and merely self-promoting. Real journalists may have egos, but they are educated and disciplined enough to know the difference between serving their profession and serving their egos.

And this:

While journalism has its sub-par practitioners and needs to be called into account on occasion, for some blogs scurrility and maligning are standard fare. Many are devoted to ad hominem attacks, not the discussion of information.

While it is no doubt true that there are bad journalists and bad bloggers, it is also true that it’s a lot easier to see the faults of the one or the other when they are on the other side.  It is also easier to persuade yourself that an ad hominem attack has taken place when you yourself are the hominem in question. 

This, I think, is the problem with shield laws in general.  They extend legal protections to journalists that are not available to non-journalists.  If a journalist receives information that is relevant to a criminal investigation, he or she might not have to reveal it.  A non-journalist could be compelled to cough up.  But that means that the government has to distinguish between “real journalists” and non-journalists.  It might be tempting to extend such protections to the New York Times, but not, say, to Rush Limbaugh. 

I don’t believe in Professor Newquist’s distinction between real journalists and pseudo-journalists.  During the recent election campaign, the New York Times ran a piece full of innuendo about John McCain.  An affair with a lobbyist was clearly hinted at (nod and wink), but not a bit of real information was supplied.  That was a journalistic scandal, for which the Times was rightly and deeply embarrassed.  But this doesn’t mean that the Times isn’t a “real” newspaper.  It just means that the Times’ editors succumbed to corruption and practiced shoddy journalism.  That’s an important thing to know.  But though I agree with Professor Newquist that “false information is the enemy of a free people,” I don’t think that Government, as an interested party, should decide which information or information brokers, deserve legal protection. 

Bloggers are not “non-real journalists.”  We are amateur journalists.  We don’t have the kind of resources behind us (fact checkers!) that traditional newspapers and newsrooms do, but we have the freedom to say what we damn well think.  It’s true that we depend on the mainstream media for information, and that raises deep concerns in a period when major newspapers are folding almost as fast as banks.  But it’s also true that, in many celebrated cases, us bloggers have kept the mainstream press more honest than it is inclined to be. 

I don’t think that bloggers should have more legal protections than any other citizens have, but I am not sure that “professional journalists” should be treated any differently. 

It appears that the District of Columbia is about to get a real seat in the U.S. House of Representatives.  From Real Clear Politics:

After decades of trying, the District of Columbia is one step closer to receiving full-voting representation in the House of Representatives. With 61 yea votes, the Senate gave final approval yesterday to the D.C. Voting Rights Act of 2009, and House Democratic leadership has indicated it plans to take up the bill by the middle of next week.

Now I acknowledge the problem here.  D.C. has about 588,000 residents.  That’s more than North Dakota.  Yet they have no seats in the House of Representatives (with voting power), nor do they have seats in the Senate.  That’s because D.C. is a federal territory, not a state. 

The bill moving through Congress would give the District one seat in the House, which is what it would get if it were a state.  Given the demographics of the District, that seat would almost certainly be filled by a Democrat.  In return for Republican support, an additional seat would be granted to Utah.  That would bring the total seats in the House to 437. 

There is nothing wrong with this except the fact that it is flatly in violation of the Constitution of the United States.  I give you Article One, Section Two, Clause One of said yellowed parchment:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

A lot of the Constitution requires interpretation.  Does free speech include the internet?  Article 1, Sec. 2 is not one of them.  Members of the House of Representatives are to be chosen by the people of the states.  A territory is not a state.  What part of that do the Democrats misunderstand? 

The solution to the problem of D.C. representation is easy: make D.C. into the State of Columbia.  That would give the Democrats two new Senate seats as well.  Maybe that’s the rub.  The Republicans would oppose it on partisan grounds.  Well, put on a full court press and call their bluff.  Let Obama bring his awesome clout to bear.  Actually, I think the Republicans should push for D.C. statehood.  It would hurt them in the short run, but it would be a principled stance and that might be worth something.  If they really want to appeal to African Americans, this might be a start. 

But giving D.C. a seat in the House without making it a state means that the Constitution counts for nothing.  We might as well establish a Church of the United States.  It is said that this will result in a challenge in Federal Courts.  Maybe so, but I can’t think just now of anyone who would have standing to sue.  You need an injury to secure standing, and who is injured by a D.C. seat?  John Boehner? 

If you value any part of the Constitution (the Equal Protection Clause?), you have to value all of it.  We seem to be about to chuck the whole damn thing. 

I thought it was a brilliant move when Obama tapped Senator Judd Greg of New Hampshire to be Commerce Secretary. Greg is one of the most sensible and intelligent GOP Senators, and the appointment would have removed him from the upper chamber and put him in one of the most insignificant cabinet departments. I was rather disappointed when Greg agreed, but when the President of the United States calls upon you, an honorable public servant finds it hard to say no.

Greg's decision to withdraw from consideration is an embarrassment to both himself and the Administration. Greg should have realized that there would be irreconcilable differences between the President's policy and his own Republican principles. He should have foreseen that the activist core of the President's party would try to marginalize him, which it did. President Obama should have anticipated the same. Perhaps he did, except that he counted on it happening after Judd had resigned his Senate seat. That would be rather Machiavellian, but a touch of old Nick is something one wants in a President. Still, the withdrawal is an embarrassment to Obama. It's his fourth failed nomination, and the second for Commerce. The "screw-ups" of Presidents matter more, most of the time, than those of Senators from New Hampshire.

The more disturbing aspect of the story concerns the Census issue. The Administration apparently intends to move the supervision of the next Census from the Commerce Department to the White House. It's possible that this move was a consequence of the Greg nomination. The Democratic Left didn't want Greg in charge of it, or close enough to monitor it. Why would they be afraid of Greg's supervision?

The U.S. Census is required by the Constitution, Article 1, Section 2, Clause 3:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.

The Census determines the apportionment of the House of Representatives, and all seats in the state legislatures.

The Census has always been conducted by trying to actually count all the people in the United States. If you are an adult and reading this post, you have probably filled out a census form. Most people get them in the mail, and return them; but large armies of census takers descend on every neighborhood in the U.S. in an attempt to count everyone.

They never actually manage to count everyone. Some people are hard to catch up with. The Census Bureau estimates that in 1990 they missed about four million people. Some folks are harder to count than others.

The estimate [of non-counted persons] for Whites is about 1.8 million, for a rate of 0.9%. However, although fewer Blacks (1.4 million) than Whites were missed, they were missed at a higher rate, approximately 4.4%. Children were also disproportionately missed in the last census. The net undercount for children - about 3.2% - is twice the overall rate.

Because of the estimated undercount, there has been pressure from political activists to replace the traditional counting with a system that gathers as much information as possible and then produces estimates of the actual population based on statistical analysis. The resulting estimates would be the basis of future apportionment.

This would be a very bad idea. Actually counting is not perfect, but it's pretty good. It gets within 98% of the real figure. It also produces hard records that cannot be easily manipulated. By contrast, statistical analysis can be manipulated merely by changing the many variables in the formula. Given the uncertainty that has crept into American elections of late, do we really want to further undermine public confidence in the electoral system?

I recently defended the Obama Administration against a false charge that they wanted to change the oath that military officers take from loyalty to the Constitution to loyalty to Obama. That was a lie. The news that Obama wants to put the Census more directly under White House control is fact, and it is deeply troubling. Judd Greg was right to jump ship rather than have any part in it.

I had the pleasure, this week, of carefully reading the Supreme Court's opinions in District of Columbia v. Heller for my course in Constitutional Law. In that decision, the High Court declared for the first time that the Second Amendment to the Constitution protects the right of citizens to possess firearms, including handguns, and to have them ready at least for the defense of their own homes.

Antonin Scalia's opinion is characteristically thorough, brilliant, and devastating. He examines the historical record and the logical meaning of each part of the Amendment. Here is the text of the Second Amendment, from ePublius!:

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.

Scalia properly distinguishes the Prefatory Clause (A well regulated Militia, being necessary to the security of a free State) from the Operative Clause (the right of the people to keep and bear Arms, shall not be infringed). The first explains the reasons for the amendment, but does not change the operation of the second clause. If I say in my will: "Jon is a handsome man, so I leave him my fortune," Jon gets the fortune. If you object that Jon is butt ugly, you might have a point. But he still gets the money.

Scalia lays out the question:

The two sides in this case have set out very different interpretations of the Amendment.

Petitioners and today's dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service.

Respondent argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

One side wants to interpret the 2^nd Amendment in such a way as to completely negate any effect. They want it to go away. The five judge majority interprets it to mean something enforceable in court. Here is some of the meat of Scalia's opinion:

The first salient feature of the operative clause is that it codifies a "right of the people." The unamended Constitution and the Bill of Rights use the phrase "right of the people" two other times, in the First Amendment 's Assembly-and-Petition Clause and in the Fourth Amendment 's Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"). All three of these instances unambiguously refer to individual rights, not "collective" rights, or rights that may be exercised only through participation in some corporate body. Nowhere else in the Constitution does a "right" attributed to "the people" refer to anything other than an individual right.

The Constitution does not recognize any "corporate rights," except those belonging to the American people as a whole and some belonging to the people of the various states. But when it says "the right of the people," it always means the right of individual persons, as in

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…

Scalia goes on to show that "the right to bear and keep arms" was understood by the framers as a pre-existing right belonging to individual persons. It was one of those rights that the founders preserved from the English political tradition. English kings who wished to become tyrants had tried to disarm Englishmen who were not loyal to them. Protecting the rights of every citizen to keep and bear arms was thus a bulwark against tyranny. Hence the prefatory clause. Scalia shows that this interpretation was well-grounded in the various state constitutions.

To see that Scalia was right, and the minority wrong, one has only to notice how weak and disturbingly stupid Steven's dissent is. Consider this:

The Court overlooks the significance of the way the Framers used the phrase "the people" in these constitutional provisions. In the First Amendment , no words define the class of individuals entitled to speak, to publish, or to worship; in that Amendment it is only the right peaceably to assemble, and to petition the Government for a redress of grievances, that is described as a right of "the people." These rights contemplate collective action. While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with action engaged in by members of a group, rather than any single individual. Likewise, although the act of petitioning the Government is a right that can be exercised by individuals, it is primarily collective in nature. For if they are to be effective, petitions must involve groups of individuals acting in concert.

Stevens is arguing that the "right of the people peaceably to assemble," in the First Amendment, is a "collective right." He needs to, to establish the existence of collective rights under the Constitution. But this is so stupid an argument as to embarrass a moron. The right to peaceably assemble doesn't belong to the Sierra Club or the National Rifle Association. It belongs to any individual who wants to join one or the other. When you make this stupid an argument, you are either dumb as a post (Stevens is not), or you are trying to save a bad proposition.

But it gets worse. Stevens says:

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States.

Stevens is saying that the purpose of the 2^nd Amendment was to protect the right of each state to arm itself against the Federal Government. Now I have relatives in Arkansas who would welcome that interpretation. They have confederate flag decals in the back windows of their pickup trucks. In order to save gun control, Stevens has joined Alexander Stevens and become a confederate!

Steven's dissent is self-refuting. The Second Amendment clearly protects the right of each citizen to keep and bear arms. It does so because the founders thought that this right was necessary to the security of a free people. It is careful to preserve the power of the states and Congress to regulate the militias. But if the Constitution means what it says, it means that individual citizens have a right to "cling" to their guns.

The long scrolls of Bush Administration crimes, the ends of which are currently dangling about the feet of dedicated Bush-loathers, all include the charge that Bush trashed the Constitution in his warrantless surveillance after 9/11. Well, did he? Maybe not, according to the Foreign Intelligence Surveillance Court of Review. This from the New York Times (yes, it is still in business):

In a rare public ruling, a secret federal appeals court has said telecommunications companies must cooperate with the government to intercept international phone calls and e-mail of American citizens suspected of being spies or terrorists…

But the ruling, handed down in August 2008 by the Foreign Intelligence Surveillance Court of Review and made public Thursday, did not directly address whether President Bush was within his constitutional powers in ordering domestic wiretapping without warrants, without first getting Congressional approval, after the terrorist attacks of 2001.

Here is what is at question: no reasonable person doubts that the U.S. Government can monitor foreign communications that begin and originate abroad. Someone in Iran calls someone in Iraq, who calls someone in Oxford, and all of them are talking about "the next strike," well, we can listen in without bothering with warrants and all. Now, what if Oxford calls Chicago? Does Maxwell Smart have to determine whether the recipient is an American citizen, and if so, get a warrant, before he listens in? Well, that depends on how badly you want to monitor that intelligence.

The three-judge court, which hears rare appeals from the full Foreign Intelligence Surveillance Court, addressed provisions of the Protect America Act, passed by Congress in 2007 amid the controversy over Mr. Bush's program of wiretapping without warrants. It found that the administration had put in place sufficient privacy safeguards to meet the constitutional standards of the Fourth Amendment's ban on unreasonable searches. Because of that, the company had to cooperate, the court said.

That finding bolstered the Bush administration's broader arguments on wiretapping without warrants, both critics and supporters said.

William C. Banks, a law professor at Syracuse University who has criticized the administration's legal position on eavesdropping, said that while the ruling did not address Mr. Bush's surveillance without warrants directly, "it does bolster his case" by recognizing that eavesdropping for national security purposes did not always require warrants.

After the World Trade Center fell, Bush decided that stopping the next attack was not a matter of law enforcement, but a matter of war. It was imperative to find out what the terrorists were planning, and make them stop. I think he was right to do so. His most vociferous critics accused him of trampling of civil liberties, but I wonder how much those liberties would have been worth to most Americans if 9/11 had been followed by a series of terrible attacks. Americans have not yet been scared. The World Trade Center was in New York. We don't want to see what happens when we get really scared. If you want to protect civil liberties, and I certainly do, you have to stop the really big scare from happening.

Bush leaves office with peace of mind. I know BB will cringe at this, but he does. He kept the next thing from happening. I expect that the next President will do much the same as he did.