Patterico's Pontifications

6/29/2010

Coburn, Kagan, and “Eat Your Vegetables”

Filed under: Judiciary — DRJ @ 10:34 pm

[Guest post by DRJ]

Senator Tom Coburn asked Elena Kagan if the Commerce Clause allows the government to compel Americans to eat certain foods. I think her answer was “Maybe” but decide for yourself.

– DRJ

84 Comments

  1. Wow, talk abut your non-committal answers.

    Comment by Your-name-here (af91c2) — 6/29/2010 @ 10:57 pm

  2. Any doubt how she would rule?

    Comment by JD (959071) — 6/29/2010 @ 11:00 pm

  3. I dunno…

    I interpret her answer as, “It’s not the court’s job to save your ass after you’ve passed a really stupid law.”

    Comment by Xmas (dc5fbe) — 6/29/2010 @ 11:00 pm

  4. I interpret her answer as, “If Congress passes a law that mandates each citizen to purchase health insurance, then so be it.”

    Comment by Icy Texan (b865a5) — 6/29/2010 @ 11:08 pm

  5. Well, there’s what’s Constitutional, and then there’s what Congress tells us to do.

    Comment by AD - RtR/OS! (f22b48) — 6/29/2010 @ 11:18 pm

  6. XMAS:

    I interpret her answer as, “It’s not the court’s job to save your ass after you’ve passed a really stupid law.”

    Maybe, but I think this would be more accurate:

    “It’s not the court’s job to save your ass after you’ve passed a really stupid law, but if that’s what Congress wants …

    Comment by DRJ (d43dcd) — 6/30/2010 @ 1:08 am

  7. #4

    I interpret her answer as: 10th Amendment. Never heard of it.

    “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 Constitution doesn’t delegate the power to the United States to tell people what they can or can’t eat.

    Proposed law is unconstitutional.

    Comment by Dave Surls (09b67a) — 6/30/2010 @ 1:33 am

  8. The problem is, we know she’s liberal that has an understanding of Federal law. There is no way she’s going to step into the trap of discussing what the Commerce Clause allows. She knows how many laws that she supports rely on the shaky foundation of an overblown interpretation of Congress’s ability to regulate interstate commerce.

    Senator Coburn’s question was the Judicial Confirmation version of the classic “pull my finger” joke.

    Comment by Xmas (073757) — 6/30/2010 @ 3:24 am

  9. Conservatives wish that Fred Phelps was nominated for the bench. He is plenty enough full of hate and bigotry for the party, barely.

    Comment by boo-sox (e39398) — 6/30/2010 @ 4:08 am

  10. Senator Coburn’s question was the Judicial Confirmation version of the classic “pull my finger” joke.

    Comment by Xmas — 6/30/2010 @ 3:24 am

    Kagan got it backwards though. When she pulled his finger *she* farted.

    Comment by NavyspyII (df615d) — 6/30/2010 @ 4:12 am

  11. Comment by boo-sox — 6/30/2010 @ 4:08 am

    Classic liberal response. Since there’s nothing I can say that makes this situation bette…Oh look! Shiney!

    Comment by NavyspyII (df615d) — 6/30/2010 @ 4:13 am

  12. I’m actually very conservative. Fred Phelps is my hero. Fred Phelps who is gettin’ rid of the gays, and Ronald Reagan who beat the commies.

    Comment by boo-sox (e39398) — 6/30/2010 @ 4:17 am

  13. Comment by JD

    So, she didn’t answer the question yet you have no doubt how she will rule? I know that you don’t realize how dumb that comment makes you sound, but others do and they are laughing at you. Including God. God is laughing at you. He knew that he had made a really stupid person in you, but you are surprising even the omnipresent and omniscient one.

    Comment by boo-sox (e39398) — 6/30/2010 @ 4:28 am

  14. boo-sox,

    Fred Phelps is a democrat. A famously proud and politically active democrat associated with Al Gore.

    You’re just trying again to change the subject away from a critical and important debate over the power of the federal government. Pathetic democrat shill. Like Fred Phelps.

    Dave is right that the Tenth Amendment clearly covers a hell of a lot of powers, and yet is treated like the worthless amendment. Clearly, the Wickard style commerce clause interpretation is not compatible with the tenth amendment. Discovering a massive new all encompassing set of powers in one clause, and ignoring one of the amendments of the bill of rights, is simply backwards to any sane legal interpretation.

    What’s so funny is that I learned legal interpretation in Contracts the same day I learned that the tenth amendment is “but a truism”. Apparently normal reading just doesn’t apply to the constitution. You ‘do what feels right and let the law catch up’.

    Comment by Dustin (b54cdc) — 6/30/2010 @ 4:39 am

  15. So, she didn’t answer the question yet you have no doubt how she will rule? I know that you don’t realize how dumb that comment makes you sound

    Why are you insulting people just for disagreeing with you?

    Of course we know how she’ll rule. Only a moron doesn’t realize she’s a partisan democrat. Have you read her documents for Clinton? Are you familiar with her work for Obama? We know how she will rule on most legal issues already, just as conservatives all predicted Sotomayor would be a dumb reliable liberal vote and she has been 100% of the time.

    Despite answering these questions, we called Sotomayor, and we’re calling Kagan. Very accurately.

    Your only response is to insult people the way your democrat hero Fred Phelps does.

    Comment by Dustin (b54cdc) — 6/30/2010 @ 4:42 am

  16. i would have preferred to see the video until it is clear they moved on to another topic, but…

    i am sorry, but either 1) she is too stupid to know what he was asking or, 2) it isn’t maybe, its YES. YES, congress can do that. I’ll try to find a transcript to help me illustrate my point.

    Comment by Aaron Worthing (A.W.) (e7d72e) — 6/30/2010 @ 5:55 am

  17. Couldn’t find a transcript, but i found this in an article and it captures her words pretty accurately:

    > “Sounds like a dumb law,” Kagan replied. “But I think that the question of whether it’s a dumb law is different from whether the question of whether it’s constitutional and I think that courts would be wrong to strike down laws that they think are senseless just because they’re senseless.”

    So that is her answer. Sounds dumb, but I can’t see any reason to strike it down.

    So either she didn’t understand the question, or she clearly said she would uphold that law.

    Comment by Aaron Worthing (A.W.) (e7d72e) — 6/30/2010 @ 6:12 am

  18. I’m going to revise my opinion of her a little. I think maybe she is just dim.

    I mean didn’t she have ANY idea what Kyl was getting at? didn’t she know that she had to give a better answer than that? didn’t she know how bad she was going to look?

    Its like the McCain-Feingold argument. They asked if this meant books could be banned and without blinking, she said, sure. she went on to argue that there would be a good “as applied” challenge to the law, but that is BLACK LETTER the wrong answer. under first amendment jurisprudence, if the statute reaches any speech that is protected, it all goes down. And she makes no attempt to even address that obvious point.

    I am close to saying it. Kagan is a constitutional dim bulb. Now up until now, i have said that she is such a poor advocate, that she would probably benefit the right and thus supported her nomination on those grounds. but if she is actually a dim bulb, then that takes it into a new territory. dim bulbs have no place on the Supreme Court.

    Dim bulb or not, she is definitely awful.

    Comment by Aaron Worthing (A.W.) (e7d72e) — 6/30/2010 @ 7:44 am

  19. I don’t think it’s safe to say Kagan is a safer pick than some influential liberal. Kagan is a radical and Obama could get 3 of these radicals on our court who are there for 40 years. They don’t need to be too influential when they are that numerous.

    Kagan isn’t stupid. She is deliberate in the way she is ignoring the point of questions. ‘It’s a silly law’ didn’t answer the question. The constitution shouldn’t permit the government telling me to eat veggies. Powers the government isn’t explicitly granted shouldn’t be amended by constantly rereading the commerce clause.

    The commerce clause was further amended by the tenth amendment and there is no sane interpretation of it that provides expanded powers.

    Kagan gets it. This is about Obamacare style power. She truly is a Thurgood Marshall acolyte.

    Comment by Dustin (b54cdc) — 6/30/2010 @ 7:51 am

  20. Coburn asked a stupid question and got a better answer than he deserved.

    Comment by nk (db4a41) — 6/30/2010 @ 8:05 am

  21. nk,

    why is it a stupid question?

    there is a controversy over whether or not the government should be able to force me to buy health insurance. Whether or not you approve of that, it’s good to discuss this general power in some hypothetical that is unlikely to occur.

    Comment by Dustin (b54cdc) — 6/30/2010 @ 8:09 am

  22. Crap, Dustin.

    This was not a judicial question. It was some politician trying to make a rhetorical point better meant for one of his rallies to his faithful.

    You want to ask “Can Americans be compelled to buy health insurance?” ask “Can Americans be compelled to buy health insurance?”

    Comment by nk (db4a41) — 6/30/2010 @ 8:15 am

  23. . It was some politician trying to make a rhetorical point better meant for one of his rallies to his faithful.

    Granted.

    I guess I just work off a curve with these guys.

    I don’t think you can get an answer to your more reasonable articulation of the question. I think there’s this idea that justices will refuse to answer directly to cases they might see, and Kagan will preside over that specific question. I agree that she ought to be able to answer the question the way you phrase it.

    Anyway, the idea behind the question is extremely important. The entire purpose of presiding over the constitution is to constrain government to its enumerated powers only. In this way, it’s clear to me just how broken every stage of the process has become, where even asking about it, or getting an answer, is an exercise requiring clairvoyance.

    Comment by Dustin (b54cdc) — 6/30/2010 @ 8:19 am

  24. Dustin – I have to disagree about the unlikely to occur. We have munincipal governments banning foods and seasonings, and such moves will become more prevalent in the future.

    Comment by Have Blue (854a6e) — 6/30/2010 @ 8:20 am

  25. boo-sox got all wound up over a simple observation. Reminds me of the ‘tard of thunder.

    Comment by JD (959071) — 6/30/2010 @ 8:22 am

  26. “Dustin – I have to disagree about the unlikely to occur”

    I can’t fathom this New York salt nonsense. It just doesn’t compute in my fragile little mind.

    Comment by Dustin (b54cdc) — 6/30/2010 @ 8:25 am

  27. Yeah, JD, another troll rises…

    Comment by Eric Blair (02a138) — 6/30/2010 @ 8:30 am

  28. Dustin – I don’t see it as a stretch at all. They are taxing tanning beds, soda, etc … Now, once government finally gets its hands into all of our healthcare, it seems only logical that they will regulate these things. The salt thing in NY is but one example.

    Comment by JD (959071) — 6/30/2010 @ 8:33 am

  29. It will wind up like the old soviet union. We will have to stand in line for tomatoes, then follow some guy out to his car to barter for some illegal nutter butters.

    Comment by Bradnsa (980254) — 6/30/2010 @ 8:42 am

  30. We already see countries with nationalized health care withholding services to those who are too fat or smoke. We see attacks here on smoking based on public costs. If government gets control of our medical services they will certainly mandate our lifestyle and diet or withhold medical services to those who don’t comply. Only politically protected vices will be permitted.

    Comment by Machinist (497786) — 6/30/2010 @ 9:18 am

  31. Didn’t the wise Latina declare Heller to be settled law in her hearing, and then promptly came down on the other side of the issue in McDonald?

    Comment by JD (959071) — 6/30/2010 @ 9:24 am

  32. Nk

    There was nothing stupid about the question.

    The response, however, was stupid.

    And no, it is not smart to ask her the question about health care directly. She will just smile and say, “sorry, it will come before the court.” that’s practically inevitable.

    But by asking one less directly on point, he got her to admit to a broader interpretation of the commerce clause.

    Comment by Aaron Worthing (A.W.) (e7d72e) — 6/30/2010 @ 9:25 am

  33. Less important than her not being able to find a specific ground to support the law is the fact that she could not/did not immediately reject the hypothetical as unconstitutional and not just “dumb”.

    Comment by Have Blue (854a6e) — 6/30/2010 @ 9:33 am

  34. I can Obama setting up another department–like the department of healthy foods–asking Congress to pass something that mandates we shall all eat 8 servings of fruit and vegetables a day–and Kagan saying, why yes, the Commerce Clause allows Congress to do that, because eating fruits and vegetables has an effect on health, and health affects commerce, etc, etc, etc,

    Comment by rochf (ae9c58) — 6/30/2010 @ 9:33 am

  35. JD

    well, in truth heller didn’t automatically lead to macdonald. i felt heller was a clear slam dunk on the constitutional grounds, but macdonald was less clear if only because the text of the constitution was not so clear.

    that being said, by the precedents regarding incorporation, macdonald should have been a 7-2 decision.

    Comment by Aaron Worthing (A.W.) (e7d72e) — 6/30/2010 @ 9:37 am

  36. Thanks, A.W.

    Comment by JD (959071) — 6/30/2010 @ 9:40 am

  37. Unhealthy food affects the corn industry which affects Iowa and many other aspects of our corruptocrats.

    I guess I’m too optimistic that the government will leave me to my red meat, but whatever they eventually tell me to eat will not be healthy.

    In fact, if the government had stayed out of the food industry, we would not have a problem with obesity because sugar wouldn’t be in everything. That didn’t just happen on its own in the free market. You have Richard Nixon to thank for HFCS in your ketchup.

    Comment by Dustin (b54cdc) — 6/30/2010 @ 9:42 am

  38. “The problem is, we know she’s liberal that has an understanding of Federal law.”

    Maybe.

    There’s two possibilities that I can think of.

    She’s an ignorant bint who doesn’t have a clue about the 10th Amendment or the enumerated powers in Article 1.

    Or, she knows about them, and has no intention of upholding and obeying the law (which I think would also explain her idiotic answer, a deliberate attempt to deflect and obscure).

    Either way, she’s manifestly unqualified for a position on the SCOTUS, unless they want to hire her to scrub floors.

    Comment by Dave Surls (32805f) — 6/30/2010 @ 9:51 am

  39. Dave

    But even the “she plans to ignore the constitution” theory doesn’t make sense because she should at least be familiar with it and the main issues and arguments.

    That answer was clueless. She had no idea that there was even an issue in it.

    i mean it would be like imagine if someone with the exact same views as Scalia was nominated and he was asked about gay marraige. well, of course the answer is to scalia that the constitution allows for states to discriminate in marriage between straight and gay marriages, but even then Scalia would acknowledge that there were precedents and arguments to be made. he would acknowledge them and either distinguish the precedents, denounce them or say something else to address the issue.

    She did none of those things. And she had a similarly crappy performance in citizen’s united. seriously, this is incompetant practice what she is doing. any first year law student would do better.

    Comment by Aaron Worthing (A.W.) (e7d72e) — 6/30/2010 @ 10:28 am

  40. A revealing moment….
    At the close of yesterday’s “Special Report”, they played a clip of a question by Lindsey Graham that Kagan interpreted as a question about the Christmas Bomber (she jumped in with the answer before he finished the question – isn’t that a violation of a basic rule of depositions, etc?). Anyway, Graham finally said that the question wasn’t what she thought about the status of the Christmas Bomber, but ‘What was she doing Christmas?’, and Kagan responded ‘Well, probably like most Jews, I was having dinner in a Chineses restaurant’.
    The point is that between the time she realized it was not a serious question, and she came up with a semi-humorous answer (which passes for high-humor on The Hill),
    the expression on her face was one of Pure Hate!

    This is not a person to be trusted with the legal future of this Country.

    Comment by AD - RtR/OS! (209868) — 6/30/2010 @ 10:29 am

  41. the expression on her face was one of Pure Hate!

    I think that’s just how she looks.

    (joke)

    (sorta)

    the Clinton memos I see make it clear this is one shrill partisan. People like that should have to be district level judges first to demonstrate some temperament. Obviously they really should be advocates and not jurists at all, but I think given her partisan and strange record, it’s fair to say her inexperience makes her extremely risky.

    Comment by Dustin (b54cdc) — 6/30/2010 @ 10:53 am

  42. “Coburn asked a stupid question”

    The great karate sensei, Pat Morita, once said “No such thing as bad question, only bad answer.”

    Well, he actually said “No such thing as bad student, only bad teacher.”

    Which is reasonably close.

    Comment by Dave Surls (593f85) — 6/30/2010 @ 11:11 am

  43. I thought her answer was a deliberate side step.

    Q. Can Congress make a law about eating your fruit and veggies, using the “penumbra” of the Commerce clause?
    A. Sounds like a dumb law, being a dumb law is different than being an unconstitutional law, and the court shouldn’t over rule laws because they are dumb.

    Follow-up Q: I think it would be a dumb law, too, and I agree that the court shouldn’t be overturning laws because they are dumb (besides, the judges would never sleep if they had to review laws for “dumbness”), but my question is, whether dumb or not, can the commerce clause be successfully used to defend such a law?

    In some ways it isn’t so far fetched. I heard someone point out that Michelle’s issue is childhood obesity. Isn’t it right up leftist thinking to say poor oppressed children are not being fed healthy food, and those who are not giving them healthy food should be made to give them healthy food??

    Comment by MD in Philly (3d3f72) — 6/30/2010 @ 11:51 am

  44. And a lawyer like Kagan knows that she didn’t answer the question.

    It would grate at her mind, as a professor at a school like Harvard, if a student answered a question like that.

    If she offered that on a test, this answer would get no credit.

    She knows she side stepped and she knows it’s obvious. She feels she has no incentive to answer and I think she’s shown a preference for dishonesty. Anyone watch her discuss whether she wrote memos? She is actually playing coy.

    And I have to admit, she has every reason to. The GOP should refuse to play ball on this, but she will be on the Court.

    Comment by Dustin (b54cdc) — 6/30/2010 @ 11:58 am

  45. We’ll just ship them all out to “re-education camps” – the kids, not the adults – where they will be fed nutritious meals devised in accordance to the health guidelines developed at HHS, and devote themselves to comprehensive athletic activity, and to the all-encompassing intellect of Teh Won.
    It worked so well for Rumania…

    Comment by AD - RtR/OS! (209868) — 6/30/2010 @ 11:58 am

  46. Dustin

    I have to dispute that. She did answer it.

    She said that the courts would uphold it. that is the import of her words. its clear as day.

    Now maybe she didn’t even recognize that there was a constitutional issue in regards to that law. Which is scary if true. But that answer is affirmative–Congress can be that stupid, and unconstitutional.

    Comment by Aaron Worthing (A.W.) (e7d72e) — 6/30/2010 @ 12:19 pm

  47. A.W.,

    If you want to take her refusal to answer the question as in effect answering, “Yes, but you’re not going to hear me say it”, I see your point of view, and in one sense you may be closure to the truth. But, I don’t think there is anything in what she said that unequivocally spells out that answer, and she can easily claim, “I didn’t say that”, if someone claims she thinks such a law is within the fed’s power.

    Comment by MD in Philly (3d3f72) — 6/30/2010 @ 1:06 pm

  48. I think, AW, that she pretended she didn’t recognize the constitutional issue with regard to whether or not the government can compel you to “eat your vegetables”. In other words, she didn’t answer the actual question that is hidden within the veggie question.

    She was being asked about the limitation the Court will impose on Congress by interpreting the Constitution according to the 10th amendment and Article I, Section 8.

    She answered in a Clintonian way, saying the court can’t overrule a law because it’s dumb. Of course, the real answer you and I get is that she will not apply normal legal reading to the Constitution. The powers are laid out, plain as day, and powers that aren’t listed, but desired, will be assumed to exist anyway, despite the tenth amendment.

    Even though we both know that’s what she meant, she’s flagrantly refusing to directly answer the question.

    Coburn has to try to steer her back to the point: does congress have this power, a few times. She never says that congress does or doesn’t. She said the Court can’t overrule a law based on whether it’s senseless. It was merely a hypo and she understands the point of this hypo, which isn’t to analyze how sensible veggie mandates are.

    Coburn is clearly posing a hypo to prevent them for directly addressing ‘the other law I have in mind but won’t name’, and Kagan is clearly attempting to avoid discussing the commerce clause at all.

    I think your reaction, that she seems to be stupid, is actually pretty persuasive, but I think she’s stupid like a fox.

    Comment by Dustin (b54cdc) — 6/30/2010 @ 1:12 pm

  49. MD

    Look, this is her response to the question:

    > Kagan: It sounds like a dumb law.

    > Coburn: Yes, I got one that’s real similar to it I think is equally dumb. I’m not going to mention which–which it is.

    > Kagan: But I think that the question of whether it’s a dumb law is different from whether the question of whether it’s constitutional. And–and–and I think that courts would be wrong to strike down laws that–that they think are–are senseless just because they’re senseless.

    So it would be wrong to strike down this law, according to her.

    Now the only defense you can offer is that she didn’t understand that there was a constitutional question raised by Coburn’s example. Which is actually scarier than an affirmative answer.

    But she pretty clearly said she would uphold it. now i am getting very sympathetic to the notion that she is too slow to see the issue he was raising. but its still definitely “yep, i would uphold it.”

    Really, seriously, i am starting to think she is kind of an idiot on legal matters. she might have been a wizard of a dean, but that is a different skill set. administration is not judging or lawyering. in fact, ironically, it might be better to have her as president and obama on the supreme court. or at least make her oil spill czar. maybe she could get the federal government’s collective thumbs out of their collective kiesters, and stop getting in the way of people like Jindall who actually have two brain cells to rub together.

    Comment by Aaron Worthing (A.W.) (e7d72e) — 6/30/2010 @ 1:13 pm

  50. The Constitution

    Folks who aren’t familiar should read this. Article 1 section 8 specifically lists the powers congress has. There’s an idea in reading laws that if something is left our, or included, that inclusion or exclusion should be interpreted as meaningful. That they are so specific in listing so many powers means that major powers they do not list are not contained in general under commerce or any other clause.

    The commerce power really is about regulating commerce, not regulating everything, including non commercial growing of wheat in your backyard, because everything has some potential tiny impact on commerce. The Tenth Amendment further requires that every inch of power not listed in section 8 is power the states retain. The idea that we can interpret nearly limitless power out of the commerce clause is directly incompatible with the idea that there are many powers that the legislature simply doesn’t have, but states do have.

    This is the central question of Federalism. This is something democrats will slither away from answering.

    AW is right that Kagan told us all we need to know about her with this answer, but she too is attempting to slither away.

    Comment by Dustin (b54cdc) — 6/30/2010 @ 1:18 pm

  51. Now the only defense you can offer is that she didn’t understand that there was a constitutional question raised by Coburn’s example. Which is actually scarier than an affirmative answer.

    But Coburn lists specifically what constitutional problem he is interested in discussing: the expansive powers under the Commerce Clause. I realize you know that Kagan has heard of Raich and Wickard. She was the Solicitor General and has obviously cited Raich.

    You can’t really think she’s such an idiot on legal matters that she didn’t understand this was the topic. She did graduate from a law school. Even Cooley Law Schooley students understand Raich.

    Comment by Dustin (b54cdc) — 6/30/2010 @ 1:21 pm

  52. I agree with A.W. and Dustin that she gave an answer that was all we needed to know. As far as the answer to Coburn’s question, while I agree her intent could have been as you describe, A.W., I think she has also maintained her own version of deniability.

    Reminds me of the official statement released by the CIA concerning Plame, “…she was a covert agent…”, yesss…, sometime during her life she was a covert agent, but had she been a covert agent during time period “X”? “She had been a covert agent, I cannot be more specific than that.” (some liberty with exact words).

    Comment by MD in Philly (3d3f72) — 6/30/2010 @ 1:32 pm

  53. Dustin

    re: stupid like a fox. Yeah, except she was equally stupid in pushing against citizens united. She was asked if the law in question would apply to books and she said, more or less, sure, the statute would seem to apply to that, but don’t worry, you guys can knock that down on an “as applied” challenge.

    That is black letter law wrong. That is Free Speech 101 wrong. A first year law student knows this is wrong. I believe this is particular to free expression but any statute that is too broad is wholly unconstitutional. Honestly, I don’t remember if you are a lawyer, but in case you aren’t let me explain.

    For instance, the supreme court has long said that you can ban threats, and defamatory insults, but not just plain insults. So suppose that a statute banned “threats and insults.” Suppose that a person threatened another and was charged with a crime under that statute. The supreme court would say that even though the conduct could be banned under the constitution, the statute also reaches other conduct that cannot be, therefore the entire statute is invalidated, even though in this particular case, the statute was not being applied in an unconstitutional way.

    I believe this is unique to expression and abortion law. By comparison most other constitutional rights are only violated if the actual application to you is unconstitutional. So for instance the supreme court said that its unconstitutional to apply the death penalty to crimes committed by minors. I believe the age cut off was 18. So suppose a state says that anyone over the age of 16 can be executed, but you were 24 when you committed your crime. Then even though the statute is unconstitutional when applied to 16 year olds, it is not unconstitutional when applied to you, and therefore you can still be convicted under it.

    This is what we mean when we say a law is unconstitutional “as applied.” It means that sometimes it is constitutional, but some applications is not. And rather than command the legislature to remove it from the code books, the courts simply refuse to enforece it. So even though a state’s law might allow a 16 year old to be executed, the courts say, “in light of what the supreme court said on the subject, I will not allow the death penalty to be given.”

    There is no such thing “as applied” logic with freedom of speech, however. Either the whole statute is constitution, or its all unconstitutional.

    And while non-lawyers don’t necessarily know this, this is elementary with lawyers. And thus it is incompetent for her to have made this argument. That concession all but doomed the law.

    Now I suppose she could have been actively seeking the result that happened but… I watch that clip from yesterday and I don’t sense an actor. I don’t sense she is putting up a show. I think she actually didn’t get it. She didn’t even understand what the issue was. Its subjective, I know, but I think she might be genuinely clueless.

    Here’s from the Citizen’s United argument:

    Kagan: the government’s view is that although 441b does cover full-length books, that there would be quite good as-applied challenge to any attempt to apply 441b in that context.

    And I should say that the FEC has never applied 441b in that context.

    So for 60 years a book has never been at issue.

    Justice Scalia: –What happened to the overbreadth doctrine?

    I mean, I thought our doctrine in the Fourth Amendment is if you write it too broadly, we are not going to pare it back to the point where it’s constitutional.

    If it’s overbroad, it’s invalid.

    What has happened to that?

    General Kagan: I don’t think that it would be substantially overbroad, Justice Scalia, if I tell you that the FEC has never applied this statute to a book.

    To say that it doesn’t apply to books is to take off, you know, essentially nothing.

    Chief Justice Roberts: But we don’t put our — we don’t put our First Amendment rights in the hands of FEC bureaucrats; and if you say that you are not going to apply it to a book, what about a pamphlet?

    Comment by Aaron Worthing (A.W.) (e7d72e) — 6/30/2010 @ 1:41 pm

  54. Dustin

    You can read teh whole argument, here: http://www.oyez.org/cases/2000-2009/2008/2008_08_205/reargument

    Comment by Aaron Worthing (A.W.) (e7d72e) — 6/30/2010 @ 1:42 pm

  55. Thanks for the link!

    I admit, it’s not looking like Kagan is going to be immortalized in philosophy tomes for centuries.

    There is some strange comfort to the idea that she’s really just an idiot.

    Comment by Dustin (b54cdc) — 6/30/2010 @ 1:50 pm

  56. well, if she is an idiot, then put me in the “opposed” column regarding her nomination.

    And if she is faking it, even more so.

    Comment by Aaron Worthing (A.W.) (e7d72e) — 6/30/2010 @ 1:53 pm

  57. btw, oyez is a great site, especially for legal geeks.

    Comment by Aaron Worthing (A.W.) (e7d72e) — 6/30/2010 @ 1:59 pm

  58. A.W.- But it was Kagan’s job to argue for the law, was it not? I can only imagine when your job is to argue a point which is a bad point that you have no good answers for, you throw up stuff that sounds like it might work.

    I agree it would seem to be stupid to do such a stunt before the SCOTUS, but much of what the left always does is to keep rambling off things that sound persuasive, as long as no one questions the facts and thinks longer than 10 seconds. Maybe she was so used to doing that she just lapsed into normal form.

    Thank you for the link. I have no experience of following SCOTUS testimony to use as a back drop, but much of the dialogue has the appearance of a novice before those several “caste levels” higher, and making the mistake of trying to impress too much with over reaching statements and references that more experience would have taught her to leave out. In other words, she was out of her league, but instead of recognizing that and unapologetically doing what she was capable of, she tried to pull off somrthing more ambitious and fell flat.

    I could be mistaken, but didn’t Coburn or someone raise this with her, commenting that he wouldn’t want to be a client whose attorney says, in effect, “What you did was against the law, but don’t worry, they’ve never enforced it before”.

    Comment by MD in Philly (3d3f72) — 6/30/2010 @ 2:10 pm

  59. I think this link provides some helpful background on the book/pamphlet issue in the Citizens’ United case.

    Comment by DRJ (d43dcd) — 6/30/2010 @ 2:21 pm

  60. Md

    > But it was Kagan’s job to argue for the law, was it not?

    There were other ways to argue in favor of the law. A more skillful lawyer could have salvaged something other than a complete disaster for her position. now, mind you a disaster from her pov is a victory for those of us who care about freedom, but from a tactical standpoint, it’s a terrible argument.

    > Maybe she was so used to doing that she just lapsed into normal form.

    Well, that is an intriguing thought. I used to call it yale-itis, when professors would say batsh—crazy stuff and most of the class would pretend it was perfectly normal. I mean stuff that was so unbelievable I would tell members of my family and they would have trouble believing anyone would believe what they believed.

    > In other words, she was out of her league

    Mm, good point. And now she wants to be shoved into their bullpen, to keep the baseball metaphor going.

    > but didn’t Coburn or someone raise this with her

    There is a video clip they had on hot air about the case. I never got around to watching it.

    DRJ

    Looks interesting. I will have to read about it. at my old blog before the everyone draw mohammed thing, I wrote a lot about citizens united, because there was so much hysteria about it.

    By the way fun trivia question. which was the last president of the united states to have receive direct contributions for the treasury of a corporation at some point in his career?

    It’s a trick question. The last one is the current President, Obama. As a state senator corporations contributed directly to his campaign. Remember that the next time Obama says corporate money is corrupting… he would know!

    Comment by Aaron Worthing (A.W.) (e7d72e) — 6/30/2010 @ 2:37 pm

  61. As long as I don’t have to eat mac and cheese.

    Comment by GM Roper (5f13e9) — 6/30/2010 @ 6:16 pm

  62. _______________________________________

    Leftists like Kagan are going to be frequently uncomfortable with the idea of a pushy, nanny-state, go-gooder government being told to “hush up and sit down.”

    The hypothetical law posed by Coburn at least was absurd enough to make Kagan call it “dumb.” But that was about the extent of things. So for her to apparently want to rationalize-rationalize, excuse-excuse — if not kiss-kiss — the legal ramifications of it is a window into her mind.

    And kind of dumb — or actually quite idiotic — on her part to not respond to such a clearly facetious hypothetical with something based on the following:

    The Ninth Amendment is less well known but was very important in the philosophy of the 18th Century Founders. There was great concern that by naming specific rights in the first eight amendments, the implication would be that other rights not named did not exist. The Ninth Amendment was included to dispel this notion and reads as follows:

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

    The rights outlined in the first eight amendments have come to be known as enumerated rights. The Ninth Amendment provides the basis for recognizing other rights, generally considered to arise from natural law. These rights are the unenumerated rights. The implication of the Ninth Amendment is that the Constitution recognized rights that exist, not that the Constitution created any rights.

    There are many rights that are recognized in our society that are not named in the first eight amendments. If the Ninth Amendment did not exist, it might be argued that there was no constitutional protection for:

    * The Right of Free Association
    * The Right to the Presumption of Innocence
    * The Right to a Fair Trial
    * The Right of Reproductive Autonomy
    * The Right to Privacy
    * The Right to be Free from Compulsory Sterilization

    These rights and others commonly taken for granted are never mentioned in the Constitution, but are recognized by the Supreme Court and society generally as having Constitutional protection. This is consistent with the Founders’ philosophy “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights,”

    There are many legal debates about how to determine if a right not enumerated in the Constitution is constitutionally protected. While few judicial opinions rest firmly on the Ninth Amendment, the existence of the Ninth Amendment gives the courts the philosophical ability to protect citizens from an overzealous government from intrusions upon personal freedoms.

    No matter the particulars of the US Constitution, ultimately and most frequently it really comes down to the percentage of liberals, moderates and conservatives managing the affairs of our society, of our judicial system in particular. And when people of the left are far too numerous in our society, common sense tends to get choked and clobbered.

    BTW, I still think Kagan from certain angles looks like sportscaster Bob Costas in drag or perhaps a sister of his.

    Comment by Mark (411533) — 6/30/2010 @ 9:36 pm

  63. Well argued, Mark. It’s amazing that the ninth amendment was even needed. But it’s worse than that. We needed some kind of protection that was even more obvious.

    “Shall not be construed”. That died a long time ago, though Wickard stands out.

    We started construing and glossing over problems with our Constitution with Marbury. There is no beating this oligarchy. Amend the Constitution and they will actually ignore it or interpret it away.

    Comment by Dustin (b54cdc) — 6/30/2010 @ 10:14 pm

  64. I have said it here before and will now again, but I wish the Justice who asked the question about books during Citizens United had followed it up with, “And if the government can ban books how should the volumes be disposed of. Would it be proper to mandate they be burned in pyres on the National Mall.”

    Comment by Have Blue (854a6e) — 6/30/2010 @ 10:20 pm

  65. “the existence of the Ninth Amendment gives the courts the philosophical ability to protect citizens from an overzealous government from intrusions upon personal freedoms”

    Baloney. The entire argument is a lot of absurd nonsense.

    The federal courts (aka federal judges, aka agents of the federal government) have no enumerated power to determine what our rights are (or more importantly what are rights aren’t).

    Maybe we have a right to privacy and maybe we don’t, but the SCOTUS has no legal authority to decide the matter, and indeed is prohibited from doing so by the Tenth Amendent.

    Not that the SCOTUS has ever felt bound to follow the law.

    Comment by Dave Surls (aac053) — 7/1/2010 @ 12:35 am

  66. Dave – The point I like to oint out is if I have a “Right” to privacy about whether I am going to have an abortion, where is my right to privacy for what my salary is, how much money I have in the bank, how many guns I own, etc.
    When libs make up rights they only advance a liberal agenda, even though the “right” they promote would be far more applicable to a conservative one.

    This is part and parcel of the current discussion of First Amendment issues. As a non-lawyer my discussions are more philosophical or academic in nature. However I noticed a long time ago in laymens discussions that the assumption is made that the First Amendment is intended to protect pornographic movies and nude dancing. The comment was actually made in a seminar that I took that the participant could not fathom a discussion of the First Amendment speech clause with out reference to “community standards” and discussions on whether the arteriole constitutes the nipple.
    Meanwhile the government passes laws restricting political speech. Such laws are unconstitutional on their face but are ignored.

    Comment by Have Blue (854a6e) — 7/1/2010 @ 8:30 am

  67. …and discussions on whether the arteriole constitutes the nipple.
    Comment by Have Blue — 7/1/2010 @ 8:30 am

    I will go out on a limb and definitively state “no”. The “areola” is not either as far as anatomy goes. ;)

    Comment by Stashiu3 (44da70) — 7/1/2010 @ 8:37 am

  68. Stashiu – Hopefully I will learn not to rely on Firefox’s spell checker before I have rid myself of the morning eye cruft. (And had at least one cup of coffee.)

    Comment by Have Blue (854a6e) — 7/1/2010 @ 8:43 am

  69. I agree with the rest of your point btw… and at least Firefox spelled “arteriole” correctly. :)

    Comment by Stashiu3 (44da70) — 7/1/2010 @ 8:54 am

  70. Stashiu3 – I have no doubt that it also included “areola” also Okay it did not include it as it just flagged it again (but this time does not include “arteriole” as a suggestion.
    Will still blame myself for aggravated commenting while still sleeping.

    Comment by Have Blue (854a6e) — 7/1/2010 @ 9:03 am

  71. Dave – who has the power to determine what the ninth amendment means, if not the courts who are charged with interpreting it?

    If nobody has that power, then it’s meaningless.

    If Congress has that power, then it’s effectively meaningless as a constraint on Congress.

    If the state legislatures have that power, then it’s effectively meaningless as a constraint on state legislatures.

    So, who has the power? Which form of poison do you choose to drink?

    Comment by aphrael (e0cdc9) — 7/1/2010 @ 9:53 am

  72. aphrael, I agree with the notion carved into the Surpreme Court building in giant block letters that it’s the ‘emphatic’ province of the judicial department to ‘determine waht the ninth amendment means’.

    But apparently it means nothing, just like the tenth amendment.

    If the Commerce Clause is interpreted so far out of step with the rest of Article 1, section 8, to have this nearly infinite regulatory power, then the 9th and 10th amendments have been overturned or rendered absurd.

    And honest system would have worked out an interpretation that requires those two amendments to make sense and be a relevant major part of how much power the Federal government is constrained to.

    The Court made expedient decisions instead of upholding the actual law. They should have been impeached, but yes, it was their duty to say what the law is and they completely failed to do this.

    As Thurgood Marshall, Kagan’s mentor said, “You Do What You Think Is Right And Let The Law Catch Up.”

    What we have is a judicial department that thinks it can behave as a legislature while abusing its special power to be the final arbiter of the law.

    This is what an oligarchy looks like.

    Comment by Dustin (b54cdc) — 7/1/2010 @ 10:05 am

  73. Just think how much better they would look wearing tar & feathers?
    Do they have designer t&f for oligarchs?

    Comment by AD - RtR/OS! (1ed577) — 7/1/2010 @ 10:38 am

  74. If I were to offer Aphrael’s response, perhaps I would say that we keep electing the Presidents who nominate Justices like Marshall.

    The people do not really consider the tremendous power Bush was wielding when he nominated Miers, then Roberts, then Alito. While that turned out extremely well, the masses do not care.

    We have this theater of Senators pretending to advise on this issue, the Justice candidate pretending to reply, the President saying some vague crap.

    But at the end of the day, this Court has assumed a tremendous power and we’re shoving someone onto it, our most supreme appelate end, with zero judicial experience and an obvious refusal to own her views and intentions.

    Marbury and Bork have combined across the centuries to produce a completely broken process, but we are a democratic republic where the people do not seem to view this as a fundamental problem. They have no idea just how much these rulings have shaped their lives. They are consenting. When Obama bashes Palin for her lack of experience, the retort will not be that he pushed Kagan to a lifetime post without any experience. Voters would consider this a terrible argument.

    Is the solution to get everyone reading blogs? Better education? Reduced suffrage? I think people just don’t care and there is no solution.

    Comment by Dustin (b54cdc) — 7/1/2010 @ 10:55 am

  75. Just think how much better they would look wearing tar & feathers?

    No kidding, they would look marvelous, AD.

    Comment by Dustin (b54cdc) — 7/1/2010 @ 10:56 am

  76. At least we know what it takes to bring Stashiu3 out in the open…

    Comment by Machinist (497786) — 7/1/2010 @ 11:27 am

  77. I can’t remember the details, but I heard the point made that Kagan essentially denied the concept in the Declaration of Independence of natural rights. Perhaps someone knows what I’m referring to and can make it clear. That seems to me to be a terrible position to have on the SCOTUS, though perhaps we already have some that think in this way.

    The alternative is what? The people have whatever rights the government decides to give them? “You have the right to live as long as you are less than 70 and don’t have dementia?” Fits with, “You have the right to live after you are born, unless you survived an abortion in which case the mother retains the right to have you terminated.”

    Comment by MD in Philly (3d3f72) — 7/1/2010 @ 12:33 pm

  78. Doc…Rush played several clips this AM in the first hour I believe, where she was being queried on Natural Rights as declared in the Declaration of Independence, and she said that her job as a Justice would be to rely on the Constitution and Law, and she pointedly denied that the DofI has any place in determining whether the laws or actions of Government are proper and just.

    She should be denied just for that reason if not for some of the other stupid things she has done – Military @ Harvard Law, Partial Birth & ACOG, support for Gun Control while clerking for Marshall and at Clinton’s WH…

    Anyone who can deny the importance of Mr. Jefferson’s document to the fate of the Country, is not to be trusted in a position of power and influence within the Federal Government.

    Comment by AD - RtR/OS! (1ed577) — 7/1/2010 @ 1:47 pm

  79. “The Right of Reproductive Autonomy”

    More like the “right” to declare unborn children non-persons and exterminate them at will, I think.

    Of course, in my state a fetus is only a non-person if a pregnant woman says it is, and only a state approved abortionist can kill it. If I kill a fetus, then it magically becomes a human being and I can be charged with murder.

    See the California Penal Code (section 187), if you doubt me.

    “Dave – who has the power to determine what the ninth amendment means…?”

    Anybody but the SCOTUS works for me. It took those balloonheads 222 years to figure out what the 2A means, and I’m pretty sure they only managed that by pure, dumb luck.

    Maybe you want the nine rocket scientists in black deciding what the law says, but after reading Dred Scot, Schenk, Miller, Korematsu, Roe and all kinds of other SCOTUS comedy routines, I’d consult my Mattel Magic 8-Ball before I’d rely on the SCOTUS.

    Let’s try it…

    Magic 8-ball, do people have a right to keep and bear arms?

    “It is certain”

    Magic 8-ball, do women have a right to kill their unborn children?

    “Very doubtful”

    See that, it’s already outperformed the SCOTUS, and it’s just a plastic ball with some water in it.

    Comment by Dave Surls (6d891c) — 7/1/2010 @ 2:07 pm

  80. “Dave – The point I like to oint out is if I have a “Right” to privacy about whether I am going to have an abortion, where is my right to privacy for what my salary is, how much money I have in the bank, how many guns I own, etc.”

    Yes, it’s funny how that right to privacy vanishes when it’s a matter of the government separating you from your money.

    Perhaps, the Supremes haven’t yet contacted the IRS regarding this matter, or perhaps, the SCOTUS believes in a right to privacy about as much as I believe in the tooth fairy.

    Comment by Dave Surls (6d891c) — 7/1/2010 @ 2:19 pm

  81. Dustin – I’d be happy to man the barricades with you if what we were fighting for were a broader and deeper judicial understanding of the ninth amendment.

    I think the ninth amendment was a breathtaking award of power to the federal judiciary, and I think there’s a serious problem with the lack of any intelligible principle derivable from the Constitution which would restrict its use … but I can’t accept the notion that it means nothing.

    I mean: ok, the enumeration of certain rights doesn’t mean that other rights don’t exist. But how can we tell what is an unenumerated right? I mean – I think the right to intimate personal association is pretty clearly an unemerated right; but how can anyone know?

    It’s a serious problem that I haven’t seen a good answer to … and while I have some theories as to how judicial overreach could be abused, I have not the time to go into them right now.

    ——————-

    I think you’re right that my response would be that we keep electing Presidents who nominate the justices we’re getting, and we keep electing Senators who are satisfied with a charade before confirming justices.

    I would reiterate something I’m I’ve said before, although maybe not here: I see absolutely no reason in principle why Senators are not entitled to evaluate a judicial candidate’s judicial philosophy and approach to legal problem solving before deciding whether to entrust them with the job. I thought that was true when the candidate was Justice Thomas; I think it’s true today, too.

    I’m not sure I agree with “They are consenting”, though. Does ignorant acquiescence equal consent? I think not, or at least not in every case (as otherwise you’d have to say that the people of Brezhnev-era Soviet Union consented).

    Comment by aphrael (e0cdc9) — 7/1/2010 @ 3:54 pm

  82. Dave Surls,

    As a structural matter, it seems to me that there’s no place to vest the authority other than in the US Supreme Court. Whether the constituent members of the court are doing their job correctly or not doesn’t change that.

    ———————-

    MD in Philly – disbelief in natural rights is actually fairly common.

    And it’s really not necessary to believe in natural rights in order to believe in the Constitutional order: I can agree that the people of this country are sovereign and that we delegated some of our sovereign power to a government, whose powers are limited by our act of delegation and by restrictions we imposed in the bill of rights, without believing in natural rights doctrine.

    Comment by aphrael (e0cdc9) — 7/1/2010 @ 3:59 pm

  83. Oopps………….NEWS ITEM………..

    “…The National Rifle Association on Thursday publicly opposed the nomination of Solicitor General Elena Kagan to the Supreme Court, telling senators their votes could affect whether the group endorses them for re-election…”

    Comment by AD - RtR/OS! (1ed577) — 7/1/2010 @ 4:22 pm

  84. “As a structural matter, it seems to me that there’s no place to vest the authority other than in the US Supreme Court.”

    It appears to me that if the 9A is supposed to prevent the federal government from arbitrarily denying and disparaging rights, that the worst possible thing you could do is let nine judges who work for the federal government start deciding what our rights are or are not, especially given their abysmal performance record over the last 222 years.

    But, hey, that’s just me.

    Comment by Dave Surls (6d891c) — 7/1/2010 @ 4:54 pm

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