Patterico's Pontifications

2/6/2009

Another Senator Calls for Fairness Doctrine Hearings — You Know, the Ones the L.A. Times Said Nobody Was Asking For

Filed under: Civil Liberties,Constitutional Law,Dog Trainer — Patterico @ 1:07 am

L.A. Times headline to James Rainey column, November 14, 2008:

Impose a mandate on broadcasters to balance their political views? That would be onerous indeed. But memo to Rush: Nobody’s asking for that.

Sen. Debbie Stabenow, Febuary 5, 2009:

BILL PRESS: Yeah, I mean, look: They have a right to say that. They’ve got a right to express that. But, they should not be the only voices heard. So, is it time to bring back the Fairness Doctrine?

SENATOR DEBBIE STABENOW (D-MI): I think it’s absolutely time to pass a standard. Now, whether it’s called the Fairness Standard, whether it’s called something else — I absolutely think it’s time to be bringing accountability to the airwaves. I mean, our new president has talked rightly about accountability and transparency. You know, that we all have to step up and be responsible. And, I think in this case, there needs to be some accountability and standards put in place.

BILL PRESS: Can we count on you to push for some hearings in the United States Senate this year, to bring these owners in and hold them accountable?

SENATOR DEBBIE STABENOW (D-MI): I have already had some discussions with colleagues and, you know, I feel like that’s gonna happen. Yep.

She’s not alone.

I swear, if they can do it with blogs, too, they will.

12/19/2008

Jerry Brown Files Legal Brief Saying Proposition 8 Is Unconstitutional

Filed under: Civil Liberties,Constitutional Law,Court Decisions,General — Patterico @ 7:55 pm

Via Xrlq we learn that California Attorney General Jerry Brown has filed a brief arguing that Proposition 8 is unconstitutional.

In a dramatic reversal, Brown filed a legal brief saying the measure that amended the California Constitution to limit marriage to a man and a woman is itself unconstitutional because it deprives a minority group of a fundamental right. Earlier, Brown had said he would defend the ballot measure against legal challenges from gay marriage supporters.

“The amendment-initiative process does not encompass a power to abrogate fundamental constitutional rights without a compelling justification,” he wrote. “Proposition 8 lacks such a justification.”

While I haven’t reviewed the legal arguments, it’s hard for me to imagine that a right announced just this year is so fundamental that it can’t be changed in the same manner that we generally change the state constitution.

But then, a right first announced just 35 years ago is generally treated as the most fundamental and immutable right of them all. So maybe I shouldn’t be surprised.

Exit question, as the man says: what does this do to Gov. Moonbeam’s 2010 gubernatorial aspirations?

12/11/2008

Could the Senate Refuse To Seat a Senator Appointed by Blago?

Filed under: Constitutional Law,Current Events — Patterico @ 6:00 pm

Eugene Volokh says no.

UPDATE: The L.A. Times quotes experts who say yes.

It’s a Battle of the Experts! Let the games begin!

11/17/2008

Will the U.S. Supreme Court Rule Proposition 8 Unconstitutional?

Filed under: Civil Liberties,Constitutional Law,Court Decisions,General — Patterico @ 10:44 pm

Law professor Brian Gray argues in this morning’s L.A. Times that California’s Proposition 8 may violate the federal Constitution — and that we could see a ruling to that effect some day, written by one Anthony Kennedy.

Is he right? The answer depends on whether you believe Justices Kennedy and O’Connor, on one hand — or Justice Scalia, on the other.

If you’re inclined to believe Justice Scalia, then Professor Gray may well be right: the U.S. Supreme Court might one day mandate gay marriage.

I’m not sure why Gray relies on the old case of Romer v. Evans, which declined to overrule Bowers v. Hardwick, rather than Lawrence v. Texas, which did. I think Gray is drawing a parallel between Proposition 8 and the measure invalidated in Romer, because each involved a statewide ballot measure to place in a state’s constitution a provision disfavoring gays. But whether Proposition 8 would be struck down depends much more on Lawrence than on Romer, because Lawrence went much further to defend the rights of gays.

So would the Court find Proposition 8 unconstitutional? It depends on who you believe. If you believe the justices in the Lawrence majority, they might not. If you believe Justice Scalia (in dissent), they definitely will.

In Lawrence, Justice Kennedy took care to say that the case’s holding would not necessarily extend to gay marriage — although Kennedy put this elliptically, using the following language:

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

In other words, it does not involve gay marriage.

Justice O’Connor, in her concurrence, was more explicit:

Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations–the asserted state interest in this case–other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.

In dissent, Justice Scalia said that the principles articulated in the majority opinion would necessarily mean approval of gay marriage down the road:

At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Ante, at 13 (emphasis added). Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

Count me among those in that hopeful crowd. I have said that I am a supporter of gay marriage, but I have also said I do not believe that goal should be accomplished through illegitimate judicial legislation.

Tell Tony Kennedy to stay the hell out of this issue.

9/25/2008

The Annenberg Foundation/Obama/FactCheck/Brady Center Connection

Filed under: 2008 Election,Civil Liberties,Constitutional Law,General,Scum — Patterico @ 11:11 pm

The other day I savaged a FactCheck piece on Obama and gun rights. I noted that FactCheck elevated Obama’s campaign rhetoric over his record. I couldn’t see how an organization allegedly devoted to “facts” could be so naive.

Xrlq joined in, and had plenty of links to others who also bashed FactCheck.

We now have a possible reason why FactCheck seemed to be in Obama’s pocket. Namely, FactCheck’s sugar daddy is a big donor to the anti-Second Amendment folks at the Brady Center to Prevent Gun Violence.

FactCheck supposedly exists to look beyond a politician’s claims. Ironically, in its analysis of NRA materials on Barack Obama, these so-called “FactCheckers” use the election year campaign rhetoric of a presidential candidate and a verbal claim by one of the most zealous gun control supporters in Congress to refute facts compiled by NRA’s research of vote records and review of legislative language.

There’s another possible explanation behind FactCheck’s positions. Just last year, FactCheck’s primary funding source, the Annenberg Foundation, also gave $50,000 to the Brady Center to Prevent Gun Violence for “efforts to reduce gun violence by educating the public and by enacting and enforcing regulations governing the gun industry.” Annenberg made a similar grant for $100,000 in 2005. (source)

Regardless of the cause, it’s clear that while FactCheck swoons over a politician’s rhetoric, NRA prefers to look at the more mundane details – like how that politician voted on a bill and what kind of impact that legislation had or may have had on law-abiding gun owners.

As Columbo would say: just one more thing.

The Annenberg Foundation? Doesn’t that sound familiar in the context of Barack Obama? Why, yes it does!

9/20/2008

NYT Editors Allow Article To Include Quotes From Wall Street CEOs That NYT Sources Admit They Weren’t In The Room To Hear

[Posted by WLS]

This correction published in the New York Times yesterday should cause the hair on the back of your neck to stand up — and not simply because the reporting of these “quotes” might have impacted the market.

Here’s what the correction says:

An article about the effect of the Wall Street crisis on Morgan Stanley and Goldman Sachs cited two sources who were said to have been briefed on a conversation in which John J. Mack, chief executive of Morgan Stanley, had told Vikram S. Pandit, Citigroup’s chief executive, that “we need a merger partner or we’re not going to make it.”

On Thursday, Morgan Stanley vigorously denied that Mr. Mack had made the comment, as did Citigroup, which had declined to comment on Wednesday. The Times’s two sources have since clarified their comments, saying that because they were not present during the discussions, they could not confirm that Mr. Mack had in fact made the statement. The Times should have asked Morgan Stanley for comment and should not have used the quotation without doing more to verify the sources’ version of events.

This correction immediately took my thoughts to this review by Jack Goldsmith of New York Times’ reporter Eric Lichtblau’s book “Bush Law: The Remaking of American Justice.”

Lichtblau was the reporter who broke the story of the Terrorist Surveillance Program, and the story on the cooperation of the international bank consortium SWIFT in tracking terrorist financing through international banking transactions. His book recounts his reporting on both these subjects in detail, as well as his and James Risen’s struggle with the New York Times’ editors to get his blockbusters published on the front page of that paper.

Goldsmith’s is an extremely thoughtful article, and those interested in the implications of the New York Times‘s decisions to reveal classified intelligence programs on its front page should take time to read and consider Goldsmith’s thoughts. I only came across this article in the last few days — it was published in The New Republic back in August — but it’s very sobering in its analysis.

(more…)

8/25/2008

Obama Asks DOJ to Investigate Critical Political Ad (Updated)

Filed under: 2008 Election,Civil Liberties,Constitutional Law — DRJ @ 3:23 pm

[Guest post by DRJ]

The Politico reports Barack Obama has requested the Justice Department to begin a criminal investigation of the American Issues Project, its officers and directors, and its anonymous donors, presumably including its financier Harold Simmons (who was also a donor to the Swift Boat Vets), for airing negative ads about him:

“Sen. Barack Obama has launched an all-out effort to block a Republican billionaire’s efforts to tie him to domestic and foreign terrorists in a wave of negative television ads.

Obama’s campaign has written the Department of Justice demanding a criminal investigation of the “American Issues Project,” the vehicle through which Dallas investor Harold Simmons is financing the advertisements. The Obama campaign — and tens of thousands of supporters — also is pressuring television networks and affiliates to reject the ads.
***
The ad focuses on Obama’s relationship with Bill Ayers, a Hyde Park acquaintance at whose home Obama attended a gathering early in his political career. Ayers is a complicated figure: professor and adviser to the mayor of Chicago despite not having repented his past as a domestic terrorist with the Weather Underground.

“How much do your really know about Barack Obama? What does he really believe?” asks the ad, which also uses imagery from the Al-Qaeda terror attacks on Sept. 11, 2001.

“Why would Barack Obama be friends with someone who bombed the Capitol and is proud of it?” asks the ad’s narrator.”

CNN, Fox News, and at least one local channel have refused to air the ad after receiving pressure from the Obama campaign.

As the Instapundit says, they said there would be efforts to quash speech after George W. Bush was elected President. They were right.

UPDATE 8/26/2008: Counsel for the American Issues Project has issued a firm response to the Obama campaign’s request for an investigation. (H/T Rick Ballard.)

— DRJ

8/1/2008

Pathetic Piece of Journalism From LAT Re Raid of “Medical Marijuana” Dispensary in LA

Filed under: Constitutional Law,Court Decisions,Crime,Dog Trainer — WLS @ 2:55 am

[Posted by WLS]

This isn’t about a debate over whether there should or should not be valid state laws authorizing the distribution and use of medical marijuana.

The fact is that marijuana is a Schedule I controlled substance by act of Congress, making it illegal for any and all purposes.  It is a federal felony to DISTRIBUTE or POSSESS WITH THE INTENT TO DISTRIBUTE any Schedule I controlled substance.  It is a misdemeanor to possess it with the intent to use it.

The Supremacy Clause of the US Constitution means that state laws cannot override that federal statute so long as it is on the books.  Convince Congress to change the law — fine.  Until then, MJ distribution is illegal, whether medicinal or otherwise.

Now to the LAT story today on the DEA raid.  Here’s the paragraphs that are so pathetic:

Federal agents raided a Culver City medical marijuana dispensary where they spent more than four hours this afternoon, serving a search warrant that resulted in no arrests but left the shop in disarray.

Drug Enforcement Administration agents arrived about noon at Organica Collective in the 13400 block of Washington Boulevard, said Sarah Pullen, a spokeswoman for the Los Angeles office of the agency.

“Marijuana remains a controlled substance, and it is illegal under federal law to possess, dispense or cultivate marijuana in any form,” Pullen said of the purpose of the raid.

The federal operation came on the same day an appellate court in San Diego ruled that federal law does not preempt the state’s law allowing the use of medical marijuana — a ruling touted by supporters of California’s medical marijuana law as a significant win.

What Court?  What is the basis of the decision?

Read through the LAT article 2, 5, 10 times and you won’t find another mention of it.

The reference seems to cast doubt on the legitimacy of the law enforcement activity undertaken by DEA, which is described in the most “horrifying” details by LAT Staff Writer Tami Abdollah — I guess her salary is cheap enough that it wasn’t necessary to lay her off.  And the LAT is getting journalism worth every penny they are paying her.

So, what court decision came down today?

It seems that the California Fourth Circuit Court of Appeals in San Diego ruled against the City of San Diego, which had brought a civil suit to invalidate the state ID Card program which is being used as a foundation for California’s medical marijuana laws.  San Diego argued that because distributing marijuana is illegal under federal law, the state ID card program is also invalid.  The California state appeals court held otherwise, saying federal laws banning the distribution of marijuana don’t invalidate the ID law.

The bottom line on that is, for good or ill, state appellate courts have absolutely zero ability to determine what is or is not valid federal law.  So long as Congress deems that marijuana distribution, for medicinal purposes or otherwise, is illegal — its going to remain illegal and DEA is going to continue to raid these dispensaries.

Explanation for the pathetic reporting in this story?  I don’t know.  Maybe the LAT fired so too many editors.

7/30/2008

A Window Into Obama’s Constitutional Soul?? NYT Publishes Final Exams Obama Gave to Con Law Students at Univ. of Chicago Law School

Filed under: 2008 Election,Constitutional Law,Politics — WLS @ 3:56 am

Posted by WLS:

The NYT in this story out today has the final exam questions given by Obama to the Con Law III students at the Univ. of Chicago law school from 1997 to 2003. They make for some interesting reading, and left me scratching my head.

But the manner in which the problems are expressed suggest a huge liberal bias.

This post is simply an invitation to review them and discuss them in the comments section. After I have a chance to digest them further, I’ll have a few posts on individual exam questions that spark my interest.

7/29/2008

Justice Department Seeks Rehearing in Case Ruling Death for Child Rape Unconstitutional

Filed under: Constitutional Law,Court Decisions,Crime,General — Patterico @ 7:05 am

The Justice Department yesterday asked the Supreme Court to rehear Kennedy v. Louisiana, the case that ruled unconstitutional the death penalty for child rape.

According to SCOTUSblog, the move is especially unusual because the Justice Department was not involved in the case the first time around. But after a blogger noted that the Supreme Court’s finding of a “national consensus” against the death penalty for child rape had ignored Congress’s specific and recent approval of that penalty in the Uniform Military Code of Justice, the omission made it to the front page of the New York Times. And now, the Justice Department has decided that it might be time to get involved.

The motion says:

Because the Court did not have a complete description of the relevant legal landscape, the Court’s decision rests on an erroneous and materially incomplete assessment of the “national consensus” concerning capital punishment for child rape. That error undermines the foundation for the Court’s decision.

Indeed. Not that it will make the slightest difference to Anthony Kennedy, the Court’s worst justice.

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