Diagram of the Preamble of the Constitution for the United States of America.
Grammar + Constitution = nerd auto-reblog.
Notes
posted 6 / 29 / 2009
Put simply, the advocates of same-sex marriage can respond to the charge of judicial activism as follows: “So what? Reliance on judicial activism is as American as the civil-rights movement.” I would contend, however, that this analogy is problematic, that the civil-rights movement in fact provides scant precedent for the same-sex marriage movement’s striving for victory through judicial activism. Here my concern is not with the important moral differences in the cases. (It is not at all clear, after all, that legal “discrimination” that prevents same-sex marriage presents anything like the moral concerns raised by racial segregation; this moral difference has been ably explored by others.) Rather, I will address the ways the two movements differ in relation to the aforementioned principles of democratic and constitutional legitimacy. My argument is that even if one concedes, for the sake of argument, that the civil-rights movement relied in some measure on judicial activism, the same-sex marriage movement is nevertheless relying on it to a far greater extent and in a more extreme form. My hope is that these considerations will convince even proponents of same-sex marriage to question whether it should be sought by such means.—
Same-Sex Marriage and the Civil-Rights Movement: A Problematic Analogy « Public Discourse
A fascinating read.
Diagram of the Preamble of the Constitution for the United States of America.
Grammar + Constitution = nerd auto-reblog.
In a 1995 decision that overturned a federal ban on possessing guns near schools, the U.S. Supreme Court noted that “the Constitution creates a Federal Government of enumerated powers,” which do not include a general authority to fight crime. Five years later, when it overturned a statutory provision that created a federal cause of action for victims of gender-motivated violence, the Court warned that congressional attempts to usurp the states’ police power threatened to erase the “distinction between what is truly national and what is truly local.”
Since then a chastened Congress has consistently rejected anti-crime legislation that lacks a firm constitutional basis. Just kidding. Two pieces of legislation in the news, both named after murder victims, show that posing as a crime fighter is still more popular on Capitol Hill than obeying the Constitution.
The Matthew Shepard Act, which the House approved in April and the Senate is considering this week, adds offenses committed “because of” a victim’s actual or perceived gender, sexual orientation, gender identity, or disability to the list of hate crimes that can be prosecuted under federal law. As the U.S. Civil Rights Commission notes in a letter opposing the bill, that language could cover many crimes traditionally prosecuted under state law, potentially including rapes targeting women (selected because of their gender) and muggings of disabled people (selected because they are less able to resist).
The bill also would remove a condition limiting hate crime prosecutions to cases where the victim was participating in a federally protected activity such as education or voting. Instead it would cover crimes with just about any connection, no matter how tangential, to interstate commerce, which the Constitution authorizes the federal government to regulate. If the weapon used in an assault was manufactured outside the state where the assault occurred, for instance, that fact would be enough to assert federal jurisdiction.
The Matthew Shepard Act has the same basic problem as state hate crime laws, which punish people for their beliefs by enhancing the penalties for existing offenses when they are motivated by bigotry. The bill adds another layer of injustice by making it easier for federal prosecutors who are displeased by acquittals in state courts to try the defendants again, as they did in the cases stemming from the 1991 Crown Heights riot and the 1991 police beating of Rodney King.
Very fascinating.
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 10th Amendment (Wikisource) of the United States Constitution, and, in my opinion, the most blatantly violated law by our public officials. (via davereed)
That inter-state commerce clause sure can be interpreted broadly, huh?
[Justin Taylor:] After admitting that “originalism” is not perfect and that there are some difficult issues, he also says:
The originalist has easy answers for many things, especially the most controversial things in modern times. [Does] the equal protection clause require that states permit same sex marriage? That is not a hard question for an originalist. Nobody ever thought that is what the equal protection clause meant… .[Is there] a right to abortion? For Pete’s sake, it was criminal in every state for 200 years… . So I have easy answers to a lot of stuff. Whereas, for the “living constitutionalist,” there are no answers.
~ Antonin Scalia
Let me put it this way; there are really only two ways to interpret the Constitution — try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.
Lost in the political calculation, however, is what Emanuel’s acceptance says about our constitutional structure.
Emanuel is one of the most, if not the most powerful member of Congress. He hails from a safe district in Chicago and is virtually guaranteed re-election until retirement. Becoming speaker of the House is comfortably within his reach. Yet he leaves this behind to lead the White House staff — a job with considerably less job security, far less autonomy and no independent constituency. Its offer instead is the allure of more power.
The Constitutional framers would have been surprised by this turn of events. Two hundred years ago, the Framers designed a government with three branches in order to constrain the power of each. In this way, as Madison famously wrote in Federalist 51, the “ambition” of one department could effectively counteract the ambition of another.
Madison did not believe that the branches were naturally co-equals. Rather, the playing field had to be adjusted to give each branch the “necessary constitutional means and personal motives to resist encroachments of the others.” And the branch requiring adjustment was the legislative branch because it was then the most powerful. Thus, the Framers divided Congress into two houses so that the other branches would be protected “commensurate to the danger of attack.”
Today, any suggestion that the legislative branch is more powerful than the executive, much less twice as powerful, would be immediately seen as a vestige of history. And a long outdated vestige at that. In 1952, Justice Robert H. Jackson noted “the gap that exists between the President’s paper powers and his real powers” in a case addressing President Truman’s seizure of the steel mills. Jackson warned that “the actual controls wielded by the modern presidential office” often cancel those who “are supposed to check and balance his power.”
Presidential power has only further increased since Jackson. The need for government to act quickly in times of crisis, the centering of the president as the icon of national identity in popular culture and the executive branch’s control of information, among other factors, have vested a power in the presidency that far surpasses that of the other branches.
Thus it becomes not surprising to see one of the most powerful members of Congress agree to become a White House staffer.The argument about a too-powerful president has been reiterated multiple times since the election, something that I think is interesting because you rarely heard it mentioned either while Bush was in office (except from a few leftist publications) or leading up to the election. The day after the election, there was a cartoon that went around of Obama in the Oval Office pasting back together the Constitution. This not only means basic human rights, which have been trampled upon repeatedly by the Bush administration, but also, I believe, returning to earlier Constitutional limits on the executive. An unchecked executive is what makes such blatant human rights violations possible. Until we remove the possibility for that kind of power, there is no way to ensure long-term enforcement of American ideals in terms of human rights.
I also have the view that the Executive branch is too powerful. Every single president since FDR has succeeded in increasing presidential power. Bush is no exception. Based on the trend, it’s highly unlikely that Obama will do anything whatsoever to reduce his own power.
(via thedailyfiona)
It’s too bad Obama wants to nominate justices who have “empathy” and who believe this document means whatever they want it to mean.
It was disappointing because I didn’t think John McCain would ever be as dismissive of the First Amendment as Dick Cheney.—
Maureen Dowd, on getting booted from McCain’s campaign plane.
Just to put into perspective all the huffing about Sarah Palin’s comments on the same amendment. The lefties don’t always get it right, either. At least Palin isn’t smugly intellectual.
