POLITICS: Republicans only defend certain portions of the U.S. Constitution

Image by Damien Donck

When it comes to politics, science, and social issues (e.g., the U.S. Constitution, evolution, and healthcare reform), it’s impossible to argue with people that blatantly espouse contradictions, maintain hypocritical double standards, and are content to wallow in their own willful ignorance. First, consider the issues of constitutional rights, poverty, race, and the views maintained by some Republicans and the Tea Party via the New York Times:

In the Tea Party’s talk of states’ rights, critics say they hear an echo of slavery, Jim Crow and George Wallace. Tea Party activists call that ridiculous: they do not want to take the country back to the discrimination of the past, they say, they just want the states to be able to block the federal mandate on health insurance.

Still, the government programs that many Tea Party supporters call unconstitutional are the ones that have helped many black people emerge from poverty and discrimination. It is not just that Rand Paul, the Republican nominee for Senate in Kentucky, said that he disagreed on principle with the provisions of the Civil Rights Act of 1964 that required business owners to serve blacks. It is that many Tea Party activists believe that laws establishing a minimum wage or the federal safety net are an improper expansion of federal power.

Critics rightly note that Dr. King spoke over and over of the need for this country to acknowledge its “debt to the poor,” calling for an “economic bill of rights” that would “guarantee a job to all people who want to work and are able to work.” In Mr. Beck’s taxonomy, this would make him a Marxist.

Also, some Republicans and Tea Party members blatantly cherry-pick the portions of the U.S. Constitution that reflects their world view. However, despite the intent of the framers of the U.S. Constitution or even the plain language of some portions within the Constitution, there’s a lot in the Constitution that some Republicans and Tea Party members would like to change. Via the Associated Press:

Republican Rep. Paul Broun of Georgia won his seat in Congress campaigning as a strict defender of the Constitution. He carries a copy in his pocket and is particularly fond of invoking the Second Amendment right to bear arms.

But it turns out there are parts of the document he doesn’t care for — lots of them. He wants to get rid of the language about birthright citizenship, federal income taxes and direct election of senators, among others. He would add plenty of stuff, including explicitly authorizing castration as punishment for child rapists.

This hot-and-cold take on the Constitution is surprisingly common within the GOP, particularly among those like Broun who portray themselves as strict Constitutionalists and who frequently accuse Democrats of twisting the document to serve political aims.

.       .       .

Sessions, who routinely accuses Democrats of trying to subvert the Constitution and calls for respecting the document’s “plain language,” is taking a different approach with the 14th Amendment. “I’m not sure exactly what the drafters of the amendment had in mind,” he said, “but I doubt it was that somebody could fly in from Brazil and have a child and fly back home with that child, and that child is forever an American citizen.”

Other widely supported Republican amendments would prohibit government ownership of private companies, bar same-sex marriage, require a two-thirds vote in Congress to raise taxes, and — an old favorite — prohibit desecration of the American flag.

.       .       .

Holding up the 2nd Amendment as sacrosanct, for example, while dismissing other parts of the Constitution is “cherry picking,” said Kende, director of Drake University’s Constitutional Law Center.

Virginia Sloan, an attorney who directs the nonpartisan Constitution Project, agreed.

“There are a lot of people who obviously don’t like income taxes. That’s a political position,” she said of criticism of the 16th Amendment, which authorized the modern federal income tax more than a century ago. “But it’s in the Constitution … and I don’t think you can go around saying something is unconstitutional just because you don’t like it.”

Sloan said that while some proposals to alter the Constitution have merit, most are little more than posturing by politicians trying to connect with voters.

“People are responding to the politics of the day, and that’s not what the framers intended,” she said. “They intended exactly the opposite — that the Constitution not be used as a political tool.”

The good news, Sloan and Kende said, is that such proposals rarely go anywhere.

PROP 8: United States District Court for the Northern District of California rules that Proposition 8 is unconstitutional

Image via Fritz Liess on Flickr.

Today, the United States District Court for the Northern District of California ruled that Prop 8 is unconstitutional. More specifically, “Judge Walker rule[d] Proposition 8 [is] unconstitutional ‘under both the due-process and equal-protection clauses.’” Prop 8 supporters will appeal to the 9th Circuit U.S. Court of Appeals in San Francisco. Then, after the “9th Circuit court rules, lawyers have the option of asking the Supreme Court to intervene.” You can read the decision here. The court’s conclusion:

CONCLUSION

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite- sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

More via San Jose Mercury News:

Supporters of Proposition 8 may already suspect the outcome of today’s ruling in the case challenging California’s ban on same-sex marriage.

In court papers filed Tuesday night, lawyers for the Proposition 8 defense team asked Chief U.S. District Judge Vaughn Walker for a stay of his ruling if the outcome is to declare the law unconstitutional. The motion indicates that the Proposition 8 lawyers will immediately ask the 9th U.S. Circuit Court of Appeals to review the ruling if Walker rules against them.

“A stay is essential to averting the harms that would flow from another purported window of same-sex marriage in California,” they wrote.

More via the Los Angeles Times:

A federal judge in San Francisco decided today that gays and lesbians have a constitutional right to marry, striking down Proposition 8, the voter approved ballot measure that banned same-sex unions.

U.S. District Chief Judge Vaughn R. Walker said Proposition 8, passed by voters in November 2008, violated the federal constitutional rights of gays and lesbians to marry the partners of their choice.. His ruling is expected to be appealed to the U.S. 9th Circuit Court of Appeals and then up to the U.S. Supreme Court.

Video: Ted Olson Comments on Prop 8 Being Ruled Unconstitutional

On the Net:

  1. Perry et al v. Schwarzenegger et al
  2. Judge Vaughn Walker Hands Victory to Proposition 8 Opponents
  3. Proposition 8: Long road to the Supreme Court

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RECOMMENDED MAP: Who is the largest landowner in the United States?

federal-landsThe federal government is the largest landowner in the United States, and federal lands are managed and governed under the Property Clause of the United States Constitution. The Property Clause gives Congress the power to manage and acquire property, and “national parks, national wildlife refuges, military reservations, federal prisons, and public-domain land are all examples of lands owned or administered by the Government of the United States.” As a result, the federal government can own, manage, and regulate lands within the states.

PROP 8: Should the California Supreme Court decide Prop 8?

prop8-and-mormonsDespite it probably saving gay marriage, Andrew Sullivan blogs his contempt for the courts and litigation:

Both supporters and opponents have asked for a judicial ruling on whether the initiative can stand. My own view is that it should stand, and the court should decline to reverse it. We lost. They won in a fair fight. No whining. With one caveat. Those civil marriage licenses already issued should not be revoked. I find the retroactive voiding of marriage licenses at once legally suspect and humanly cruel.

If my own marriage license were suddenly deemed void, it would feel like a very nasty attack on my own family. It is one thing to decide that gay couples are barred from civil equality from now on, but to reach back and strip couples who married in good faith under the law is excessive.

My own view is that we can protest and have; we are also within our rights to boycott businesses who bankrolled the initiative, and to confront the Mormon church. But we lost a fair fight because of complacency, and dreadful leadership. Now: start the battle to reverse the initiative through the ballot box. This time: a different model of grassroots organizing, web-based fund-raising, and social networking advocacy. But first: a revolution at HRC and its clones.

Prop 8 raises a controversy that needs to be decided by the Court, and I believe the Court will decide the issue in favor of gay marriage. Some folks argue that judicial review is ineffective, because when courts decide in favor of gay marriage, a subsequent backlash of anti-gay marriage amendments results in other states. This argument is flawed, since these states, with their hostile responses in banning gay marriage, weren’t supporting gay marriage in the first place. Furthermore, it is important that rights be declared and remedies provided through the courts. From Richard Just via The Volokh Conspiracy:

Second, I think it’s important to point out that the gay rights movement has not worked exclusively through the courts. The reason it sometimes appears that the gay marriage movement has focused on the courts is because those are the only places it has actually had success. Thanks to courts, we have marriage equality today in two states (Massachusetts and Connecticut); without courts, we would have marriage equality in no states. Would the gay rights movement really be better off with no court-imposed gay marriage–and therefore no gay marriage at all?

You blame the 2003 Massachusetts decision for leading to gay-marriage bans in 30 states. I would put the numbers a bit differently. In states where courts have imposed gay marriage, we are now two for three in terms of making the ruling stick. (We lost in California. But in Massachusetts, where polls swung in favor of gay marriage within a year of the first same-sex marriage, we have effectively won. And likewise in Connecticut, where voters this week rejected calls by conservatives to hold a constitutional convention for the purpose of overturning the state supreme court’s ruling on marriage equality.) By contrast, in states where courts have not imposed gay marriage, we are zero for 47. And, in many of these states (New York, for instance), this has not been for a lack of effort on the part of gay activists and the politicians allied with them.


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BALLOT INITIATIVES: Attorney general asks California Supreme Court to hear Prop. 8 controversy

prop-82In order to “provide closure and clarity on the ballot measure” Prop 8, California Attorney General Jerry Brown is asking the California Supreme Court “to review the constitutionality of Proposition 8.” Personally, I don’t believe most ballot initiatives are wise, and I’ve argued so here and here, and Prop 8 shouldn’t have been allowed in the first place.

Our founding fathers did not seek direct or pure democratic governance as the United States’s form of government.  James Madison in Federalist Paper #10 wrote, “A pure democracy. . .can admit no cure for the mischiefs of faction. . . .A republic. . .promises the cure for which we are seeking.”  In the United States, we employ a republican form of government, which is a representative form of government where the legislative branch is elected to represent the population as opposed to a pure democratic form of government where the people directly vote on the matters. Some folks prefer a more participatory form of government, because our republican form of government has become controversial over the years, since special interests groups and lobbyists can influence it.  However, the passage of Prop 8 has shown the same can happen when more participatory forms of government are allowed, and special interest groups did distort the facts at the grassroots level in order to impose their agenda. From the New York Times:

It is not known when the Supreme Court will decide whether to take up the case.

The central argument in the recently filed lawsuits is that Proposition 8 is a significant enough revision to the State Constitution to require approval by the Legislature.

Supporters of the proposition, led by the group Protect Marriage, reject that argument, suggesting in legal papers filed Monday on behalf of five California residents that “when using the initiative process to amend the Constitution, the people exercise their sovereign power of self-government.”

In his filing on Monday, Mr. Brown stopped short of asking the court to stay the ban, saying that to do so could lead to more same-sex marriages, whose legality would then be in question if the court ultimately upheld the measure.

But Mr. Brown reiterated in a news release that he believed that the 18,000 or so same-sex marriages performed in California before the Nov. 4 vote should remain valid.

On the Net:

BALLOT PROPOSALS, are they wise?
PROPOSITION 8: Are ballot initiatives wise?
PROP 8: To protest or not to protest, to litigate or not to litigate


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