John Podhoretz explains that Barack Obama’s end-run around the Constitution this week is really evidence of his political weakness and desperation.

President Obama’s executive power-grab this week — making four “recess” appointments when the Senate isn’t in recess — is a mark not of his strength, but of his relative weakness. He is asserting an authority he does not possess through the Constitution because he has precious little personal authority left to assert.

He had it and he lost it, and he can’t figure out how to get it back — so he’s just going to take it.

“When Congress refuses to act, and as a result hurts our economy and puts people at risk, I have an obligation as president to do what I can without them,” Obama said Wednesday as he trumpeted his installation of Richard Cordray as head of his new consumer-activism bureau.

This is rhetoric designed to thrill liberals and Democrats, who (like all partisans and ideologues) love what they take to be the “good fight,” and don’t particularly care how it’s waged. That’s true even if they spent eight years screaming about supposed unconstitutional actions on the part of the Bush administration, every one of which had a far firmer foundation in constitutional law than Obama’s unprecedented action this week.

They also love it because they think it represents an awakening by Obama to the nature of the obstructionist efforts against him (and a winning re-election strategy) when he says he’ll do “what I can” to combat Washington’s brokenness.

This supposedly a) acknowledges the public sentiment against the city whose most powerful resident he is, b) alleges he’s not the reason for the problems and c) places the blame on the recalcitrant Congress.

Maybe it’s the best hand Obama has to play, but it’s not a very good hand. For one thing, the voters who have turned on him don’t think he has exercised too little power, but rather too much — so bragging about doing things without congressional sanction may not play well.

Second, no matter how resolute he sounds, the fact that he has to act in a somewhat rogue manner is an expression of a profound loss of presidential authority — and one that he can’t successfully blame on Congress.

Obama lost his ability to push his agenda through Congress when he received what he himself called a “shellacking” in the November 2010 elections. That shellacking was primarily the result of massive policy overreach when he had a Democratic Congress in his pocket.

He spent 2009 and 2010 getting what he wanted: a trillion dollar stimulus. Auto-industry nationalization. And, of course, his health-care law. It was a wildly successful first 18 months — and it led directly to the bruising defeat he suffered as soon as the American people could render their judgment on those actions.

The independent voters who’d put him over the top in 2008 were horrified by the results. Exit polls showed a 24 percent swing among them, from 8 percentage points in favor of Obama and the Democrats in 2008 to 16 points against in 2010.

What may have been even more painful for Obama’s vanity was his discovery in 2011 that his rhetorical gifts had lost their oomph. He gave speech after speech on topics dear to his heart — and found, each time, that the talk was either ineffectual or actually convinced more people to oppose him.

Read the whole thing.

Podhoretz is perfectly right. Obama’s discreditable (and illegal) ploy is only a short-term strategy to gratify his base and keep the small body of support he still possesses behind him by making a strong gesture of partisanship that makes them happy. Who cares that his action will set a really terrible precedent? Who cares that the appointments will probably be struck down in court? Just as long as he can fire up the base.

The difference[s] between.. two kinds of liberalism — constitutionalism grounded in humility about human nature and progressivism grounded in utopian expectations — is a crucial fault line of our politics, and has divided the friends of liberty since at least the French Revolution. It speaks to two kinds of views about just what liberal politics is.

One view, which has always been the less common one, holds that liberal institutions were the product of countless generations of political and cultural evolution in the West, which by the time of the Enlightenment, and especially in Britain, had begun to arrive at political forms that pointed toward some timeless principles in which our common life must be grounded, that accounted for the complexities of society, and that allowed for a workable balance between freedom and effective government given the constraints of human nature. Liberalism, in this view, involves the preservation and gradual improvement of those forms because they allow us both to grasp the proper principles of politics and to govern ourselves well.

The other, and more common, view argues that liberal institutions were the result of a discovery of new political principles in the Enlightenment — principles that pointed toward new ideals and institutions, and toward an ideal society. Liberalism, in this view, is the pursuit of that ideal society. Thus one view understands liberalism as an accomplishment to be preserved and enhanced, while another sees it as a discovery that points beyond the existing arrangements of society. One holds that the prudent forms of liberal institutions are what matter most, while the other holds that the utopian goals of liberal politics are paramount. One is conservative while the other is progressive.

The principles that the progressive form of liberalism thought it had discovered were much like those that more conservative liberals believed society had arrived at through long experience: principles of natural rights that define the proper ends and bounds of government. Thus for a time, progressive and conservative liberals in America — such as Thomas Jefferson and Thomas Paine on one hand and James Madison and Alexander Hamilton on the other — seemed to be advancing roughly the same general vision of government. But when those principles failed to yield the ideal society (and when industrialism seemed to put that ideal farther off than ever), the more progressive or radical liberals abandoned these principles in favor of their utopian ambitions. At that point, progressive and conservative American liberals parted ways — the former drawn to post-liberal philosophies of utopian ends (often translated from German) while the latter continued to defend the restraining mechanisms of classical-liberal institutions and the skeptical worldview that underlies them.

That division is evident in many of our most profound debates today, and especially in the debate between the Left and the Right about the Constitution. This debate, and not a choice between technocracy and populism, defines the present moment in our politics. Thus the Left’s simultaneous support for government by expert panel and for the unkempt carpers occupying Wall Street is not a contradiction — it is a coherent error. And the Right’s response should be coherent too. It should be, as for the most part it has been, an unabashed defense of our constitutional system, gridlock and all.

Read the whole thing.

Hat tip to Vanderleun.

These days, when the President says that we have to “eat our peas,” I no longer know whether he’s offering a metaphor or invoking the Commerce Clause.

“Eat our peas” occurs around 1:05

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.
—Senator Barack Obama, Dec. 20, 2007. (Hat tip to Ann Althouse, Alex Tabarrock, and Radley Balko.

Larry Tribe was in great form in yesterday’s New York Times.

Nothing in his hands, nothing up his sleeve, now pay close attention as the law professor takes the interstate commerce clause and the American citizen sitting at home doing nothing at all and a federal mandate compelling Americans to purchase health insurance policies and magically causes the last two to fit within the former.

[P]redictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?

Mr. Tribe fails to consider that perhaps key New Deal era decisions, like Wickard v. Filburn, which reached beyond actual interstate activity to assert federal authority over private activity which might affect interstate commerce, were unfaithful to the intent of the framers, casuistical, and wrong to begin with.

Mr. Tribe also simply discounts as irrelevant the fact that in recent years, the modern court has become considerably more serious and more respectful of the Constitution. The United States v. Lopez decision in 1995 represented a major change of direction.

Liberal constitutional jurisprudence has an interested double-joined quality. The actual language, meaning, and intent of the Constitution are to be looked upon as inherently factually unknowable, as cryptic apothegms from a distant and fundamentally alien civilization, open to creative interpretation and subject to being overruled by the privileged moral insights of the contemporary elect at will. But the windy and vaporous decisions of the New Deal court, ah! they are sacred and immovable compass points of Constitutionality. As Robert H. Jackson writes, so it must be forever.

Larry Tribe is clearly whistling in the dark, repeating a happy liberal fantasy offered by Sam Stein over at HuffPo last week, that Antonin Scalia will apply the same statism that went into his concurrence with the decision in Gonzales v. Raiches upholding federal criminalization of home-grown marijuana. Personally, I think Messrs. Stein and Tribe are mistaken.

Even if the Necessary and Proper clause can be adduced to support a federal system of interstate regulation in the case of marijuana prohibition, a federal law prohibiting a particular activity like the use of marijuana differs distinctly from a federal law imposing an obligation to perform an affirmative act, from a law making Americans purchase something. Upholding a federal power to forbid does not necessarily imply a belief in a further federal power to compel.

Mr. Tribe, I suspect, apprehends himself that distinction, since he finds it desirable to use his literary powers to transform the passive state of American citizens living their lives prior to the imposition of Obamacare into an active assertion of an innovative right.

Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law. Those judges made the confused assertion that what is at stake here is a matter of personal liberty — the right not to purchase what one wishes not to purchase — rather than the reach of national legislative power in a world where no man is an island.

It would be asking a lot to expect conservative jurists to smuggle into the commerce clause an unenumerated federal “right” to opt out of the social contract.

In reality, Americans have a social contract. It is a written one called the Constitution of the United States. That social contract forbids Obamacare.

From Ed Morrissey.

During the First Congress’s debates over the Bill of Rights, one wise Congressman noted that someone better include a right of men to “wear hats, go to bed and get up when they please,” because someone was sure to come along and say if it wasn’t a “right” specified in the Constitution, it wasn’t allowed. The Congress recognized this problem and attempted to avoid it with the Ninth and Tenth Amendments:

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

X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people.

Conservatives have rightly seized upon the Ninth and Tenth Amendment as the basic concepts underlying the Constitution. It is a document in which the people grant rights to the government, not one in which the government grants rights to the people. Liberals never stop misinterpreting this formula. Bill Moyers once asked a Supreme Court Justice, “When are you going to grant us more rights?” as if we were all beggars huddled outside some royal palace petitioning for an extra slice of bread or another holiday. But liberals like it that way because a “Living Constitution” allows them to write their own preferences into stone as “constitutional rights” rather than achieving them through legislation. Abortion is a constitutional right, the death penalty is unconstitutional, and on and on. In some states the right of public employees to collect their pensions has been written into the constitution. Now how did that ever happen?

When conservatives argue that the Constitution is silent on such issues, they are accused of “Originalism” and forcing us to live in the past. How could a bunch of 18th century white men have possibly anticipated all the problems of the 21st century? But the Founding Fathers weren’t trying to solve our problems for us. They were simply giving us a set of ground rules that would allow us to solve problems ourselves. So far the system has worked magnificently. Let’s hope it stays that way.

Well, now that half of all the states in the Union are in court asking that the democrat Health Care Reform Bill be struck down as unconstitutional, it seems to me increasingly less likely that the Supreme Court will feel able to shirk making a historic decision.

[T]he newly elected governors of Ohio, Oklahoma, Maine, and Wisconsin have all decided to sue the Obama administration in hopes of stopping Obamacare. Specifically, Gov. Mary Fallin of Oklahoma has announced that the Sooner State will pursue its own case against the law, while Govs. John Kasich® and Scott Walker® (of Ohio and Wisconsin respectively) will add their states to Florida’s multi-state suit. And yesterday, newly sworn-in state Attorney General William Schneider announced Maine would also join the the Florida litigation. That brings the number of states on the Florida suit to 23 and the total number of states suing to stop Obamacare (which includes Virginia and Oklahoma) to 25.

A well developed sense of humor is a characteristic feature of Virginians, but not of government officials, even in Virginia. The Virginia DMV has banned my favorite vanity license plate. I’ve actually seen this plate driving by on local roads.

Matt Hardigree has the unhappy details.

H/t to Karen L. Myers.
————————————————————-

Mochi (a chewy rice cake served during Japanese New Year celebrations) kills more people than Fugu (sushi made from a blowfish containing tetrodotoxin). The Telegraph explains why.
————————————————————-

An apple tree consumed the remains of Rhode Island founder Roger Williams. Greg Ross has details.

Via Ka Ching.

————————————————————-

Daniel Mitchell predicts how Barney Frank and Henry Waxman will react when the Constitution is read aloud.

Haley Barbour was recently targeted, and nearly obliterated by the incoming liberal barrage, after he was so indiscreet as to speak positively of white citizens’ councils in segregation-era Mississippi (for resisting the Ku Klux Klan) and for remembering life in his hometown, when he was young, as “not so bad.”

Amusingly, yesterday, liberal WaPo pundit Ezra Klein came similarly a-cropper and, I’d say, rather more deservingly.

Via Steve Gutowski:

This commentator, who is considered so intellectual that his fellow journalists refer to him as a “wonk,” informs MSNBC that he believes “it (The US Constitution) has no binding power on anything.” Its “text is confusing because it was written more than a hundred years ago.” Besides which, “What people believe it says differs from person to person, and differs depending on what they want to get done.”

Ouch!

If we are to believe Ezra Klein, the Constitution is first of all impotent and irrelevant, and secondly indeterminate and meaningless.

I think Mr. Klein demonstrates perfectly the end product of contemporary elite education, as practiced at his own UC Santa Cruz and UCLA just as it is practiced at Yale and Harvard. There are no facts, merely differing opinions. Even the US Constitution, a readily available document written in the same language spoken today, capable of being read without resort to a dictionary, the well-known product of an abundantly-documented tradition of political philosophy, and with respect to which same the design and drafting and compromises and debate are all well recorded, has for Mr. Klein no fixed or determinative meaning whatever.

Ezra Klein obviously was saying exactly what he really thinks. The inadvertence of his statement consisted of the fact that a majority of Americans really do think the Constitution is both binding and scrutable entirely slipped his mind. That was perfectly understandable. It was clearly one of those moments of liberal fugue, resembling Pauline Kael’s expression of astonishment that Richard Nixon has actually won the 1972 election when she knew personally no one who had voted for him. Like Ms. Kael, Ezra Klein probably knows no one who considers the US Constitution actually binding or immune to interpretation into anything the liberal heart desires.

In Ezra Klein’s community, there are no fixed meanings to texts, meaning is conferred by the reader. There is also no Constitutional right answer, politics is a contest decided by numbers achieved by the glibbest arguments and the most noise.

To absurd reactionaries like myself, the US Constitution and the principles of the Liberal political philosophy of the framers are a fixed political compass. To Mr. Klein and his ilk, there is really also a determinative political compass and fixed truth. But in his case, the established text is not to be found in a 100+ year old document like the Constitution. It can be read daily in the opinion columns and between the lines of news stories in the establishment media. It is the consensus of the bien pensant elite that is the unmoving Pole Star of liberal politics. You will no more ever find Ezra Klein opposing that consensus than you would have ever found Barry Goldwater or Ronald Reagan proposing that the US Constitution simply be ignored.
——————————————————————————
Stung by widespread mockery, Klein replied, contending that he meant that the reading of the Constitution was not binding, but reiterating his view that no particular interpretation need necessarily pertain.

It’s also, I noted, a completely nonbinding act: It doesn’t impose a particular interpretation of the Constitution on legislators, and will have no practical impact on how they legislate.

The rather toxic implication of this proposal is that one side respects the Constitution and the other doesn’t. That’s bunk, of course: It’s arguments over how the Constitution should be understood, not arguments over whether it should be followed, that cleave American politics. The Constitution was written more than 223 years ago, and despite the confidence various people have in their interpretation of the text, smart scholars of good faith continue to disagree about it.

——————————————————————————
Young Ezra was, in return, well and truly mocked by Iowahawk.

Walter Olson remarks on a recent demonstration for the need of remedial high school civics lesson for US senators.

Last Tuesday, despite warnings of regulatory overreach, the Senate voted 73-25 in favor of S. 510, the Food Safety Modernization Act, which would greatly expand the powers of the federal Food and Drug Administration and impose extensive new testing and paperwork requirements on farmers and food producers. Almost at once, however, the bill was derailed — whether temporarily or otherwise remains to be seen — by what the New York Times called an “arcane parliamentary mistake” and the L.A. Times considered a purely “technical flaw“. Roll Call put it more bluntly: “[Senate] Democrats violated a constitutional provision requiring that tax provisions originate in the House.” While the New York Times weirdly cast Senate Republicans as the villains in the affair, other news sources more accurately reported that it was the (Democratic) House leadership that was standing up for its prerogatives:

“Unfortunately, [the Senate] passed a bill which is not consistent with the Constitution of the United States, so we are going to have to figure out how to do that consistent with the constitutional requirement that revenue bills start in the House,” [House Majority Leader Steny] Hoyer said.

According to Hoyer, this has happened multiple times this Congress, causing severe legislative angina.

“The Senate knows the rule and should follow the rule and they should be cognizant of the rule,” Hoyer scolded. “Nobody ought to be surprised by the rule. It is in the Constitution, and you have all been lectured and we have as well about reading the Constitution.”

To those familiar with the history of the U.S. Constitution, the Origination Clause should hardly count as arcane or technical. It stands as the very first sentence of Article I, Section 7: “All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.” ...

With its two-year terms of office and less populous constituencies, the House of Representatives was of course designed to be the legislative branch closest to the people, most readily thrown out of office when it strays from the public mood. Those considerations aside, the Constitution is rightly celebrated for the way its framers made the House and Senate different from each other precisely in order to ensure jealousies and dissensions between the two, those jealousies and dissensions serving as a safeguard against hasty or ill-considered legislation. In this case it worked exactly as planned, and the self-regard of the House leadership will serve as the reason for another round of scrutiny for a bill that could badly use some. Somewhere up above the spirit of James Madison may have heard the scolding words of Rep. Hoyer, and smiled.

Things, of course, are not really different among House democrats either. Remember Alcee Hastings’ analysis of the legal dynamic behind the operations of American government?

The Politico story

Steeh’s decision referred to a number of intellectually questionable precedents expanding the Commerce Clause outrageously through the use of casuistical reasoning.

As Judge Steeh not inaccurately observes, a body of precedent law exists sustaining congressional edicts based on the constitutional power to regulate interstate commerce effectively reaching all sorts of persons and activities not in fact engaged in Interstate Commerce.

Post New Deal jurisprudential understanding of the Commerce Clause limitation amounted to the Constitution forbidding congressional interference only in cases of individual persons or activities that could not be in any way, shape or form theoretically causally connected (even negatively) to the national economy or to rational goals of liberal policy by clever and well-educated attorneys.

Such a standard is, of course, completely nugatory and impotent to stop anything at all, and Judge Steeh abashedly alludes to the relatively recent, and distinctly innovative for their era, cases of Morrison and Lopez to establish the contrary. I smiled ironically upon reading that.

The plaintiffs have not opted out of the health care services market because, as living, breathing beings, who do not oppose medical services on religious grounds, they cannot opt out of this market. As inseparable and integral members of the health care services market, plaintiffs have made a choice regarding the method of payment for the services they expect to receive. The government makes the apropos analogy of paying by credit card rather than by check. How participants in the health care services market pay for such services has a documented impact on interstate commerce. Obviously, this market reality forms the rational basis for Congressional action designed to reduce the number of uninsureds.

The Supreme Court has consistently rejected claims that individuals who choose not to engage in commerce thereby place themselves beyond the reach of the Commerce Clause. See, e.g., Raich, 545 U.S. at 30 (rejecting the argument that plaintiffs’ homegrown marijuana was “entirely separated from the market”); Wickard, 317 U.S. at 127, 128 (home-grown wheat “competes with wheat in commerce” and “may forestall resort to the market”); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (Commerce Clause allows Congress to regulate decisions not to engage in transactions with persons with whom plaintiff did not wish to deal). Similarly, plaintiffs in this case are participants in the health care services market. They are not outside the market. While plaintiffs describe the Commerce Clause power as reaching economic activity, the government’s characterization of the Commerce Clause reaching economic decisions is more accurate.

Judge Steeh’s decision is a competent and professionally produced example of carefully reasoned liberal statism, and very much represents the Keep-the-Constitution-in-Exile reasoning that will be used to defend Obamacare when the various state lawsuits eventually reach the Supreme Court.

The New Federalism and Rational Basis casuistry will meet again in the nation’s highest court before terribly long.

Ilya Somin, at Volokh, pessimistically believes the mandate is more likely to be upheld than not.

I think we have the better reasoning and a narrow conservative majority on the Court, backed by a national negative consensus on Obamacare. I’m not so sure we are going to lose.

Canadian-born Dahlia Lithwick is Slate’s jurisprudential authority and commentator on Supreme Court decisions. Her response to a recent statement by Christine O’Donnell demonstrates both Lithwick’s lack of regard for Constitutional fidelity and her general unfamiliarity with its text.

It is understandable, I suppose, that someone who grew up in Canada might be a little vague on the fine points of the American Constitution and legal system, but it does seem ironic to say the least that she could graduate from Yale and Stanford Law School and be unacquainted with Marbury vs. Madision.

It is often observed that our establishment media characteristically features a perspective differing radically from the viewpoint of most ordinary Americans. It just might be that the prominent contributions of so many not-genuinely-assimilated foreign-born journalists to the commentary of the American establishment plays a significant role in moving the consensus of the elect away from the American mainstream toward the left.

I have been fascinated by Christine O’Donnell’s constitutional worldview since her debate with her opponent Chris Coons last week. O’Donnell explained that “when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional.” How weird is that, I thought. Isn’t it a court’s job to determine whether or not something is, in fact, constitutional? And isn’t that sort of provided for in, well, the Constitution?

Hat tip to Adam Freedman.

Louis Case, at American Thinker, points out that the complicated Machiavellian shenanigans needed to get Obamacare through Congress inevitably include the potential legal seed of the destruction of the entire bill.

Virginia’s lawsuit argues that the federal government has no constitutional authority to require individuals to purchase health insurance policies.

Virginia is asserting that certain portions (that is, the personal mandate) of ObamaCare are unconstitutional. If Virginia prevails, it leaves the question of what happens to the rest of the ObamaCare statute. This is where the concept of severance comes in. Normally, all comprehensive laws contain a boilerplate severance clause: it says that if any portion of the law is found to be unconstitutional, that portion is severed from the rest of the law—that is, the rest of the law stands.

But ObamaCare contains no severance clause. Virginia is asserting that if it prevails on its substantive claims, the whole law is unconstitutional. (If Virginia does not prevail, any one of the twenty-plus legal challenges have the same severance argument available.)

If a severance clause is normal boilerplate, why does not ObamaCare contain one? This is where Scott Brown’s election enters. Recall that the House passed its version of ObamaCare. On Christmas Eve, after much horsetrading and bribing, the Senate passed its version. The Senate version was not drafted to be in its final form; it was drafted to get 60 votes. Normally, these bills would be reconciled in a conference committee, and the final version would have to be voted on again with 60 votes in the Senate. However, before it could be sent to conference and reconciled, Scott Brown won in Massachusetts—a reconciled bill could no longer get 60 votes! That is why the House had to vote up or down on the Senate bill, which was basically a draft without the normal boilerplate inserted.

As Virginia argued in its Memorandum (Pages 24 to 28), the presence of a severance clause raises a presumption that Congress did not intend the whole statute to depend on the constitutionality of any particular clause. But with no severance clause, they are not entitled to that presumption. A court cannot sever the offending clause on its own if the statute would not function as Congress intended.

It has been clear since before the beginning of the year that Judge Vaughn Walker of the U.S. District Court in San Francisco was on a mission to establish a federal constitutional right to same-sex marriage and thereby to overturn California’s Proposition 8, a constitutional amendment passed by the people of the state in 2008.

From his decision to have a “trial” of the “facts” in the case rather than proceed straightaway to legal arguments about the constitutional issues (a choice that surprised even the plaintiffs’ attorneys) to his attempt to stage a nationally televised extravaganza (brought to a halt by the Supreme Court) to his unconcealed bias in favor of the plaintiffs in virtually every aspect of the proceedings… , Judge Walker has been preparing us for a baldfaced usurpation of political power for quite a while.

What Walker did not prepare us for is the jaw-dropping experience of reading his sophomorically reasoned opinion. Of the 135 pages of the opinion proper, only the last 27 contain anything resembling a legal argument, while the rest is about equally divided between a summary of the trial proceedings and the judge’s “findings of fact.” The conclusions of law seem but an afterthought — conclusory, almost casually thin, raising more questions than they answer. On what grounds does Judge Walker hold that the considered moral judgment of the whole history of human civilization — that only men and women are capable of marrying each other — is nothing but a “private moral view” that provides no conceivable “rational basis” for legislation? Who can tell? Judge Walker’s smearing of the majority of Californians as irrational bigots blindly clinging to mere tradition suggests that he has run out of arguments and has nothing left but his reflexes.

But the deeper game Judge Walker is playing unfolds in those many pages of “fact finding” that make up the large middle of his ruling. There, through highly prejudicial language that bears little relation to any fact, the judge has smuggled in his own moral sentiments — in precisely the part of his opinion that would normally be owed a large measure of deference in the appellate courts.

———————————————————
William A. Jacobson is optimistic that Judge Walker’s decision will be overturned.

The politics of this opinion probably could not come at a worse time for Democrats. There is no groundswell of support for gay marriage, with even Obama having expressed the view during the campaign that marriage is between one man and one woman. The opinion attempts to short-circuit the political process by finding a constitutional right which most people—even people who might support gay marriage—do not recognize.

At the end of the day, I do not expect this decision to survive constitutionally, and the supporters of gay marriage may rue the day that they sought to impose a solution from the courts of law rather than the court of public opinion.

39 states have banned gay marriage.

It takes only 38 states to ratify a constitutional amendment.

A majority of the American public and three-quarters of the American states have been overruled by one federal judge in San Francisco. To be fair, the ruling only affects Northern California. It will be appealed. The odds are, for now, that the judge will be overruled.

But again and again the political elites in this country think they know best. From the mosque at Ground Zero to gay marriage to Obamacare, the majority of the people and states are forced to deal with a minority that does not respect them and democratic and legal institutions that oppose them.

If a minority of political elites and liberals can impose their will and values on a majority sufficient enough to amend the constitution, it is time for the majority to respond with constitutional force.

In Thomas Jefferson’s words, “In questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.”

Illinois, New Jersey, Hawaii, Maryland, and Washington have already passed similar legislation as advocated by National Popular Vote Inc.

Can’t you just picture the inevitable denoument in which, a few years down the road, the liberal democrat wins the Electoral College despite the conservative Republican gaining a majority of the popular vote, whereupon there is some serious scrambling in Massachusetts, Illinois, New Jersey, Hawaii, Maryland, Washington and so on?
—————————————————
With its budget in bad shape, the state of Washington casually gave away an attractively located 10-acre island it purchased for $211,000 nineteen years ago, despite the fact that the island could have been sold for for millions.

There is no doubt that the oil spill produced by the Deepwater Horizon rig and BP is a disaster of monumental ecological proportions. There is no doubt that the spill has caused the loss of livelihood for fishermen, hotel owners, beach surfboard renters and millions of other people on the gulf coast. There is also no doubt that it is the responsibility of BP to get the well shut off and pay for the cleanup. Finally, there is no doubt that a full investigation should be conducted into how the spill happened, the role of BP and of the government in the spill and the mistakes made in the cleanup. It is important that we find out what caused the blowout, how it could have been prevented, why the cleanup was so slow in getting started, why foreign experts were not allowed to help, why the EPA is blocking applications of products as simple as hay which could soak up oil, and why Governor Jindal and others were disallowed the means to protect their shore lines by government bureaucracies.

However, none of these events or responsibilities gives the president the power to suspend the constitution, revoke the rule of law or demand payments from a company. In fact the $20 billion fund “demanded” of BP by the Obama administration does just that. To understand let’s review the facts around the fund.

The fund will contain $20 billion to ostensibly pay for cleanup efforts and provide compensation to those affected by the spill. Kenneth Feinberg, who is also known as Obama’s “pay czar”, will administer the fund. Mr. Feinberg, a political appointee, will have the final say so on who will receive money from the escrow funds and how much they will get paid. It is unknown what rules of evidence will be in force, what documentation will need to be provided and what the priorities and process for payout will be. Furthermore, so far there are no known constraints on what the fund can be used for; since Obama clearly views alternative energy as a long-term solution to oil spills in general, it is possible that he could direct part of that 20 billion to alternative energy research. In short, this is a huge 20 billion dollar fund under the sole direction of a single guy without even congressional oversight. Disturbed yet?

If you try to find the power in the constitution that allows Obama to do this, you will be even more disturbed. In this case the government can’t even claim the commerce clause of the constitution as legal basis because the commerce clause, even misinterpreted as it is, only applies to the legislature, not the executive branch. Where exactly in the enumerated powers of the constitution does the president have the right to “demand” money from a corporation, deem them guilty of a crime and extract a settlement amount? The short answer is “nowhere.”

Another pertinent question is what BP got out of this deal with the president. It is unlikely that they simply agreed to just drop $20 billion in escrow without agreements, legal documents or contracts specifying the use of the money. If BP obtained immunity from prosecution in exchange for the money then President Obama just violated extortion laws. Will we get full disclosure on the deal given to BP for this fund? What about the payouts themselves? Will we be allowed to be a watchdog over those funds? At this time it doesn’t look like it.

Parents might wish to discuss with their children how views on race, gender, sexuality, ethnicity and interpersonal relations have changed since this book was written before allowing them to read this classic work.

Hat tip to Karen L. Myers.
——————————————
Afghan President Karzai reported to doubt that America can win.

As Dean of Harvard Law School, Elena Kagan not only moved Harvard away from teaching the case method (invented at Harvard circa 1870), she eliminated Constitutional Law from the list of required courses.

As CNS reports, American Constitutional Law was demoted in favor of more international perspectives.

[I]n a 2006 Harvard news release explaining the changes, Kagan explained the move away from constitutional law was deliberate: “From the beginning of law school, students should learn to locate what they are learning about public and private law in the United States within the context of a larger universe—global networks of economic regulation and private ordering, public systems created through multilateral relations among states, and different and widely varying legal cultures and systems.

“Accordingly, the Law School will develop three foundation courses, each of which represents a door into the global sphere that students will use as context for U.S. law,” the guide said.

Among the three new required courses Kagan introduced, one focuses on public international law, involving treaties and international agreements, and the second is on international economic law and complex multinational financial transactions, according to a Harvard news release.

But the third course, on comparative law, “will introduce students to one or more legal systems outside our own, to the borrowing and transmission of legal ideas across borders and to a variety of approaches to substantive and procedural law that are rooted in distinct cultures and traditions,” the release said.

What could be a more eloquent demonstration of the precise level of deference to the US Constitution Ms. Kagan would bring to the Supreme Court?

As the Hill explains, Rep. Louise Slaughter (D- 30 NY), Chairman of the House Rules Committee, has devised a bizarre stratagem, which is being referred to as the “Slaughter solution.” Democrats plan to vote in the Senate that they deem the Senate bill to have passed the House, when it actually has not been voted on by the House.

House Speaker Nancy Pelosi is leaving the door open on using a controversial procedure to move healthcare through the House.

The process would allow the House to “deem” the Senate bill passed when it votes on a package of changes to that legislation, perhaps as early as this weekend.

The procedure involves crafting a rule allowing for consideration of a reconciliation “fixers” bill that deems the Senate bill already approved by the House. Aides to the Speaker said the option is “under consideration.”

The only problem with all this is that it is flagrantly and outrageously unconstitutional.

Michael W. McConnell, a Constitutional Law professor at Stanford, explains the problem.

[The Slaughter solution] may be clever, but it is not constitutional. To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a “Bill” to “become a Law,” it “shall have passed the House of Representatives and the Senate” and be “presented to the President of the United States” for signature or veto. Unless a bill actually has “passed” both Houses, it cannot be presented to the president and cannot become a law.

To be sure, each House of Congress has power to “determine the Rules of its Proceedings.” Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.

The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the “exact text” must be approved by one house; the other house must approve “precisely the same text.”

These constitutional rules set forth in Article I are not mere exercises in formalism. They ensure the democratic accountability of our representatives. Under Section 7, no bill can become law unless it is put up for public vote by both houses of Congress, and under Section 5 “the Yeas and Nays of the Members of either House on any question . . . shall be entered on the Journal.” These requirements enable the people to evaluate whether their representatives are promoting their interests and the public good. Democratic leaders have not announced whether they will pursue the Slaughter solution. But the very purpose of it is to enable members of the House to vote for something without appearing to do so. The Constitution was drafted to prevent that.

The final obstacle to democrat passage of the Health Care Bill may yet prove to be the Supreme Court.

If Obamacare is enacted via deeming as the Slaughter solution proposes, avoiding an actual vote on the Senate bill in the House, and Barack Obama goes ahead, signs it, and claims that it is now the law of the land, Republicans can walk right over to the Supreme Court and ask for a ruling on the constitutionality of deeming instead of voting. Any bets on how that is going to turn out?

Lawsuit begins in California federal court contending that the US Constitution mandates Gay Marriage. Wouldn’t Gouverneur Morris be surprised?
—————————————————————————————
Obama postpones State of the Union address in order to avoid preempting season opener of Lost.

As expected, the biggest cut will be to salaries, which will drop by 90% on average. Kenneth Feinberg, the Treasury Department’s special master for compensation, is expected to issue his determinations today.

Professor Bainbridge explains just how outrageous, unconstitutional, and violative of fundamental principles of law the Obama Administration’s business decrees are.

There really ought to be more outrage about this proposal. As a letter to the editor in today’s WSJ (Wednesday, 10/21—the Journal does not archive Letters to the Editor, so Professor Bainbridge was remiss in failing to credit Peter Kirchman of Bay City, Michigan for this excellent contribution to the debate – DZ) aptly observed:

To those who would defend the government’s ability, justification and right to negate Ken Lewis’s contract and hijack his pay (“The Fall Guy,” Review & Outlook, Oct. 2), I offer a John Adams quote found in David McCullough’s book “John Adams.” Adams stopped at a tavern for lodging. He happened to overhear several locals discussing British actions regarding taxation. One man says to the rest, “. . . if Parliament can take away Mr. Hancock’s wharf and Mr. Row’s wharf, they can take away your barn and my house.”

Mr. Lewis might already be considered rich, as was Mr. Hancock, and the amount of severance may seem to be outrageous, but to you supporters of this confiscation I ask: If you grant the federal government’s pay czar the power to confiscate or alter the pay of 175 Americans today, whose barn or house is next?

The point is exceptionally well taken. The Obama administration has shown a shocking disregard for the rule of law when contract rights interfere with the administration’s ability to reorder the American economy as it sees fit.

As Todd Zywicki observed when Obama threw Chrysler lenders under the bus:

The rule of law, not of men—an ideal tracing back to the ancient Greeks and well-known to our Founding Fathers—is the animating principle of the American experiment. While the rest of the world in 1787 was governed by the whims of kings and dukes, the U.S. Constitution was established to circumscribe arbitrary government power. It would do so by establishing clear rules, equally applied to the powerful and the weak. Fleecing lenders to pay off politically powerful interests, or governmental threats to reputation and business from a failure to toe a political line? We might expect this behavior from a Hugo Chávez. But it would never happen here, right? Until Chrysler. ... The Obama administration’s behavior in the Chrysler bankruptcy is a profound challenge to the rule of law. Secured creditors—entitled to first priority payment under the “absolute priority rule”—have been browbeaten by an American president into accepting only 30 cents on the dollar of their claims. Meanwhile, the United Auto Workers union, holding junior creditor claims, will get about 50 cents on the dollar.

And then Obama bullied GM’s bondholders to the extent that even the Obamabots on the Washington Post’s editorial board were moved to protest that “the Obama administration is coming dangerously close to engaging in financial engineering that ignores basic principles of fairness and economic realities to further political goals.

When high school football players run through a banner with Bible verses on it, does that violate the US Constitution?

The school board attorney stopped them from doing that in Fort Oglethorpe, Georgia, telling them they were “violating federal law.”

2:15 video

It is remarkable how the Constitution’s prohibition of a federally established church (state established churches still existed when the Constitution was adopted) has evolved first into a wall of separation between church and state, and ultimately into widespread bans on public expression of religious sentiment.

Washington Post story.

Let me place myself in the President’s chair, at the head of a party in this country, aiming to extend the influence of the governing powers at the expence of the governed; to increase the authority and prerogative of the Executive, and to reduce by degrees to a mere name, the influences of the people. How should I set about it? What system should I pursue?

.. As the rights reserved by the State Governments and the bounds and limits set by the Constitution of the Union, are the declared barriers against the encroachments of entrusted power, my first business would be to undermine that Constitution, and render it useless, by claiming authority which, though not given by the express words of it, might be edged in under the cover of general expressions or implied powers — by stretching the meaning of the words used to their utmost latitude, — by taking advantage of every ambiguity — and by quibbling upon distinctions to explain away the plain and obvious meaning. It would be my business to extend the powers of the Federal Courts and of Federal Officers — to encroach upon the State jurisdictions — to throw obloquy on the State Governments as clogs upon the wheel of the General Government — for that purpose to promote a spirit of party among them, and subject to accusations of disaffection those who were opposed to the measures I would pursue. In addition to this I would now and then exercise trifling acts of authority not granted by the Constitution, under some undefined notion of prerogative. If by such means one encroachment should be made good, it would be a precedent for another, until the public by degrees would become accustomed and callous to them.

Cooper’s Address to the Readers of the Sunbury and Northumberland Gazette, June 29, 1799

Thomas Cooper biography

(N)ow the Statist Democrats are launching the most massive attack on the American people in the history of government.

They promise health care for everyone, but they will not—and they can’t possibly—deliver it.

While our health care system is certainly imperfect—because all humans are imperfect, including doctors, nurses, hospitals and insurance companies—they are more perfect, more competent, more informed, more capable than all of the bureaucrats to whom they’ll be forced to report: a bureaucracy that will make all decisions about your health care.

And it is easy to confirm the havoc that socialized medicine will wreak on American society. All you need to do is to look at how Democrats are trying to ram home socialized medicine: they’re doing it as fast as possible with as little debate as possible. For the indigent and the poor, we already have programs like Medicaid and SCHIP and dozens of state programs. Yet we’re told tens of millions of us must give up our private insurance and pay for a government-run program.

Democrats claim it will be more cost-effective and efficient. ... The man who’s had the least experience at running anything is going to unleash the most massive federal leviathan in history, nationalizing nearly 20% of the economy.

This has been the dream of the Statist Democrats since FDR: to force each and every one of you, whether you like it or not, into a strait-jacket form of health care. It controls you; the actual being, the person.

Nameless, faceless bureaucrats substituting their decisions for those of your doctor.

Deciding whether you will have an operation or not. Whether you will have an MRI or not. Whether you will receive a life-saving, life-extending drug or not.

And we know this, because this is what occurs in Canada and Britain and other centralized bureaucracies, where you simply can not have access to advanced health care, period.

Where will their new drugs come from, since we produce half of them? Who will invent the new medical technologies for them, since we invent roughly three-fourths of them?

Who will run the hospitals and what will they look like when the government unions run them? ...

They’ve been lying about the number of people without health care. They’ve been lying about whether the public is satisfied with health care. They’ve been lying about every aspect of health care.

They unleashed the slip-and-fall lawyers on the medical system, causing untold higher costs for medical practitioners. They’ve attacked the health care system relentlessly, driving up costs just like they’ve attacked the energy industry and the automakers.

And even when they have complete monopolistic control of a system, like the educational system in America, they want more control. It’s never enough. They want more money, more regulations. More. They need to “invest”. They need to raise taxes. They need to repress. They need to compel.

Read the whole thing.

Hat tip to the News Junkie.
—————————————————
David B. Rivkin Jr and Lee A. Casey, in the Wall Street Journal, argue that, if the 14th Amendment protects a “central right of privacy” entitling freedom of choice on abortion, wouldn’t the same right protect freedom of choice in health care generally, precluding government confiscation, redistribution, and subsequent rationing of individual health care resources?

The Supreme Court created the right to privacy in the 1960s and used it to strike down a series of state and federal regulations of personal (mostly sexual) conduct. This line of cases began with Griswold v. Connecticut in 1965 (involving marital birth control), and includes the 1973 Roe v. Wade decision legalizing abortion.

The court’s underlying rationale was not abortion-specific. Rather, the justices posited a constitutionally mandated zone of personal privacy that must remain free of government regulation, except in the most exceptional circumstances. As the court explained in Planned Parenthood v. Casey (1992), “these matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life.”

It is, of course, difficult to imagine choices more “central to personal dignity and autonomy” than measures to be taken for the prevention and treatment of disease—measures that may be essential to preserve or extend life itself. Indeed, when the overwhelming moral issues that surround the abortion question are stripped away, what is left is a medical procedure determined to be “necessary” by an expectant mother and her physician.

If the government cannot proscribe—or even “unduly burden,” to use another of the Supreme Court’s analytical frameworks—access to abortion, how can it proscribe access to other medical procedures, including transplants, corrective or restorative surgeries, chemotherapy treatments, or a myriad of other health services that individuals may need or desire?

Read the whole thing.

(T)he tobacco regulation bill recently passed by Congress indicates that the spirit of liberty is even scarcer than usual in the halls of government.

What motivates advocates of stricter tobacco regulation is the unassailable assurance that they are not only completely right but that their opponents are a) wrong and b) evil. This invigorating certitude makes it possible to justify almost anything that punishes cigarette companies, even if it does no actual good—or does actual harm.

One of the main purposes of the new law is to reduce the number of smokers in the name of improving “public health.” This is a skillful use of language to confuse rather than enlighten.

An individual decision to take up cigarettes is a private event, not a public one, and its health effects are almost entirely confined to the individual making the choice. ...
Cigarette makers are forbidden to use color in ads in any publication whose readership is less than 85 percent adult. They are barred from using music in audio ads. They are not allowed to use pictures in video ads. They may not put product names on race cars, lighters, caps, or T-shirts. From all this, you almost forget the fleeting passage in the Constitution that says “Congress shall make no law … abridging the freedom of speech.”

When it gets in a mood to regulate, Congress doesn’t like to trouble itself with nuisances like the First Amendment. In 2001, the Supreme Court ruled it was unconstitutional for Massachusetts to ban outdoor ads within 1,000 feet of any schools and playgrounds. So what does this law do? It bans outdoor ads within 1,000 feet of schools and playgrounds.

The Court said the Massachusetts law was intolerable because it choked off communication about a legal activity. “In some geographical areas,” complained Justice Sandra Day O’Connor, “these regulations would constitute nearly a complete ban on the communication of truthful information about smokeless tobacco and cigars to adult consumers.”

But to anti-smoking zealots, that effect is not a bug but a feature. The only problem they have with imposing “nearly a complete ban” is the “nearly” part.

Read the whole thing.

Sonia Sotomayor may not have a long paper trail on hot button social issues, but in one area of the law—campaign finance—she has staked a position that could have far-reaching political consequences.

The clarity of her support for limits on campaign fundraising and her background as a pioneering campaign regulator is raising eyebrows among election law experts who say her record is more substantial and explicit than that of any Supreme Court nominee since the dawn of the modern, post-Watergate campaign finance regime.

“There hasn’t been one with as vigorously expressed policy views on campaign finance as this one that I am aware of, and I’ve been pretty aware for a number of years,” said James Bopp, a leading conservative attorney who has won four Supreme Court cases challenging campaign finance regulations.

“I can’t think of anybody who has had such a track record,” said Bob Stern, president of the Center for Governmental Studies and a follower of battles on the issue since the early 1970s. “There are clearly going to be cases coming before the court that will be challenges to the law, and there will be some very important cases.”

Sotomayor brings hands-on experience to the issue from her four years of experience on the New York City Campaign Finance Board, an independent, nonpartisan city agency created in 1988. One of the first members appointed to the board by then-Mayor Ed Koch, Sotomayor helped implement—enthusiastically, according to her cohorts—one of the most comprehensive campaign finance laws in the country.

In a rare and little-noticed law review article, she forcefully defended the policy motivations behind such restrictions, questioning the line between campaign contributions and “bribes,” calling on Congress to overhaul campaign finance laws – including suggesting public financing of its own elections – and blasting the Federal Election Commission for not enforcing existing laws.

“The continued failure to do this has greatly damaged public trust in officials and exacerbated the public’s sense that no higher morality is in place by which public officials measure their conduct,” she wrote in a law review article based on a speech she gave to Suffolk University Law School in 1996, when she was a federal district court judge.

On the only occasion when she was confronted with the issue as a jurist, Sotomayor joined a decision that effectively gave a pass to a Vermont law that severely limited campaign contributions and capped campaign spending – a law that the Supreme Court later overturned as a First Amendment violation.

In 1996, the Suffolk University Law Review published Returning Majesty to the Law and Politics: A Modern Approach, by Supreme Court nominee Sonia Sotomayor. This article touches on her legal philosophy in general, as well as her understanding of the First Amendment in particular. The views expressed in this article are troubling, and should give all Americans pause.

Judge Sotomayor writes, “The law … is uncertain and responds to changing circumstances.” It is true that some development in the law takes place as new circumstances arise. For instance, courts today are working out the contours of ‘cyber-law’—a concept that was unheard of a mere thirty years ago. With the proliferation of personal computers and the Internet, however, cyber-law is now a rapidly developing body of law. Some of the old rules regarding the formation of contracts have had to be re-considered to take into account e-transactions. And laws regulating what can, and cannot, be posted on the Internet have had to be evaluated in light of First Amendment protections.

To say that the law develops as new situations arise, however, is far different than what Sotomayor is saying. She calls it a “public myth” that law can be stable, or provide predictable results. Instead, she suggests that the law is in such a constant state of flux that one can never be sure what the law is, or what one’s rights or obligations under it are. What we have, she writes, is an “unpredictable system of justice.” And she believes this “continually evolving legal structure” which leads to what she calls “the uncertainty of law” is a good thing for society.

This is a wrong understanding of the role and function of law in our society. Law is not to be uncertain and arbitrary. Rather, it is to provide rules that all must live by, and guidance whereby we can structure our lives. Sotomayor’s position, though, is that such certainty is a bad thing, and uncertainty in the law is the desired result.

This philosophy opens the door for Sotomayor, and judges who believe similarly, to avoid following what the law actually says. It allows them to place “empathy” above impartiality. After all, if the law is uncertain and constantly changing, why shouldn’t a judge rule in favor of the party that she likes best or agrees with most? Sotomayor’s philosophy facilitates the type of judicial activism and legislation from the bench that decides cases according to what the judges personally believe should be the correct result, instead of what the law actually says should be the correct result. It also destroys any confidence Americans might have in the law’s fairness, if judges are free to make rulings which go against what the law says in order to benefit parties they like or agree with.

Perhaps nowhere is Judge Sotomayor’s problematic philosophy better illustrated than in her approach to campaign finance law. In Returning Majesty to Law and Politics, she compares restrictions on the fundamental First Amendment right of citizens to engage in political speech and association by making contributions to candidates, with restrictions on gift-giving to politicians. Because gift-giving can be restricted, she seems to say, contributions should be restricted, too. She suggests that both gifts and contributions can function as bribes, and seems to be open to the elimination of what she terms “private money” from politics.

The problem with that reasoning, of course, is that there is a difference of constitutional magnitude between buying lunch for a bureaucrat and making of a political contribution to a candidate. The Founders thought that the right of Americans to engage in political speech and association was so important that they enshrined it in the First Amendment to the Constitution and the First Amendment protect campaign contributions.

Our Constitution, including the First Amendment, should not be regarded as evolving. Rather, it should be understood as a constant guarantee: It is a contract between the previous generation of Americans and this one, and between this generation of Americans and the next one. It assures us, and each succeeding generation of Americans, of the nature of the Republic and our rights within it. And so, our freedom to engage in political speech and association guaranteed by the First Amendment—including our right to make contributions to the candidates whose message we agree with—should be absolute. It should not be subject to the whim of a judge who believes that the law is uncertain and constantly evolving.

Judge Sotomayor, however, appears to disagree. While her thoughts regarding campaign contributions are difficult to discern from her law review article, they are more clear in a decision she signed onto in 2005. This case, known as Randall v. Sorrell when it was before the Second Circuit Court of Appeals, involved a challenge to Vermont’s contribution and expenditure limits. A three-judge panel of the Second Circuit upheld the district court’s decision that the contribution limits were constitutional, but determined that the case should be remanded to the district court for reconsideration of the expenditure limits. The plaintiffs in that case asked for the full Second Circuit to rehear the case, and the Second Circuit denied that rehearing. (The plaintiffs would eventually win in 2006 at the Supreme Court when, in Randall v. Sorrell, the Court held that both the contribution and expenditure limits were unconstitutional).

Judge Sotomayor signed onto an opinion written by two other judges which concurred in the decision to deny rehearing. This opinion which she signed began by noting that the question before the Court involving whether the plaintiffs’ First Amendment rights were being trampled was not important enough to justify rehearing the case. Instead, the judges noted that disputes which are highly political or partisan should not be addressed by the courts.

There’s just one little problem with that: If the Court will not vindicate our First Amendment rights, who will? Judge Sotomayor is correct when she observes that campaign finance is partisan and politicized. Incumbents frequently enact campaign finance laws in order to protect themselves, and if they can do so in a way that benefits their political party, so much the better. Far from providing that the courts be reluctant to involve themselves in such matters, the Founders envisioned a vigorous role for the courts in upholding First Amendment freedoms.

A judge who sees the law as constantly changing and evolving, however, feels more free to refuse to vindicate Americans’ rights when she personally does not think that Americans should have them. So, since Sotomayor is of the opinion that severe restrictions (or, even the elimination) on private money in politics is acceptable, she did not feel the need to consider the plaintiffs’ First Amendment rights in Randall.

Such a judicial philosophy is troubling. It places all Americans’ rights at risk. Judge Sotomayor should be questioned on this extensively, and should not be confirmed if this is really her view.

0:33 video

Hat tip to Ed Morrissey.