Vaughn R. Walker

It seems that Judge Vaughn Walker’s ruling in Perry v. Schwartzenegger striking down the State of California’s Proposition 8 ballot initiative which prohibited state recognition of Same Sex Marriage is highly vulnerable to being overturned on the grounds that the judge ought to have recused himself. John C. Eastman explains in the same San Francisco Chronicle which last February was assuring readers that Judge Walker’s personal sexual orientation was a “non-issue.”

Judge Vaughn Walker’s Proposition 8 decision last week has thrust his personal life into the limelight. The San Francisco Chronicle has reported that the fact that Judge Walker “is himself gay” is the “biggest open secret” in town. The BuzzTab blog calls him “the apple of gay advocators eyes.” The Los Angeles Times reported just last month, after the conclusion of closing arguments in the case, that he is “openly gay” and “attends bar functions with a companion, a physician.”

Is any of this relevant to Judge Walker’s ruling striking down Proposition 8?

Well, as University of Notre Dame law Professor Gerard Bradley recently noted, the mere fact that Judge Walker may be homosexual would not necessarily have required recusal. But the fact that he “attends bar functions with a companion, a physician,” and may therefore be in a stable homosexual relationship of the kind that could lead to marriage, is an entirely different matter.

The political philosopher John Locke noted in his Second Treatise on Civil Government that “it is unreasonable for men to be judges in their own cases (because) self-love will make men partial to themselves and their friends.” That sentiment, undoubtedly true, is actually codified in federal law. A judge is required to disqualify himself in any proceeding “in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which: (a) the judge has … personal knowledge of disputed evidentiary facts concerning the proceeding; [or] … (c) the judge knows that the judge … has a financial … or any other interest that could be affected substantially by the outcome of the proceeding.”

If Judge Walker is indeed in a long-term, same-sex relationship, he certainly has an “interest that could be affected substantially by the outcome of the proceeding” – he and his partner are now permitted to marry! – and that, according to Judge Walker’s own finding, has financial benefits as well. Such conflicts would have required recusal, and cannot be waived by the parties.

National Review Online expresses justifiable indignation at the latest case of judicial outrage.

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.

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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.

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I’m less sanguine about Justice Kennedy’s likely ruling myself, though I think rational constitutional interpretation has at least a chance. I do think Erik Erikson is right in observing that, in the end, Americans can just add a clarifying amendment to the US Constitution and put a stop to the nonsense once and for all.

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.”

A typical Chipotle Mexican Grill in operation

Walter Olson, now operating out of CATO, who makes something of a specialty of chronicling the most spectacular cases of legal absurdity, was (quite deservedly) particularly proud of finding this one yesterday.

The Chipotle Mexican Grill heralds its “Chipotle Experience,” in which customers can watch their food being made behind a glass partition. Now a Ninth Circuit panel (including famously liberal judges Stephen Reinhardt and Dorothy Nelson) has ruled that the “experience” violates the Americans with Disabilities Act, to quote the AP, “because the restaurants’ 45-inch counters are too high. The company now faces hundreds of thousands of dollars in damages.” The ruling arrives just in time for the ADA’s 20th anniversary, which, as the Washington Post notes, is serving as the occasion for a virtual binge of new regulation-making by the Obama Administration and Congress.

Online reaction to the Chipotle case is tending toward the negative if not incredulous, even at places like the San Francisco Chronicle (“Good Lord, people are complaining because they can’t see a taco, get a life.”) But it’s also worth noting this significant passage (via Ted Frank at Point of Law) from the court record that the Ninth Circuit panel had to overcome:

The [district] court found that [wheelchair-using complainant] Antoninetti had failed to show irreparable injury because he had not revisited either restaurant after Chipotle adopted its written policy and because his “purported desire to return to the [r]estaurants is neither concrete nor sincere or supported by the facts.” It also stated that Antoninetti’s “history as a plaintiff in accessibility litigation supports this Court’s finding that his purported desire to return to the [r]estaurants is not sincere. Since immigrating to the United States in 1991, Plaintiff has sued over twenty business entities for alleged accessibility violations, and, in all (but one) of those cases, he never returned to the establishment he sued after settling the case and obtaining a cash payment.”

“We hold these truths to be self evident, that all men are endowed by their Creator with the right to be entertained by watching their burrito being prepared.”

It’s a wonder that, in California in particular, the blind don’t get to sue Hollywood for making moving pictures they cannot see, and the deaf don’t get to collect penalties from concert venues and the opera.

One can see in the case of Julea Ward versus Eastern Michigan University the way in which progressive academic institutions, professional organizations, and judges can all collaborate in defining educational requirements, professional standards, and the law in a such a fashion as to outlaw non-progressive opinion in the academic world as well as denying access to practice of professions to non-progressives.

Detroit News:

A federal judge [on wednesday] dismissed a lawsuit brought against Eastern Michigan University by a master’s student who said she was removed from the school’s counseling program because of her strong religious views against homosexuality.

As part of her course work, Ward had refused to counsel homosexual clients, saying she believed homosexuality was morally wrong.

The university removed Ward from the counseling program after determining her actions violated university policy and the American Counseling Association (ACA) code of ethics.

Julea Ward sued the university in 2009, alleging violation of her First Amendment and religious rights.

On Monday, U.S. District Judge George Caram Steeh ruled in favor of the university and granted it summary judgment.

“The university had a rational basis for adopting the ACA Code of Ethics into its counseling program, not the least of which was the desire to offer an accredited program,” Steeh said in a 48-page opinion.

“Furthermore, the university had a rational basis for requiring its students to counsel clients without imposing their personal values.

“In the case of Ms. Ward, the university determined that she would never change her behavior and would consistently refuse to counsel clients on matters with which she was personally opposed due to her religious beliefs — including homosexual relationships.”

The judge said Ward’s “refusal to attempt learning to counsel all clients within their own value systems is a failure to complete an academic requirement of the program.”

2005 ACA Code of Ethics (pdf)

Personal Values

Counselors are aware of their own values, attitudes, beliefs, and behaviors and avoid imposing values that are inconsistent with counseling goals. Counselors respect the diversity of clients, trainees, and research participants.

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A similar case is underway involving a student in the counseling program at Augusta State University in Georgia.

Eugene Volokh quotes a New Jersey case in which a Judge Payne of the Superior Court, in the course of rejecting a restraining order against a Moroccan husband, adopted the interesting viewpoint that the husband’s cultural opinions immunized him from the laws of the state of New Jersey, allowing him to inflict non-consensual sex upon his wife.

While recognizing that defendant had engaged in sexual relations with plaintiff against her expressed wishes in November 2008 and on the night of January 15 to 16, 2009, the judge did not find sexual assault or criminal sexual conduct to have been proven. He stated:

This court does not feel that, under the circumstances, that this defendant had a criminal desire to or intent to sexually assault or to sexually contact the plaintiff when he did. The court believes that he was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited.

After acknowledging that this was a case in which religious custom clashed with the law, and that under the law, plaintiff had a right to refuse defendant’s advances, the judge found that defendant did not act with a criminal intent when he repeatedly insisted upon intercourse, despite plaintiff’s contrary wishes.

Happily, the Appellate Court reversed, but this judicial incident is undoubtedly only the first of what will become a trend of multicultural rulings from American benches.

The correct legal precedent, IMHO, is that expressed by General Charles Napier in connection with the custom of suttee in India. Napier told the Hindoos:

You say that it is your custom to burn widows. Very well. We also have a custom: when men burn a woman alive, we tie a rope around their necks and we hang them. Build your funeral pyre; beside it, my carpenters will build a gallows. You may follow your custom. And then we will follow ours.

In the aftermath of the Swiss decision to reject the American bid to extradite Roman Polanski, the predicatable indignant editorials are beginning to appear.

Eugene Robinson, in the Washington Post, is not at all satisfied with the outcome.

It’s relevant that Polanski has never shown remorse. He claimed in a 1979 interview that he was being hounded because “everyone wants to (have sex with) young girls.” It’s irrelevant that the victim, now a middle-aged woman, has no interest in pursuing the case and reliving a traumatic episode. What matters is what Polanski admitted doing to her 33 years ago — and the fact that Polanski decided to run away rather than face the music.

Swiss officials noted the obvious: that Polanski never would have visited Switzerland if he had thought he was putting himself in legal jeopardy. Since he’s not a legitimate candidate for kidnapping and rendition by the CIA, he’s now home free — unless he somehow makes another mistake. He’ll always have to look over his shoulder.

That’s punishment of a sort, but not nearly enough. How about this: As long as he steers clear of U.S. justice, why don’t we steer clear of his movies?

I strongly disagree with the majority of the journalistic community on this one, and since I’ve already explained why at considerable length, today I plan to take pleasure in quoting myself.

The most interesting aspect of all of this is the fact that Roman Polanski’s flight thirty one years ago was precipitated by precisely the same sort of journalistic feeding frenzy which has been replayed all over again recently. A firestorm of sensationalized accounts of Polanski’s misdeed alarmed the publicity-conscious judge who intended to set aside the conventional processes of justice and overrule a plea bargain already agreed to by both the prosecution and the defense.

Polanski did not escape justice. He had already served a 42 day term of imprisonment, which was supposed to constitute his actual sentence. Polanski also settled privately with the young lady, paying her a sum of money of a specific amount never publicly disclosed. What Polanski escaped was injustice.

He escaped a breach of the normal, impartial, and objective processes of justice, which were in the process of collapsing due to official cowardice and unwillingness to resist a wave of public indignation, mischievously created by irresponsible journalism.

Long-standing cultural restraints on sexual expression and activity have been dwindling away in America for all of the last century, but one powerful prohibition not only survives, but continues to be able to turn ordinary Americans into something very much resembling belligerent Muslims bent on wiping out any stain upon the chastity of their females in blood: the issue of age.

Underage sex is still a kind of priapic third rail. And like Nabokov’s Humbert, Roman Polanski proved to be another sophisticated European gentilhomme d’un certain âge susceptible to the charms of the knowing nymphette. His sin happens to be relatively unique in being capable of getting Americans in general worked up into a lather of righteous indignation just as effectively in 2009 as in 1978 or in 1955 (the publication date of Lolita).

In exactly the same way that the idea of black sexual aggression directed at white women was once upon a time so horrifying an idea to the general community in certain American states that any close resemblance to that supreme phobia could suffice to set into motion the processes of storytelling which would fit the details of the actual case into the terrible archetype, frequently with lethal results, so too today is the idea of adult sexual aggression directed at children a compelling, and potentially dangerous, archetype.

Let’s try another literary trope. Picture Roman Polanski, not as Humbert Humbert, but as Tom Robinson, the black defendant in To Kill a Mockingbird. Just like the Polanski case, To Kill a Mockingbird features a public frenzy of indignation at a defendant accused of being a sexual aggressor toward an innocent victim, who is supposed to be protected from the advances of anyone like the defendant by powerful social taboos. Just as in the Harper Lee novel, adjudication of the Roman Polanski case revolved around issues of just who was the actual initiator and whether female consent had been given. Fearful archetypes and framing narratives can work in exactly the same in either case, can’t they?

76-year-old Roman Polanski is now again a free man.

European civilization and rationality, for once, triumphed over American mobocracy and barbarism when the Swiss Ministry of Justice took a technical route to dismiss the US request for extradition of internationally-renowned director Roman Polanski.

The Swiss had asked to examine American records establishing whether a previous plea arrangement for an observation period of confinement in a psychiatric unit had been accepted by both sides and subsequently reneged upon by a press-conscious judge. The Los Angeles district attorney’s office refused to supply the relevant records, which tends to suggest strongly that they would have confirmed the reality of the alleged plea bargain arrangement. So, the clever Swiss, noting that the records could prove that Polanski had already actually served his sentence making the extradition request invalid ruled that the extradition request was incomplete and consequently defective, and deserved to be dismissed.

US justice in this matter was, by comparison, politically-motivated featuring, in 1977 and now, public officials posing as champions of the people in the midst of a firestorm of gossip, innuendo, and public misunderstanding whipped up by an opportunistic press. The Swiss tried to do justice. The Americans tried to score points with the mob. I applaud the Swiss.

Variety

New York Times story

Previous Polanski coverage.

The Court’s decision in McDonald v. City of Chicago was handed down this morning.

Erin Miller, at SCOTUSblog, live blogged the announcement:

Erin:
Alito announces McDonald v. Chicago: reversed and remanded
Monday June 28, 2010 10:04 Erin
10:04

Tom:
Gun rights prevail
Monday June 28, 2010 10:04 Tom
10:05

Erin:

The opinion concludes that the 14th Amendment does incorporate the Second Amendment right recognized in Heller to keep and bear arms in self defense
Monday June 28, 2010 10:05 Erin
10:05

Tom:
5-4
Monday June 28, 2010 10:05 Tom
10:05

Erin:
Stevens dissents for himself. Breyer dissents, joined by Ginsburg and Sotomayor.
Monday June 28, 2010 10:05 Erin
10:05

Tom:
The majority seems divided, presumably on the precise standard
Monday June 28, 2010 10:05 Tom
10:06

Erin:
The majority Justices do not support all parts of the Alito opinion, but all five agree that the 2d Amendment applies to state and local government.
Monday June 28, 2010 10:06 Erin
10:06

Erin:
Alito, in the part of the opinion joined by three Justices, concludes that the 2d Amendment is incorporated through the Due Process Clause.
Monday June 28, 2010 10:06 Erin
10:07

Erin:
Thomas thinks the Amendment is incorporated, but not under Due Process. He appears to base incorporation on Privileges or Immunities.

Evidently, the Court actually did rule that the 14th Amendment’s Incorporation of the Bill of Rights makes applicable the Second Amendment to the states, limiting the right of states and municipalities to restrict the right of Americans to keep and bear arms.

Ouch! I don’t get to type this often…: “He had acetylene torch injury to the penis.”

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John Hinderaker from Power-Line, respects Obama’s behavior.

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Conservative cultural commentary venues The Notes and Culture11 went under. (link 1 & link 2).

Some people think they were not populist enough, but I am inclined to believe that the fact I never previously heard of either one of them could be part of the problem.

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Cigarettes $10 a pack in NYC.

New Yorkers ought to take up chewing tobacco.

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Write fiction based on your own life experience and they’ll sue you.

Hat tip to Walter Olson.

Robert Eugene Simmons Jr. observes that last Thursday’s $20 billion settlement by BP was forced by the White House without anything resembling due process, the color of law, or Constitutional authority.

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.

Lecturing at University of Chicago Law School

At the end of July in 2008, the New York Times published a very flattering profile of Barack Obama’s Law School lectureship.

The young law professor stood apart in too many ways to count. At a school where economic analysis was all the rage, he taught rights, race and gender. Other faculty members dreamed of tenured positions; he turned them down. While most colleagues published by the pound, he never completed a single work of legal scholarship.

At a formal institution, Barack Obama was a loose presence, joking with students about their romantic prospects, using first names, referring to case law one moment and “The Godfather” the next. He was also an enigmatic one, often leaving fellow faculty members guessing about his precise views. …

At the school, Mr. Obama taught three courses, ascending to senior lecturer, a title otherwise carried only by a few federal judges. His most traditional course was in the due process and equal protection areas of constitutional law. His voting rights class traced the evolution of election law, from the disenfranchisement of blacks to contemporary debates over districting and campaign finance. Mr. Obama was so interested in the subject that he helped Richard Pildes, a professor at New York University, develop a leading casebook in the field.

His most original course, a historical and political seminar as much as a legal one, was on racism and law. Mr. Obama improvised his own textbook, including classic cases like Brown v. Board of Education, and essays by Frederick Douglass, W. E. B. Dubois, the Rev. Dr. Martin Luther King Jr. and Malcolm X, as well as conservative thinkers like Robert H. Bork.

Mr. Obama was especially eager for his charges to understand the horrors of the past, students say. He assigned a 1919 catalog of lynching victims, including some who were first raped or stripped of their ears and fingers, others who were pregnant or lynched with their children, and some whose charred bodies were sold off, bone fragment by bone fragment, to gawkers. …
For all the weighty material, Mr. Obama had a disarming touch. He did not belittle students; instead he drew them out, restating and polishing halting answers, students recall. In one class on race, he imitated the way clueless white people talked. “Why are your friends at the housing projects shooting each other?” he asked in a mock-innocent voice.

A favorite theme, said Salil Mehra, now a law professor at Temple University, were the values and cultural touchstones that Americans share. Mr. Obama’s case in point: his wife, Michelle, a black woman, loved “The Brady Bunch” so much that she could identify every episode by its opening shots.

As his reputation for frank, exciting discussion spread, enrollment in his classes swelled. Most scores on his teaching evaluations were positive to superlative. Some students started referring to themselves as his groupies.

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Doug Ross quotes a colleague who provides an interesting, and very different, gloss.

I spent some time with the highest tenured faculty member at Chicago Law a few months back, and he did not have many nice things to say about “Barry.” Obama applied for a position as an adjunct and wasn’t even considered. A few weeks later the law school got a phone call from the Board of Trustees telling them to find him an office, put him on the payroll, and give him a class to teach. The Board told him he didn’t have to be a member of the faculty, but they needed to give him a temporary position. He was never a professor and was hardly an adjunct.

The other professors hated him because he was lazy, unqualified, never attended any of the faculty meetings, and it was clear that the position was nothing more than a political stepping stool. According to my professor friend, he had the lowest intellectual capacity in the building. He also doubted whether he was legitimately an editor on the Harvard Law Review, because if he was, he would be the first and only editor of an Ivy League law review to never be published while in school (publication is or was a requirement).

Hat tip to Gateway Pundit via News Junkie.

We live today in a country differing from the America of the past in which the rule of law prevailed, and increasingly resembling one of the Latin American republics in which a strong man takes power and proceeds to set aside the law and his country’s constitution in order to rule by decree.

Yesterday’s Wall Street Journal reported that Barack Obama simply ordered BP to pay the salaries of all the oil workers laid off as the result of the drilling moratorium he himself had decreed. No due process, no court action, just an edict.

The Obama Administration ratcheted up its demands on Wednesday that BP PLC cover all costs stemming from the Gulf of Mexico oil spill, including millions of dollars in salaries of oil-industry workers laid off because of the federal moratorium on deepwater drilling.

The sudden increase in BP’s potential liabilities—along with growing evidence that even more oil than expected is gushing from BP’s crippled well—helped send BP’s shares plummeting almost 16% in New York, to $29.20. The stock has lost close to half its value, more than $82 billion, in the seven weeks since the spill started.

A second WSJ article reported that a coast guard admiral additionally ordered BP to pay hundreds of millions of dollars to construct berms. Once again, no legal process whatsoever had occurred. There is clearly no rule of law in this country. Even coast guard officers get to rule by decree.

Construction is about to begin on miles of sand piles designed to block oil in the Gulf of Mexico from hitting the Louisiana coast, but documents show the Obama administration approved the building of sand berms despite concerns from some of its own environmental experts.

The U.S. Army Corps of Engineers authorized the berms. Thad Allen, the Coast Guard admiral overseeing the spill response, ordered BP PLC to pay the hundreds of millions of dollars that officials estimate it will cost to build the structures.

In announcing his decision June 2, Adm. Allen said the berms would “effectively stem potential damage to these fragile shorelines.”

It can be impossible to obtain redress for these kinds of wholly illegal actions by public officials, even ones many levels below the President of the United States.

During the aftermath of Hurricane Katrina, New Orleans Mayor Ray Nagin and Police Superintendent Eddie Compass simply ignored legal considerations and issued an order saying: “No one will be able to be armed. Guns will be taken. Only law enforcement will be allowed to have guns.” They then used both New Orleans police and National Guard troops to confiscate private firearms refusing even to issue receipts.

When, months later, all this reached federal court, New Orleans denied having seized private firearms, then later denied having any still in its possession, and generally simply stonewalled. Only after three years of litigation, which New Orleans lost, did the city admit seizing guns and promise to return whatever private property remained in its possession.

Barack Obama lectured for 12 years at the University of Chicago Law School before running for the presidency, but that did not prevent him last year from simply brushing aside the entire body of bankruptcy law to subordinate the claims of Chrysler bondholders in favor of the interest of the UAW.

Members of his administration then proceeded to intimidate the victims with threats of using allies in the press to destroy their reputation. Most bond-holding creditors knuckled under, but three Indiana pension funds did go to court. The US Supreme Court voided a Second Circuit Court of Appeals ruling upholding the illegal cramdown, but also referred the case back to the Second Circuit instructing the Appeals Court to hold the matter moot. Thus, the Supreme Court acted to prevent Barack Obama’s action a legal precedent, but refused to do justice and make the Indiana pension funds whole. The law was theoretically preserved intact, despite Obama’s violation, but not actually enforced in the Chrysler bankruptcy.

We are developing an alternative system of government by fiat fueled by press-reported crisis, in which government officials assume the powers of dictatorship. So far, the courts have proven to be not only slow, but ineffective, defenders of the rule of law.