Jonah Goldberg's recent Washington Post op-ed on five "cliches" that he imagines progressives employ misses badly on many scores, but none so wildly as when Goldberg turns his attention to the Constitution. As is his wont, Goldberg picks a fight with a straw man -- that progressives embrace a "living constitution" completely divorced from the document's text and history -- and suffers a technical knockout at the hands of even this feeble opponent.
Goldberg attempts to tar progressives with hypocrisy for basing their opposition to conservatives' post-9/11 overreaching on civil liberties on the text, history and principles of the Constitution. Even if conservatives were, as he breezily puts it, "stretching things," supposedly unprincipled progressives had no grounds for complaining. With this crude caricature, Goldberg gives away the game.
There is in fact a real debate about what the Constitution means and how to interpret it. On the one hand is what a leading scholar has called the "fundamentalist" view, held by many of Goldberg's fellow conservatives, that the Constitution should be "strictly construed" in a narrow manner that if applied in the past would have rejected much of the progress the nation has made toward justice. Under this view, the Constitution has nothing to say about segregated schools, bans on interracial marriage and blatant gender discrimination.
The opposing view, first and perhaps best expressed by Chief Justice John Marshall, himself a signer of the Constitution, is that the document's open-ended provisions (such as "due process" or "freedom of speech") should be read to give meaning to the principles they embody. In one of his most important opinions, he wrote that "we must never forget that it is a Constitution we are expounding."(emphasis in orginal) By this he meant that the Framers did not intend the Constitution to be so detailed as to spell out definitive answers in every possible situation, but rather to establish principles to be applied to address specific questions.
In this view, the Constitution's words, its history and the principles it embodies are all important in determining its meaning in particular cases. As Pamela Karlan, a leading progressive constitutional scholar has written:
[T]he Constitution has endured because judges, elected officials and citizens throughout our history have engaged in an ongoing process of interpretation. That interpretation reflects fidelity to our written Constitution. To be faithful to the Constitution is to interpret its words and to apply its principles in ways that sustain their vitality over time. Fidelity to the Constitution requires us to ask not how its text and principles would have been applied in 1789 or 1868, but rather how they should be applied today in light of the conditions and concerns of our society.
There is a real debate to be had about these competing constitutional visions. Unfortunately, Goldberg's game of "I know you are; now what am I?" contributes nothing of value to it.
Repeatedly burned by stings intended to demonstrate the ease with which individuals who are banned from purchasing firearms can buy guns from private sellers without passing a background check, the National Rifle Association appears to have found a solution: Make those stings illegal. As usual, their allies at the American Legislative Exchange Council are happy to help.
ALEC documents obtained by Common Cause indicate that in August 2011, NRA lobbyist Tara Mica presented an "Honesty in Purchasing Firearms" bill to ALEC's since-disbanded Public Safety and Elections Task Force, which the task force adopted as model legislation. Mica has at times served as the task force's Private Sector Chair.
The bill states that "[a]ny person who provides to a licensed dealer or private seller of firearms or ammunition what the persons knows to be materially false information with intent to deceive the dealer or seller about the legality of a transfer of a firearm or ammunition is guilty of a felony." Violators are punished with up to a $5,000 fine and five years in prison.
According to the group's minutes, the state legislators on the task force voted unanimously to adopt the legislation; the motion to adopt the bill also passed among its private sector members.
The NRA has explicitly stated that such legislation is intended to target undercover stings by gun violence prevention activists intended to shine a light on some unscrupulous private sellers. Those efforts typically involve individuals telling private sellers that they don't think they could pass a federal background check, which are not required for the transfer of firearms by private sellers, and being permitted to purchase the weapon nonetheless.
Since it is illegal to sell firearms to individuals if you have reason to suspect they cannot legally possess them, the NRA-backed ALEC law effectively shields criminal activity.
From the April 27 edition of Premiere Radio Networks' The Rush Limbaugh Show:
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Discredited gun "researcher" John Lott has done it again. In an April 25th op-ed for the New York Daily News, Lott strongly defended the "Stand Your Ground" self-defense law that is at the center of the shooting death of 17-year-old Florida teenager Trayvon Martin. Lott provides a number of distortions about "Stand Your Ground" in voicing support for the law.
Lott opens his piece by stating, "Call them what you will: 'Stand Your Ground' or 'Castle Doctrine' laws." In doing so, he is grouping together two laws that are in fact radically different - this faulty conflation is at the center of his entire argument. For example, Lott later claims that "In states adopting Stand Your Ground and Castle Doctrine laws from 1977 to 2005, murder rates fell by 9% and overall violent crime by 11%." But "Stand Your Ground" largely was not implemented until after 2005, making his point meaningless.
Last month, the Breitbart team tried -- and failed -- to gin up outrage over a 1991 video showing then-law student Barack Obama embracing the late Harvard professor Derrick Bell. Breitbart editor-in-chief Joel Pollak went to great pains to cast Bell and the critical race theory that he espoused as radical, even pushing his spin in an appearance on CNN (where host Soledad O'Brien took apart his argument).
In an April 25 post, Pollak returned to the Bell non-controversy, announcing in a post on Big Government that Breitbart News has obtained "exclusive" "handwritten notes" that Supreme Court Justice Elena Kagan sent to Bell back in 1985. At the time, Kagan was the editor of the Harvard Law Review, to which Bell had submitted an article.
And just what did the Breitbart team find? Apparently nothing good, because the only thing the post proves is that Kagan questioned one of Bell's ideas.
Pollak apparently found images of the notes themselves unworthy of inclusion in his post, save a single image of a few sentence fragments.
Looking on for at least a transcription of the notes -- the headline refers to "handwritten notes" "on critical race theory" -- the reader has to wade through a few paragraphs of Pollak building tension. He seems to have found significance, for example, in Kagan's choice of paper: "Unlike then-Harvard Law Review president Carol Steiker, who corresponded with Bell via typed letter (apparently on a 1980s-vintage dot matrix printer), Kagan chose to write to Bell exclusively on yellow notepad paper. She did not explain her choice to write by hand, save to suggest in one note on Aug. 30, 1985 that she was pressed for time."
From the April 25 edition of Fox News' Hannity:
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While discussing the Secret Service prostitution scandal, Bill O'Reilly said he sympathized with police officers who don't view sex workers as people with legitimate human rights. Talking to sex workers' rights advocate Sienna Baskin, O'Reilly stated that he understood police who "don't put a top priority on ladies who are engaged in prostitution because it is a crime," and added:
O'REILLY: It's like a drug dealer saying I got ripped off, you know. And they're going to say, "that's too bad, don't deal drugs." It's the same thing -- theoretically, from the police's point of view.
Baskin, co-director of the Sex Workers Project at the Urban Justice Center in New York, was criticizing the "criminalization system" in the United States, which often makes sex workers "afraid to go to the police when they are themselves victims of crime." She called for legalizing prostitution as a way to reduce crimes against sex workers.
While O'Reilly agreed that there "would be harm reduction" with legalization, he also said that his "beef" with "legalizing prostitution is basically the same thing about legalizing marijuana -- that it sends a message that this is OK. And I know you represent some of these ladies, but I think that selling your body is -- diminishes a human being. It diminishes that person. And it -- and it does harm to them." He continued:
O'REILLY: In my reporting over 35 years, I've seen that almost 100 percent of the time in this industry, and I'm sure you have, too. Do you really want to say it's OK to do this? And that's what you would be doing by legalizing it.
O'Reilly later stated that the "message to society is, hey, look, if you want to be a hooker, go ahead. And we, the society, there's nothing wrong with it -- but there is. There is something wrong with it." He went on to ask: "Why do they have to sell their bodies to make a living? Why can't they get a legitimate job like 99 percent of the population?" O'Reilly concluded: "You can wait tables and drive a cab anytime you want in this city."
On the morning of Saturday, April 14, 2012, things were going well for the National Rifle Association. The gun rights organization's annual meeting was in full swing. Bloggers crowed about record attendance at the St. Louis, Missouri event. Friday's "Celebration of American Values Leadership Forum" went off without a hitch--all 13 featured speakers were Republican men. Barack Obama was called a "post-American President," "incompetent," and the most "radically liberal" president since Jimmy Carter. But the most incendiary comments about the president had yet to come.
On Saturday afternoon, Ted Nugent, a member of the NRA's Board of Directors, addressed the NRA faithful. Nugent implored NRA members to support the Republican ticket in the fall, declaring, "Your goal should be to be able to get a couple of thousand people, per person who's here, to vote for Mitt Romney in November." After that rather innocuous endorsement, Nugent turned his sights on President Obama, and things quickly spiraled out of control.
"If that dead Marine isn't worth it to you to demand that the enemies in the White House are ousted, then you probably ought to just move to France," ranted Nugent. He continued, "If Barack Obama becomes the president in November, again, I will either be dead or in jail by this time next year. Why are you laughing? Do you think that's funny? That's not funny at all. I'm serious as a heart attack." Nugent then characterized the Obama administration as "vile," "evil," and "America-hating," before concluding his diatribe with a call for the audience to "ride into that battlefield and chop [Democrats] heads off in November."
For some reason The New York Times decided to give a trend piece on concealed carry clothing for the "fashion aware gun owner" prime placement on the front page of today's paper. Shockingly, the Times decided that the piece was not complete without commentary from economist and gun researcher John Lott:
After a campaign by gun rights advocates, 37 states now have ''shall issue'' statutes that require them to provide concealed-carry permits if an applicant meets legal requirements, like not being a felon. (A handful of other states allow the concealed carrying of handguns without a permit). By contrast, in 1984 only 8 states had such statutes, and 15 did not allow handgun carrying at all, said John Lott, a researcher of gun culture who has held teaching or research posts at a number of universities, including the University of Chicago. ...
A majority of states have long allowed the open carrying of handguns, said Mr. Lott, who also provided the data on gun permits. But the reality, said Mr. Lott and other gun experts, is that people do not want to show others that they are carrying a weapon or invite sharp questioning from the police.
It's curious that the Times went to Lott for comment, given that the paper has previously noted that studies of his work "have found serious flaws in his data and methodology."
Lott first gained fame in the 1990s for his claim that the passage of laws allowing for the concealed carry of handguns causes levels of violent crime to drop -- a claim that hassince been debunked. Lott has since been convincingly alleged to have fabricated data to claim that 98 percent of defensive gun uses don't involve the firing of a weapon, cited data that doesn't exist to claim that the end of the assault weapons ban reduced murders, altered blog posts after the fact to eliminate false claims for which he had been criticized, and invented facts that don't appear in a study he cited, among other instances of fabricated, misrepresented, and sloppy research.
Notably, as the Times noted in 2006, Lott "acknowledged in 2003 using the online pseudonym 'Mary Rosh' for more than three years to attack his critics and praise his own work."
Was there really no one else the Times could have found to provide data on how many states allowed concealed carry permits in the 1980s? And does the Times truly think that describing Lott as a "researcher of gun culture" is sufficient?
A recent New York Times article on the Obama Administration's response to Republican congressional obstructionism makes extensive use of the terms "unilateral and "unilateralism." The article suggests hypocrisy on the part of President Obama, stating that "[a]s a senator and presidential candidate, [Obama] had criticized George W. Bush for flouting the role of Congress." But it offers only a single example of an action based on the president's constitutional authority to act without congressional authorization, the use of the recess appointment power.
Instead, the article cites numerous instances of a very different phenomenon: Presidential action based on powers delegated by Congress. Time and again, the administration has asked Congress for legislation to address pressing problems, been faced with obstruction, and fallen back on authority it believes was already granted by previous legislation. This approach is different in kind from the Bush administration's repeated assertion of a right to ignore or act contrary to statutes, including assertions made in the former Bush administration official John Yoo's infamous "torture memos."
The article summarizes the administration's approach as follows:
But increasingly in recent months, the administration has been seeking ways to act without Congress. Branding its unilateral efforts "We Can't Wait," a slogan that aides said Mr. Obama coined at that strategy meeting, the White House has rolled out dozens of new policies -- on creating jobs for veterans, preventing drug shortages, raising fuel economy standards, curbing domestic violence and more.
Each time, Mr. Obama has emphasized the fact that he is bypassing lawmakers. When he announced a cut in refinancing fees for federally insured mortgages last month, for example, he said: "If Congress refuses to act, I've said that I'll continue to do everything in my power to act without them."
The article acknowledges that the Obama administration has not claimed presidential power to override statutes, as the Bush administration did:
"Obama's not saying he has the right to defy a Congressional statute," said Richard H. Pildes, a New York University law professor. "But if the legislative path is blocked and he otherwise has the legal authority to issue an executive order on an issue, they are clearly much more willing to do that now than two years ago."
Thus, according to Pildes, the administration has not altered its view of presidential power, but merely shifted political tactics from emphasizing bipartisan cooperation to placing a premium on taking action.
Georgetown University law professor and former Obama administration Office of Legal Counsel official Marty Lederman argues that the article's central failing is that it does not make clear the extent to which the administration is acting under authority it argues it has under existing legislation.
From Lederman's blog post:
From the April 24 edition of Fox News' Fox & Friends:
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From the April 23 edition of Cumulus Media's The Mike Huckabee Show:
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Last week we broke down the variety of falsehoods and misrepresentations Townhall news editor Katie Pavlich employs in her new book, Fast and Furious: Barack Obama's Bloodiest Scandal and its Shameless Cover-up. But more insidious than her sloppy adherence to the facts is the conspiracy theory she weaves as the heart of the book.
It is universally acknowledged that the ATF's Operation Fast and Furious was a debacle that never should have been allowed to happen. No one questions that it is a complete disaster that federal agents knowingly allowed guns to be trafficked across the border to Mexico, resulting in tragic consequences including deaths on both sides of the border.
Heads should roll in response; several individuals involved in the case have resigned or been reassigned and Attorney General Eric Holder has said further personnel changes could come in the wake of the inspector general's report.
But Pavlich is unsatisfied with simply investigating who approved of this flawed operation; instead she succumbs to the paranoid conspiracy theory from the National Rifle Association that the operation was originally conceived not as an attempt to build a case to bring down a Mexican drug cartel, but rather as part of a sinister plot to push a gun control agenda.
These claims may pass muster before an NRA audience, but they are not credible for most. Here's Bill O'Reilly - not someone inclined to think well of the administration - interviewing Pavlich about what he calls her "conspiracy thing." Even he's not buying it:
The fallout continues over the American Legislative Exchance Council's support of the National Rifle Association's "Kill at Will" self-defense laws. On his RedState.com site, CNN contributor Erick Erickson reported today that an "NRA representative took issue with ALEC getting rid of his public safety section" at last Wednesday's weekly conservative discussion hosted by NRA board member Grover Norquist.
Last Tuesday ALEC announced that they were eliminating their Public Safety and Elections task force, which drew fire for its role in promoting NRA-backed gun laws and voter restrictions, and refocusing solely on economic legislation. Over the previous week at least 10 companies had left the organization in the wake of Color of Change's campaign to encourage corporations to end their association with the group due to their promotion of those laws.
At Grover Norquist's Wednesday meeting a discussion about the ongoing assault against ALEC, the American Legislative Exchange Council, came up. Multiple sources (there are hundreds in the room) tell me that the NRA representative took issue with ALEC getting rid of his public safety section. That section has drafted a model "stand your ground" law, which Florida passed.
The NRA representative claimed that if ALEC was going to run away from the fight on these public safety issues, ALEC might just run away from other issues too, e.g. immigration.
Erickson further reported that an ALEC representative present at the meeting complained that the NRA had refused to help his organization push back on attacks they were receiving.
Earlier this month, Minnesota Gov. Mark Dayton (D) vetoed a bill that would curb the ability of asbestos-exposure victims to recover losses from some of the companies that are legally responsible for their suffering. Michigan Gov. Rick Snyder (R) approved a similar bill last week, joining Arizona, Idaho, and Utah, which all passed laws limiting corporate liability for asbestos-related claims in March. In recent years, these kinds of laws have passed in fifteen other states as well.
The rash of eerily similar bills appearing everywhere at once is not a coincidence. The legislation is a product of teamwork between the now-infamous American Legislative Exchange Council (ALEC) and Crown Holdings, Inc., a Fortune 500 company that has spent the better part of the last decade trying to legislate its way out of compensating cancer and mesothelioma victims who were exposed to asbestos by a company they purchased in 1963.
Despite this remarkably successful multi-state campaign to absolve a single corporation of liability to the detriment of thousands of suffering Americans, the ALEC/Crown crusade has been a quiet one, thanks to state media institutions that have failed to provide meaningful coverage of the issue (or, occasionally, failed to cover it entirely). As a result, important laws that profoundly affect the lives of many voters are being approved without serious public consideration.
Philadelphia-based Crown Holdings began its campaign to eliminate its asbestos liabilities through legislative action as early as 2001, when it spent $100,000 to influence legislators in its home state of Pennsylvania. Despite originally failing early in the year, the asbestos measure was resurrected successfully in late 2001 as an amendment to another bill. The move was led by State House Republican leader Rep. John Perzel, who has subsequently received tens of thousands of dollars from Crown Holdings over the past decade.
Perzel was awarded "State Legislator of the Year" from ALEC at the end of 2001. ALEC's executive director hailed Perzel as "a leader who truly personifies the Jeffersonian principles of liberty, limited government, and free-markets." But Perzel is now in state prison, after being convicted this year of helping to divert $10 million in public funds toward Republican campaigns for re-election.
Perzel's 2001 sleight-of-hand maneuver to resurrect the defeated asbestos liability provision is still being felt. With the momentum of a Pennsylvania victory under its wings, Crown Holdings, with ALEC's help, would successfully push identical legislation in 19 other states while employing a strategy of spending big on lobbyists and political contributions.