It's been an instructive week on social media. Most of my friends are decided leftists--one of whom once literally posted "when will people realize that socialism is the answer!"

I'm never really surprised by the lack of knowledge, understanding, questioning of sources, or research my leftist friends show. I am often posting debunking links to some of their more egregious posts (for some reason a former teacher and parent of a friend of mine gets my goat the most). Usually, they link to some inane graphic someone made that shows all right-thinking people must think conservatives are crazy.

That's about the depth of their knowledge most of the time. I talk about marginal economic theory, throw around actual facts with links to original sources, and they post from inside their bubble and at the level of 9th graders. It can be disheartening.

This week, of course, RFRA laws blew up. I kept calmly posting links to what Indiana's law actually does and how it really is just like the national law and the laws in other states (and that Connecticut's law is actually worse, despite that state's governor blasting Indiana--CT's law bars placing "a burden" on people's religious practice, most other laws bars placing "a substantial burden" which is a very big difference,) and they kept whining.

Mostly I posted links to the very good National Review article by Josh Blackman which goes into detail and even looks at the legal history of lawsuits on a circuit-by-circuit basis. Every time someone would say that Indiana's law was different and sooooo much worse, I would point out that, no, it is really the same.

Finally, I caught a lucky break. I have a very liberal friend (actually the guy I went to senior prom with in high school) who is now a con-law professor; when I posted one of my rebuttals, he came along and concurred that I was correct on the reading of law. Basically saying that in fact, I was right that the Indiana law was the same...but that the motivation of the politicians was different this time and meant to be anti-gay. That wasn't a point I wanted to deal with; I was just trying to get people to accept that the law as written was not worse than any of the other ones.

Most of my friends shut up after that.

I am sometimes reluctant to post links to conservative sources, in part because my liberal friends will dismiss them without a second thought. I think it was helpful here that my liberal friend concurred that the NR article was accurate.

Maybe people will have their eyes slightly opened to the fact that conservatives actually know what they are talking about and that their sources are often far superior to liberal ones.

Nah.

I think Roberts' decision is well thought out and the right one. He called a tax a tax. Yes, the administration tried very hard to present the "mandate" as anything but a tax, but a tax it is. I don't see this as any new power for the Federal Government either.  If the Feds hike everyone's taxes by $700, then provide a $700 tax credit to those who buy approved health insurance, the effect is exactly the same as putting a $700 tax on not-buying insurance.  Surely the Feds have the constitutional power to do the former.

I have seen a lot of posts on conservative blogs calling the mandate "a huge tax increase on the middle class" and saying how the mandate represents a new and crushing power of the government to run every aspect of our lives.  It's nonsense.


In a characteristically fine essay, Charles Krauthammer states:

I think the “mandate is merely a tax” argument is a dodge, and a flimsy one at that. (The "tax" is obviously punitive, regulatory, and intended to compel.)

I disagree. I find Roberts' analysis convincing. Essentially, since the tax is small in relation to the cost of health insurance, it is not punitive. See here. See also here.

If, as has been reported, some teachers marched their students to the Madison Capital to participate in the demonstrations, I have one question: did they have permission slips from their parents?

At every school I know, the teachers need a permission slip every time the kids are taken off campus--even for regular monthly trips, a permission slip comes home every time at our school. I've always assumed that was due to a law. If so, can't parents protest the taking of their kids without permission?

George Will:

Has the U.S. Supreme Court construed the commerce clause so permissively that Congress has seized, by increments, a sweeping police power that enables it to do virtually anything it wants?

Yes. Duh! How hard is this to understand?? How many more such essays are conservative and libertarian pundits going to write? Blah blah blah "10th Amendment!!" blah blah blah "Founders' Intent!!" blah blah blah "Federalism!!" It's like a bunch of people sitting around a burnt-out light bulb endlessly talking about how illuminating and warm it was. It's burnt out!

Perhaps I'm being too harsh. Go on quoting Marbury vs Madison, George. I'll go on living 200 years later, in what is often referred to as "the real world."

Just in case there was still some doubt as to how the Supreme Court functions, consider this letter posted at The Corner

"She [Justice Ginsburg] told those assembled that the justices do not use the analytical framework to reach the results in a given case, but that they decide the result first and then fit the opinion into the existing framework."

In France, most politicians and bureaucrats graduated from the same university. It has become the one item that everyone who wants to get ahead needs on their resume. It's a narrow world where everyone basically has been taught to think alike.

How did we get to that point in the US? How has law school become our equivalent of France's École Normale?

Using the Real Clear Politics website and, usually, Wikipedia, I pulled up the names of all of the major candidates for Senate and looked at their educational background. Of the 71 Republicans, Democrats, and Charlie Christ running for the Senate, fully 34, or 48%, have law degrees.

In six races out of thirty-five (Alabama, Colorado, Illinois, New Hampshire, Ohio, and Oregon) (Alabama, Colorado, Illinois, New Hampshire, Ohio, and Oregon) voters will have no choice but to elect a lawyer. In only eight of 35 races (Arkansas, California, Maryland, North Dakota, Oklahoma, Pennsylvania Washington, and West Virginia) are there no lawyers on the ballot. Democrats have 20 lawyers out of 35 candidates, and Republican have 13 of 35 (Charlie Christ in Florida is also a lawyer.) Also, as far as I could tell, only one candidate has no college at all: Tom Sullivan in Idaho.

Lawyers actually make up about 1% of the country. How have we come to the point where far too many see law school as a qualifying factor?

To use Bill Buckley's formulation: I'd rather be governed by the first 50 names in the phone book.

I was making the kids' lunch with Fox on in the other room, and heard this laugh-out-loud gem from Kagan:

Speaking of McCain-Feingold: "I thought it was the most self-sacrificing thing the Congress has ever done."

If she thinks it was self-sacrificing, she's delusional.

A rare, event , I know. I really like Mark Steyn and I usually agree with him. But this, is at least partially wrong:

The Language of Love [Mark Steyn]

Readers sometimes express skepticism about my tales of Quebec's "language police" - the pet shop owner fined for having an English-speaking parrot, etc. So here, from the Montreal Gazette, and as a reminder of the forensic intrusions of the regulatory state, is the tale of the unilingual anglophone sex aid that fell afoul of the bureaucrats:

Distribution Percour Inc., owner of Boutique Séduction in Montreal North, has been ordered by a Quebec Court judge to pay $500 for selling an item called Sleeve Super Stretch whose packaging was in English only.

The April 19 ruling came after a failed six-year effort by the Office québécois de la langue française to get the store to stick French labels on Sleeve Super Stretch boxes.

Acting on a citizen’s complaint, an OQLF inspector visited the store in 2004 and photographed the packaging of the sex-toy accessory worn by men.

"Acting on a citizen's complaint": There speaks the sexually liberated statist. "I went into a sex store and I was absolutely disgusted - by the English-speaking sex aids."

[...] Heaven forbid that a confused francophone should attempt to wear the product on his nose. Fortunately, prosecutors were able, with the use of public funds, to hunt down Quebec-compliant sex aids:

[...] As Pierre Trudeau assured Canadians, the state has no business in the bedrooms of the nation. Unless you're wearing a non-vibrating anglophone sex aid.

Just one problem with Steyn's complaint. The law that the province could be acting under is a little something a whole lot of American conservatives support: NAFTA. Ever wonder why almost every package you buy has English, Spanish, and French text on it? It's because that is what is required by NAFTA. The law was written to promote trans-border commerce, and to allow for a product produced in one of the three NAFTA countries to be easily sold in another.

Now, it is entirely possible that, in this case, the lack of French text on the package is being targeted because of the Francophonic bias and governmental overreach. But it is also true that the multi-lingual labeling is required by Canada's treaty obligations with the US and Mexico.

Many people have been pointing out that the Slaughter solution to the Dem's quagmire, is unconstitutional based on Article 1 Section 7 of the constitution--they've been focusing on the second paragraph:

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

But doesn't that same section have another bill-killer? How about the paragraph immediately before the above:

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.

This will be raising revenue in a big way, and thus, the bill should have to originate in the House not the Senate. Notice it doesn't say "taxes" it says "revenue". In other words, laws that take money from people and give it to the government must originate in the House. So Article 1 Section 7 makes Obamacare doubly unconstitutional.

Remember a time when pesky little things like the Constitution actually mattered. Reminds me of my favorite Tea Party sign, which I saw way back a the Tax Day party last year in Glendale: "Legalize the Constitution!"

Steve: More here. "The end result is that however clear a constitutional violation may be presented by the Slaughter rule — and I think former judge, now–Stanford Law professor Mike McConnell is correct that it's pretty clear here — there is a significant impediment to challenging that violation in federal court." So, basically, nobody in power cares.

"The accuser" in the infamous Duke Lacrosse team alleged rape case has been arrested as the result of an alleged assault on her boyfriend:

Authorities charged her with attempted first-degree murder, five counts of arson, assault and battery, communicating threats, three counts of misdemeanor child abuse, injury to personal property, identity theft and resisting a public officer.

Wow! Those are some serious charges. Let's look closer. First, attempted first-degree murder:

According to police documents, Mangum scratched, punched and threw objects at Walker and told him, "I'm going to stab you, (expletive)!"

Hmmm... doesn't really sound like attempted murder to me. Next, five counts of arson:

She then went into a bathroom and set his clothes on fire in the bathtub, police said.

Hmmm... arson? I guess technically it's destruction of property using fire, but I don't think that's the sort of thing people think of as arson. Five counts? A shirt, pants, pair of socks and underwear? Beats me. Next, how about "identity theft:"

Police charged Mangum with identity theft because she gave them a fake name, "Marella Mangum," and age, authorities said.

Her real name is Crystal Gale Mangum. This is identity theft? Again, that's not what most people think of as identity theft.

This all seems way out of line to me. It also seems like I am seeing more and more of this kind of thing, i.e. prosecutors charging people with crimes way more serious than is warranted by the alleged deeds. I'm sure this sort of "overcharging" helps to gain plea bargains with minimal effort, but that doesn't make it right. When someone is put in legal jeopardy, the potential sentence should be in line with the seriousness of the crime. These sort of charges could result in Ms Gale spending a good portion of her life in prison for what looks like little more than a fight with her boyfriend.

It's time to end this sort of prosecutorial over-reach.

Okay, this is really geeky. Click for larger version.

For my brother:



Steve: Well done! Perhaps the lamest of episodes?

What to make of Justice Ginsberg?

“I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law,” Justice Ginsburg said in her comments on Friday.

Yes, but we already knew she didn't understand. It seems to me that she doesn't even understand what her job is. Perhaps it would help if she remembered her days back in grade school where she, like all of us, were taught that the role of Congress is to make laws, the role of the Executive is to enforce the law, and the role of the Court is to interpret the law. Justice Ginsberg believes her role is to issue decrees for actions she thinks are a good idea.
It doesn't really matter to her what the Constitution says about the matter, or what Congress has legislated. It's not really any more important to her than what a foreign judge has to say.

“Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?” she asked.

Um... because the professor is perhaps writing about American law, not the law of some other country?

The Canadian Supreme Court, she said, is “probably cited more widely abroad than the U.S. Supreme Court.” There is one reason for that, she said: “You will not be listened to if you don’t listen to others.”

And we are to give a cr*p because...? My guess is that this lack of world attention bruises Justice Ginsberg's enormous ego.

“What happened in Europe was the Holocaust,” she said, “and people came to see that popularly elected representatives could not always be trusted to preserve the system’s most basic values.”

Right. The trouble with Europe in the 20th century was too much damn democracy. If only they had relied more on dictatorships, the people could have been protected from themselves. Thankfully, we have Justice Ginsberg to act as our own Philosopher Queen.

“The police think that a suspect they have apprehended knows where and when a bomb is going to go off,” she said, describing the question presented in the case. “Can the police use torture to extract that information? And in an eloquent decision by Aharon Barak, then the chief justice of Israel, the court said: ‘Torture? Never.’ ... Then she asked, “Now why should I not read that opinion and be affected by its tremendous persuasive value?”

Frankly, I find these Ivory Tower absolutist positions juvenile. I can't say exactly at what point extreme measures are justified; that's the difficulty. I can however, envision a scenario where I believe the point has been crossed. If you'd rather see millions of New Yorkers vaporized by a nuclear bomb than compromise your principled position against torture and break some terrorist's arm, then I think there is something wrong with you.

She helped introduce the term “gender discrimination” as a synonym for “sex discrimination,” she said, explaining that her secretary had proposed the idea while typing a brief to be submitted to male judges.

An awesome achievement.

“Wagner is a great, great composer,” she said, “but he needed a good editor.”

People with this much ego really shouldn't be entrusted with such power.

Update: Jonah Goldberg has written column on the topic! More from Jonah here. Bill Buckley quoting Justice Cardozo

... who one one famous occasion reminded us that the purpose of a trial is to determine whether or not the accused is guilty, rather than whether the constable has blundered.

I didn't realize the issue had inspired such recent debate.

Original Post:
The Corner links to this piece by Glenn Reynolds, the Instapundit.

...the Supreme Court, in its just-released decision in Herring v. United States, has ruled that simple negligence by police - in arresting a man based on a warrant that had been withdrawn, but left in the computer by mistake - isn't enough to justify excluding the evidence found during that arrest.

...Except that the rest of us enjoy no such immunity. If you're a citizen who, say, accidentally carries a gun into a designated "gun-free" zone, the Supreme Court will not say that you can escape punishment because your action was "the result of isolated negligence." For citizens, there's no "I forgot" defense.

Ok, but the cops aren't on trial here. Mr Herring is. If the cops were charged with a crime for the mistake, then Glenn's analogy would be better. To be honest, I never really bought completely the idea that evidence should be excluded when it is obtained without a proper warrant. When that happens, the officers should be reprimanded or charged with a crime if appropriate. But why should the evidence collected be inadmissible? The argument might be that such measures insure proper police conduct, but wouldn't appropriate punishments for offending officers serve the same purpose, without making it easier on criminals?