“An Old Lie Makes A Shameful Comeback”: John Boehner Owes The Public An Explanation For How He Can Be So Uninformed
USA Today ran an editorial today on House Republicans’ anti-Obama lawsuit, and the paper was clearly unimpressed, calling it a “political sideshow.” As the paper always does, it then ran a companion opinion piece making the opposite case. Defending the litigation was, of course, House Speaker John Boehner (R-Ohio).
The basic pitch was copy-and-paste boilerplate, but it included something specific that’s worth additional attention.
I believe the president’s actions in a number of areas – including job-destroying energy regulations, releasing the “Taliban 5” from Guantanamo without notice and waiving the work requirements in welfare – exceed his constitutional authority.
Remember, Boehner – or whoever writes these unpersuasive missives for the Speaker – could have picked any examples he wanted to bolster the case. If Obama “exceeds his constitutional authority” all of the time, as congressional Republicans claim, Boehner and his office presumably have a lengthy list to choose from.
And what did the Speaker come up with? Climate regulations, in a rather literal sense, can’t be an example of the president “exceeding his constitutional authority” – using the Clean Air Act to address the climate crisis has already been authorized by the U.S. Supreme Court. A prisoner swap to free an American POW is also a bizarre example, since prisoner swaps do not require congressional or judicial approval. In other words, Boehner’s 0 for 2.
And then there’s the claim that President Obama “waived the work requirement in welfare.” This is a lie, and if Boehner doesn’t know that, the Speaker owes the public an explanation for how he can be so uninformed.
We last covered this in March, when former House Majority Leader Eric Cantor (R-Va.) alluded to the same falsehood, but in case anyone’s forgotten, let’s quickly review reality.
In the president’s first term, a bipartisan group of governors asked the Obama administration for some flexibility on the existing welfare law, transitioning beneficiaries from welfare to work. The White House agreed to give the states some leeway – so long as the work requirement wasn’t weakened.
That’s not “waiving the work requirements in welfare”; that’s the opposite. Providing governors, including several Republicans, the flexibility they requested to help move beneficiaries back into the workforce is exactly the sort of power-to-the-states policy that Boehner and his cohorts usually like.
But in 2012, the policy inspired Mitt Romney and GOP leaders to turn this into a rather shameless lie, accusing Obama of weakening welfare work requirements. The more fact-checkers went berserk, the more aggressive Romney became in pushing the lie. One can only speculate as to the rationale behind the ugly falsehood, though the Republican presidential campaign seemed quite eager at the time to use the words “Obama” and “welfare” in the same sentence, even after the GOP candidate and his team realized they were lying.
Two years later, Boehner is echoing the racially charged falsehood for no reason. If the Speaker is struggling to defend his frivolous lawsuit, that’s unfortunate, but it’s no excuse to repeat a shameful lie.
By: Steve Benen, The Maddow Blog, July 28, 2014
“A Revolutionary Committee”: Time For Some Candor From The Supreme Court
In most of the cases it decides, the Supreme Court is what it presents itself as: a court of law. The justices apply preexisting rules and standards set forth, for example, in the Constitution and statutes passed by Congress, to a dizzying array of human and institutional behaviors.
But in many highly contested cases, especially those involving the definition of broad-based rights, the Supreme Court is only slightly more a court of law than the House of Representatives or the Senate. Here the justices are often covertly and ashamedly quasi-legislative, actually deciding what sort of a society they wish to call into being, designating winners and losers on the basis what they want or hope will be best.
A powerful mythology keeps the Supreme Court and its constituencies from acknowledging this. Sore losers often claim they have been cheated by life-tenured federal judges, but such complaints are promptly forgotten because today’s angry critic is tomorrow’s triumphant victor, suddenly extolling the fairness of the justices.
Judges, lawyers and the interested public usually end up colluding in promoting the idea that when the Supreme Court decides that corporations have the same speech rights as natural persons, or that there need not be a recount in a contested presidential election, or that sodomy cannot be a crime, or that racial segregation in education is not only abhorrent but a violation of the Constitution, the rule of law, not the rule of men, is in operation.
The core notion we cling to is basic civics. Though chosen democratically, the justices are not elected. The information they receive and their legitimacy are rightly circumscribed, the former by laws that surround the way decisions are reached, and the latter by their unaccountability. It is feared that if the Supreme Court talked about what serious observers concede, that many major rulings are a result of value choices made in a legal context rather than on strict application of a legal rule or precedent, the ensuing contradictions would undermine the public’s acceptance of its decisions.
Justice Sonia Sotomayer came as close as justices of the Supreme Court ever do to crossing this line when she pointed out the glaring inconsistency between the court’s assurances in the Hobby Lobby contraception case and a decision granting Wheaton College an injunction four days later. Despite becoming instantly famous, her blunt language — “Those who are bound by our decisions usually believe they can take us at our word. Not so today.” — stops far short of what an elected politician might say in a similar situation.
Deeply embedded in the discourse that follows decisions in epochal cases is talk about the way the Supreme Court’s reasoning connects to its conclusions and the practical consequences of the ruling. All can condemn or praise the work of the Supreme Court, but only entrenched partisans are likely to claim that the decision is purely political.
What Supreme Court majorities never admit is that the past is so contingent, and the choices made by other governmental actors so unclear, that nothing is left for the Supreme Court to do but what it thinks best under the circumstances. The thought is that it would be institutionally damaging to admit that the justices just choose the reasonable and wise course, in effect conceding that they truly act as a “revolutionary committee,” as A.A. Berle once memorably put it. Given such an admission, would the next voice say, “Why not leave these choices to the elected?”
But maintaining the myth is costly. Because both unhappy losers and Supreme Court analysts know that all too often the threads of the law said to dispose of a case really stand only as a thin cover of justification (rather as an honest search for solution), the result is large-scale cynicism. Law students learn early in their first year the difference between the language of opinions and what really cuts the mustard. Practicing lawyers know well the difference between rhetoric and reality.
This gap between actual and masked reasons for a decision muddies the waters and inhibits healthy debate. And it is unnecessary. Perhaps there was a time when, in order to respect the law, the public had to believe that it was found somewhere outside our judges, a “brooding omnipresence,” as it was called, but no longer. Given the massive exposure in the media to what passes for law making, people today are not quite so naïve.
More importantly, we need the justices to do more of what they do well. A deliberative process responsive to objective evidence and narrowed to real controversies is a paramount governmental function. There is probably no better way to meet the need to manage the existential controversies of a complex society than a judicial process that presents the true bases of decisions. What is no longer sustainable is the illusion that in these major cases the justices are merely the mouthpiece for decisions made by Congress or settled long ago by James Madison and his colleagues.
By: Michael Meltsner, Matthews Distinguished Professor of Law at Northeastern University School of Law; The Hoffington Post Blog, July 25, 2014
“Mr. States Rights In A Political Pickle”: How The Constitution May Screw Rand Paul For 2016
Rand Paul has a little-discussed problem. Yes, he’s riding a wave. Yet another new poll brings happy tidings, putting him at the top of the GOP heap in both Iowa and New Hampshire (although still well behind “undecided”). He keeps doing these clever things that titillate the Beltway sages, like coupling with Democratic Sen. Cory Booker (ooh, he’s black!) on sentencing reform. All this, you know. He’s a shrewdie, we have to give him that.
But here’s what you maybe don’t know. Paul is up for reelection in 2016. One assumes that he would want to hold on to his Senate seat. If he ran for president, he would hardly be the first person hoping to appear on a national ticket while simultaneously seeking reelection, although the other examples from the last 30 years have all been vice-presidential candidates: Paul Ryan in 2012, Joe Biden in 2008, Joe Lieberman in 2000, and… trivia question, who’s the fourth?
For those, it hadn’t been a problem. But it is for Paul, because under Kentucky law, he cannot run for two offices at the same time. The law has been on the books in the Bluegrass State for a long time. Paul quietly asked that it be changed, and the GOP-controlled state senate acquiesced this past session. But the Democrats have the majority in the lower house, and they let the bill expire without voting on it. I would reckon, unless the Kentucky state house’s Democratic majority is possessed of a shockingly benevolent character unlike every other legislative majority I’ve ever encountered, it won’t be rushing to pass it.
Paul has said that he’d just ignore the law.
We should stop and pause to appreciate that: Rand Paul, of all people, arguing that states don’t have the authority to dictate the rules for federal elections. Yes, Mr. States’ Rights insists that this is the province of the federal government!
It gets even better. The tradition that states set the rules of their elections and always have was not handed to us by a bunch of pinko mid-century judges, but lo and behold, by the Framers themselves. I give you Article I, Section 4 of the Constitution: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.” So not only is Mr. States’ Rights backing the federal jackboot as long as it’s kicking on his behalf, but Mr. Tea Party Strict Constitutionalist is challenging the Constitution!
Here’s what the Supreme Court has had to say on the matter. There are two cases that are most relevant, U.S. Term Limits Inc. v. Thornton and Cook v. Gralike. In those cases, the court held that Arkansas and Missouri’s respective term-limit laws added extra qualifications to seek office that weren’t found in Article I, Sections 2 and 3 of the Constitution (the sections that state the qualifications for candidates for the House of Representatives and the Senate). That is, the court protected candidates who had served X number of terms and were thus, under those states’ laws, prohibited from seeking office again. You can’t do that, said the court to states; you’re in essence adding an extra-constitutional “qualification” for office (that a candidate can’t have served more than three terms). Sen. Paul can argue that Kentucky’s law imposes an extra-constitutional qualification on him—that if he wants to run for president, the state has added the “qualification” that he not also run for Senate.
I’m no lawyer, but that sounds like a reach to me. A term-limits law is a clear imposition of an added qualification. But a law requiring that a person seek only one office at a time seems to me like a perfectly reasonable thing for a state to decide, under the word “manner” in the relevant constitutional passage, if it wants to. States have had these laws for a long time. Florida has one, too, and Marco Rubio—also up for reelection in 2016 and also considering a White House run—has defended it and said of running for the presidency: “I think, by and large, when you choose to do something as big as that, you’ve really got to be focused on that and not have an exit strategy.”
Paul said in June: “Can you really have equal application of federal law if someone like Paul Ryan or Joe Lieberman can run for two offices, but in Kentucky you would be disallowed? It seems like it might not be equal application of the law to do that. But that means involving a court, and I don’t think we’ve made a decision on that. I think the easier way is to clarify the law.” Touching. I doubt Paul worries too much about the “equal application of federal law” for pregnant women who live in states where they’ve found ways to shut down every federally legal abortion clinic. And of course, historically speaking, there are the black Kentuckians and Southerners generally who weren’t soaking up much equal application of federal law until the passage of the Civil Rights Act that Paul so famously told Rachel Maddow in 2010 he would have opposed.
Paul is going to be in a political pickle over this. Remember, a presidential candidate has never done this in modern history, just vice-presidential ones (trivia answer: Lloyd Bentsen in 1988). Vice president—who really cares. But president? Even if he prevailed in court, can a person really run for president of the United States while also seeking another office? Rubio sounds right here to me. This is the presidency. It just seems cheesy. Plain and simple, Paul should have to choose.
By: Michael Tomasky, The Daily Beast, July 18, 2014
“Gun Laws And What The Second Amendment Intended”: When The NRA Didn’t Support Everything That Goes ‘Bang’!
As school shootings erupt with sickening regularity, Americans once again are debating gun laws. Quickly talk turns to the Second Amendment.
But what does it mean? History offers some surprises: It turns out in each era, the meaning is set not by some pristine constitutional text, but by the push and pull, the rough and tumble of public debate and political activism. And gun rights have always coexisted with responsibility.
At 27 words long, the provision is the shortest sentence in the U.S. Constitution. It reads: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
Modern readers squint at its stray commas and confusing wording. The framers believed in freedom to punctuate.
It turns out that to the framers, the amendment principally focused on those “well regulated militias.” These militias were not like anything we know now: Every adult man (eventually, every white man) served through their entire lifetime. They were actually required to own a gun, and bring it from home.
Think of the minutemen at Lexington and Concord, who did battle with the British army. These squads of citizen soldiers were seen as a bulwark against tyranny. When the Constitution was being debated, many Americans feared the new central government could crush the 13 state militias. Hence, the Second Amendment. It protected an individual right – to fulfill the public responsibility of militia service.
What about today’s gun-rights debates? Surprisingly, there is not a single word about an individual right to a gun for self-defense in the notes from the Constitutional Convention; nor with scattered exceptions in the transcripts of the ratification debates in the states; nor on the floor of the U.S. House of Representatives as it marked up the Second Amendment, where every single speaker talked about the militia. James Madison’s original proposal even included a conscientious objector clause: “No person religiously scrupulous of bearing arms shall be compelled to render military service in person.”
To be clear, there were plenty of guns in the founding era. Americans felt they had the right to protect themselves, especially in the home, a right passed down from England through common law. But there were plenty of gun laws, too. Boston made it illegal to keep a loaded gun in a home, due to safety concerns. Laws governed the location of guns and gunpowder storage. New York, Boston and all cities in Pennsylvania prohibited the firing of guns within city limits. States imposed curbs on gun ownership. People deemed dangerous were barred from owning weapons. Pennsylvania disarmed Tory sympathizers.
That balance continued throughout our history, even in the Wild West. A historic photo of Dodge City, Kansas, the legendary frontier town, shows a sign planted in the middle of its main street: “The Carrying of Fire Arms Strictly Prohibited.” Few thought the Constitution had much to say about it.
Through much of history, this balance evoked little controversy. Even the National Rifle Association embraced it. Today the NRA is known for harsh anti-government rhetoric, but it was started to train former Union soldiers in marksmanship. In the 1930s, the group testified for the first federal gun law. In 1968, its American Rifleman magazine told its readers the NRA “does not necessarily approve of everything that goes ‘Bang!’”
Of course, over the past three decades, the NRA shifted sharply. At the group’s 1977 annual meeting, still remembered as the “Revolt at Cincinnati,” moderate leaders were voted out and the organization was recast as a constitutional crusade.
Together with even more intense advocates, such as the Second Amendment Foundation, of Bellevue, Washington, they are quick to decry any gun laws as an assault on a core, sacred constitutional right. They waged a relentless constitutional campaign to change the way we see the amendment.
Remarkably, the first time the Supreme Court ruled that the Second Amendment recognizes an individual right to gun ownership was in 2008. The decision, District of Columbia v. Heller, rang loudly. But a close read shows that Justice Antonin Scalia and his colleagues make the familiar point that gun rights and responsibilities go together. The court said that, like all constitutional rights, there could be limits. “Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms,” Scalia wrote.
That’s how judges have interpreted this constitutional right. Dozens of courts have examined gun laws since 2008. Overwhelmingly they have upheld them, despite the claims of gun-rights attorneys. Yes, there is an individual right to gun ownership — but with rights come responsibilities. Society, too, has a right to safety, and there is a compelling public interest in laws to keep guns out of the hands of dangerous people.
To be sure, the final scope of the constitutional provision has not been determined. The Supreme Court has not spoken again. It is infallible because it is final, as Justice Robert Jackson once wrote, not final because it is infallible. But the greatest controversy revolves around issues such as the rules for carrying a gun outside the home.
So what does the Second Amendment really mean? From the debate over the Constitution to today’s gun fights, the answer is really up to us, to the people. That answer changes over time. But one thing has remained surprisingly constant: Americans cherish freedom, but believe passionately that rights demand responsibilities. It’s hard to think of an area where that insight matters more than when it comes to ensuring that lethal weapons do not fall into the wrong hands.
By: Michael Waldman, President of the Brennan Center for Justice at New York University School of Law; The National Memo, July 14, 2014
“Fundamentalist Constitutionalism”: Punctuation Marks, Antonin Scalia, And The Farce Of “Originalism”
I have no idea whether Supreme Court Justice Antonin Scalia is heading to the beach this summer now that he has made America safe for religious employers to discriminate against their female employees. Nor do I have any idea whether Danielle Allen’s new book “Our Declaration: A Reading of the Declaration of Independence in Defense of Equality” is on his beach-reading list. But it should be.
You have probably heard about the book and its assertion that there is a significant typo smack in the middle of the Declaration’s most famous part. We read the phrase “life, liberty and the pursuit of happiness” with a “.” at the end. It’s not there in the original, according to Prof. Allen. It was added in later versions, as a mistake or perhaps even as a small spot of errant ink. The result, Allen asserts, is a dramatically different meaning to the entire document.
Historians will debate the conclusions Allen has drawn from her detective work, but those conclusions aren’t the reason Scalia ought to read the book. Rather, it is that starting premise about the punctuation that should give him pause (I know, it won’t) because it succinctly puts the lie to the entire enterprise of Constitutional “originalism” upon which Scalia has built his career.
Originalism, briefly put, is a jurisprudence resting on the following wobbly assumptions: the Constitution only has one meaning; that meaning can be known without ambiguity (by those smart enough to read it); all laws ought to be judged against that singular, unchanging meaning. Not too long ago originalism resided on the lunatic fringe of legal thinking, sort of like Ayn Randian economics. Over the last generation it has entered the mainstream, sort of like Ayn Randian economics, and no one has been more responsible for that than Antonin Scalia.
Opponents of originalism have often argued instead that the Constitution needs to be a “living” document, adaptable to a changing society. That view became prominent a century ago as legal thinkers, among them Woodrow Wilson and Oliver Wendell Holmes, tried to reckon with a rapidly changing industrial society. And to these Scalia and his comrades have said that the Constitution is resolutely dead and should be read historically, not in light of contemporary society.
But as the business of the pesky punctuation in the Declaration of Independence reminds us, words can mean different things and can be read in different ways. and even small changes in a sentence can yield different ideas. We know what Hamlet’s “To be or not to be” soliloquy says, but any high school junior can tell you that it might have any of several meanings. Or all of them. Or none of them.
Pretending that reading a document like the Constitution is a simple, transparent and an entirely objective and neutral task is naïve at best, intellectually dishonest at worst. All acts of reading are necessarily acts of interpretation, and as a consequence there are no objective truths nor single meanings. The most we can do is achieve a best consensus, recognizing that it might change in the future.
Scalia knows all of this, I suspect. I don’t think even in his extraordinary arrogance and self-regard he believes he can know exactly and perfectly what was in the minds of all the delegates who wrote the Constitution. And indeed, whatever one thinks of Scalia as a jurist, his track-record as a historian is shoddy, filled with cherry-picked examples, incomplete understandings and downright risible conclusions. The history Scalia presented as part of his majority opinion in District of Columbia v. Heller wouldn’t pass muster in my undergraduate seminar.
Scalia’s real goal in promoting “originalism” is to remove Constitutional issues from the realm of political debate altogether and treat them instead as theological dogma.
“Originalists” like Scalia read the Constitution in much the same way that fundamentalist Christians read the Bible. In the world of those conservative Christians, the Bible says what it says, there is no room for any interpretation of it, and the Bible is inerrant. In fact, we might coin a new term, “fundamentalist Constitutionalists,” since there is now a small but growing number of people convinced that the Constitution, like the Bible, may have been written by men but was actually inspired by God.
While this kind of reading may be intellectually indefensible – or downright silly – it does have the advantage of bestowing extraordinary power on those who can claim to possess The Truth, whether huckstering evangelical, tyrannical bishop, or snarky Supreme Court justice.
Ironically, of course, we will look back on “originalism,” or “fundamentalist Constitutionalism,” as being entirely of its political and cultural moment. One hundred years from now, we will see it as engineered by revanchists like Scalia who recoiled at the dramatic social changes of the recent past – civil rights, feminism, gay rights, and more – and thought they could use the Constitution to retreat into a past largely of their own invention. Future scholars might even debate what, exactly, Antonin Scalia meant as they parse his body of writing, and might find that his very words could be subject to multiple readings. That would be the final, most delicious and fitting irony for “originalism.”
By: Steven Conn, Author/Professor, Ohio State; The Huffington Post Blog, July 7, 2014
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