“A Regrettable Ignorance”: Don’t Know Much About History, Rick Perry Edition
Former Texas Gov. Rick Perry (R), still an unannounced presidential candidate, campaigned in New Hampshire last week and told a group of voters that he and Abraham Lincoln share an ideological bond.
“Lincoln read the Constitution, and he also read the Bill of Rights, and he got down to the Tenth Amendment, and he liked it,” Perry boasted. “That Tenth Amendment that talks about these states, these laboratories of democracy…. The Tenth Amendment that the federal government is limited, its powers are limited by the Constitution.”
It’s easy to understand how the Texan might be confused. Lincoln and Perry share a party label, so the former governor apparently assumes they share a political outlook, too. And given that Lincoln was arguably the nation’s greatest president, it stands to reason that the Texas Republican, like most candidates, would want to associate himself with the Lincoln legacy.
The problem, however, is that Perry has no idea what he’s talking about. Josh Zeitz, who taught American history and politics at Cambridge and Princeton, explained the other day that the former Texas governor “got Lincoln backwards” and Perry’s entire argument “betrays a regrettable ignorance of Lincoln’s political outlook.”
Before he reluctantly became a Republican, Abraham Lincoln was a lifelong Whig – a party founded in opposition to Andrew Jackson and in support of a strong and active central state…. A passionate supporter of Henry Clay’s “American System,” Lincoln believed that states should ultimately be subordinate to a strong federal government, and that Washington had a big role to play in matters as far and wide as internal improvements, currency, banking and taxation. […]
As president, Lincoln vastly expanded the federal government’s role…. Maybe Rick Perry spent too much time reading from those widely disputed history and government standards that the Texas Board of Education, in its infinite wisdom, foisted on textbook publishers. Whatever the cause, he’s confusing Abraham Lincoln – erstwhile Whig and promoter of a strong central government – for a strict Tenth Amendment devotee. That, he certainly was not.
As Jon Chait reminded me, Perry has also flirted openly with the idea of state secession, which probably wouldn’t have impressed the president who won the Civil War.
In 2009, the then-governor was so eager to show his contempt for President Obama that Perry denounced the United States government as “oppressive,” arguing that it was “time to draw the line in the sand and tell Washington that no longer are we going to accept their oppressive hand in the state of Texas.” Soon after, he said he doesn’t want to “dissolve” the union of the United States, “But if Washington continues to thumb their nose at the American people, you know, who knows what might come out of that.”
Around the same time, Perry said of Texas, “[W]hen we came into the nation in 1845, we were a republic, we were a stand-alone nation. And one of the deals was, we can leave anytime we want. So we’re kind of thinking about that again.”
I won’t pretend to be a Lincoln scholar, but I’m comfortable describing the iconic American president as someone who wasn’t comfortable with the idea of state secession.
All of this must be terribly inconvenient for Republicans. Lincoln believed in a strong federal government, a progressive income tax, and considerable infrastructure investments, making him sound an awful lot like a Democrat by 21st-century standards. Indeed, some conservatives who’ve read up on Lincoln see him as something of an enemy – Sen. Rand Paul (R-Ky.) co-wrote a book with a neo-Confederate who boasted that he raises “a personal toast every May 10 to celebrate John Wilkes Booth’s birthday.”
Perry may want to take Lincoln back as some kind of conservative hero, but he’ll have to ignore literally every historical detail to make the case to unsuspecting voters.
By: Steve Benen, The Maddow Blog, February 17, 2015
“Channeling His Inner George Wallace”: Judge Roy Moore Stands On The Wrong Side Of History…Again
In June, it will be 52 years since George Wallace stood in the schoolhouse door.
It happened at the University of Alabama, where two African-American students, Vivian Malone and James Hood, were attempting to register. In facing down three federal officials demanding that he stand aside and honor a court order allowing the registration to proceed, the bantam governor of Alabama sought to make good on a noxious promise: “segregation now, segregation tomorrow and segregation forever.”
The upshot is that if you go to UA today and look out from where Wallace stood, you will find yourself staring not at George Wallace Plaza, but rather at Malone-Hood Plaza, erected in honor of the two students, both of whom would go on to earn degrees from the school. Wallace was wrong morally, wrong constitutionally, wrong in the eyes of history. After half a century, his actions remain an indelible stain on the state’s honor.
You’d think Alabama would learn.
And to be fair, many Alabamans have. It’s just that Judge Roy Moore is not one of them.
Last week, apparently channeling his inner George Wallace, Moore, chief justice of the Alabama Supreme Court, ordered the state’s probate judges not to issue marriage licenses to same-sex couples. This was in defiance of a federal court that had struck down as unconstitutional Alabama’s ban on gay unions. Some judges obeyed him, some obeyed the higher court. The result was — apologies to the Temptations — a “ball of confusion” for same-sex couples seeking to be wed.
As you may know, this isn’t the first time Moore has done something like this. In 2001, he surreptitiously installed a granite monument bearing the Ten Commandments in the rotunda of the state judicial building. “Roy’s Rock” was an unambiguous violation of the First Amendment, but Moore refused to obey a federal court order to remove it.
That Moore, as your humble correspondent once wrote, “isn’t fit to judge a dog show” should be manifestly plain to anyone with eyes. How he became not just a judge but the state’s chief judge, is a mystery on a par with Stonehenge.
That said, there is nothing new here. History reminds us that whenever social change comes too fast for the South’s taste — which is to say, whenever social change comes — there seems to invariably arise some demagogue to decry the “tyranny” of having to obey the law and follow court orders. The South always resists.
That’s what necessitated the Voting Rights Act of 1965 and the Freedom Rides of 1961. It’s why federal troops had to march into Little Rock in 1957. For that matter, it’s why they had to march into Richmond in 1865. The demagogues always use the same justification, always say that in denying it the right to discriminate as it sees fit, the federal government steps on the South’s “traditions.”
Beg pardon, but some traditions need stepping on. Among them: the “tradition” of a region arrogantly arrogating unto itself the right to decide whether and when it will obey federal authority.
Of course, “tradition” is just a smokescreen word, like “values,” “heritage,” “faith” and all the other pretty terminology opponents of marriage equality use to justify their increasingly untenable position. In the raw and desperate extremism of Moore’s actions, the smoke is blown away and this much is clear: This was never about those pretty words. It is, and ever has been, only about a single ugly word: bigotry, about planting the force of law behind the belief that some of us are less than.
That’s why George Wallace stood in the schoolhouse door. Now Roy Moore stands in the courthouse door, likely to equal effect.
He should ask himself what the view will be when people stand there looking out, 52 years from now.
By: Leonard Pitts, Jr., Columnist, The Miami Herald; The National Memo, February 16, 2015
“Showdown Between God And Government”: Roy Moore And The Divine Right Of Nullifiers
With Roy Moore in the national headlines again–this time for defying and urging state courts in Alabama to defy a federal court order–reinforced by the U.S. Supreme Court–to begin licensing same-sex marriages–it’s a good time to consult Sarah Posner, who has an important remembrance of a speech by the Ten Commandments Judge a few years ago. She helps explain why and how a lot of “constitutionalists” and “states rights advocates” like Moore have theocratic grounds for their supposedly law-based views.
That Friday night [in June 2011] in Severn [Maryland], Moore was speaking to a gathering of the Institute on the Constitution, a fringe educational group run by Maryland lawyer, former Constitution Party presidential candidate, and current member of the Anne Arundel County Council, Michael Peroutka. Back in 2010 and 2011, I made an irregular habit of attending the IOTC’s First Friday gatherings, at which there was typically an out-of-town celebrity speaker (Moore’s was particularly well-attended, with a few hundred people in the audience), covering topics near and dear to the IOTC’s unorthodox view of the Constitution. The Constitution, they claim, is a divine document designed only to protect the rights conferred by God, not to create “new” rights by way of jurisprudence. For all you law school graduates shaking your head as you read this, Peroutka, Moore, and their followers claim that the law schools are teaching it all wrong—that’s why they’ve created their own law schools….
In presenting Moore with a “Spirit of Daniel” award for courage, Peroutka gleefully noted that he was doing so on Jefferson Davis’s birthday. (The award was given because Moore “resisted a government that thought it was God.”)
That showdown between God and government is at the heart of Moore’s claims that he is on the side of righteousness and the federal courts on the side of an anti-God, unconstitutional “tyranny.” Moore believes there is a separation of church and state—but he believes it’s one that distinguishes America from royal monarchies. In other words, the government is separated from the church in that the government is barred from running the church, and it can’t tell the church what to do. Public schools, in his view, are “controlled by government,” and impose secularism; he favors tax credits for homeschooling because that’s “the right of the parent….”
Moore, who graduated from West Point and served in Vietnam, is fond of reiterating that he has sworn to uphold Constitution against enemies, both foreign and domestic. He readily agreed that America has been overtaken by enemies within. “Our government is infiltrated with communists, we’ve got Muslims coming in and taking over where we should be having the say about our principles.” And more: “I’m not so sure some in government don’t want to destroy our country.”
Sarah has more, but you get the drift. The scary thing is that Moore is not some isolated radio crank or even a state legislator, but the elected chief judicial officer of an entire state. He’s a useful study because he’s a little less crafty than most “constitutional conservatives” in speaking in code when he talks about the connection between religion and the law. For him, the divine law fundamentalists derive from the Hebrew scriptures was incorporated into the U.S. Constitution by the Founders and by definition cannot be legitimately modified by human hands, regardless of the instruments for doing just that made available in the Constitution itself. And so the presumed right of state nullfication of federal laws and court decisions is rooted not just in a pre-Civil War idea of federalism, but in an aggressively reactionary notion of religion and its implications for secular law.
While Moore’s bizarre and dangerous world view is plain for all who go to the trouble of looking for it to see, it has some pretty respectable fellow travelers. The Paul family’s close connection with the Constitution Party is a good example; indeed, in 2008, that party’s affiliate in Montana placed Ron Paul at the top of its ticket with Michael Peroutka as his running-mate (Paul protested this action, but apparently only to protect the status of national Constitution Party presidential candidate Chuck Baldwin, whom he ultimately endorsed over Republican John McCain and Libertarian Bob Barr).
So Roy Moore may be as crazy as he sounds, but he’s not as exotic a bird as you might think.
By: Ed Kilgore, Contributing Writer, Political Animal,The Washington Monthly, February 11, 2015
“Unprofessional, Backwards And Unethical”: The Alabama Threesome; A Judge, His Bible And Bigotry
Power can be hoarded by the mighty or stolen from the innocent. Power provides the ability to choose… but has a proclivity for corruption. The use of power is not to be taken lightly, for it is never without consequence.
— Emily Thorne (Revenge)
Though protagonist Emily Thorne from ABC’s hit drama Revenge is just a fictional character, those words resonated with me when I first heard them.
There are those with immense power that choose to abuse or misuse that power in order to advance their own ideology, careers or agendas — all while negating the oaths they swore to uphold. In the end, justice is the first casualty, and the innocent suffer.
Roy Moore, Alabama’s Supreme Court Chief Justice, is that person who violated his sacred oaths. Justice Moore issued unethical statements on gay marriage — despite it concerning a case that is still ongoing, and one that could come to him. In a letter penned to the governor of Alabama, Justice Moore said:
As Chief Justice of the Alabama Supreme Court, I will continue to recognize the Alabama Constitution and the will of the people overwhelmingly expressed in the Sanctity of Marriage Amendment.
Moore continued with:
I ask you to continue to uphold and support the Alabama Constitution with respect to marriage, both for the welfare of this state and for our posterity… Be advised that I stand with you to stop judicial tyranny and any unlawful opinions issued without constitutional authority.
Are these the words of a state’s highest judge, or of an unprofessional, backwards and unethical right-wing fanatic?
Justice Moore is no stranger to controversy. He was removed from his post as Chief Justice in 2003 for disobeying a federal ruling that he remove a 10 Commandments monument that he had ordered installed in the judicial building.
Justice Moore also issued a very controversial opinion in the case of D.H. vs. H.H. where he voted for an abusive father to be given full custody of his children, rather than their lesbian mother.
He was elected to the highest judicial position in his state, and yet, he treats it like a church pulpit without regard to something called separation of church and state, or the Establishment Clause of the Constitution. You, Mr. Moore, are wrong when you claim that Alabama’s constitution is superior to federal law. Any first-year political science or pre-law student would be able to tell you that.
A person like Justice Moore is a threat to the very fabric of American society. This extremism should never be accepted or tolerated. When one holds the position of Chief Justice of a U.S. State, one would hope that the elected official would put what is legal, constitutional and right above their misguided, extremist or religious beliefs.
Marriage equality is coming to Alabama, Judge Moore. Not you, nor your unethical behavior, nor your piousness will prevent equality and love from prevailing.
Since the Chief Justice doesn’t seem very enlightened on matters concerning the law, and his antiquated beliefs are clouding his judgment, I would be more than happy to educate him on the legality of his position, and several other laws he might not be well-versed in.
Since making time for such a splendid learning session would probably interrupt his Duck Dynasty marathon, Bible speed-reading session or bedtime tales from Fox News, I recommend the Chief Justice run to his local Barnes&Noble store and pick up a paperback copy of Constitutional Law for Dummies. Trust me Judge Moore, it will be the best $20 you spend this year.
By: Izak Pratt, The Blog, The Huffington Post, February 9, 2015
“The Supreme Court At Stake”: Overturning Obamacare Would Change The Nature Of The Supreme Court
In the first Affordable Care Act case three years ago, the Supreme Court had to decide whether Congress had the power, under the Commerce Clause or some other source of authority, to require individuals to buy health insurance. It was a question that went directly to the structure of American government and the allocation of power within the federal system.
The court very nearly got the answer wrong with an exceedingly narrow reading of Congress’s commerce power. As everyone remembers, Chief Justice John G. Roberts Jr., himself a member of the anti-Commerce Clause five, saved the day by declaring that the penalty for not complying with the individual mandate was actually a tax, properly imposed under Congress’s tax power.
I thought the court was seriously misguided in denying Congress the power under the Commerce Clause to intervene in a sector of the economy that accounts for more than 17 percent of the gross national product. But even I have to concede that the debate over structure has deep roots in the country’s history and a legitimate claim on the Supreme Court’s attention. People will be debating it as long as the flag waves.
But the new Affordable Care Act case, King v. Burwell, to be argued four weeks from now, is different, a case of statutory, not constitutional, interpretation. The court has permitted itself to be recruited into the front lines of a partisan war. Not only the Affordable Care Act but the court itself is in peril as a result.
At the invitation of a group of people determined to render the Affordable Care Act unworkable (the nominal plaintiffs are four Virginia residents who can’t afford health insurance but who want to be declared ineligible for the federal tax subsidies that would make insurance affordable for them), the justices have agreed to decide whether the statute as written in fact refutes one of the several titles that Congress gave it: “Quality, Affordable Health Care for All Americans.”
If the Supreme Court agrees with the challengers, more than seven million people who bought their insurance in the 34 states where the federal government set up the marketplaces, known as exchanges, will lose their tax subsidies. The market for affordable individual health insurance will collapse in the face of shrinking numbers of insured people and skyrocketing premiums, the very “death spiral” that the Affordable Care Act was designed to prevent.
It seems counterintuitive to describe a statutory case as having implications as profound as a constitutional one, but this one does. It hasn’t received the attention it deserves, probably because the dispute over phraseology that the case purports to present strikes many people as trivial or, at least, fixable if the court gives the wrong answer. Actually, it’s neither. (Has anyone noticed that the House of Representatives voted on Tuesday for the 56th time to repeal the law?)
The precise statutory issue is the validity of the Internal Revenue Service rule that makes the tax subsidies available to those who qualify by virtue of their income, regardless of whether the federal government or a state set up the exchange on which the insurance was bought. The challengers’ argument that the rule is invalid depends on the significance of two sub-clauses of the act that refer to “an exchange established by a state,” seemingly to the exclusion of the federally established exchanges.
But other parts of the complex and interlocking description of how the subsidies work suggest no such limitation. They point strongly in the opposite direction. For example, if a state chooses the option not to set up its own exchange, an option 34 states have exercised, the law requires the United States Department of Health and Human Services to “establish and operate such exchange within the state.” (Justice Antonin Scalia loves to quote dictionaries, and the government’s brief obliges him by quoting the definition of “such” from Black’s Law Dictionary, a standard legal reference: “that or those, having just been mentioned.”) The government argues that in this exercise of “cooperative federalism,” the federal government simply acts as the state’s surrogate; functionally, the federal exchange “is an exchange established by the state.” The law’s other relevant sections support that interpretation. For example, one section provides that any “applicable taxpayer,” defined by income, will be eligible for the subsidy, making no reference to where the taxpayer purchased the insurance.
I could go on about the intricacies of the statute, but the intricacies aren’t my point. Statutory interpretation is something the Supreme Court does all the time, week in and week out, term after term. And while the justices have irreconcilable differences over how to interpret the Constitution, they actually all agree on how to interpret statutory text. (They do disagree on such matters as the legitimacy of using legislative history, or on what weight to give a law’s ostensible purpose; I’m referring here to how they actually read a statute’s words.)
Every justice subscribes to the notion that statutory language has to be understood in context. Justice Scalia said it from the bench just last month, during an argument about the proper interpretation of the federal Fair Housing Act. “When we look at a provision of law, we look at the entire provision of law, including later amendments,” Justice Scalia said. “We try to make sense of the law as a whole.” (Justice Scalia was addressing a lawyer for the state of Texas, who was arguing for a very narrow reading of the Fair Housing Act. The justice’s skepticism toward the state’s statutory argument has been, in my opinion, widely misinterpreted to mean that Justice Scalia will rule for those seeking to preserve the law’s current broad meaning. I believe, rather, that Justice Scalia will accept the broad statutory reading and then go on to find that the Fair Housing Act so interpreted is unconstitutional. That important case is Texas Department of Housing and Community Affairs v. the Inclusive Communities Project.)
Across the ideological spectrum, the court’s opinions are filled with comments like Justice Scalia’s. Justice Clarence Thomas wrote in a 1997 opinion that in a statutory case, courts have to look at “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.”
Chief Justice John G. Roberts Jr., arguing for contextual interpretation in a 2009 opinion, observed that “the sun may be a star, but ‘starry sky’ does not refer to a bright summer day.”
Justice Anthony M. Kennedy wrote in a 2006 opinion that an interpretation of a single statutory provision “is persuasive only to the extent one scrutinizes the provision without the illumination of the rest of the statute.”
These examples all come from a brief filed on the government’s behalf by a group of law professors who are specialists in statutory interpretation, administrative law or constitutional law. One is Charles Fried, a law professor at Harvard who served as solicitor general during the second Reagan administration. (Another signer of this brief is my Yale colleague, William N. Eskridge Jr., one of the country’s leading authorities on statutory interpretation.)
Readers of this column may recall my expression of shock back in November when the court agreed to hear King v. Burwell. A three-judge panel of the federal appeals court in Richmond, Va., had unanimously rejected the challenge to the law, and the plaintiffs’ appeal didn’t meet the normal criteria for Supreme Court review. A defeat for the government — for the public at large, in my opinion — seemed all but inevitable.
While I’m still plenty disturbed by the court’s action, I’m disturbed as well by the defeatism that pervades the progressive community. To people who care about this case and who want the Affordable Care Act to survive, I have a bit of advice: Before you give up, read the briefs. (Most, although not all, are available on the website of the American Bar Association. ) Having read them this week, I’m beginning to think for the first time that the government may actually prevail.
The challengers have submitted a bunch of me-too arguments from the usual ideological suspects that offer various versions of the narrative concocted to validate the acontextual reading of the law that eliminates subsidies on the federal exchanges. That narrative depicts a highly implausible scenario in which the states — which under the Constitution couldn’t actually be compelled to set up their own exchanges — were given a powerful incentive: Set up your exchange or, if you exercise your choice to default to the feds, your citizens will lose their right to the tax subsidies that will enable them to afford insurance.
The problem for the challengers is that the statute itself nowhere says that, and no one in a position of power appears to have believed at the time that the law would do any such thing. In recent weeks, supporters of the law have had a great deal of fun digging up old statements and video clips demonstrating the contemporaneous belief of prominent Republicans that the subsidies would be available to everyone. The website Talking Points Memo posted one such revelation the other day about Representative Paul Ryan, who at the time was the ranking Republican on the House Budget Committee.
Beyond what various people hoped or expected, there is a deeper issue that the challengers ignore but on which the government’s briefs are utterly persuasive. A fascinating brief filed in support of the government by an unusual coalition of 23 red-state and blue-state attorneys general (some from states with their own exchanges and others from federal-exchange states) maintains that the challengers’ narrative would “violate basic principles of cooperative federalism by surprising the states with a dramatic hidden consequence of their exchange election.”
This brief, written in the Virginia attorney general’s office, continues: “Every state engaged in extensive deliberations to select the exchange best suited to its needs. None had reason to believe that choosing a federally facilitated exchange would alter so fundamental a feature of the A.C.A. as the availability of tax credits. Nothing in the A.C.A. provided clear notice of that risk, and retroactively imposing such a new condition now would upend the bargain the states thought they had struck.”
There are abundant Supreme Court precedents that require Congress to give states “clear notice” of the consequences of the choices a federal law invites them to make. Justice Samuel A. Alito Jr. invoked that principle in a 2006 case interpreting the Individuals With Disabilities Education Act, a case cited by the 23 attorneys general. The government’s own brief, filed by Solicitor General Donald B. Verrilli Jr., observes that “it would be astonishing if Congress had buried a critically important statewide bar to the subsidies under this landmark legislation” in technical sub-clauses.
To accept the challengers’ narrative, the government’s brief asserts, “the court would have to accept that Congress adopted that scheme not in a provision giving states clear notice of the consequences of their choice, but instead by hiding it in isolated phrases.” The court should interpret the statute “to avoid the disrespect for state sovereignty” inherent in that unlikely account.
Among the two dozen other “friend of the court” briefs filed on the government’s behalf is one from a group of small business owners (significant because the earlier case against the Affordable Care Act was brought by a small-business federation) and several from the health care industry. The Catholic Health Association, representing 600 Catholic hospitals, along with Catholic Charities, filed a brief explaining the significance of the Affordable Care Act for health care providers that serve, as the Catholic hospitals do, a high proportion of low-income patients.
So will the Affordable Care Act survive its second encounter with the Roberts court? I said earlier that this case is as profound in its implications as the earlier constitutional one. The fate of the statute hung in the balance then and hangs in the balance today, but I mean more than that. This time, so does the honor of the Supreme Court. To reject the government’s defense of the law, the justices would have to suspend their own settled approach to statutory interpretation as well as their often-stated view of how Congress should act toward the states.
I have no doubt that the justices who cast the necessary votes to add King v. Burwell to the court’s docket were happy to help themselves to a second chance to do what they couldn’t quite pull off three years ago. To those justices, I offer the same advice I give my despairing friends: Read the briefs. If you do, and you proceed to destroy the Affordable Care Act nonetheless, you will have a great deal of explaining to do — not to me, but to history.
By:
Share This Blog
Unknown Feed- An error has occurred; the feed is probably down. Try again later.
mykeystrokes.com 