Archive for April, 2013

✁ Federalism, Schmederalism

Scott Lemieux, writing for The American Prospect

The Sequester v. The Sixth Amendment

Yesterday, the Supreme Court issued a ruling in a case presenting an egregious failure of the state to provide adequate counsel. Jonathan Boyer had to wait in jail for more than seven years before his case went to trial. The Louisiana Court of Appeals found that most of this delay was caused by a “funding crisis” that prevented the state from making available two lawyers qualified to try a capital case to Boyer, as state law required. The Louisiana court, however, found that the state’s failure to provide counsel shouldn’t be counted against it in determining whether or not it violated Boyer’s Sixth Amendment right to a “speedy and public trial.”

Notably, all five of the Republican appointees to the Supreme Court signed on to the Majority decision, concluding that the grant of certiorari permitting the Supreme Court to hear this case was improper and should have never been heard by the high court in the first place.

Writing for the majority, Justice Alito delivered this explanation in his opinion’s first paragraph:

The premise of that question is that a breakdown in Louisiana’s system for paying the attorneys representing petitioner, an indigent defendant who was charged with a capital offense, caused most of the lengthy delay between his arrest and trial. Because the record shows otherwise, I agree that the writ of certiorari was improvidently granted.

Justice Alito, Boyer v. Louisiana 569 U.S. __ at 1. (pdf)

The difference between the majority opinion and the Sotomayor’s dissent (joined by the Democratic faction) is simple. Justice Sotomayor’s deference to the lower court’s record only includes findings of fact (using the proper deference), while the majority’s record is not simply a recitation of the facts, but a combination of fact and conclusions of law (which is plainly improper). The majority explicitly admits to as much, oblivious to their mistake, instead suggesting it is the Dissent that gets it wrong.

The dissent would ignore what the record plainly shows based largely on the Louisiana Court of Appeals’ observation that “[t]he majority of the seven-year delay was caused by the ‘lack of funding.’” Id., at 1142. See post, at 5, 8 (opinion of SOTOMAYOR, J.). But when this statement is read in context, what it most likely means is not that the delay in question was caused by the State’s failure to provide funding but simply that the delay was attributable to the funding issue.

Justice Alito, Boyer v. Louisiana 569 U.S. __ at 3. (pdf)(emphasis mine)

The point in all of this is not to show Alito’s legal fallacy, but instead, to address two Constitutional points. First, while America has spent much of the past four months debating pushing for firearm background checks, with many hyperbolically fearing an end to the Second Amendment and a return to tyrannical rule, real, tangible actions are being taken with respect to the Sixth Amendment’s right to a speedy trial, that pretty much suggest that a seven year delay is not too long so long as the reason for the delay is indirect enough.

Second, and more distressing, is the hypocrisy of those of the conservative Supreme Court here. The Federalist Papers articulated clear concepts of State deference and a strong system of federalism, supposedly a pillar of today’s Republican party. Repeatedly (e.g. gay marriage, abortion), conservatives trumpet the freedom of the States to govern without interference from the Federal government. Yet in Boyer, the Supreme Court fails to defer to the State’s finding that budget cuts did in fact cause a seven year delay, instead procedurally dismissing the matter because the majority of the Court (read: the Federal government) believes a budgetary shortfall preventing a speedy trial shouldn’t be the fault of the State.

You cannot be a federalist only some of the time whenever it fits your interests. Either you are one or are not one. Boyer makes the majority’s view of federalism suspect and raises questions about their jurisprudential credibility.

The Living Second Amendment

Provocative piece by Thom Hartmann over at

The Second Amendment was Ratified to Preserve Slavery

The real reason the Second Amendment was ratified, and why it says “State” instead of “Country” (the Framers knew the difference – see the 10th Amendment), was to preserve the slave patrol militias in the southern states, which was necessary to get Virginia’s vote. Founders Patrick Henry, George Mason, and James Madison were totally clear on that . . . and we all should be too.

Stimulating, particularly in light of Jeffrey Toobin’s piece last year amid the aftermath of the Newtown School Shooting. Definitely worth reading as well. Here’s a taste:

For more than a hundred years, the answer was clear, even if the words of the amendment itself were not. The text of the amendment is divided into two clauses and is, as a whole, ungrammatical: “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.” The courts had found that the first part, the “militia clause,” trumped the second part, the “bear arms” clause. In other words, according to the Supreme Court, and the lower courts as well, the amendment conferred on state militias a right to bear arms—but did not give individuals a right to own or carry a weapon.

✁ Liberty and its Costs (or: The Philosophical Tragedy of the Commons)

The paradox of freedom is that no liberty can be absolute. Yet, we often catch ourselves forgetting this crucial, yet axiomatic trait of our immutable rights. We attribute these repeated memory lapses to the almost mythical power given to the proposition of life, liberty, and the pursuit of happiness central in American exceptionalism. National pride, it seems, is entirely predicated upon the unwavering belief that our Constitutional rights are undeniable and omnipotent. “Can’t make me; It’s a free country,” we frequently remind our antagonists at recess. “Countless many died for these freedoms,” we reverentially remark on Memorial Day, Veteran’s Day, and the Fourth of July. “…O’er the land of the free, and the home of the brave,” we join together singing each summer over the growing roar of the home crowd and smell of crackerjacks.

But freedom is esoteric and complex. Our unapologetic pride for the Bill of Rights obscures most reasonable ponderings on the state of being a free man. We understand freedom as an emotion–a state of being. But it is rare we come to understand the complexities associated with the state of being free.

And occasionally, especially in moments of deep despair, such consideration is thrown directly upon us. It is at these moments we realize the real-world complications of liberty. In these delicate times, we are confronted with a subtle paradox that freedom cannot be absolute because the nation’s and world’s resources are limited. At these moments, even if only experienced deep within our gut, we sense that one person’s freedom is another’s shackles. A proper understanding of this statement can be had from Hardin’s famous examination of the tragedy of the commons.

Every new enclosure of the commons involves the infringement of somebody’s personal liberty. Infringements made in the distant past are accepted because no contemporary complains of a loss. It is the newly proposed infringements that we vigorously oppose; cries of “rights” and “freedom” fill the air. But what does “freedom” mean? When men mutually agreed to pass laws against robbing, mankind became more free, not less so. Individuals locked into the logic of the commons are free only to bring on universal ruin; once they see the necessity of mutual coercion, they become free to pursue other goals. I believe it was Hegel who said, “Freedom is the recognition of necessity.”

In other words, when one door of liberty closes, another one opens. Freedom of speech impedes on another’s freedom from verbal assault. The right to a jury trial impedes on other’s Freedom of spare time. The right to commit robbery impinges upon another’s property. This list goes on.

It seems that our Constitution, in its glorious brevity, understood the impossible task of irrefutably defining the term “Freedom”. The result is a document, with Amendments, that are filled with majestic platitudes, that shall forever be hardened and bent by democracy.

The Supreme Court, too, knows this. In the 221 years since ratification, the Supreme Court has wrestled with the concept of fundamental rights and has made clear that no right can be enjoyed without asterisk. The articulation of this concept is seen in strict scrutiny analysis whereby it is deemed reasonable for the government to interfere with a fundamental right if the restriction is narrowly tailored to a compelling governmental interest.

We should rejoice in the Constitution’s nuance and ability to grasp such realities. Without this application, unreasonable damage to society would result from unfettered, blind freedom.


On December 14, 2012 for over the hundredth time since Columbine, incidents of violence in the school setting took place. It was a horrible story of innocence destroyed.

The only proper response to such news is that of mourning. Yet, in reverence of the lives lost, mourning fails to convey the significance of the lives that will never be fully realized. Mourning, with nothing more, seems to be an insult to these daughters, sons, husbands, wives, students, teachers, and friends that sense no more. No; silence speaks the words of complacency, indifference, and failure to appreciate the significance of a problem that is all too frequent: mass killings enabled by a powerful and ever increasingly efficient tool.

Our continued desire to claim that now is not the time for sane discussion of our policies insults a country built on liberty and a revolutionary First Amendment. To misquote Benjamin Franklin, “Those who would trade in their freedom [ability to engage in reasonable discussion after senseless tragedy] for their protection [in order to respect the dead] deserve neither.” Refusing to have a serious discussion about this heinous event leads only to a lack of proper dissemination of information, enabling the public to cling to beliefs that are not supported by studies (or even the constitution itself).

Sadly, it seems that much of the debate occurring after such horror is little more than both sides debating the righteousness of having such a debate at all. And then it’s lost. As Americans, the proper discussion to be having is one examining the boundaries of our liberty. Our Constitution includes a Second Amendment that provides for the right to bear arms as an essential ingredient for a well regulated militia, which, in turn, is crucial to the security of a free state. This is undeniable. And taken alone, this right appears to make sense. The right to possess a gun has become clear over the years with the help of the Supreme Court. Few today argue that gun ownership in this country should be abolished. Yet, time after time, a proposal to put into place safeguards on the usage of guns turns into a hyperbolic worry about ridding this nation of guns altogether.

In the case of Sandy Hook, America experienced a clash of liberties, reminding us that freedom is not quite the tidy and absolute concept we like to believe. In this case, we saw our right to life, liberty, and the pursuit of happiness diminish, trumped by our right to bear arms. Such a conflict deserves discussion. It deserves evaluation. It deserves an acknowledgment that while intrusion into our fundamental rights illicit emotional responses, so too does intrusion into our unalienable rights.

Surely, a properly defined Second Amendment includes protections for life, liberty, and the pursuit of happiness. America is better than this.