Constitutional conservatives are neo-Confederates

By Frank Moraes

Last week, Steve Benen wrote a post entitled "Steve King Unveils Radical Court Scheme." It seems that King is proposing a new law, Restrain the Judges on Marriage Act of 2015. It would stop federal courts from having jurisdiction over cases related to marriage. It is actually somewhat funny. This is the ultimate sign that conservatives have lost the same-sex marriage debate. But Benen is confused because King claims to be a "constitutional conservative," and such a law would be outrageously unconstitutional. What gives?

Well, Ed Kilgore responded, "Yes, Constitutional Conservatives Are Radicals." He pointed out that what these conservatives mean when the append "constitutional" to their descriptor is just that they want to go back in time — to when the Constitution was new — "before it was ruined by courts and legislators and presidents alike." And so, in this particular case, King doesn't see a problem, because this is a states' rights issue: the federal government should have nothing to say about how states want to deal with issues related to marriage. I have a few things to add.

Note that by this logic the federal government would have no right to end slavery — much less Jim Crow. The thinking of people like Steve King is so shallow that their philosophy basically gives no guidance regarding policy matters. It is very much like the Stephen Colbert idea of "truthiness," where the the truth is whatever you feel in your gut. They really think this is a good thing. But Rob in High Fidelity is right: "I've been listening to my gut since I was 14 years old, and frankly speaking, I've come to the conclusion that my guts have shit for brains." Or more to the point: the gut is just a repository for all our baser instincts, like hating and fearing people who aren't members of our tribe.

The more fundamental issue is that constitutional conservatives actually are neo-confederates. Because the document that they constantly return to is not the Constitution but the Articles of Confederation. I wrote about this last year with regards to Garrett Epps' excellent book, Wrong and Dangerous: Ten Right-Wing Myths About Our Constitution, in a post entitled "Conservatives on Constitution Are Wrong and Dangerous." The Tenth Amendment has a very distinct change. The Articles said "the powers not expressly delegated to the United States" are given to the states. The Constitution says "[t]he powers not delegated to the United States..." The difference is in implied powers, and this is huge, as Epps explains:

If "implied powers" still sounds like tricky lawyer talk, ask yourself the following question: is the American flag unconstitutional? The Constitution doesn't make any reference to a national flag. By the "express" argument, states and only states would retain what we might call "the flag power." The U.S. Army would have to march under the fifty state flags, depending on the origin of each unit. That would be cumbersome, confusing, and dangerous — and, more to the point, stupid. Congress can "raise and support armies." Armies have to have flags — they are required under international law and necessary for military discipline and cohesion. A country that has an explicit power to raise an army has the implied power to designate a flag. Nobody seriously reads a constitution any other way.

If you hang out with hardcore conservatives (including libertarians), you will hear the Tenth Amendment brought up all the time: the federal government is interfering, taking all this power from the states, and it is unconstitutional. This is because their understanding of the Constitution is that it is just following the Articles of Confederation — when this one difference is the primary reason that we needed a Constitution and could not continue on as a confederacy.

This is also why these kinds of conservatives so often turn out to be racists. This misunderstanding of the Tenth Amendment was using in the nullification campaign of John Calhoun to support slavery. And after the Civil War, it went away — only to come up again in the 1950s in support of Jim Crow. These same people gloss over the far greater powers that the Fourteenth Amendment gave to the federal government. So Ed Kilgore is right that these people are indeed radicals and want to go way back in time. But they are also neo-Confederates, and the main reason that they are is that they want the right to discriminate.

(Cross-posted at Frankly Curious.)

Republicans hate the U.S. Constitution

By Richard K. Barry

Though I recognize I will not be the first to point this out, conservatives have a very peculiar understanding of intellectual consistency.

A new national poll (Public Policy Polling) of Republican primary voters finds that 57 percent of these voters support “establishing Christianity as the national religion.” This is despite the fact that the First Amendment to the United States Constitution clearly states “Congress shall make no law respecting an establishment of religion.”

I can't help but envision all those slack-jawed Tea Party morons at various rallies a few years back looking strait into any available camera berating "libtards" for failing to respect or understand the intention of the Framers.

It's one thing to disagree. It is something different to attempt debate with people who have no respect for the rules of logic. 

Only for Christians

By Capt. Fogg

You can laugh a bit and console yourself that it doesn't matter all that much if an Alabama Supreme Court Chief Justice tells us the first Amendment only applies to Christians -- maybe even if you are like me, not a Christian. It's only Alabama, right?

They didn't bring the Koran over on the pilgrim ship, the Mayflower,

Justice Roy Moore announced to the mob at the Pastor for Life Luncheon. Maybe you'll remember that Jefferson owned one however and that he wasn't shy about warning us of religious tyranny. Maybe you'll remember Moore as the former justice who was removed from office for fighting to erect the Ten Commandments in the courthouse, but like that tumor you thought the chemo got rid of he came back two years later singing the same tune:

Let's get real. Let's learn our history. Let's stop playing games.

I would agree with that, but as we know, to the religious right, history is baked fresh every morning. The English colonists brought slaves, white and black, and Moore's ideological ancestors fought like hell to keep them, Bibles in hand.

Buddha didn't create us. Mohammad didn't create us. It's the god of the Holy Scriptures,

said Moore with the authority not granted him by anyone in particular, and grossly misrepresenting Jefferson and Madison and the U.S. Supreme Court with a stream of non sequitur he insisted that freedom of religion is only for Christians.

A newly-released video shows him expounding all this and worse in Jackson, Mississippi last January to a group called Pro-Life Mississippi. Of course it's hardly a game he's asking us to end, it's secular democracy, the pride of the age of Reason and Humanism, and like a stag at bay it's destined to be torn to ribbons and its head displayed on some courthouse wall. For nothing in our Constitution is as important, as hallowed by the blood of patriots, as the cracks, the loopholes, the weak spots that may just allow traitors and secessionist sons of the Confederacy to eviscerate it, hang it from its heels, bleed it and gut it like an animal to be sacrificed to his tyrannical, bloody-handed God.

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Craziest Republican of the Day: Tom "God wrote the Constitution" DeLay

By Michael J.W. Stickings

Tom DeLay used to be a big deal in the Republican Party. Whatever he's doing with himself now, he's as crazy as ever:

Former House Majority Leader Tom DeLay (R-TX) this week warned Americans to remember that God "wrote the Constitution" based on the Bible.

During an appearance on John Hagee Ministries' Global Evangelism Television (GETV) network on Wednesday, host Matt Hagee asked the Texas Republican where the country had gone wrong.

"I think we got off the track when we allowed our government to become a secular government," DeLay explained. "When we stopped realizing that God created this nation, that he wrote the Constitution, that it’s based on biblical principles."

This is where you'd like James Madison and Alexander Hamilton to tell him he's full of shit and then punch him in the face for good measure.

Jefferson, Christmas, and Sarah Palin's faux America; or, further evidence that Sarah Palin is a complete moron

By Michael J.W. Stickings

The Raw Story:

If Thomas Jefferson were alive today, Sarah Palin said, he would probably go on Fox News to complain about the war on Christmas.

The former half-term governor of Alaska and failed vice presidential candidate appeared Thursday at Liberty University to promote her new book Good Tidings and Great Joy: Protecting the Heart of Christmas.

She told the audience of students that the U.S. Constitution was written by and for moral and religious people, and that nonreligious people probably were incapable of appreciating its principles.

*****

Palin said Jefferson would likely agree that secularists had set their sights on destroying the religious themes in Christmas celebrations.

"He would recognize those who would want to try to ignore that Jesus is the reason for the season, those who would want to try to abort Christ from Christmas," she said. "He would recognize that, for the most part, these are angry atheists armed with an attorney. They are not the majority of Americans."

Palin said there was a double standard that protected atheists at the expense of the religious.

I was going to go through her incorrect statements one by one, but, really, everything she said is wrong. The woman has zero understanding of America, its Founders, and its Constitution, and it's simply ludicrous that she opens her mouth to suggest otherwise.

[Keep reading to see how Woody Allen fits into all this.]
 
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Who cares about Ted Cruz and his citizenship?

By Michael J.W. Stickings

So right-wing mouth-frother Ted Cruz, senator from the not-so-great state of Texas, has released his birth certificate. And, yes, he was born in Calgary -- that is, not in the U.S. -- and is a dual citizen of Canada and the U.S. (given that he was born in Canada to an American mother). Which, yes, means he likely can be president, as he is a "natural born" American, unlike, say, Arnold Schwarzenegger, though there may be some lingering dispute as to the meaning of "natural born." But the facts of his birth will continue to hound him politically:

The circumstances of Cruz's birth have fueled a simmering debate over his eligibility to run for president. Knowingly or not, dual citizenship is an apparent if inconvenient truth for the tea party firebrand, who shows every sign he’s angling for the White House.

"Senator Cruz became a U.S. citizen at birth, and he never had to go through a naturalization process after birth to become a U.S. citizen," said spokeswoman Catherine Frazier. "To our knowledge, he never had Canadian citizenship."

Well, apparently he still has it, whether he likes it or not, and so he'd have to go through the formal process of renouncing it.

As a Canadian, I'd welcome any such renouncing. Cruz being a Canadian citizen, even unwillingly, or unwittingly, makes this country worse.

While I loathe him, though, and while I understand that a political leader -- particularly one with presidential ambitions -- needs avoid not just the reality but even the perception of conflicted loyalty, this is all quite ridiculous.

It's abundantly clear that Cruz is an American. He may have dual citizenship, like a lot of people do (including me), but in this case one of his citizenships is merely a technicality. (I'm Canadian and British. I'd say I'm overwhelmingly Canadian, but I have close family in England and have voted in the U.K. and so have more of a connection there. Indeed, I would say that I'm far more American, as I'm one-quarter American, than Cruz is Canadian.) There's no good reason why the location of his birth should automatically disqualify him from the presidency. (I would even say that the "natural born" rule should be removed from the Constitution.)

It's either opportunism or jingoism that is fueling this "birther" controversy, and of course it's also the latter that will come in to play if he's criticized for holding dual citizenship.

But, fine, let him recounce his Canadian citizenship if he must. The key fact about Cruz isn't his birthplace or the extent to which he's a Canadian but rather his political views: he's a Tea Party extremist out on the fringe even of the extremist Republican Party, a faux right-wing populist with a crazy right-wing anti-government agenda.

It's those views -- what he is politically, what he stands for, what he would do in office -- that truly should disqualify him from the presidency.

More evidence of the government's assault on liberty, privacy, and the Constitution

By Michael J.W. Stickings

Reuters:

A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin -- not only from defense lawyers but also sometimes from prosecutors and judges.

The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's Constitutional right to a fair trial. If defendants don't know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence -- information that could reveal entrapment, mistakes or biased witnesses.

"I have never heard of anything like this at all," said Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011. Gertner and other legal experts said the program sounds more troubling than recent disclosures that the National Security Agency has been collecting domestic phone records. The NSA effort is geared toward stopping terrorists; the DEA program targets common criminals, primarily drug dealers.

Because the DEA's Special Operations Division (SOD) -- which also includes the FBI, CIA, NSA, IRS, and DH -- is supposedly targeting (bad) people suspected of drug-related crimes, this will no doubt be written off by many, including the surveillance state apologists, as necessary, just like the supposedly anti-terror surveillance conducted by the NSA.


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The NSA and the criminal surveillance of Americans

By Michael J.W. Stickings

In case you missed it, make sure to read "The Criminal N.S.A.," an op-ed in Thursday's Times by Jennifer Stisa Granick and Christopher Jon Sprigman. Their argument is essentially this:

The Fourth Amendment obliges the government to demonstrate probable cause before conducting invasive surveillance. There is simply no precedent under the Constitution for the government's seizing such vast amounts of revealing data on innocent Americans' communications.

The government has made a mockery of that protection by relying on select Supreme Court cases, decided before the era of the public Internet and cellphones, to argue that citizens have no expectation of privacy in either phone metadata or in e-mails or other private electronic messages that it stores with third parties. 

*****

We may never know all the details of the mass surveillance programs, but we know this: The administration has justified them through abuse of language, intentional evasion of statutory protections, secret, unreviewable investigative procedures and constitutional arguments that make a mockery of the government’s professed concern with protecting Americans' privacy. It's time to call the N.S.A.'s mass surveillance programs what they are: criminal.  

I haven't written much about it here, but on Twitter I've frequently expressed my opposition to what the NSA is doing, and more broadly to the growth and activities of the national security surveillance state. (I've also expressed my general support for Glenn Greenwald and Edward Snowden, though my view is really that it's not about them but rather about what they've exposed.)

What I've seen is that some of the most virulent defenders of the NSA and Orwellian America are on the left, where among many support for President Obama trumps all else: Obama can do no wrong, and so what he's doing with respect to continuing Bush-Cheney domestic surveillance, prosecuting whistleblowers, and otherwise waging the so-called war on terror cannot be wrong. Either that, or they don't see anything wrong with mass surveillance of Americans. One expects that sort of thing from the right, but when it comes from the left, particularly when they then attack others on the left for expressing what I and others have been expressing, it's simply grotesque.

I call these people the "surveillance state apologists of the left." And what I often hear from them is that it's all legal, end of story. First, what is legal is not necessarily what is right or just. Slavery used to be legal. What the state does in Orwell's Nineteen Eighty-Four is legal, because the legal is simply a code of acceptable and unacceptable behavior enacted by the ruling power. There was a lot that was legal in Nazi Germany that I think we can all agree was unjust. But second, is it really all legal? Not according to Granick and Sprigman, who are right, I think, to call it criminal.

SCOTUS rulings on DOMA and Prop 8: A great day for gay rights, equality, and America's noblest ideals

By Michael J.W. Stickings

(photo from the San Francisco Chronicle)

Wednesday, June 26, 2013 was quite the day:

Well, a really good, and potentially historic, day for gay rights, equality, and the ideals to which America professes to aspire.
— Michael Stickings (@mjwstickings) June 26, 2013

No, not a perfect day in these terms:

-- SCOTUS's Prop 8 ruling was based on standing, not on the merits of the case, and so not in and of itself a validation of same-sex marriage. The lower court ruling against Prop 8 stands, meaning that same-sex marriage is now legal in California, but this has no impact on other states.

-- SCOTUS did find the odious DOMA unconstitutional in that it violates the Fifth Amendment, and this is a much greater victory, but state laws against same-sex marriage remain in place and states are not required to recognize same-sex marriages from other states.

The hope is that the argument against DOMA -- "deprivation of the liberty of the person protected by the Fifth Amendment," Justice Kennedy wrote for the majority -- ultimately applies in some form to states as well.

But here's also a sense that the Roberts Court as currently constituted may simply want to move on from this. It didn't block progress, and didn't pull a Dred Scott (issuing a terrible ruling that will be widely ridiculed in future). It struck down a federal law as many lower courts had done, and it stayed out, more or less, of a state matter. Sure, we know where Scalia, Alito, and Thomas stand on the matter, but as a whole SCOTUS, perhaps rather predictably, fell short of making a sweeping decision and sent the matter back to the states to deal with. Which is to say, it took a generally conservative view of federalism and waved progress along without interfering too much, nudging it back on the right track.

In any event, these two rulings add up to a major, historic victory for same-sex marriage and, more broadly, as I tweeted, for the ideals to which America professes to aspire.

With so much of the political landscape dominated by Republican extremism, obstructionism, and scandalmongering, with so little being done to address America's problems (including its culture of rampant gun violence), with President Obama pushing an old-fashioned moderate Republican agenda instead of progressive change (we can believe in), and with so much recent attention on the NSA and the growing surveillance state, and the erosion of civil liberties that that entails, I must say I had lost a great deal of whatever hope and optimism I had left, which wasn't much but still something to cling to.

No, the world didn't change yesterday, but for once things seemed to get a whole lot better.

**********

Here, from TPM via Mustang Bobby, is the day, a great day, in 100 seconds:

Church/State

By Mustang Bobby 

The Supreme Court will hear a case deciding whether or not a town council in upstate New York can open its meetings with a prayer:

For more than a decade starting in 1999, the Town Board began its public meetings with a prayer from a "chaplain of the month." Town officials said that members of all faiths, and atheists, were welcome to give the opening prayer.

In practice, the federal appeals court in New York said, almost all of the chaplains were Christian.

"A substantial majority of the prayers in the record contained uniquely Christian language," Judge Guido Calabresi wrote for a unanimous three-judge panel of the court, the United States Court of Appeals for the Second Circuit. "Roughly two-thirds contained references to 'Jesus Christ,' 'Jesus,' 'Your Son' or the 'Holy Spirit.'"

Two town residents sued, saying the prayers ran afoul of the First Amendment's prohibition of the government establishment of religion. The appeals court agreed. "The town's prayer practice must be viewed as an endorsement of a particular religious viewpoint," Judge Calabresi wrote.

Cue up the Chorus of The Poor Persecuted Majority who will tell us that there is no place safe in America for them to impose their faith and practice on the rest of us whether we want it or not.

Solution: put an imam in the rotation as "chaplain of the month" and see how quickly they decide to bag the whole thing.

(Cross-posted at Bark Bark Woof Woof.)

Because I was not a terrorist...

By Frank Moraes 

Everyone knows Martin Niemöller's "First they came for the communists..." poem. These days, we mostly hear it from conservatives because it is based on the slippery slope argument that is so beloved on the right. But I think the poem is fundamentally wrong; oppression doesn't happen that way.

I was thinking about this yesterday while reading Glenn Greenwald. He was writing about some reporting in the Los Angeles Times that quoted an anonymous source who said that Dzhokhar Tsarnaev repeatedly asked for a lawyer and was refused "since he was being questioned under the public safety exemption to the Miranda rule." This is a big deal if it is true. It is one thing to not tell a suspect his rights, it is quite another to withhold those rights. And there is nothing in the public safety exemption of the Miranda rule that allows the government to refuse a suspect his right to representation for hours or even days.

And that's what got me thinking about the Niemoller quote. It is not that we don't speak up for the "communists" because we are not one. It is that we don't speak up for them because we hate them. I know the reaction of the vast majority of people in this country to my belief that Tsarnaev deserves all of the guarantees of the Constitution. They would say something along the lines of, "He's a terrorist! We shouldn't give him any rights at all!" So may I humbly offer a rewrite:

First they came for the communists,
and I didn't speak out because I hated the communists.

And that really is the way rights are lost. This is why we allow the Nazis to have parades. It isn't because we like them. As a culture, we hate them. But as John Adams wrote, we have "a government of laws, and not of men." And if we can't listen to him, perhaps we can listen to that hippy Jew, "Truly I say to you, to the extent that you did it to one of these brothers of mine, even the least of them, you did it to me."

I don't have any specific fondness for Dzhokhar Tsarnaev. But I have a great fondness for this country and especially its ideals. And if one criminal can destroy that, we are all lost. 

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Terrorist watch list

By Mustang Bobby

John Yoo is one of those people who will go down in history as one of those benignly evil people who don’t actually do terrible things like commit torture or genocide themselves but enable those who do and defend them:

"Apparently the FBI interrogated the younger Tsarnaev for 16 hours," wrote torture memo author John Yoo at National Review. "And then, for reasons that are still unknown, the government read him his rights."

Yoo has never met a right he didn't want to ball up like a piece of paper and toss into a trash can in the name of national security. But despite being an attorney and professor at the prestigious University of California Berkeley School of Law, Yoo is either misleading his readers about why Tsarnaev was read his rights or unaware of a basic legal rule.

The judge appeared at the hospital because the Federal Rules of Criminal Procedure state that suspects have to be brought before "a magistrate judge, or before a state or local judicial officer" and it must be done "without unnecessary delay." The Supreme Court has held that, absent exigent circumstances or the suspect waiving the right to go before a judge -- as wannabe Times Square bomber Faisal Shahzad reportedly did -- a suspect has to appear before a judge within 48 hours of being apprehended. This is usually referred to in legal shorthand as "presentment," as in, "presentment before a judge."

He is also one of those people who tell us that our rights and the Constitution don't really matter if you're dead, and that the Founding Fathers certainly didn't intend to protect the rights of people who were indoctrinated by foreigners to blow us up. And he does it all without getting that faraway stare in his eyes or wearing a hat with teabags dangling from it.

He's the one who should be on the terrorist watch list.

(Cross-posted at Bark Bark Woof Woof.)

North Carolina goes south

By Mustang Bobby

(Ed. note: For more on this effort to use "Nullification" to circumvent the separation of church and state, yet another Republican assault on the Constitution, see my post from Wednesday. -- MJWS)

North Carolina won't have a state religion after all. Well, at least not this year. Yet.

North Carolina House Speaker Thom Tillis's office said Thursday that a resolution asserting North Carolina has the power to set an official state religion is dead, and won't go any further.

The resolution, filed by two Republicans from Rowan County, declared "each state is sovereign and may independently determine how the state may make laws respecting an establishment of religion" – thereby claiming the federal government and courts have no authority to decide what is constitutional.

The bill's primary sponsors were Reps. Harry Warren and Carl Ford, a tea party member. Eleven other legislators signed the resolution. Legislators introduce hundreds or even thousands of resolutions every year, honoring constituents or declaring their stances on issues, but they carry little legal weight.

Warren said in a statement that the bill was only intended to allow Rowan County officials to open their meetings with prayer, not to establish a state religion.

Instead, they've turned their attention to another GOP obsession (no, not gay sex): voter suppression.

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North Carolina Republicans launch formal assault on the Constitution, seeking establishment of state religion

By Michael J.W. Stickings

Just in case you weren't quite sure Republicans are the party of Christian theocracy:

A bill filed by Republican lawmakers would allow North Carolina to declare an official religion, in violation of the Establishment Clause of the U.S. Bill of Rights, and seeks to nullify any federal ruling against Christian prayer by public bodies statewide.

The legislation grew out of a dispute between the American Civil Liberties Union and the Rowan County Board of Commissioners. In a federal lawsuit filed last month, the ACLU says the board has opened 97 percent of its meetings since 2007 with explicitly Christian prayers.

Overtly Christian prayers at government meetings are not rare in North Carolina. Since the Republican takeover in 2011, the state Senate chaplain has offered an explicitly Christian invocation virtually every day of session, despite the fact that some senators are not Christian.

The First Amendment initially prohibited Congress from establishing a state religion at the federal level, but as a result of Everson v. Board of Education (1947) and other subsequent case law the Due Process Clause of the Fourteenth Amendment has come to apply to the Establishment Clause of the First, meaning that the prohibition against establishing a state religion applies not just federally but to the states as well. (It's called "Incorporation.") And there hasn't been a state religion since 1833 (Massachusetts).

The North Carolina proposal ignores all of this:

"The Constitution of the United States does not grant the federal government and does not grant the federal courts the power to determine what is or is not constitutional; therefore, by virtue of the Tenth Amendment to the Constitution of the United States, the power to determine constitutionality and the proper interpretation and proper application of the Constitution is reserved to the states and to the people," the bill states.

"Each state in the union is sovereign and may independently determine how that state may make laws respecting an establishment of religion," it states.

This is the "Nullification" argument that states' rights conservatives have frequently used to try to circumvent federal law, including with respect to slavery. Essentially, it posits the supremacy of the Tenth Amendment, and of course of the states themselves.

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Obama Administration defecates on Constitution, then wipes its ass with Bill of Rights

By Michael J.W. Stickings

I like Obama. I really do. But increasingly his articulation of executive power with respect to the war on terror, and generally, and the expression of that power specifically in the ongoing drone campaign against enemies of the state, however defined, often with significant civilian collateral damage, is the stain the threatens to overwhelm the rest of his presidency. And it's getting worse:

Yes, the president does have the authority to use military force against American citizens on US soil -- but only in "an extraordinary circumstance," Attorney General Eric Holder said in a letter to Sen. Rand Paul (R-Ky.) on Tuesday.

"The US Attorney General's refusal to rule out the possibility of drone strikes on American citizens and on American soil is more than frightening," Paul said Tuesday. "It is an affront the constitutional due process rights of all Americans."

This is rarely the case, but I'm with Paul on this one. Even if you think Obama would never do such a thing, and if you think that you should think it over, do you really trust any president to determine just what "an extraordinary circumstance" is? I'm no anti-government nut -- in fact, I'm generally in favor of an activist federal government. But this is appalling, and truly a threat to freedom.

Heightened scrutiny

By Mustang Bobby

As you may have heard, last week the Obama administration filed an amicus brief in the Supreme Court case against Prop 8. Greg Sargent explained why this is a big deal:

The key to the brief is that it makes two arguments. The first is that it agrees with the ruling of a lower court — which found Prop 8 unconstitutional — that challenges to the constitutionality of such laws should require that they are subjected to "heightened scrutiny." That means the court should hold their rationale for discriminating to an extremely high standard, and strike them down if they fail to have a credible justification. The brief does that here, in a reference to previous Supreme Court ruling in cases involving challenges to discriminatory laws:

[C]lassifications based on sexual orientation call for application of heightened scrutiny. Each of the four considerations identified by this Court supports that conclusion: (1) gay and lesbian people have suffered a significant history of discrimination in this country; (2) sexual orientation generally bears no relation to ability to perform or contribute to society; (3) discrimination against gay and lesbian people is based on an immutable or distinguishing characteristic that defines them as a group; and (4) notwithstanding certain progress, gay and lesbian people — as Proposition 8 itself underscores — are a minority group with limited power to protect themselves from adverse outcomes in the political process. [...]

Because a classification based on sexual orientation calls for the application of heightened scrutiny, petitioners must establish that Proposition 8, at a minimum, is "substantially related to an important governmental objective."

The second key to the brief is that it argues that when you apply "heightened scrutiny" to Prop 8, it is found to violate the equal protection clause of the U.S. Constitution.

What this means is that the government, while focusing its brief on Prop 8 itself, has, for all practical purposes, asked the Supreme Court to set a precedent that can be applied to all state laws banning gay marriage — the arguments that these laws must survive "heightened scrutiny," and that they violate the Constitution.

If the Supreme Court strikes down Prop 8 based on the heightened scrutiny argument, then it could invalidate all the laws in the country that ban marriage equality, much in the same way that Brown v. Board of Education invalidated school segregation in places other than Topeka, Kansas. It would set a precedent for overturning other laws that discriminate against members of the LGBT community, such as the adoption restrictions in Florida, already pretty much ruled unconstitutional by lower courts.

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Boehner's weakness is America's strength

By Frank Moraes

Just for the record, John Boehner is still a very weak Speaker of the House. The House of Representatives voted to suspend the Debt Ceiling through 18 May. This in itself is a chickshit move. Boehner had decided that he didn't need to make his caucus have to vote to raise the Debt Ceiling; instead, he would just have them ignore it for a while. Why not just "ignore" it forever? And I'm sure that a lot of people in the next set of Republican primaries will ask that very question.

But what makes Boehner look weak is that yet again, he could not get legislation passed without the help of the Democrats. Only 199 Republicans voted for the bill that required at least 230. And this was with the ridiculous unconstitutional[1] "sweetener" of saying the congress doesn't get paid if it doesn't pass a budget. The truth is that it is clear that he can't control his caucus. But the bill did at least fulfill the Hastert Rule, so Boehner has to be pleased about that.

I think we should all be pleased about this vote, however. It shows a willingness on the part of the Republican leadership to work with the Democrats. If Pelosi had whipped the Democratic caucus, Boehner's bill would have likely gone down in defeat. Boehner had to be a little uneasy about bring the bill up for a vote. And more important: he must have brought it to the floor because he thought that the Democrats would work with him. This doesn't mean that it will work the other way around, but it is some movement in the right direction. Boehner is using his weakness for good rather than evil.
__________

[1] The 27th Amendment is really clear: "No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened."

(Cross-posted at Frankly Curious.)

Someone please hand Wayne LaPierre a bigger shovel

By Carl 

Because he clearly doesn't believe he has hit the bottom of his self-dug grave yet:

WASHINGTON — Wayne LaPierre, the executive director of the National Rifle Association, angrily accused President Obama on Tuesday of demonizing law-abiding gun owners and of wanting to put "every private personal firearms transaction right under the thumb of the federal government."

In a fiery speech at a hunting conference in Nevada, Mr. LaPierre criticized Mr. Obama's Inaugural Address on Monday when the president said Americans should not "mistake absolutism for principle."

That reference, Mr. LaPierre said, was intended as an attack on the N.R.A. and gun owners who believe that the Second Amendment to the Constitution provides an absolute right to bear arms. 

What gun nuts won't tell you is that the Second Amendment is the only one, the only one, that places a condition on a Constitutional right. They'll ignore the language of the first part about a "well-regulated militia" -- and if the Founders were alive to address this, I think they'd acknowledge local police forces as constituting said militiae -- but woe betide anyone who interprets the rest of the Amendment to read as anything but "all the guns we want, all the time."

But then La Pierre doubled down on the stoopit:

"I urge our president to use caution when attacking clearly defined absolutes in favor of his principles," Mr. LaPierre said. "When absolutes are abandoned for principles, the U.S. Constitution becomes a blank slate for anyone's graffiti."

In effect, La Pierre is demanding absolutism on his relative terms. For instance, the gun that Founders referred to is a muzzle loader, a musket. At best, you might have a flintlock pistol. Why doesn't he mention that in his "principle"? After all, colonists had to defend their farms against varmints both human and animal, and they seemed to do a pretty good job of surviving. If the purpose of owning a gun is to defend yourself and your family, then it seems to me that mission accomplished there.

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Assault weapons ban?

By Frank Moraes 

Ed. note: Frank thinks I might disagree with him here, if only because he's shifting the argument away from assault weapons. I don't. While I do think assault weapons, which to me are weapons of mass destruction, ought to be banned, there ought to be broader gun control that includes restrictions on handguns as well as substantial waiting periods, among other things. Actually, I'm all for going much further than that, but I realize you have to be realistic if you want to get anything done. There's just no way the U.S. is about to enact the comprehensive gun legislation I'd prefer.

My only quibble with Frank's post is with his second footnote. To me, the Second Amendment does apply only to militias, not to private individuals, except insofar as it was assumed at the time that in the absence of a standing army militias would be made up of private individuals. ("If a well regulated militia be the most natural defence of a free country,..." wrote Hamilton in Federalist 29.) Just because the Supreme Court has interpreted it a certain way over time doesn't mean that interpretation is the right one, or that Madison et al. meant it that way.

As Justice Stevens wrote in his dissent in District of Columbia v. Heller (2008): 

The Amendment's text does justify a different limitation: the "right to keep and bear arms" protects only a right to possess and use firearms in connection with service in a state-organized militia. Had the Framers wished to expand the meaning of the phrase "bear arms" to encompass civilian possession and use, they could have done so by the addition of phrases such as "for the defense of themselves." 

The Framers knew what they were doing. And if they'd meant to enshrine an individual's right to bear arms in the Constitution, they would have said so.

The distortion of the Framers' intent in this regard is one of the most blatant ways conservatives have imposed their right-wing ideology on America.

-- MJWS

**********

Greg Sargent's The Plum Line blog is quickly becoming my favorite Washington Post reading, which is to say I turn to it more often than Ezra Klein's excellent Wonk Blog. Sargent just seems to write more about the stuff I'm interested in. Klein writes a lot more about economics, but I'm afraid I read a good deal too much economics elsewhere. Anyway. This morning Sargent was focused on gun control.

He noted a couple of articles about where the White House is regarding an assault weapons ban. The New York Times claims that they are planning to dump it and focus on background checks and high capacity magazines. But Sam Stein claims they are still pushing the ban on these guns.

I think the focus on assault weapons is misplaced. I understand that they look scary. On a recent trip to Mexico, seeing all the military with these kinds of guns was intimidating. But like syringes with drug addiction, they are just provocative and indicative, not the problem itself. To me, the thing that I most associate with assault rifles are the 30-round banana clips.

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Guns: providing freedom and taking it away since 1791

By tmcbpatriot 

Friday's atrocity is starting to sink in with each new day, and it just gets worse and worse. I have not been reading a thing about the killer or the children or that crazed woman who birthed this maniac. I can't. I think I hit my limit with this one. I honestly have to look away. Even reading the news is hard because every story is interspersed with a photo of a dead child who was my son's age. I stare at him while he is eating dinner and try not to imagine, but it just creeps in there and I have to push it away. 

Now, I expected the nuts to come out swinging after this insanity and say their usual line about how it's not guns that kill people, it's people. Guns, they say, have nothing to do with it. It is an incredible feat of the brain to come up with such a theory. To say it without even the slightest sense of awareness or irony is simply chilling and maddening to say the least. These people go on to make comparisons saying things like pencils don't make typos, writers do, or cars don't crash into trees, drivers do. One nut on my blog said this in the comments of my previous post:

Those guns killed no one, the mental missfit tool holding them did, the black trench coat, black brief case carrying tard killed those people and your liberal stench enables whackos like this to roam freely all amongst the general population. You dont like guns, MOVE.

I dare not ask this insane person what happens to me if I don't move. My guess is that he would shoot me.

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