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A Blog for and by ACS members nationwide. Links
Archives The ACS Weblog is maintained by ACS members and is not otherwise affiliated with or sponsored by the ACS National Office. |
Wednesday, August 06, 2003
District Judge Myron Thompson of the District of Alabama issued an opinion today giving Alabama Supreme Court Chief Justice Roy Moore fifteen days to remove the Ten Commandments monument from the rotunda of the Alambama Supreme Court. While the ruling itself is an important victory in the battle to keep church and state separate, there was an added bonus. House Republicans recently pushed through an amendment to an appropriations bill that would have barred the use of federal funds to enforce any decision requiring the removal of the Ten Commandments. Judge Thompson held that it was the job of the State of Alabama not the federal government to enforce the order. Therefore, he charged the Governor and Attorney General of Alabama with the task of enforcing the order. The AG is no other than David Pryor, one of the worst nominees put forward by Bush. This decision places Pryor in a tough spot. If he does not remove the monument, Senate Democrats will be able to claim to oppose his nomination because he refused to follow an order of a federal court, and how could he therefore sit on the federal bench. If does remove it, he will alienate many of his political allies. John - I think it is the willingness to overlook inconvenient facts, though my mom always told me that was called lying. Andy, the NY Post had a similar article yesterday (I'm not a regular reader - it was left on the subway seat next to me and I needed something to read on the ride home). I can't find it online, but the author actually lauded Rehnquist as the bulwark against Ginsburg's multi-national tendencies. Do you think it is laziness or a willingness to overlook inconvenient facts? First, to dispense with this silliness. From the top. If states start allowing same sex unions (as several have), then those couples will likely ask other states to recognize them under full faith and credit. I see nothing wrong with that. It infringes states rights no more than any other consequence of the full faith and credit clause. The next step in the argument is where we get the rhetorical slight of hand. It may be that one day some group will claim that any state must not just recognize but provide the rights granted by any other state, and failure to do so would violate equal protection, due process or some other provision of the Constitution. I just frankly don’t see this. It may be my ignorance, but I know of no precedents for this. E.g., if I was a licensed New Jersey casino owner, could I sue Pennsylvania for not granting to me a gambling license to open a casino in Pittsburg? And could I claim their failure to do so is a violation of my Constitutional rights? I just don’t see it. Furthermore, no group that I can find has made this claim or proposed it (though it is apparently “immanent”). But it is this hypothetical second step that supposedly justifies amending the Constitution, just in case, as it were. Let us not loose sight of the rhetorical maneuvering here. I impute to my adversary a position he has never taken or even proposed. Next I ridicule I him for taking that position. Finally, I propose a radical measure justified only as a reaction to this fictional position. Masterful, no? So the open question is, What is the motive? What would justify such rhetorical acrobatics? Well maybe it is true that I can’t know the heart of my adversary. All I have is the record. But I do have the record. He begins with a position- homosexuals should not be allowed to marry. This was the President’s position and it is why he proposed the amendment. To my eye, that is refusing to homosexuals rights granted to full citizens. To my eye, that is discriminatory and shameful. To do so on account of race would be racism. You may come up with whatever name you like for doing so on the basis of sexual orientation. But it is what it is. My eyebrows were really raised by the reactionary, preemptive fear (phobia) that gets him to the amendment process. This Constitutional Amendment would really be ‘just in case.’ As a ‘true’ federalist I would think he would stand by states’ rights through thick and thin, and certainly not only until someone somewhere (much less his own imagination) raised the specter of some possible litigation that - if successful - would infringe them. At some point one would think one would look out the window and see the moral landscape into which one’s ideological vehicle had taken him. And truly, how can he both support the rights of states to allow same sex marriage and also support a Constitutional Amendment that would prohibit states from doing just that? Does he have a position on homosexual unions outside of its consequences for his ideology? Maybe he prefers the former over the latter, or supports the latter only if the former is not possible, but he would apparently be fine with either. And his preference is really only motivated by a remote possibility. Could he explain to his homosexual friends, "Well you could have legally married, but the possibility that other states rights would some day be infringed upon required us to amend the founding document of this nation to prohibit it. Sorry."? In my own view, discrimination on the basis of sexual orientation is no less violative of the Constitution than any discrimination presently forbidden. I see bias against homosexuals as the last stop on the road that passed through racism and sexism. I would be just as happy to see the rights of homosexuals protected by all states as I would to see the federal government remedy this wrong. But I find no justification for amending the Constitution to codify bias and discrimination. I am very excited to be a part of the ACS blog. It's been said before, but it's worth saying again, the internet and especially blogs are the best answer liberals have to conservative talk radio. When I got to work this morning I did a Google news search for American Constitution Society. We are now a few days out from the convention, so the straight news stories have ended and the conversative machine has gone to work on our keynote speaker, Justice Ruth Bader Ginsburg. So far, I've found two different pieces, one from Jay Ambrose of the Scripps-Howard news service and the other from Rush Limbaugh, attacking the justice for what she said about the use of foreign precedents. What both stories fail to mention is that the Chief Justice has himself made similar arguments. It wouldn't have been too hard for Limbaugh and Ambrose to find the Chief Justice's quote on the matter, after all it was in Justice Ginsburg's speech. Tuesday, August 05, 2003
Jason- The "pod people" intrigued me, and it looks like this runs deeper than we thought: "OpinionJournal.com's Fund writes, "There are limits to how moderate a Democratic presidential candidate can be." He adds: "Mr. Lieberman reminds many in his home state of the creature on 'Star Trek' called the shape-shifter, which was able to instantly adapt to any new environment. ... Look for Mr. Lieberman to duck into a lot of ideological dressing rooms during his quest" (1/16/03). ACS Meetup and Chapter Info For those of you interested (particularly in the NYC area) I'm working on getting an ACS Meetup.com account created. However, it seems that Meetup.com needs to get some level of demand before they create the account. So click here and suggest they create an ACS group. The fed blogger at the business end of yesterday's post feigns indignation. There was nothing ad hominem in my statement. The President refered to homosexuality as a sin in his call for a federal law banning gay marriage. This is, frankly, disgusting. The fact that the question is asked on moral and not legal grounds (how can we get this done?) shows the purpose of the position- to keep homosexuals from being recognized as full citizens, at any cost. It has nothing to do with "jurisprudence." If one agrees with this position, as the fed blogger said he did, then I have to assume he is ok with, no supports, any means to deny to homosexuals the rights extended to heterosexuals. If you would like to use a term other than homophobia that captures this position, feel free to substitute it. But I don't see how else to intepret the position. States rights, unless they are against us, then amend the Constitution. Talk about activism. ACS Convention Coverage I'm glad to see that everyone else is as amped up as I am from this weekend. I did find it odd, however, that the media coverage, while predictably concentrating on the big name speakers, has tended to portray the rest of the attendees as if we were awe-struck children rendered speechless by a chance run-in with our favorite baseball players. While it is true the speaker lineup was nothing short of remarkable and you could barely walk two feet without running into a true "all star," it seems to me that maybe it's the media that is star-struck. What they haven't (tried to) capture is the energy among the attendees. But maybe that's just impossible to capture anyway. In any event, I also want to welcome the new ACS blog members. Once I get everyone signed up we can discuss doing a little bio spot on the page. PS (Warning- the post below was a product of post-Convention adrenaline and having read this morning the chapter of The Metaphysical Club where Holmes is shot through the leg and writing to his father. If you know what I mean, you know what I mean). In a previous post I wondered how the feds would spin the President's efforts to ban same sex marriage at the federal level. Here the President told us that he had "lawyers looking at the best way to do that." Apparently it’s been decided that the "best way" to do that is not a federal law (as I naively assumed), but a constitutional amendment. I guess I should stay up on my radical constitutional amendment proposals better. (I remember reading a while ago that the perennial flag-burning amendment was getting more support than the balanced budget amendment and gave up). In any event, the feds claim that while such an amendment would infringe on state's rights, it is really only "a product of (or necessary reaction to) the nationalist liberal jurisdprudence (sic)." Ok, take a breath. Now, the logic goes like this. If one of the state legislatures (the heroes of the fed's entire cause) should be so audacious as to pass a law that would allow for same sex marriage, in representation of the will of its citizens, there will then assuredly be a: "barrage of litigation pushing for recognition of those marriages in the other states. Between "full faith and credit," "equal protection," "the liberty interest in free movement," "substantive due process," and a variety of other arguments, activist groups will push hard for recognition of the first state's gay marriages in the other states. Upon achieving that, they will push, under equal protection and substantive due process, for gay marriage in their own states. Those devious activist groups! Invoking the Constitution to protect their rights! Where do they get this stuff? Full faith and credit! Is there no end to their schemes? (Read as Jon Stewart would deliver it). Now to be honest I do not actually see (without having thought about it much) how that last part of the argument would be made - my state's failure to grant to me rights granted by other states to its citizens creates an equal protection or due process issue? (Send an email if you see how this would work.) I may be wrong, but that just seems to be the bogie man- that 'national' law will be made by one state infecting the others. But let's assume (as is likely) that just the first part (full faith and credit claims) would happen. I cannot for the life of me see why this would be objectionable. What I can see are the fed's true motives. It's really not about federalism at all. It's about preserving a radical conservative agenda, about masking homophobia in the rhetoric of the sanctity of marriage or state's rights. As was pointed out by many a speaker at the ACS Convention, federalism has always been a convenient ploy behind which other agendas hide (as true in the Lochner era as it is today). At a time of progressive federal legislation, it is very convenient to put your conservative faith in state's rights. But when the states threaten to do you wrong, well by golly amend the darn Constitution if you have to! Which brings me to the fed's last remark: If federalism is about to cease to protect traditional marriage -- if marriage will inevitably be ruled by national decree -- I would rather see it done by the Constitutional Amendment procedure than by another nonconstitutional decree by our increasingly nonconstitutional Supreme Court. Inevitably ruled by national decree? We're talking about letting states decide (because the fed is too backwards to do it) that discrimination against gays is discrimination against gays. If it starts with one state and moves by popular support across the country, then what could be more democratic? At some point, we pray, all this rhetoric will fall away and reveal the true judicial activism, the radical conservative social agenda smuggled into the law behind the mask of discredited methodology. As a last point, take a step back for a minute and think about this- are we really being asked to amend the Constitution to allow for discrimination? Study: Conservative Editorial Pages More Partisan/Critical Than Liberal Ones A new Harvard study says that conservative editorial pages are "more intensely partisan, and far less willing to criticize a Republican administration than the liberal pages are to take on a Democratic administration" according to a Washington Post write-up. The study analyzed editorial page reaction to 10 comparable incidents in the Clinton and Bush presidency at the Washington Post, NY Times, Washington Times, and Wall Street Journal. The liberal papers criticized the Clinton administration 30 percent of the time, while the conservative papers criticized Bush just 7 percent of the time. Likewise, liberal papers praised Clinton 36 percent of the time, while conservative papers praised Bush 77 percent of the time. On the opposite side, the liberal papers criticized Bush 67 percent of the time, while conservative editorials criticized Clinton 89 percent of the time. What's more, the rhetoric employed by the conservative papers was demonstrably more biting than that of the liberal editorials. Case in point? Upon Clinton's inauguration, a Wall Street Journal editorial described describing administration figures as "pod people from a 'Star Trek' episode . . . genetically bred to inhabit the public sector." Howard Kurtz has more. The paper, “Whispers and Screams: The Partisan Natures of Editorial Pages,” was written by Michael Tomasky while he was a Fellow at Harvard's Shorenstein Center in the Spring of 2003 (click here for a PDF version). More Coverage of the ACS Convention As Fred noted below, the first ACS convention was a truly historic gathering of some of the finest progressive legal minds in the country. The excitement among law students, professors, and practitioners alike to be part of such an event was palpable. I think history will look back on this conference as a watershed moment, a reawaking of a progressive legal movement that will more than stand up to the conservative insurgency of the past three decades. I am so pleased to have been present for this moment this weekend. To give you a little more flavor, here's additional coverage of the convention from MSNBC the Associated Press. On a personal note, with this post I am pleased to officially join the ACS blog as an occasional contributor. Monday, August 04, 2003
For a taste of how amazing the first ACS convention was, check out this article from today's Washington Post. A note of caution about the article, however. I attended the ACS convention this weekend. And, unfortunately, the article doesn't even come close to capturing the electricity in the air. You could reach out and touch it. The sheer joy in being surrounded by brilliant minds and progressive ideas. The unity we felt knowing that all of us there are uniformly dedicated to returning humane ideals and human dignity to its central place in American law. I, for one, felt like I was at the birth of something special. So, take the article and amp the excitement level it describes up to eleven. That might come close... |
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