The Constitution Is NOT A "Negative" Document!

I know what they mean. It's the whole conservative line that the U.S. Constitution's purpose was to establish a limited government. Even though it came after the failed Articles of Confederation to give the national government more, not less power. Don't believe the propaganda. Read the document itself.

Today someone posted a clip from the Senate hearings to confirm (or not) Neil Gorsuch to the Supreme Court. Senator Sasse of Nebraska set him up for this "negative" document thing.



So I had to respond:

Mama, Don't Let Your Babies Grow Up to Be Sovereign Citizen Cowboys

Cliven Bundy speaking at a forum hosted by the American Academy for Constitutional Education (AAFCE) at the Burke Basic School in Mesa, Arizona.
22 July 2014, from Wikipedia Commons, by Gage Skidmore who graciously allows use without any endorsement of this blog or use of the photo

In a brilliant move by the FBI, agents arrested Cliven Bundy at the Portland Airport last night. I mean, how stupid could ol' Cliven be? He is the patriarch of the Bundy Ranch Clan and the scofflaw who cowardly called out the unregulated militias to fend off BLM's attempt to legally impound his cattle that he has been trespassing on public lands for 20 years. He now faces charges for that interference with the duties of authorized government officials and I hope there are additional charges related to his active support for the armed occupation of the National Wildlife Refuge in Oregon.

Tenth Circuit Upholds Religious Marriage But Not Polygamy!

Probably not the headline you were expecting today. While this blogger supports the Family Proclamation, I wish to note some interesting aspects of the decision in the Federal Court of Appeals for the Tenth Circuit upholding the Federal District Court in Utah in ruling that Utah's Amendment to its State Constitution on Marriage is invalid under the U.S. Constitution.

As I had predicted, this ruling has no effect on anyone's religious beliefs or practices regarding marriage. The Court seemed to go out of its way to so state:

Supremes Slow It Down, Public Catches Breath

Justice Ruth Bader Ginsburg

Just as surprising as Judge Shelby's Federal District Court decision striking down Utah's laws against same-sex marriage, the US Supreme Court just surprised us by granting a stay on Utah licensing same-sex marriage after the 10th Circuit twice denied such a stay. There was no written opinion, so any interpretation is pure speculation. Here's mine.

Based on the make-up of the Court, I think there are two things at work here. First, Justice Ginsberg, one of the more liberal four, has expressed her concerns about the activist conservative nature of the present court. She also thinks that the case establishing a constitutional right of abortion, Roe v. Wade, was decided too soon (it's an odd case anyway with it's arbitrary trimesters established by the Court). The Court got ahead of public opinion on that one no matter how strongly she feels about the right to personal decisions over women's health and reproduction and the case has caused a lot of political and judicial turmoil since.

The Supreme Court’s Ruling on Same-Sex Marriage

The recent decision by the U.S. Supreme Court striking down the Defense of Marriage Act (DOMA) and allowing lower court decisions to stand overturning Proposition 8 in California makes for a dramatic shift in American society. This brief analysis is to consider some of the possible ramifications of the decision. While not a full legal analysis, it does have a lawyer’s insight in areas potentially impacting Mormon practices past, present, and future. The purpose of this post is not to advocate for gay marriage.

To be clear, the Supreme Court has not declared a Constitutional right to gay marriage. The High Court found DOMA to be unconstitutional because it was enacted to deny federal benefits to a defined group. The motivation for the designation was congressional animus in the attempt to limit benefits to traditional “Judeo-Christian” marriages of one woman and one man. Justice Kennedy, writing for the majority in the DOMA decision, does not declare gay men and women a protected class under a traditional civil rights analysis. In addition Justice Roberts writing for the majority in the Prop 8 case punted on procedural grounds to allow same-sex marriages to go forward in California. With the decisions, there is strong indication that a current majority of the court is prepared to declare same-sex marriage a constitutional right, but that has not happened yet.

The Supremes Perform "Obamacare"

Chief Justice John Roberts

Justice Ruth Bader Ginsburg

And what a performance it was! Roberts versus Ginsburg plus Kagan, Sotomayor, & Breyer versus the Three Amigos plus Kennedy! 

Not being much of a Supreme Court expert, as an attorney I still feel the urge to jump in with my views on the Health Care (Obamacare) decision, National Federation of Independent Business v. Sebelius, 567 U.S. ___ (2012). You can find it here. At least I have read it, which is more than can be said for many pontificators especially those who get their talking points from Fox News or silly little bites of cuteness on Facebook. I’ve even skimmed through the Act myself. But as a federal attorney, I’m used to that sort of thing.

Winners Win and Losers Lose

Stating the obvious, no matter how furiously the right-wingers spin their failure to destroy Obamacare in the Supreme Court, this is politically good for the President and the Dems and bad for the tea party and the Republicans. Had Obamacare gone down, at least this supporter of the President would have been severely demoralized. And I was not looking forward to an election based on a war against the Supreme Court. I guess the Right is free to go ahead if they want.

This election is still mostly about the economy and jobs. The recovery is slowly chugging along. Republican Governors hoping to be reelected are touting the recovery in their own states (two-edged sword, guys.) We just had another big jump on Wall Street because Germany got European finances sort of straightened out, again.

Roberts for the Win

"TEA PARTY DEFEATS OBAMA!" (not)

I did see the erroneous CNN banner this morning, but only after I had seen more accurate tweets so I wasn't too disturbed.

It's been a big day. I'll be brief and as Speaker Boehner cautioned us not to spike the ball (wait - that was for his tea party caucus!), I only note for the record that I did predict Chief Justice Roberts joining the majority for this way back in March (see here). Of course, no one ever predicts the Court dead on as they are always full of surprises. So I missed my 6-3. And I haven't read the whole case yet (it's been a busy day.) But I offer these preliminary comments.

Justice Scalia Frustrated and Annoyed

I met Justice Scalia once. It was at the dedication of the new federal court house in Albuquerque a few years ago. He was milling with the crowd as we had refreshments. Having never met a Supreme Court Justice, I went up and shook his hand. It was kinda creepy. I'll just leave it at that.

Scalia's impassioned dissent in the Arizona Immigration case indicates that the politically conservative jurist may be a little frustrated. Also, the separate dissents/partial concurrences of the other two conservative Justices, Thomas and Alito, indicate the conservative wing of the court is not well united. Having been quietly abandoned by their conservative Chief Justice Roberts joining the majority in this politically-charged issue, this all indicates to me that they may have lost to Obamacare. I still think it could be 6-3. I'll eat my words tomorrow as necessary.*

A Save This Time Takes Six of Nine

The non-radical John Roberts

Chief Justice Roberts is my friend. It's not just because he doesn't creep me out nearly as much as Scalia, Thomas, and Alito do. It's probably because he is a more traditional, solid conservative in the institutional and political sense, not just judicial, and will likely not overturn the ACA (AKA - "Obamacare") in any radical way.

I still wonder if the Chief Justice might have had a little talk with Justice Alito about his injudicious jumping at the President's bait on Citizens United in the 2010 State of the Union Address. True Conservatives preserve the status quo and try to avoid causing scenes. Right now, the status quo is President Obama and the American People with health care in their pocket.

Right To Privacy & States Rights' Hypocritical Hypotheticals

The last two Republican debates were just too much for me to try and live-blog. Saturday evening was better spent on some family activities. And this morning, Sunday, I just couldn't spoil the quiet Sabbath with more ugliness. I was working on some family history issues instead.

Speaking of family, I did catch a brief exchange in last night's debate. George Stephanopolous was questioning Romney on a hypothetical on states rights theories as to whether states could prohibit birth control. Romney appeared a little befuddled and parried as best he could deflecting the question somewhat indignantly because he said no state would ever do such.

Health Care Reform Is Up to the Supremes

Sitting here in the bowels of Libby Gardner Hall at the University of Utah waiting for my son at Utah Youth Symphony practice, I had a chance for this posting on Health Care Reform before the Supreme Court. (I may be sitting on the very couch in the student lounge that was honorarily named for another son after he spent much of his freshman year here!)

On behalf of all the people of the United States, the Department of Justice filed its brief yesterday in the Supreme Court on the ACA. (Health Care Reform or "Obamacare" as some of you call it, eventually to be a compliment rather than the derogatory term you may be intending). Here is a good article from Andrew Cohen of the Atlantic on it with a link to the brief itself which looks really, really, good. For a summary of the opposition briefs that are piling on, you can check it out here or here.

Darling, I Don't Know Why We Go to Supremes

So, the 11th Circuit strikes down the mandate to buy health insurance as "unconstitutional." Since the 6th Circuit already says it is constitutional, now we have a split in the Circuits that likely means the Supreme Court will actually hear it. (There is only a slight hope that the 11th Circuit en banc, that is, all the judges on the Circuit, rehear the case and overturn its panel  - then the Supremes could still dodge). I will keep following these developments and refer you to a great blog I read on this and other matters. And the anti-Obama-health-care-reform crowd sure wants to get it to the high court. Which, when you think about it, is kind of funny. (Hint: they usually don't like the Supreme Court telling us what to do).

And the Supremes

Billy Joel

A Divinely Inspired Constitution

I really do believe in it, even if I see the Constitution a little differently than a lot of people around me.

I don't believe it was dictated from on high or written on stone by the Lord's own finger. Rather, he inspired a group of men and even some women (Abigail Adams had her indirect influence) to think passionately about and take responsibility for their own government and to learn how to work out their differences as they learned to govern themselves through the principles of compromise.

So, here's a collection of modern-day scripture with direct reference to the Constitution of the United States of America: