More Worst Supreme Court Decisions (part III, if you’re counting).

A few years ago, I wrote two (1, 2) postings about the worst Supreme Court decisions ever (and as I noted here, one of those [Bowers] has since then been overturned). I think it’s about time to add to the pantheon.

• Ex parte Quirin has not really attracted much attention since being decided over sixty years ago, until it became a key part of the D.C. circuit’s endorsement of the Bush administration plan to try suspected terror suspects by military tribunal (full text). Quirin is a bad decision because the presumed facts were not true and the SCOTUS didn’t look carefully enough at the case to determine whether the executive branch was lying. A cautionary tale that doesn’t seem to be tied to any one administration.



• Wickard v. Fillburn. Another case that is unlikely to be recognized by anyone except first year con-law students, or those of us cursed with the memory of that class. (I had Jim Chen. He thinks he’s very clever. And maybe he is, maybe he is.) Anyway, so Wickard. Congress has a very limited number of ways they can set national policy; they are primarily set out in Article I, section 8 of the U.S. Constitution. The primary way that Congress justifies its lawmaking is through their power to regulate interstate commerce. Before the New Deal, attempts by Congress to butt in were pretty much held in check (except for some bizarre exceptions, see my previous for the description of In re Debs, for example). But after Roosevelt threatened to expand and pack the court, decisions that used to go 5-4 against congressional power to get into the economy started running the other way. Wickard was the case that moved this trend into the ‘absurd’ category. The Agricultural Adjustment Act set quotas for crop production and penalties for exceeding those quotas in an attempt to prop up prices. Mr. Filburn ran a little dairy farm in Ohio and grew some wheat to feed his cows during the winter. When the feds busted him for growing too much wheat, he appealed all the way to the Supreme Court, maintaining that Congress had no power to tell him what to do on his farm, since he certainly wasn’t involved in Interstate Commerce. The result? Tough luck, Mr. Filburn, you can be regulated because whether you sell it or not there’s a national market for wheat. So why is this a bad decision? Well, for starters, it authorizes the federal government to do terribly intrusive things to people in the name of commerce power, when there is no commerce happening at all. Also, the modern SCOTUS has curtailed much of the expansion of the commerce clause through such cases as US v. Lopez (this invalidated the Gun-Free Schools Act) and U.S. v. Morrison (declared the Violence Against Women Act unconstitutional) this case still is good law. I wonder why, hrm. Could it be that conservatives will follow their theory if it means that they can invalidate laws that they disagree with but won’t follow the same theory if it might mean that laws such as, oh, drug laws make it through? I really wonder (I recommend this analysis of Wickard and the commerce clause in the context of the Raich decision; I don't agree with everything he says but it's well written and hits most of what I have a problem with).



• The Civil Rights cases (1883). Another in the ‘you’ve probably not heard of it but it sucks nonetheless’ series. So, recall what I said above about the limited number of powers given to Congress. The fourteenth amendment was a critical post-Civil War amendment that guaranteed that people no matter their color had a right to citizenship and the due process and equal protection guarantees that go along with that. This amendment went a long way towards correcting the awful Barron v. Baltimore decision I talked about four years ago (and I shall not get into the rather silly selective incorporation doctrine that has finally gotten around to making these guarantees actually mean something). However, it has a little clause at the end of it:
  

  Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

  
  That seems clear, doesn’t it? Not to the Supreme Court. The Civil Rights cases held that Congress did not have the power to enforce civil rights legislation under this amendment against any entity except the Federal or State government. Which meant that the 1875 Civil Rights Act was unconstitutional. It guaranteed that:
  

  "all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude"

  
  These cases set back the Civil Rights movement about 90 years, when similar language was passed and upheld in the Civil Rights Act of 1964 under… you guessed it, the commerce clause. Oh, and the Civil Rights cases were upheld as recently as 2000, when the Supreme Court reaffirmed them in the Morrison case. To sum up: a tortured reading of the commerce clause, ok. A straightforward reading of the Fourteenth amendment, not ok. All in a day's work for our court of last resort.

Liberal Ravings, concluded.

In further thinking about the reasons for why I have such intense distaste for the GOP and my own sad devotion to a currently losing cause (that of liberalism) I have attempted to articulate for myself the over-arching factors of what it is the Republicans stand for. I have chosen, of course, to do this from my own biased perspective. That’s the only fair way to do it, the way I see it, because this is my weblog and because as noted with the Reagan speech in part I the conservatives tend to move the target when it comes to what they’re in favor of.

I have determined three major elements of conservativism, and am confident that most, if not all, of the policy and rhetorical positions taken by the Republican party can be effectively filtered through one or more of these principles.

(1) Republicans are mean.

(2) Republicans want to benefit rich people with their policies.

(3) Republicans are more likely to grandstand about irrelevant but hot-button issues than they are to pursue good policy.

1. Meanness. Of course, this is an inflammatory way to level this charge. Republicans could be said to be less… touchy-feely. Hell, it’s not like this is such a big surprise for them. George W. Bush’s first election campaign was one that heralded his “compassionate conservativism,” a campaign slogan that aimed at calming doubts among the electorate that the GOP was just a bunch of assholes. He wasn’t even the first Bush to go for that effect. The first President Bush memorably called for a “kinder, gentler nation” in his 1988 nomination acceptance. (Interestingly enough, the author of those words, Peggy “Points of Light” Noonan herself, recently turned this charge around, charging that Howard Dean and Hillary Clinton are being mean to Bush now. The mind boggles…)

So, how does the amorphous charge of ‘meanness’ play out in the political process? Well, in the state of Minnesota, it means that when faced with a budget shortfall, the GOP sought to kick poor people out of the state health care pool. In Washington, it means that the federal government can find hundreds of billions of dollars to fund the military (which also hits on principle 2, as the military contracts are not exactly disappearing into a hole in the earth) yet has never in 29 years ever funded the special education requirements of the Individuals with Disabilities Education Act (IDEA), which as of 2002 has cost the states billions of dollars since the act was passed (for perspective, the CSM reports that the US has spent about $270 billion on our wars since 2001). That is, of course, what Republicans call an unfunded mandate; ironically, up until 2004 the Republican party platform called for both the abolition of the Department of Education and the elimination of unfunded mandates on the states.

Of course, the mean aspect became an absolute positive after 9/11. Voters didn’t want nice politicians, they wanted politicians that were willing to kick some ass. Not that I blame them, frankly. But I just wish the ass-kicking could have been a bit more discriminating. Is it so hard to ask that we go after the terrorists and securing the homeland, as opposed to going after a country that had nothing to do with the attacks? But such charges have been well leveled elsewhere.

2. Cui Bono? I have long noted that a key test of any political issue is to ask “who benefits?” (In my archived post I just linked to I was decrying the Bush administration’s energy plan, which I noted tended to benefit companies like Enron and people like Ken Lay. Remember them? ) The answer to that question for Republican policies is usually “the rich” or “campaign contributors” or “large corporations.” A Republican would characterize this tendency as instead being in favor of the American economy (or “the business of America is business,” as Calvin Coolidge and his disciple, Reagan, liked to term it), yet when Americans are most concerned about the economy as opposed to other things, they tend to vote Democrat. So how does this tendency play out?

The estate tax was essentially repealed (I ought to write about this in depth soon) two years ago with the claim that family farms were being broken up upon the death of the owner and that this was terrible. The death tax, they called it. So what’s the truth? Well, in a recent survey by the Congressional Budget Office the total farms subject to the tax last year was about 300, and of those, somewhere between 0 and 29 farms did not have cash on hand to pay the tax. But don’t let the facts get in the way of the political campaign. So who benefits? The extremely, very, mega, massively, never worked a day in their lives rich. And whose detriment? Yours, mine, and the even bigger hole in the budget by lost revenue.

This also plays out in the military-industrial complex, which is now itself one of the largest forces in policy making. We have seen the fulfillment of the prophecy of that America-hating liberal, Dwight Eisenhower, who warned that:

This conjunction of an immense military establishment and a large arms industry is new in the American experience. The total influence -- economic, political, even spiritual -- is felt in every city, every State house, every office of the Federal government. We recognize the imperative need for this development. Yet we must not fail to comprehend its grave implications. Our toil, resources and livelihood are all involved; so is the very structure of our society.
In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.
We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.

And the spoils of war go disproportionately to Republican contributors, and the military contracts are given to large corporations. Follow the money. Ask who benefits.

3. Republican grandstanding.

Rather than sticking to a principled view of limited government, as claimed in their platform, the Republicans would love to use the government to intrude on people’s lives. Especially if it bones up their credentials among religious conservatives. Consider:

• They are the ones that argue that there is no “right to privacy” and that the government can and should intrude into people’s bedrooms to stop gay sex, contraception, and other acts they are offended by.


• They are the ones that call on their fellow politicians to use wedge issues like gay marriage to get votes.


• They are the ones that would rather pass a flag burning amendment than investigate a disgraceful torture scandal or a lying, traitorous, unelected party hack that works in the White House.

And these are just the wedge issues; other stated political concerns that seem completely non-partisan fit into the grandstanding, such as the ubiquitous combination of “I support my troops” and “Bush/Cheney” bumper stickers on people’s cars.

Okay! So now that my cards are on the table, a brief analysis of recent Republican issues through the three factor system.

• Iraq war: All factors. The Republicans wanted to show they’re badasses (meanness), they wanted to benefit corporations and their rich base (rebuilding contracts and oil contracts), and they wanted to grandstand about their patriotism.


• The PATRIOT act: mostly 1 and 3. Again, this is a way to show toughness in a visible way. Also, major intrusions into people’s liberty and legalized discrimination.


• Terri Schiavo: 3. Injecting the government into someone’s private life as a way to create a wedge issue and show they’re in favor of Jesus and life. No relation to good policy.


• Social Security reform: 1 and 2, mostly. It’s mean because it will hurt the poorest, who need the SS money the most. It’s pandering to the rich, because privatization will benefit very large companies that will be needed to manage “private accounts”. Also, it pays back Bush’s base who never got over that “New Deal” thing.

Liberal Ravings, part II.

In an astounding series of coincidences, my old posting about the Baader-Meinhof Phenomenon got (indirectly) linked in this Ask Metafilter question:

Isn't there a name for that phenomenon wherein, once you start paying attention to something, you see it everywhere? You know, like when you buy a 1980 Toyota Celica, for example, and all of the sudden you see one on every block.

And then later the same day, this Metafilter thread about “amazing coincidences” gets posted, and that very same posting of mine gets linked in the thread. I mean, that’s freaking weird.

Okay, where was I?

Oh, yes, the Minnesota GOP.

It astounds me that I’ve been covering Minnesota budgeting politics as long as I have; in fact, some of my better postings from back when I was regularly updating the site were from the Ventura administration (or, as we like to term him, Governor Turnbuckle). Here was my diagnosis of the problem in June of 2001:

The issue is that the House of Representatives is controlled by Republicans, the Senate is controlled by Democrats, and neither side can agree on the amount of property tax relief, so here we are. There was an agreement in place, but when it came time for the conference committees to reconcile the House and Senate versions of the bills, the Senate got cold feet because most of the tax relief was for businesses and very little would benefit residential property taxes, especially lower and middle income residences.

So, what’s different now? Well, plenty. Back in 2001 there were still issues of ‘tax relief’, i.e., they have too much money and what should happen with it. That is obviously not the issue any more. The governor is a Republican now, a particularly pernicious sort named Tim Pawlenty. I say pernicious because he’s of the modern Minnesota ilk of Republican—young, fresh-faced, and utterly beholden to the Tax League of Minnesota, which holds to a particular fire-eating credo of ‘no raising taxes ever.’

He won election in 2002 primarily because the Democrats (the DFL) has a tradition of nominating the oldest guy in the party for election, which means that young and fresh-faced beats old and crusty; in that case it was Roger Moe, who had served so much time the DFL convention thought they owed it to him to nominate him ahead of someone who was younger and better looking and with better ideas (sorry, Judi.). Governor Turnbuckle was tired of state politics and the gridlock, and frankly I miss him. At least he told it to us like it was and forced the two parties to split the difference and compromise.

BUT I DIGRESS. So going into 2004 the GOP thought that Minnesota was in play for the electoral votes and that they could pick up seats in both houses—which didn’t happen. The GOP was overall drubbed, losing 13 seats in the House (but maintaining a razor-thin majority), lost more seats in the Senate, and came out looking bad all the way around. But the GOP still went into this year’s budgeting determined to not raise taxes, even though we were facing huge budget shortfalls, and the last time the state faced these issues they solved the shortfalls by accounting tricks and cutting poor people out of health care and such. As MPR summed it up at the end of the 2003 session:

After a drawn-out battle on whether to raise taxes, Senate DFLers decided at the end of the regular session to abandon the fight. Senate Majority Leader John Hottinger said Democrats became convinced Gov. Tim Pawlenty, a Republican, was prepared to shut down the government rather than break his pledge not to raise taxes. That meant a $4.23 billion budget shortfall was erased solely through shifts, cuts and fees. The biggest cuts came in health and social services programs.

So here we were again. Why is the state GOP bad?

Well, they’re willing to throw people in poverty out of the state health care pool in order to cut the budget, for one.

Pawlenty would rather play a semantic game and call a cigarette tax a fee than admit that there’s a revenue problem. (not, by the way, that I mind cigarette taxes much. I don’t smoke, after all. But it seems suspect that he wants to solve revenue problems by a regressive tax that will disproportionately hurt poor people than his base)

Pawlenty would abandon his ‘Moral Majority’ position in a second to raise money without it being called a tax—especially if it comes in the form of a casino. State sponsored gambling is pretty abhorrent as I see it—funding the state on the backs of a few, especially since there are people that are specifically vulnerable to gambling.

Anyway, to sum up: when the state had a surplus, it was “your money” and that meant that permanent “tax relief” had to get passed. Now that there’s a shortfall, that means that it’s time to balance the budget on the backs of the poor, and the ‘no new taxes’ Bolsheviks insisted on having nothing to negotiate. I only hope that cooler heads prevail next November—but I doubt it. No incumbent governor that has chosen to run for re-election has been defeated since 1966.

Liberal Ravings.

My contributions here have been spotty for so long. It has been a ploy to make people not expect anything resembling a regular output. Ha. Ha. Ha. I understand from several sources that certain conservative people that know me, including some relatives, have visited to see what kind of foaming-mouth ranting that the ‘other side’ has come up with. Why, indeed, do I hate America, as the cliché goes?*

*In thinking about this topic I realized that I could just make a whole freaking blog about the latest outrage of government, and that I have tried so hard to not just talk politics and law on this site. A quick search of the archives will probably reveal many comments made by me like “I promised Krista I wouldn’t bore her with more law talk” or “I am becoming a bore with this stuff” or “I will stop being so serious now.” But then it creeps back in. So you take what you can get, I guess.

Loss of liberty: the PATRIOT act, heavily supported by our President and rammed through Congress in the days after 9-11, is only the latest step in the growing move towards fascism.
Fear mongering: racist and cynical exploitation of the suffering of victims to advance political aims.
Jingoism: (and see above too) "Ask the men and women who stood on top of the (World) Trade Center," said Rep. Randy Cunningham, R-Calif. "Ask them and they will tell you: Pass this amendment." (I suspect they’d have said “get us off this building” but hey, why actually do something when you can wrap yourself in the flag and not address any real problems?)

Related: Maggie said to me a couple of days ago “why doesn’t this Fourth of July feel like a real Independence Day?” My answer was that trappings of patriotism had been so cynically appropriated as political tools by Republicans, to the extent that it now feels a little ooky to express one’s love for country lest we sound as vapid as they do. When the president tells us to “sacrifice” for the Iraq war, when he hasn’t done so; when people think slapping a cheap magnetic ribbon on their car is “supporting the troops”, and when a traitor like Karl Rove scores points with his base by labeling liberals as soft on terrorism, playing along with their imagery begins to feel like I’m associating with the soft evil of graven idols rather than honorable symbols of our country. Bill Moyers wore a flag pin one time, and explained it well, and predictably was pilloried by the conservative press for it; as far as I’m concerned it does as much to prove one’s patriotism as being an armchair chickenhawk blogger. If you care that much, sign up for the service. As it is, stateside cheap patriotism masks the fact that it’s a rich man’s war, poor man’s fight, and that we were led by lies into war by power-hungry idealogues. And hey, you want red, this is what a socialist critique looks like. Not that much of it isn’t true.

Other problems with conservativism: The war on science; the failure to stick to stated tenets (that is the famous Reagan “time for choosing” manifesto, in which he argues for such laudable goals as a balanced budget, decreased subsidies, and not sending aid to corrupt governments), and the lies, lies, damnable lies.

Tomorrow: The State GOP and the road to perdition and shutdown.