Sunday Talks, 7/29/12

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In an unusual twist, Supreme Court Justice Antonin Scalia and former Justice Sandra Day O’Connor appear on this Sunday’s television talks shows — Scalia on “Fox News Sunday” and O’Connor on CBS’s “Face the Nation.”

CBS . . . → Read More: Sunday Talks, 7/29/12

Digging Deeper: Justice Scalia, No Fear of His Own Horror

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It’s not the 4th of  July, but I’m having flashbacks to two century-old Supreme Court cases involving liberty: Plessy v. Ferguson and Dred Scott.

Dred Scott was a slave who sued for his freedom on the grounds he moved from a state that chartered slavery to federal territory that didn’t recognize slavery as a legal institution, and did recognize a number of citizenship rights for blacks including marriage. Therefore as a resident in a free land with no provision for slavery, he should be free. The Supreme Court’s decision, by seven to two, abrogated his right, but also states’ rights. When it came to slavery, the court ruled the slave had no standing to bring a legal case against his or her status. The court also firmly declared slaves were property, chattel, having “no rights any white man was bound to respect.” Despite state laws, a slave transported to Massachusetts remained in bondage.

The Dred Scott decision was only the second time an act passed by Congress was ruled unconstitutional. Chief Justice Roger Taney’s written decision struck down the Missouri Compromise, passed in 1820, which limited the expansion of slavery into federal territories.

The 14th Amendment removed Dred Scott as a legal precedent, but it remains important in history, as example of how US law is interpreted and rights altered through the institutions of the courts, states, and federal government. For often, law is about ends and means, what it affirms and what it denies.

I’m an American-born, free black. Supreme Court Associate Justice Antonin Scalia wants to return to the days when my state, South Carolina, could come to my door and demand that I leave. By state law, South Carolina authorities before 1865 before could compel me by force to leave the state. The state could prohibit my return. Not because of crimes, but merely due to my status—as free and black. The basis of such state laws, among others, was the Dred Scott case.

On Monday, Justice Scalia referred to such an egregious use of force by the state to compel forced removal as “travel restrictions.” The dislocation of free people—a violation of common sense, morality, ethics, human rights and settled law—was one of the examples Scalia chose to cite in his 22-page dissent on Arizona v. the United States, which tells why he sees Arizona having the historic and absolute right to expel residents at will.

Scalia, in his independent, after-the-fact dissent on Arizona v. the United States, desperately wants states to have the same expired right to ban or expel undocumented workers. He goes a step further and sees the constitution and legal precedent as granting—no, more—guaranteeing this right of sovereignty to states, with the federal function to protect the entitled state authority above its own.

The removal of a person from a state may be a matter of policy and civil law, but against the person, it is a high crime and a declaration and act of war. Some have already taken Scalia’s fantasy-filled illogic to call for secession—again. The desire to truncate all federal activities burns in their hearts.

From a blog:

“Message to Arizona- Start forming Infantry Regiments wholly under the control of the Arizona Governor and state legislature. It is impossible to see any other alternative for states and citizens wishing to protect their Constitutional rights in the face of a runaway Federal Government of the United States, and its various organs, that has all but suspended the founding intent of the original Constitutional Convention.


The American tradition of jurisprudence is giving every lying, crazy white man a pass, through what Jeffery Tobin called a “loss of perspective.” There is freedom of speech but no freedom to reside, if the state decrees so by law. If Scalia is right, by extension, we are all naked, unprotected—as free blacks once were! We can all sing “Kumbaya” on the bus.

And with his dissent, Justice Scalia became the first justice ever to use a dissent as a blog.

Careful reading of Justice Scalia reveals he uses established principles of international law on sovereignty. As a strict constitutionalist, wedded to original meanings, his far afield examination of international precedents outside US law seems to go against his own logic and prescriptions. The decisions and principles he cites are about national sovereignty, not the sovereignty of states or entities within a nation. He is treating the constitution as a contract whose purpose is to establish a federal government to provide services as the states collectively require, but with limited authority of its own. In fact, Mr. Scalia at one point cites the Articles of Confederation—written before the constitution, when the colonies were independent, as relevant. He sees no prudent limitation on the authority of states.

He does not see the state’s action as poaching on federal authority: “The state’s detention does not represent the commencement of the removal process unless the Federal government makes it so.” “The most important point is Arizona is entitled to have “its own immigration policy”—including a more rigorous enforcement policy—as long as it does not conflict with federal law.” “There is no reason Arizona can not make it a state crime for any removable alien to remain in present in Arizona.” And then: “What I fear is that federal policies of “non enforcement” will leave the states helpless before those evil effects of illegal immigration that the Court dutifully recites in its prologue but leaves unremedied in its disposition.”

This last statement is a clear call to action: the assertion that the Court is to provide a remedy that goes beyond legal merits and attacks “evil effects.” As a free black (once removed!) I cringe that the scales of Scalia’s justice now weigh evil effects. Especially without concern for the justifying excesses of unrestrained authority. It seems Justice Scalia protects, as one of the original states’ rights, the right to discriminate without regard to liberty, due process, human rights, or national policy, calling himself an originalist, not an activist.

Plessy v. Ferguson, heard in 1896, involved segregated, race-based seating on street cars in Louisiana. The Supreme Court ruled that the 14th amendment was not intended to eliminate or abolish differences of social privilege based on race or color, and states had a right to reflect custom, tradition and use in their laws. Discrimination as a custom could be legally maintained. Plessy by law must sit in the colored section during his public journey. Continue reading Digging Deeper: Justice Scalia, No Fear of His Own Horror

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Take Five (There Oughta Be a Law edition)

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ONE: A Good Week for Civil Rights

On February 7, the Ninth Circuit Court of Appeals declared California’s infamous Proposition 8 unconstitutional. Six days later, Washington became the seventh state to enshrine marriage equality into law. These are causes for celebration, but neither fight is over.

The Court of Appeals decision is merely the latest chapter in a story that began in 2008. The next chapter will likely be the written in Washington, once the organization files a Supreme Court Appeal. The group, which describes itself as a “broad-based coalition of California families, community leaders, religious leaders, pro-family organizations and individuals from all walks of life who have joined together to defend and restore the definition of marriage as between a man and a woman,” also has the option of an en banc appeal to an expanded judicial panel in the Ninth Circuit.

California marriage rights advocates will have to hope that court action(s) go their way; there seem to be no alternative approaches at this point. Love Honor Cherish, who have fought Prop 8 every step of the way, announced this week that they’ve abandoned their quest for a November ballot measure for formal repeal, following in the footsteps of LGBT advocacy group Equality California, which announced last fall:

In 2009, we anticipated that 2012 would provide our best opportunity in the near term to overturn Proposition 8 at the ballot. However, based on our analysis of public opinion and the significant challenges of the current political and economic climate, we concluded in fall 2011 that more work must be done and announced that we will not lead an effort to return to the ballot in 2012.

Following the enactment of Washington’s new law, marriage inequality zealots immediately began to close ranks:

A group called Preserve Marriage Washington filed Referendum 73 Monday afternoon. If they collect the more than 120,577 valid voter signatures needed by June 6, the law will be put on hold pending the outcome of a November vote. Separately, an initiative was filed at the beginning of the legislative session that opponents of gay marriage say could also lead to the new law being overturned…

The Washington, D.C.-based National Organization for Marriage, which was involved in ballot measures that overturned same-sex marriage in California and Maine, has promised to work with Preserve Marriage Washington to qualify the referendum to overturn the new law.

Given the time allowed and the low signature threshold, a November ballot measure seems inevitable. To find out how you can help defend hard-won equal rights under the law, go to the Washington United for Marriage website.

TWO: Justice Under Siege

While chilling at his vacation home on the Caribbean island of Nevis last Thursday, Supreme Court Justice Stephen Breyer, along with his wife and two guests, was robbed at machete-point by an intruder. The robber’s take was roughly $1,200. Happily, no one was hurt.

Since the story was fairly short on details, a number of media outlets supplemented it with crimes involving other justices:

Known crimes against the current justices are rare. In 2004, a group of young men assaulted now-retired Justice David Souter as he was jogging near his apartment in Southwest Washington.

And in 1996, Justice Ruth ­Bader Ginsburg was the victim of a purse-snatching as she and her husband and daughter were walking near the Kennedy Center.

Conspicuously unmentioned in such reports were Justices Scalia and Thomas, but I suppose that’s because they’re much more apt to be perpetrators than victims when it comes to criminal behavior.

THREE: Motor City Madman

General Motors, which you might recall is one of the two giant auto companies Barack Obama saved from extinction, had some good news to share today:

G.M. said it earned a quarterly profit of $472 million, or 28 cents a share, down from $510 million, or 31 cents a share, a year ago. It was the eighth consecutive quarterly profit for the carmaker…

For all of 2011, G.M. earned $7.6 billion, nearly all of it from North America. That was 62 percent higher than the $4.7 billion it earned a year ago and nominally more than G.M.’s previous record of $6.7 billion in 1997 (in today’s dollars, the 1997 profit would be about $9.4 billion).

This comes two days after someone named Mitt Romney (apparently the leader of a group of people who believe Mitt Romney should be President) contributed an op-ed to the Detroit News, in which he vacillates – sometimes within the same paragraph – between decrying President Obama’s handling of the auto bailout and trying to take credit himself for its success:

The indisputable good news is that Chrysler and General Motors are still in business… The president tells us that without his intervention things in Detroit would be worse. I believe that without his intervention things there would be better… Instead of a bailout, I favored “managed bankruptcy” as the way forward… Shorn of… excess costs, and shorn of the bungling management that had driven them into a deep rut, they could re-emerge as vibrant and competitive companies. Ultimately, that is what happened. The course I recommended was eventually followed…

Now, I’m no diagnostician, but I’m guessing Romney’s confusion could be a result of the weird medical condition he mentions in the same piece:

Cars got in my bones early. And not just any cars, American cars.

Ouch! That might also explain Romney’s apparent preference for driving imports:

[Romney has] released an ad showing him driving around in a fancy Chrysler while he talks about how much he loves Michigan, and all…

And here’s the problem: that Chrysler that he’s driving is a 300 model, and the 300 is made in Canada.

In fairness, Romney does seem to have been driving American back in the days when he, his family, and his Irish setter Seamus made their annual vacation trip to, uh, Canada.

Romney is unambiguous in advising the White House what to do next:

The Obama administration needs to act now to divest itself of its ownership position in GM.

The shares need to be sold in a responsible fashion and the proceeds turned over to the nation’s taxpayers.

As always, President Obama is taking a smarter, more patient approach:

Shares of G.M. are worth about one-quarter less than the price set in an initial public offering in November 2010, when the federal government sold most of the 60 percent stake it received in G.M. after shepherding the company through bankruptcy.

The government still owns 26 percent of G.M., but the Obama administration has delayed plans to sell those shares in the hopes of recovering a larger percentage of its investment as the share price increases.

Oh, and Mitt? One more noteworthy item from today’s report:

The results mean G.M.’s hourly workers in the United States will receive profit-sharing checks next month of up to $7,000, a record…

Sounds like crony capitalism at its finest. Continue reading Take Five (There Oughta Be a Law edition)

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