What I’m Reading, September 23, 2015

5 Surprising Things I Learned Infiltrating An Armed Militia, Harmon Leon, Cracked, August 03, 2015

The sound of gunfire rang off in the distance. Tense and paranoid, the backroom of the Westside Pistol Range felt like an Alex Jones discussion board come to life. Amalia arrived late with a lot on her mind. She shuffled through a handful of notes from her independent research on a nightmare anti-Utopian vision of America in which citizens are rounded up by their own government and placed in giant concentration camps. “They could just take us — because they kind of own us!” she stated with certainty.

The group listened intently. A large man behind me chimed in, his words accented by gunshots: “When the banks fail, they can confiscate our assets and not pay us back,” he said. Then he added that what Amalia mentioned could be found in a secret military manual called Civilian Management.

The 15 members present were frustrated, and wanted to take control of their lives in an America which they see as spinning out of control. Most importantly, these patriots wanted to hold on to their guns, so as to be armed against “unconstitutional” orders from an increasingly tyrannical government.

These are the Oath Keepers, a nonpartisan (but libertarian-leaning) organization whose members call themselves “Guardians of the Republic.” Founded in 2009 by Yale-educated attorney, former army paratrooper, and Ron Paul staffer Stewart Rhodes, their mission is to defend the Constitution against all enemies both foreign and domestic. The Oath Keepers’ core membership is largely comprised of active duty and retired police officers, firefighters, and military. Since Hurricane Katrina, they’ve feared that martial law will be instigated during future disasters and land every American in a 24/7 FEMA camp. Their motto: “Not on our watch!”

America’s Fragile Constitution, Yoni Appelbaum, The Atlantic, October 2015 Continue reading


If They Could Turn Back Time…


If the Civil War had not taken place, we might not have the Fourteenth Amendment. But it did, and we do. Laws that once might have applied only to the federal government now apply to the states as well.

By the same token, if the Articles of Confederation had worked, we would not have the Constitution. But they didn’t, and we do. We cannot go back and undo the Civil War, and we can’t go back to the Articles of Confederation. Time only flows one direction.

– Hrafnkell Haraldsson, “It’s Getting Hard to Tell Where Sovereign Citizens End and Republicans Begin“, PoliticusUSA, April 24, 2015


Our F—ed Up Health Care System

By ErgoSum88 (Own work) [Public domain], via Wikimedia CommonsA now-former neurosurgeon at a Dallas hospital is accused of multiple botched surgeries, resulting in debilitating injuries, paralysis, and death.

Thanks to a provision of Texas law enacted in the name of “tort reform,” plaintiffs cannot recover damages from the hospital unless they can prove that it had “specific intent…to cause substantial injury or harm to the claimant”

In the fight to have that provision declared invalid under the “Open Courts” provision of the Texas Constitution, the state (by and through its attorney, Attorney General/gubernatorial candidate Greg Abbott) has intervened on the side of the hospitals.

Texas: it’s like a whole other country. A shitty one.

Photo credit: By ErgoSum88 (Own work) [Public domain], via Wikimedia Commons.


The Pocahontas Argument

The following argument was actually made, out loud, during proceedings before the Fourth Circuit Court of Appeals in Bostic v. Schaefer, a same-sex marriage case (the context is a comparison between anti-same-sex marriage laws and anti-interracial marriage laws struck down in Loving v. Virginia):

There is a history, prior to the Jim Crow era laws, the anti-miscegenation laws. The idea of interracial marriage was not prohibited. It still fit within the fundamental right of marriage, the idea of a man-woman marriage. Before Virginia passed those affirmative anti-miscegenation laws, it might not have been the social norm, but people certainly could have married, and indeed did marry, across racial lines. Pocahontas married John Rolfe in the early 1600s and their marriage wasn’t declared unconstitutional

David S. Cohen at Slate deconstructs some of the problems with this argument, although I suspect one could write a book detailing just the legal or historical problems with it. As Cohen notes: Continue reading


What I’m Reading, April 30, 2014

By Constitution_Pg1of4_AC.jpg: Constitutional Convention derivative work: Bluszczokrzew (Constitution_Pg1of4_AC.jpg) [Public domain], via Wikimedia CommonsLibertarian Law Prof Debunks Bundy Nonsense, Ed Brayton, Dispatches from the Culture Wars, April 25, 2014

As some of the more militant libertarians, especially the anarcho-capitalists, flock to the support of Cliven Bundy in his standoff with the federal government, most of the libertarian-minded law professors are debunking their absurd claims and pointing out how gloriously wrong those people are. Josh Blackman is one of them.

First, Bundy seems to reject the Constitution’s property clause. (It was a wonderful twist of scheduling fate that I assigned the “Property Clause” in ConLaw the week after the Bundy Ranch standoff. ) In an interview he said that the federal government has “no jurisdiction or authority” on his grazing rights. Under the Property Clause, Congress has the power to “dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” The land at issue was owned by the United States prior to Nevada statehood as a territory. I suspect Bundy will argue that his family has obtained a prescriptive easement on the land, as it has continuously, openly, and (absolutely) hostilely, grazed on the land for 170 years. Though, adverse possession is not permissible against the federal government. Continue reading


Eight Amendments

Here’s something you might not know about the Bill of Rights, from Gerard Magliocca:

Is the Bill of Rights the first eight amendments or the first ten? No doubt many of you would say 10 because ten were ratified in 1791.

Many cases and commentators, though, define the Bill of Rights as the first 8. Learned Hand took this view. So did Hugo Black and Felix Frankfurter. Why is that? Partly it’s because they did not care for the Tenth Amendment and thus wanted to read it out of the Bill of Rights. (Black also didn’t like the Ninth Amendment). Another thought is that the Bill of Rights must really be about specific individual rights, which leaves the 9th and 10th out in the cold. You can find many authorities that use this formulation, and as far as I know there is no definitive statement from the Supreme Court to the contrary.


Hello, I’m the Twenty-Fourth Amendment to the United States Constitution. I Don’t Believe We’ve Met.

578107_78992564As we all know by now, presidential candidate Mitt Romney thinks that just under half of the country does not take full responsibility for their own lives, blah blah blah. No need to rehash all of that here. The meme has, rather interestingly, coincided with another Republican cause célèbre, voter ID laws. (Note to right-wingers: I will understand if you are uncomfortable using the French phrase “cause célèbre.” If you prefer, you may use the alternate phrase, “freedom fame.”)

Specifically, a Pennsylvania Republican is not concerned about possible disenfranchisement from the law he is sponsoring, apparently because people without photo ID just aren’t taking enough responsibility for their lives:

As Pennsylvania’s strict voter ID law returns to the lower court for reconsideration, its original sponsor, Rep. Daryl Metcalfe (R-PA), told KDKA Radio Wednesday morning that his law will only disenfranchise “lazy” people, like the ones Mitt Romney was talking about in the leaked video of a private fundraiser.

When pressed on the issue, Rep. Metcalfe had this to say:

“I don’t believe any legitimate voter that actually wants to exercise that right and takes on the according responsiblity that goes with that right to secure their photo ID will be disenfranchised. As Mitt Romney said, 47% of the people that are living off the public dole, living off their neighbors’ hard work, and we have a lot of people out there that are too lazy to get up and get out there and get the ID they need. If individuals are too lazy, the state can’t fix that.” [Emphasis added]

He is both right and wrong, but let me first say this: Republicans, you have a problem with the word “legitimate.” Seriously, you should consider not using that word for a long while.

Now then, Rep. Metcalfe is right that the state cannot compel a “lazy” person to take an interest in politics or society. I would think that would be obvious. Here’s the rub, though: the state cannot compel a person to jump through arbitrary hoops to participate in society. Rep. Metcalfe is placing the blame on people who have lived their lives, by all accounts perfectly well, without the documents that he now says they need in order to vote. I call bullshit.

The people affected by Rep. Metcalfe’s proposed law would need to obtain documentation, typically at a cost, in order to participate in their own democracy. Study after study has shown that voter ID laws are a solution in search of a problem. The only reason certain people would need to obtain a driver’s license or other photo ID, therefore, would be to vote. It would be an expense solely associated with the act of voting, and there is a name for that: a poll tax.

Meet the Twenty-Fourth Amendment to the United States Constitution, ratified in 1964:

SECTION 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

SECTION 2. The Congress shall have power to enforce this article by appropriate legislation.

Efforts to make people incur expense as a condition of voting has quite the dirty history in this country. Let’s not tiptoe back into our utterly-backwards past whilst trying to blame it on a mythical “lazy” class of people, okay?


Constitution Day Celebration

ACC's Constitution Day event, September 18, 2012I had the opportunity this past Tuesday, September 18, 2012, to serve as a facilitator at Austin Community College’s annual Constitution Day event. I got to lead a group of ACC students in a discussion of a constitutional issue. After the discussion, each group has two students get up: one to argue for the constitutionality of the subject, and one to argue against it. This was the second year I have participated, and for all that I joke about warping the minds of America’s youth, it is a truly great experience to help people explore these issues. The students range in age from high school to retired, and from painfully shy to please-let-someone-else-speak.

My table’s question dealt with the assassination of Anwar al-Aulaqi (sometimes spelled “Awlaki”), an American citizen living in Yemen. After he was linked to al-Qaeda, the Fort Hood shooter, and the “Underwear Bomber,” he was placed on a CIA assassination list. An unmanned drone killed him and several others in Yemen on September 30, 2011. The question, in essence, was this: since al-Aulaqi was a natural-born U.S. citizen (born in Las Cruces, New Mexico), did his placement on a “kill list” without trial or conviction violate his rights under the Fifth and Fourteenth Amendments to the United States Constitution? Discuss.

Discussion Topic from ACC's Constitution Day event, September 18, 2012

Click to embiggen


No, he means the *other* founding documents… (UPDATED)

Paul Ryan is unhappy with the Democratic Party. In other news, water is wet and I like donuts.

Specifically, Paul Ryan is unhappy that the Democratic party’s platform doesn’t mention the capital-G man even once. (Because if Democrats should be taking pointers on their platform from anyone, it should be the other party’s Vice Presidential nominee.)

The Democratic Party’s platform makes no reference to God, drawing criticism from Republican vice presidential candidate Paul Ryan.

Ryan tells Fox News’ “Fox & Friends” the change is not in keeping with the country’s founding documents and principles and suggests the Obama administration is behind the decision. The Republican platform mentions God 12 times.

The 2008 Democratic Party platform made a single reference to God, referring to the “God-given potential” of working people.

“Founding documents and principles,” he says. Does he mean the Declaration of Independence? I’ll throw him a bone there, since it does mention “God” one time.

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

Well, it says “the Laws of Nature and Nature’s God.” Is that different from Paul Ryan’s God? Probably. Thomas Jefferson is credited with writing the Declaration of Independence, and he generally does not seem like a man who wasted words. Historians can argue over the precise meaning of “Nature’s God,” but the important thing to note is that, between this and the U.S. Constitution, i.e. the two “founding documents” that matter, this is the only time anyone uses the word “God.” He uses the word “Creator” elsewhere in the Declaration of Independence, but that’s even more ambiguous than “Nature’s God.” Continue reading