Tag Archives: links

Palin’s Speech

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Okay, I’m tired of writing about Sarah Palin. I’m tired of thinking about Sarah Palin. I want her to go away. But she won’t go away.

I don’t know what to make of her speech last night. She sure fired up the base. There’s no chance she’d leave the ticket now — she’s all in. Miers’s Supreme Court nomination tanked only because she lacked base support; the far right didn’t care a whit that she was unqualified to be on the Court. But Palin, they love her. And, of course, they don’t care a whit that she’s unqualified to take over the U.S. presidency.

Anyway, her speech seemed kinda… nasty. Negative. Snide. I don’t see how it wins over swing voters. I understand that sometimes the VP candidate is supposed to be the attack dog, but it didn’t sit right. It seemed like something from Fox News. I thought to myself, You’ve got some nerve, lady, giving a speech like this. Nobody knows anything about you except these tabloidesque revelations that have dribbled out over the last few days, and this is the speech you give?

She’s definitely got chutzpah. But that seems to be it.

And when you combine it with Nosferatu’s Giuliani’s speech, wasn’t last night all very Pat Buchanan 1992? And apparently Rudy’s speech ran long, so they had to cut out Palin’s biographical film in order to stay in prime time. But it went past prime time anyway.

I swear, I fear and loathe this woman. I don’t know what it is.

Constitutional Confusion

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The problem with constitutional interpretation is that we often confuse the question of what the law should be with the question of what the Constitution says the law is. Non-lawyers often confuse their policy preferences with constitutional interpretation. Actually, legal scholars do it too. Otherwise there would be no such things as 5-4 Supreme Court decisions.

Therefore, when you take a complicated issue, such as gun control, where there are decent arguments on both sides, and you throw in the task of trying to interpret a constitutional provision that is both (1) written in eighteenth-century language and (2) confusingly worded even for the eighteenth century, it’s easy to throw your hands up and say, “How the hell do I know?”

That’s what I sometimes do.

Scalia and Guns

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A couple of weeks ago, Justice Scalia, in dissenting from the Supreme Court decision stating that Guantanamo detainees have habeas corpus rights, lamented that the ruling “will almost certainly cause more Americans to be killed.”

Today he wrote an opinion finding a broad right to own handguns, a decision that, one could argue, “will almost certainly cause more Americans to be killed.”

Maybe, maybe not, but thanks to Slate for pointing out the contradiction. If it is one.

I don’t know whether the ruling is correct or not. The opinion and two dissents run to more than 150 pages, and they’re unusually chock-full of scholarly, historical analysis. And we’re talking about a sentence that was written more than 200 years ago in a vastly different world with vastly different writing styles and vastly different guns.

This is what happens when you try to interpret one of the world’s oldest functioning constitutions. Do other countries, with newer constitutions, have this problem? Do other countries’ judges have to interpret such sentences as, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”? Let alone the crappy sentence structure, what do the individual words mean?

It’s worth noting that the D.C. law at issue was pretty extreme. It banned the possession of handguns in your own home, and all other types of guns in your home had to remain either unloaded and dissassembled or bound by a trigger lock or similar device. The majority opinion has narrow effect — it strikes down this law, but it doesn’t discuss other types of gun laws, including that prevent criminals or the mentally ill, etc., from having guns.

Scalia ends his opinion as follows:

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns… But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

What happens if we change a few words?

We are aware of the problem of terrorism in this country, and we take seriously the concerns raised by the many amici who believe that the stripping of habeas corpus rights is a solution. The Constitution leaves the government a variety of tools for combating that problem… But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the stripping of habeas corpus rights except in times of rebellion or invasion. Undoubtedly some think that the right of habeas corpus is outmoded in a society where the threat of terrorism is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce constitutional rights extinct.

Who’s right?

Who knows?

Isn’t Supreme Court analysis fun?