What isn’t surprising is that a 5 to 4 majority of the Supreme Court ruled to apply the Due Process Clause of the 14th Amendment to guarantee individual gun rights against states and local governments. I’m surprised it took them this long. What is surprising is that Clarence Thomas broke from the majority in order to push the Privileges and Immunities Clause, and perhaps revive it. This could hold a number of silver linings for progressives, particularly ACLU types whom I believe have been on the wrong side of the Second Amendment debate from the beginning. As the article states, Scalia couldn’t go that route because he hates to enforce unemumerated rights and would love it if the 14th and 9th Amendments would simply disappear. By reviving the concept, Thomas may have ensured that privacy and other unenumerated rights are permanently entrenched. So in killing gun control, he may have locked in abortion, rights to family, etc. Maybe even a new argument to universalize marriage in all 50 states.
I’ve discussed this extensively on my radio show. If I can find the time, I will discuss it in more detail here, and perhaps my next radio show.
Folks on both conservative and liberal sides of the issue often synonymize “original intent” with “strict construction” (as opposed to the liberal construction theory of the “living document”), but they are different animals. Thomas has just declared, at least for 14th Amendment purposes, that the original intent was precisely a living document. It’s a slippery slope for conservatives, because the Ninth Amendment lends itself to interpretation of the entire Constitution that way.
This congressional candidate from Arizona’s ad is in the spirit of the decision. No, it really isn’t satire!
Supreme Court Justice nominee Elena Kagan may have had it rough from Republican interrogators on the Hill today, but deceased liberal Justice Thurgood Marshall really took a thrashing!
Always loved Marshall’s argument for Brown v. Board of Education when asked whether he favored the philosophy of judicial restraint known as “gradualism.” He said, “I believe in gradualism. I also believe that 90 odd years is pretty gradual.”
He also hung on during the Reagan years well beyond his intended retirement, saying to someone, “if I stop breathing, prop me up!” Finally, under Bush, Sr., when he retired and gave his last press conference, he was asked why he was retiring. He looked at the reporter and shook his head, saying, “I’m old!”
He was a powerful force in the law even before the Supreme Court. I see all of the Republican kvetching today as an unintended tribute.
Among Kagan’s interrogators was Sen. Coburn who asked her to “set a new standard” and answer questions. Unfortunately, he did not request such a standard from Alito nor Roberts.
We hear so much about liberals who turn conservative. Today died a Senator whose political journey leftward was among the most dramatic – beginning his career as a Klan member and ending up one of the more liberal Senators in office. TPM has a photo memorial and a video memorial.
My personal favorite is his speech against the Iraq War on its eve.
No Tea Party this summer. It’s too hot.
Back the Supreme Court, Justice Kennedy exercised his swing vote prerogative to create another 5-4 majority allowing schools to discriminate against Christian groups which discriminate against homosexuals.
Alito’s argument that freedom of speech is abridged is ridiculous in my opinion. Nothing prevents the students from forming the group. They just don’t get to have formal recognition, which means that homosexual students don’t have to subsidize with their tuition fee an organization which will deny them participation.
The group probably shouldn’t have pushed the issue at Hastings.
Randal Terry, co-founder of the radical anti-abortion group Operation Rescue is lamenting the lack of protests against Elena Kagan. Terry is famous for refusing to condemn violent anti-abortionists. He was raised by a hippie mom by the way. He came to to believe that the Enlightenment is the root of all modern evil because it represented western civilization’s break from God. He blames it on St. Thomas Aquinas of all people.
But Montana’s GOP isn’t having any part of the Enlightenment. They’ve just adopted a platform which calls for the criminalization of homosexual acts.
Mississippi Governor Haley Barbour previously attacked the media for suggesting that oil had reached its beaches and invited tourists to come swim – prompting Jon Stewart to compare him to the mayor in the movie Jaws. He’s acknowledging the existence of the oil now. His new tack is to blame the federal government.