Relevant and even prescient commentary on news, politics and the economy.

Anthropomorphic Mexico

WASHINGTON — In June of 2010, four boys were playing in the dry bed of the Rio Grande that separates El Paso from Juárez, Mexico. The international borderline, unmarked, runs through the middle of the culvert.

The boys dared one another to run up a concrete incline and touch the barbed wire of the American border fence. An American border guard, Jesus Mesa Jr., grabbed one of them.

Another boy, Sergio Hernández Guereca, fled, and he made it back to Mexico before Mr. Mesa shot him in the head from about 60 feet away, killing him. Sergio was 15.

Last week, the Supreme Court agreed to decide whether Sergio’s parents may sue Mr. Mesa for violating the Constitution by using excessive force. If not, lawyers for the parents argue, then Sergio died in “a unique no­-man’s land — a law­-free zone in which U.S. agents can kill innocent civilians with impunity.”

Had Sergio been killed in the United States, he would have been protected by the Constitution. Had he been an American citizen, he would have been protected whether he was killed in the United States or in Mexico.

An Agent Shot a Boy Across the U.S. Border. Can His Parents Sue?, Adam Liptak, New York Times, yesterday

Dan emailed me the link to the article yesterday, with a subject line, “This might be of interest.  To which I responded:

This is very much of interest, Dan.  It’s not simply the narrow legal question about whether the family of this teen can sue for a violation of a U.S. constitutional right.  It’s also what I consider an absolutely critical issue: the Conservative Legal Movement’s aggressive privileging of the rights of “sovereigns” over the rights of individuals–usually they mean U.S. states–as though the “sovereign” is a person.  They call it the “dignity” of the states, and I guess in this case they’re calling it the “dignity” of Mexico.

Of course, the difference here is that, unlike in the states’-rights-to-violate-individuals’-rights–which almost always means state-courts‘-rights-to-violate-individuals’-rights (this dignity concern does not extent to the other two branches of state government)–the government whose dignity the Conservative Legal Movement judges are so concerned with is–what?–waiving its right to have the Conservative Legal Movement protect it from this affront to its dignity.

And, btw, the Fifth Circuit is the only circuit among the 12 federal appellate circuits that remains so thoroughly within the chokehold of the Conservative Legal Movement.  But if Trump wins, they’ll all quickly begin reverting back to it.

I’ll write something on this, but it’s a complex subject and I might not be able to finish it today.  But if not, then tomorrow.  I want it posted before Wednesday night’s debate.

What I was referring to when I said it is very much of interest (to the general public) is not fully apparent in the above excerpt; after all, most Americans will never be in a situation in which they are physically in a legal no-man’s-land.  But the operative word there is “physically,” by which I mean, in a physical rather than a metaphorical place whose very legal status, its reach by this country’s basic precepts of law, are deemed by this country’s federal courts to be nonexistent.

In legal jargon, what I’m talking about is the issue of “subject-matter jurisdiction”—the threshold authority—of federal courts to hear, to address, to consider, to not dismiss for lack of threshold legal authority to hear it, the lawsuit (whether civil in nature or quasi-criminal in nature, which is what most habeas corpus cases really are) whose purpose is to make a claim of one sort or another under the laws of this country.

But due entirely to a set of Supreme Court-concocted legal “doctrines” in civil cases and the lower federal courts’ all-encompassing interpretations of it, and a rewriting by the Supreme Court’s Conservative Legal Movement crowd of an already-awful 1996 jurisdictional statute to effectively repeal the Constitution’s habeas corpus provision’s applicability (via the Fourteenth Amendment) to state-court criminal convictions and sentences, anything that occurred in state court or is related in some way to what occurred in state court that arguably or inarguably violates a constitutional right of the individual who challenges it federal court is ruled beyond the jurisdictional reach of the federal courts.

And while the habeas corpus jurisdictional statutory interpretation at least purports to be, well, statutory interpretation, no such claim was ever made about one of the two doctrines barring access to federal court in non-habeas cases concerning something that occurred in or relating to state court.  It was always unabashedly simply a policy preference by the Court.  And as such, it violates the Constitution’s Article III, which accords Congress the sole authority to determine federal-court jurisdiction (subject to the Supreme Court’s determination that jurisdictional statute, or the absence of one, itself violates the Constitution).

The other of the two Court-fabricated jurisdictional doctrines is unique in its weirdness and, for the last 28 years, in its audacity.  The 5-4 opinion that created it in 1983 was a standard statutory-interpretation opinion, but the statute it interpreted was repealed five years later at the behest of William Rehnquist, then newly elevated as chief justice.  But instead of just dying with the repeal of the statute, it remained, but, like the other one, just a Court-created “doctrine”.

This itself has operated to permit the lower federal courts to treat the continued viability of the doctrine, post-1988-statutory-repeal, as it treats the other doctrine: as unchallengeable via litigation, by dint of its provenance as a Court-created jurisdictional pseudo-statute.  Or something.  And therefore beyond the reach of a court challenge to its continued viability, and its very constitutionality.  It’s not a statute, see.  And it’s not an Executive Branch regulation or policy, see.  It, like the state-court events that these doctrines, together, serve to bar from constitutional challenge in federal court, exist in a legal no-man’s land.  The actions, the operations, the consequences—they sure may be unconstitutional, but they’re also un-remedial.

Like the Mexican teen’s family’s case, according to the Fifth Circuit Court of Appeals.  And according to the Obama administration.  Liptak explains:

The Obama administration, in a brief urging the justices to deny review, said allowing civil suits in American courts was not the right way to address cross-­border shootings by American agents. The Mexican courts have jurisdiction over events that happen in Mexico, the brief said.

True enough, and the Mexican authorities did charge Mr. Mesa with murder. But the United States has refused to extradite him.

The government of Mexico filed a brief asking the Supreme Court to hear the parents’ case. “Applying U.S. constitutional law in such a case does not disrespect Mexico’s sovereignty,” the brief said. “Any invasion of Mexico’s sovereignty occurred when Agent Mesa shot his gun across the border at Sergio Hernández — not when the boy’s parents sought to hold Agent Mesa responsible for his actions.”

A trial judge dismissed the case, but a three-­judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, let part of it move forward.

“If ever a case could be said to present an official abuse of power so arbitrary as to shock the conscience,” Judge Edward C. Prado wrote, what Sergio’s parents described was that case.

The full Fifth Circuit reheard the case. While it agreed that “the death of a teenaged Mexican national from a gunshot fired by a Border Patrol agent standing on U.S. soil” was a “tragic incident,” it said Sergio’s parents could not pursue a claim under the Constitution.

A 1990 Supreme Court decision, United States v. Verdugo­-Urquidez, supports that view. It said some constitutional rights applied only within the nation’s borders unless the plaintiff had a “significant voluntary connection” to the United States.

But a more recent decision, Boumediene v. Bush in 2008, concerning people detained at Guantánamo Bay, Cuba, took a more flexible approach. It allowed detainees there to invoke the Constitution. The Fifth Circuit relied on the narrower view. By contrast, the Ninth Circuit, with jurisdiction over the border states of Arizona and California, has said that “the border of the United States is not a clear line that separates aliens who may bring constitutional challenges from those who may not.”

Under that broader standard, a trial judge in Arizona last year refused to dismiss a civil case against Lonnie Swartz, a Border Patrol agent who is accused of killing José Antonio Elena Rodríguez, 16, in another cross­-border shooting. Federal prosecutors have charged Mr. Swartz with murder, and he has pleaded not guilty.

Mexico’s Supreme Court brief described several other cross­-border shootings. More generally, it said, “shootings at the border — whether or not justified in any particular case — are, unfortunately, far from a rare occurrence.”

A 2013 report commissioned by United States Customs and Border Protection studied 67 shootings from 2010 to 2012. “Too many cases,” the report said, “do not appear to meet the test of objective reasonableness with regard to the use of deadly force.”

It’s all about preserving the dignity of the sovereign (or the “sovereign,” depending upon your viewpoint).  “Dignity”and “sovereign” being the Supreme Court’s terms, repeated time and again in cases justifying the incessant rulings by that court privileging the rights of state courts, but not the rights of state legislatures, and not the rights of state executive branches, at the cost of the constitutional rights of individuals that state courts, or someone or some entity related to something that happened in or in connection to one, has trampled.

At the Supreme Court in recent decades, states’ rights usually means state courts’ rights to violate individuals’ constitutional rights.  In the name of preserving the anthropomorphic right of the state to dignity.  Or, to be precise, their sovereign dignity.  Sovereign here apparently meaning the monarch, since monarchs, after all, are human.

But now the Mexican government, unlike the state governments whose dignity the Supreme Court’s Conservative Legal Movement knights in shining robes defend so gallantly, begs to differ on the meaning of sovereign dignity and on the underlying purpose of it.  That government, although it surely appreciates the thoughtfulness of the sentiment, apparently considers its citizens the ones entitled to dignity under civil rights and civil liberties and human rights law.  And in fact it may not even consider itself human.

How refreshing.

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How likely is it that Donald Trump, if elected, would serve more than a few months of his term? How likely is it that he will even continue as the nominee much beyond the convention?

My opinion is that Trump is suffering from what I call “Attention-Seeking Deficit Disorder.” He doesn’t want to serve. He doesn’t want to be president; he wants the attention that accompanies the campaign. And now, I think he’s rather afraid that he might win. [Laughs] I don’t think he knows what he’s going to do as president.

— Lloyd Wright, the Democratic National Committee’s media coordinator during the 1964 race.

That quote appears in an interesting interview published on last weekend’s Politico Magazine, with the title “LBJ’s Ad Men: Here’s How Clinton Can Beat Trump–We talked to two of the geniuses behind the greatest ad campaign in political history. Here’s what they’d do in 2016.”  The interview is by Robert Mann, author of the book Daisy Petals and Mushroom Clouds: LBJ, Barry Goldwater, and the Ad That Changed American Politics.  (The other participant is Sid Myers, former art director at the campaign’s advertising firm.)

Earlier this week Trump was quoted as suggesting that he isn’t having very much fun anymore.  I think this occurred the day after the judge in the Trump U. case ordered the public release of deposition transcripts and other documents from the litigation’s discovery process—information that, at least in my opinion, will be a death blow to his candidacy.

But also within the last two or three days, as Trump has spiraled into undeniable madness, I’ve seen articles such as one today by NYT Supreme Court correspondent Adam Liptak titled “Donald Trump Could Threaten U.S. Rule of Law, Scholars Say.”  That article begins:

WASHINGTON — Donald J. Trump’s blustery attacks on the press, complaints about the judicial system and bold claims of presidential power collectively sketch out a constitutional worldview that shows contempt for the First Amendment, the separation of powers and the rule of law, legal experts across the political spectrum say.

Even as much of the Republican political establishment lines up behind its presumptive nominee, many conservative and libertarian legal scholars warn that electing Mr. Trump is a recipe for a constitutional crisis.

All of the quotes in the article are from libertarian-right law professors.  But clearly, the expectation of blatantly unconstitutional conduct by Trump is hardly limited to that crowd.

Another article I read in the last day or two recounts the many statements Trump has made in the last few months that make clear that he doesn’t know even the basic contours of what each of the three branches of the federal government is charged under the Constitution with doing, and appears not to know that there is a separate of powers among the three branches under the Constitution.

Then there are those private conversations that Paul Ryan mentioned yesterday between him and Trump, which culminated in Ryan’s endorsement of Trump upon the stated ground that Trump would become Ryan’s puppet.  Trump, Ryan said, will support Ryan’s fiscal agenda. And regulatory agenda.  And Legal Movement agenda.  Which is what most large Republican donors care about.  Trump’s made it clear that the federal judiciary will be a branch of Koch Industries.  And that almost certainly is a promise he would keep.

Directly or via succession.  His own.

He’s assured Ryan that the Kochs, the securities and banking industry donors, and the pharmaceutical industry donors will control their respective industry’s administrative agencies, beyond anything that existed even in the Reagan and Bush II administrations. He’s done so publicly about the EPA.  And undoubtedly privately regarding the others.

Ryan doesn’t trust Trump to keep his promises.  But I think he needn’t worry, not because Trump himself actually understands what a promise is—he doesn’t—but because it will be Ryan and the Kochs who choose the vice presidential nominee.  The person who quickly will become the actual or de facto presidential nominee or, if the ticket wins, president within a few months.

I think Democrats need to consider the possibility of this scenario, and start seriously educating the public about the Ryan fiscal and deregulatory juggernaut in store for the country if the Republican ticket wins. And they should recognize that the real ballgame here may be the VP candidate.

If Trump remains the nominee and is elected, how long will he remain in office?

****

I’m not sure whether this is a serious post or not.

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Samuel Alito Thinks There Has Been a Constitutional Right of Four People to Marry One Another at Once Since 1967. Interesting.

Justice Kennedy said he was concerned about changing a conception of marriage that has persisted for so many years. Later, though, he expressed qualms about excluding gay families from what he called a noble and sacred institution. Chief Justice John G. Roberts Jr. worried about shutting down a fast­moving societal debate.

Justice Samuel A. Alito Jr. asked whether groups of four people must be allowed to marry, while Justice Antonin Scalia said a ruling for same­ sex marriage might require some members of the clergy to perform ceremonies that violate their religious teaching.

Gay Marriage Arguments Divide Supreme Court Justices, Adam Liptak, New York Times, this afternoon.

A fun parlor game among some progressive pundits leading up to today’s gay-marriage arguments at the Supreme Court has been speculating about what would be the most ridiculous analogy to gay marriage offered by … well … Scalia, who has offered his share of silly analogies on such things before.

But early reports on the argument suggest that it was not Scalia but Alito who distinguished himself most on this front this morning.  The constitutional issues in today’s six consolidated cases, called Obergefell v. Hodges, are essentially the same as the ones that were at issue in a 1967 case called Loving v. Virginia, in which the Court struck down as violative of the Fourteenth Amendment’s due process and equal protection clauses state laws that prohibited interracial marriage.

In fairness to Alito, I don’t know the specific context—the specific statement of counsel whom Alito was asking, perhaps, a follow-up question. But by mentioning Alito’s question in his short article written immediately after the argument, Liptak seems to suggest that Alito ‘s inquiry was pretty general.

So I’m guessing that Alito fears that a decision in favor of the gay couples who want to marry will remind people who want to marry three people at once—a.k.a., polygamy—that they have had a due process and equal protection right to do so since 1967.  Or else he just forgot about Loving.

Which would make him a bedfellow, apparently, of Hillary Clinton, who last summer told NPR’s Terry Gross, “For me, marriage has always been a matter left to the states.”  So, for her, it always has been, but for the interracial couple who challenged such a precept in Loving, it turned out not to be.

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Post edited slightly for clarity. 4/28 at 6:45 p.m.

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The Supreme Court and Politics–Especially the current conservative majority’s appropriation of the First Amendment in the service of Republican Party electoral victories

Dan Crawford emailed me this morning with a link to Linda Greenhouse’s op-ed in today’s New York Times, titled “Law and Politics,” and asked me to post about it.  A more apt title for the op-ed, which a headline writer rather than Greenhouse (whose bailiwick is the Supreme Court) titled, would be “The Supreme Court and Politics,” as that is its sole subject.

The piece discusses work by eminent political scientist Robert A. Dahl, who died earlier this month at the age of 98, establishing a particular  theory about the Supreme Court: that, although there is some inevitable lag time, the Supreme Court normally fairly quickly recalibrates to follow sea changes in public opinion.

Here’s how I responded to Dan’s email:

Hi, Dan.  I’m a big fan of Linda Greenhouse, but I disagree with some of what she wrote. I think Dahl’s 1957 article is more out-of-date than she says.  I agree more with Jack Balkin, whom she mentions, and who writes a popular law blog called Balkinization.  I think that the current Court majority will remain deeply steeped in the specifics of the Reagan-era conservative legal movement, which involves some really weird doctrines that they claim as constitutional ones, some of which the public is clueless about and that therefore these justices pay no price in public opinion for.  I’ve alluded to this on AB from time to time, but have wanted for a while to write in more depth about it.

There’s one really big “sleeper” case, especially, that was argued at the Court recently and that I mentioned, but that I want to write in more depth about.  I do think that if the majority rules the way they clearly want to in that case, there will be more publicity about it than they expect, and more backlash.  Not as much as with Citizens United or even as much as with the Voting Rights Act case last year, but they expect almost none and I think they’ll be surprised that they’re wrong about that.

But the bottom line is that I don’t think this crowd cares that much about public opinion.  They’d prefer, of course, that no one notice what they’re doing, but I doubt that fear of public backlash will stop what amounts to a Reagan-era legislative agenda that these people clearly are hell-bent on forcing into law, much of it inoculated against reversal by Congress (a la the Ledbetter case, which Greenhouse mentions) by claiming some constitutional ground for the ruling. Ledbetter and many of their other pro-business and pro-state-and-local-government procedural/jurisdictional-rules Supreme Court opinions–interpretations-cum-rewritings of procedural or substantive statutes, some overtly fabricated by the Court in pretty clear violation of the Constitution’s Articles I and II (separation of powers)–can eventually be reversed by a Congress not in thrall to the Koch brothers. (Congress reversed Ledbetter before Citizens United.)  But when the Court couches its rulings as constitutional dictate, Congress can’t reverse them.

But there are some aspects that are peculiar to this particular majority, and that has received very little attention.  Always in the past (at least to my knowledge), the Court limited itself in major, sweeping rulings to issues raised by the parties.  This was true, certainly, in the New Deal rulings first striking down New Deal legislation and then reversing itself and upholding most of the legislation.  It also was true in every aspect of the Warren Court era–racial issues, First Amendment issues, criminal defendants’ rights, etc.–and then in the Burger Court era (e.g., Roe v. Wade).  And those cases always were brought not by some manufactured-issue ideologues, as occurs regularly now, but instead by normal-circumstance “cases and controversies,” as the constitutional phrase goes.

What is happening now is an orchestrated dance between rightwing conservative-movement lawyers and groups, and the Reagan, Bush I and Bush II justices, in which some really bizarre constitutional and statutory-interpretation arguments are made, and then adopted by the Court, dramatically but very often quietly rewriting parts of the Constitution (e.g., the Supremacy Clause, flipping it upside-down when applied to state judicial branches but flipping it back to serve conservative-movement dogma in other contexts) and procedural and substantive statutes. In fact, a hallmark of this crowd is the casual flipping back-and-forth as convenient–a hallmark especially of Scalia and Alito.

Beverly

The “sleeper” case I referenced is Harris v. Quinn, which was argued to the Court on Jan. 21.  At first blush a labor-law matter under the National Labor Relations Act (a.k.a., “Taft-Hartley”), but apparently a majority of the Court plans to turn it into a First Amendment case. At oral argument, Samuel Alito claimed that public-employee unions, by their very existence, violate the First Amendment speech and assembly rights of workers who don’t belong to the union, and Anthony Kennedy suggested that the longtime labor-law rule known as a “fair share” provision in public-employee union contracts, allowed by Taft-Hartley and previous Supreme Court opinions, violates the First Amendment’s “petition” clause (right to petition the government for a redress of grievances).  Something about some anti-union public employees who are concerned about “the size of government” and who therefore want to be fired or have their wages and pensions reduced.

Seriously.

An op-ed in the Washington Post by labor and employment lawyer Moshe Marvit, published the day before the argument in the case, summarizes the background:

On Tuesday the Supreme Court will hear arguments in Harris v. Quinn, a case that has been referred to as a “sleeper” by both conservatives and liberals and may turn out to be the most significant labor law case in decades. It was brought by the National Right to Work Legal Defense Foundation (NRTW), whose mission is to use “strategic litigation” to “eliminate coercive union power and compulsory unionism abuses,”in this case on behalf of several personal assistants who provide in-home services to persons with disabilities under Illinois’s Medicaid program.

NRTW argues that these home-care workers are not public employees and therefore should not have the right to exclusive representation by a union, nor should they have to pay either membership dues or a “fair share” fee for the union they have chosen to represent them. (“Exclusive representation” means that all workers are covered by a union so long as the majority have voted for it. A “fair share” provision requires workers who are not union members to pay a proportionate share of the costs incurred by the union to support the workforce in the collective bargaining process. Unions are not allowed to use “fair share” fees on any political activities.)

But that was then.  Then, being before the oral argument.  Now, it’s a First Amendment case concerning forced speech about the role of government, and the right of public employees to petition their government employer for a redress of the grievance of big government.  Public employees who are concerned about the size of government should be entitled to resign, or forego a pay or pension increase and demand a larger employee contribution for healthcare insurance.

Or at least they should be allowed to accept those benefits without contributing to the union’s expenses to obtain them for the workers.

This is as opposed to, say, shareholders–some of them via their pension funds, some of them through mutual funds, and almost all of them entirely unwittingly–who care every bit as much about the size of government as do those anti-union public employees.  And who the Supreme Court has said must be forced to support the political views of the CEOs who use corporate funds to secretly contribute to Republican PACs.  Especially views about the size of government.  Each corporation is a person–specifically, the person who is its CEO.  At least if the CEO is a Republican.

States, too, it now turns out, also are people, entitled to Fourteenth Amendment equal protection of the law, a constitutional provision heretofore accorded to individuals as against a state’s denial of equal protection of the law.  Who knew?  Well, whatever.

No, Harris was not about the First Amendment until the Republican justices decided (apparently) that it will be.  As the articles about this case that I’ve linked to above show, this is in contrast to a case called Garcetti v. Ceballos in early 2006.  Wikipedia explains:

Garcetti v. Ceballos, 547 U.S. 410 (2006), is a decision by the Supreme Court of the United States involving the First Amendment free speech protections for government employees. The plaintiff in the case was a district attorney who claimed that he had been passed up for a promotion for criticizing the legitimacy of a warrant. The Court ruled, in a 5-4 decision, that because his statements were made pursuant to his position as a public employee, rather than as a private citizen, his speech had no First Amendment protection.

The case was by no means incidentally Samuel Alito’s, um, very first case as a Supreme Court justice.  He insisted.  Again, Wikipedia explains:

The Supreme Court reversed the Ninth Circuit, ruling in a 5-4 decision delivered by Justice Anthony Kennedy that the First Amendment does not prevent employees from being disciplined for expressions they make pursuant to their professional duties. The case had been reargued following the retirement of Justice Sandra Day O’Connor, as the decision was tied without her; her successor, Justice Samuel Alito, then broke the tie.

The four dissenting justices, in three dissents written by Justices John Paul Stevens, David Souter, and Stephen Breyer, took issue with the majority’s firm line against the First Amendment ever applying to speech made within the scope of public employment, arguing instead that the government’s stronger interest in this context could be accommodated by the ordinary balancing test.

Actually, what happened is that the original 5-4 opinion was issued just before the Senate voted to confirm Alito as O’connor’s replace.  Technically, the opinion had not yet become final when Altio was sworn in, because the short time allotted the losing party to file a petition for reconsideration had not expired.  The Court had not granted a petition for reconsideration in the preceding four decades or so.  But Alito supplied the fifth vote to rehear the case in order to reverse the result.

Kennedy wrote the opinion for the new majority.  Wikipedia summarizes it:

The Court wrote that its “precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.” Instead, public employees are not speaking as citizens when they are speaking to fulfill a responsibility of their job.

Unless, of course, the job responsibility at issue is compliance with a labor agreement negotiated between a union and the employer.  Or if the statement at issue concerns something as unimportant as the legitimacy of a warrant rather than the all-important matter of the size of government.

Also in today’s New York Times, along with Greenhouse’s op-ed, is an article by Adam Liptak, the Times’ current Supreme Court correspondent, about a case to be argued at the Court on Monday that, as Liptak notes albeit obliquely, promises to illustrate one of the hallmarks of this Court.  A Court majority that itself routinely, casually rewrites procedural and substantive statutes and allows the lower federal courts to do the same, for decades, until ExxonMobil or Sprint petitions the Supreme Court about it, takes umbrage when it is the executive branch rather than the judicial branch that encroaches upon the Congress’s constitutional prerogatives. But only when the executive branch is headed by a Democrat.

A Court that has so brazenly and aggressively precluded access to federal court, and most certainly to itself, as a mechanism to petition the government for a redress of grievances–effectuating a key goal of the conservative movement from which these five justices all hail–is about to concern itself with the right of public employees to petition for small government by refusing to pay for their union representation.

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The Kosher Butcher Who Was Not a Person Until He Incorporated Himself*

Religious liberty, [Tenth Circuit Court of Appeals] Judge Tymkovich wrote, cannot turn on whether money changes hands. “Would an incorporated kosher butcher really have no claim to challenge a regulation mandating non-kosher butchering practices?” he asked.

Court Confronts Religious Rights of Corporations, Adam Liptak, New York Times, today

Why, yes, Judge Tymkovich, of course an incorporated kosher butcher really would have a claim to challenge a regulation mandating non-kosher butchering practices.  But that’s because the kosher butcher also is an actual human and was one even before he incorporated himself, er, his butcher shop.

The butcher would have a claim as, um, the butcher–Ira Greenberg, human being, exercising his religious right to use kosher-butchering practices to kill his own food, and his religious right to obtain kosher meat in order to limit his meat eating to kosher.  He also would have a due process right to practice his trade and make a living, unencumbered by an utterly arbitrary and irrational prohibition (or, to use legal formality, a prohibition that has no legitimate governmental interest). And Ira Greenberg Kosher Meats, Inc., would have a similar due process claim, a constitutional claim that, unlike campaign-contribution claims or free-exercise-of-religion claims, could be invoked legitimately by a corporation, because it, unlike political contributions and religious practice, actually would concern the right to operate as the sort of business that it is.

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Adam Liptak, gun legislation, the Supreme Court

More on gun legislation and law:

…the bottom line is that Liptak’s spot-on, and that I think that the Supreme Court will use that Illinois case that Liptak discusses to make clear that the Second Amendment is not absolute. The Illinois statute bars carrying any weapons in public, even unconcealed ones.

I think that, 5-4, they’ll say that that is unconstitutional but that laws banning carrying concealed weapons in public are constitutional. I also think that, now, finally, Congress will pass laws against the sale of semi-automatic weapons and against the sale of ammunition clips of more than 10 bullets, and that once a constitutional challenge to those laws gets to the Supreme Court, the Court will uphold the laws.  

Beverly Mann, lifted from an e-mail to me

Gun plans don’t conflict with Justices 08 ruling by Adam Liptak reasons:

Despite the sweeping language of a 2008 Supreme Court decision that struck down parts of the District of Columbia’s strict gun-control law, the decision appears perfectly consistent with many of the policy options being discussed after the shootings in Newtown, Conn.

Legal experts say the decision in the case, District of Columbia v. Heller, has been of mainly symbolic importance so far. There have been more than 500 challenges to gun laws and gun prosecutions since Heller was decided, and vanishingly few of them have succeeded.

“Of the 12 deadliest mass shootings in American history, six have occurred since 2007” also caught my attention.

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