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Author Topic: Issues in the American Creed (Constitutional Law and related matters)  (Read 133834 times)
bigdog
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« Reply #400 on: June 09, 2011, 05:53:24 AM »

http://arstechnica.com/tech-policy/news/2011/06/tenn-law-bans-posting-images-that-cause-emotional-distress.ars
« Last Edit: June 09, 2011, 10:31:16 AM by Crafty_Dog » Logged
G M
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« Reply #401 on: June 09, 2011, 08:52:19 AM »


That law offends me and causes me emotional distress. Can I get an arrest warrant sworn out for the TN. legislature and Gov.?
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DougMacG
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« Reply #402 on: June 09, 2011, 01:01:16 PM »

"Obama killed the War Powers Resolution
« Reply #967 on: June 07, 2011, 10:02:16 AM »
http://www.nationalreview.com/articles/268973/obama-kills-war-powers-act-rich-lowry"
(From Bigdog - Political Economics)

How could anyone confuse our presence in Libya with war.  Obviously it is only a kinetic stationing of military equipment and personnel...

Let's say a President believes the War Powers resolution to be unconstitutional, what is the proper way to challenge it?  Defy it and let congress take you to court?
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Crafty_Dog
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« Reply #403 on: June 09, 2011, 05:09:28 PM »

Ignore it.  Let Congress defund or not.
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G M
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« Reply #404 on: June 09, 2011, 06:18:38 PM »

I don't think the WPA is valid, however, exactly how could the Libya fiasco be defunded without killing all funding to the DoD?
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Crafty_Dog
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« Reply #405 on: June 09, 2011, 09:27:32 PM »

Isn't spending targeted?  e.g. $X for the XYZ plane, $Y for Iraq, $Z for toilet seats, etc?
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G M
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« Reply #406 on: June 09, 2011, 10:06:13 PM »

I don't know exactly what the legal boundaries are if there was a real conflict between the congress and the executive in a scenario like that. BD?
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bigdog
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« Reply #407 on: June 10, 2011, 05:44:31 AM »

The answer is that it depends.  The budget itself can be broken down into pieces, hence the theoretical ability for a line item veto.  However, there are many instances, most famously in places like the NSA and CIA funding, where the budget simply says something like "operations."  This is for funding, but a very select few know how the funding actually is used.

A pretty good place to begin is here: http://www.gpoaccess.gov/usbudget/fy12/pdf/BUDGET-2012-BUD-7.pdf (defense specific) or http://www.gpoaccess.gov/usbudget/fy12/index.html (with links to many different portions of the budget). 

Is this the info you want Guro and/or GM?
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Crafty_Dog
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« Reply #408 on: June 10, 2011, 12:02:17 PM »

I believe my point is supported, i.e. that the House of Reps, where spending originates, can specify to what purpose the spending is to be put and to specify that spending can not be put to other purposes.

Was this not the root of Iran-contragate?  That the Ollie North and other Reagan folks were looking to raise money that they could not get from Congress?
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G M
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« Reply #409 on: June 10, 2011, 01:32:25 PM »

http://www.ft.com/cms/s/0/11d5624c-920f-11e0-b8c1-00144feab49a.html

 
The document, entitled the “United States Contribution to Operation Unified Protector’’, adds that US costs are running at a rate of about $2m a day or $60m a month. The memo has been circulating on Capitol Hill since last week. The DoD declined to comment on the increased costs of the operation.
 
The pace of spending is higher than reported by the DoD comptroller’s office in late March. In a congressional hearing, Pentagon officials said the US had spent about $550m on Libya, at a rate of about $40m a month.
 
If spending remains at the increased rate until the end of the recently extended Nato authorisation period, the DoD could face an extra bill of about $274m to pay for a combination of air strikes, refuelling operations and intelligence-gathering missions, putting further strain on its budget.
 
Any extra spending will further strain the DoD’s budget, which is under pressure from cost overruns on procurement programmes and under threat from significant cuts as part of Congressional efforts to address the federal deficit.
 
Despite continuing to press the White House for additional funding for Libya operations, in his May comments Secretary Gates suggested that “in the case of Libya, unfortunately, we’re fundamentally having to eat that one.”
 
Any additional costs could also add to pressure on the US to limit its mission in Libya. Last week, the House of Representatives passed a non-binding resolution demanding that President Obama explain the US involvement in Libya, forestalling a more radical measure seeking an end to US involvement.
 
Although it is working under Nato, the US is by far the largest contributor to operation Unified Protector. As of mid-May it was conducting 70 per cent of reconnaissance missions, over 75 per cent of refuelling flights and 27 per cent of all air sorties.
 
The US has about 75 aircraft, including drones, involved in the operations and since the end of March has conducted about 2,600 aircraft sorties and about 600 combat sorties. In addition the US military can call on a number of naval assets in the Mediterranean.
 
As well as its contribution to the Nato operation, US spending on Libya includes its twelve day operation Odyssey Dawn that took place before Nato took over.

In total the US military has fired about 228 missiles as of mid-May. For comparison the US Navy plans to buy 196 or so missiles this year for about $300m or about $1.5m each, according to US budget documents.
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bigdog
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« Reply #410 on: June 13, 2011, 08:00:36 PM »

Today is the 45th anniversary of the Miranda decision. 
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G M
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« Reply #411 on: June 13, 2011, 08:04:29 PM »

Today is the 45th anniversary of the Miranda decision. 
Boo!  wink
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bigdog
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« Reply #412 on: June 13, 2011, 08:15:02 PM »

That was all for you, GM!!!   wink
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Crafty_Dog
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« Reply #413 on: June 14, 2011, 10:45:17 AM »

GM:

If I understand correctly your point in posting that about the DoD budget (and noted that we are burning up missile inventory) it is to imply that Congress cannot order on what money is to be spent or not because in Libya we see the DoD showing discretionary actions.  Is that correct?
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G M
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« Reply #414 on: June 14, 2011, 10:54:31 AM »

Crafty,

I don't really know how the budgeting works. As our Libyan war "kinetic military activity" wasn't approved or funded by congress, where does the money for it come from? If congress really wanted to use the "power of the purse" to stop it, how could they?
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Crafty_Dog
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« Reply #415 on: June 14, 2011, 12:22:43 PM »

I wish I could speak with more certainty on the point, but my understanding is what you are seeing now is the Pentagon using general purpose $ for whatever it is we are doing in Libya but that it IS possible for the Congress to say "No $ for Activity X".

Any help here BD?
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bigdog
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« Reply #416 on: June 14, 2011, 02:36:02 PM »

You have it about right Guro.  There are discretionary funds built into a budget.  There are also funds available that do not officially count against the budget.  Congress is funding any military action.  And, in theory, that funding can be cut. 
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G M
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« Reply #417 on: June 14, 2011, 04:25:36 PM »

So, would a law have to be passed that said "No funds may be spent for KMA Libya"?
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G M
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« Reply #418 on: June 14, 2011, 04:57:37 PM »

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1862984

This Foreword to a Tennessee Law Review symposium on the implications of a federal constitutional convention surveys a number of proposals for reining in the growth of federal government power and spending, ranging from the creation of a new house of Congress with the sole power to repeal bills, to more mundane proposals such as a balanced budget amendment and term limits.
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bigdog
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« Reply #419 on: June 14, 2011, 06:16:34 PM »

So, would a law have to be passed that said "No funds may be spent for KMA Libya"?

Yes.

http://blogs.wsj.com/washwire/2011/06/02/pentagon-to-congress-dont-cut-funds-for-libya-operation/
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bigdog
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« Reply #420 on: June 15, 2011, 08:25:12 AM »

A download of the entire Encyclopedia of the United States Constitution.  It is a BIG file.

http://www.suppressedreality.net/files/Docs/0816067635%20Constitution.pdf
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Body-by-Guinness
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« Reply #421 on: June 15, 2011, 02:14:00 PM »

Case on Criminalizing Violations of Computer Use Policies
Orin Kerr • June 14, 2011 2:21 am

A petition for rehearing was recently filed in United States v. Nosal, the Ninth Circuit decision holding that an employee who violates his employer’s computer use policy is guilty of “exceeding authorized access” to the employer’s computer. I have posted a copy here. I hope the Ninth Circuit grants rehearing, as I think the Nosal case is both wrong on the law and deeply troubling for civil liberties in the Internet age.

Overstatement? I don’t think so. It seems to me that if the federal government can arrest you and throw you in jail for violating a computer use policy — any computer use policy — then the government can arrest pretty much anyone who uses a computer. Most people who use computers routinely violate computer use policies: While we understand that such policies may have force from the standpoint of breach of contract, no one thinks that breaching a computer use policy is the same as hacking into the computer. The Nosal case would change that. Under its reasoning, breaching a written policy is treated the same way as hacking. And as computers become more and more ubiquitous, the power to arrest anyone who routinely uses a computer is the power to arrest anyone.

It’s true that the Nosal appeal happens to involve a prosecution under 18 U.S.C. 1030(a)(4), which requires more than just unauthorized access to a computer. But as the petition for rehearing notes, the unauthorized access “trigger” is common to several crimes in Section 1030(a), and other sections of 1030(a) don’t require much if anything beyond unauthorized access. The most obvious concern is 1030(a)(2), which makes it a crime to have any unauthorized access to anything on the planet with a microchip so long as some information is either seen or collected. For now it’s usually just a misdemeanor crime, so each breach of a policy would only mean you spend up to a year of your life in federal prison, but note that (1) Congress may make that crime a felony soon and (2) even the misdemeanors can be sentenced conseccutively (remember that DOJ wanted Lori Drew to be sentenced to a three year prison term for her three misdemeanor convictions of violating three MySpace terms of service).

You might think that as long as you avoid the Ninth Circuit, you’re probably okay. But that won’t help much: Lots of Internet communications go through the Ninth Circuit, meaning that the Ninth Circuit has venue over much of the rest of the country to prosecute computer use policy breaches elsewhere. Again, remember the Lori Drew case. Everything in the case happened in Missouri, and the Missouri state and federal authorities declined to prosecute because they thought no crime was committed, but the case was charged in Los Angeles because that’s where MySpace’s servers (and some extremely aggressive prosecutors) were located. It probably won’t help to move to Canada, either: Section 1030 covers all computers in the world that can be reached under the Constitution, even computers outside the United States, so the computer use policy breach doesn’t even need to be in the US for the feds to prosecute.

Given the stakes, I hope the Ninth Circuit will grant rehearing, revisit the panel decision, and come out the other way. Stay tuned.

http://volokh.com/2011/06/14/petition-for-rehearing-filed-in-united-states-v-nosal-ninth-circuit-case-on-criminalizing-violations-of-computer-use-policies/
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Crafty_Dog
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« Reply #422 on: June 16, 2011, 06:38:56 PM »

Concerning the defunding in order to lend Executive Kinetic Action rolleyes please see post 136 (today) at http://dogbrothers.com/phpBB2/index.php?topic=2158.100
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Crafty_Dog
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« Reply #423 on: June 17, 2011, 09:53:23 PM »

Obama Overruled 2 Top Lawyers on War Power in Libya

President Obama rejected the views of top lawyers at the Pentagon and the Justice
Department when he decided that he had the legal authority to continue American
military participation in the air war in Libya without Congressional authorization,
according to officials familiar with internal administration deliberations.

Read More:
http://www.nytimes.com/?emc=na

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JDN
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« Reply #424 on: June 17, 2011, 10:31:02 PM »

I'm of the opinion that Obama SHOULD seek authorization, but "war" after war, this has been going on since Truman.
That doesn't make it right. 

http://www.americanforeignrelations.com/A-D/The-Constitution-The-continuing-war-powers-controversy.html
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DougMacG
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« Reply #425 on: June 18, 2011, 12:16:00 AM »

Our conversation here is moot; they don't admit we are part of any hostilities.

The denial and deceit reminds me of the long line of two faced Dems who voted for the Iraq war, caved and blamed when the going got tough, then continued the war 2 1/2 years and counting after they took power.  The Obama camp thinks they own our language.  They put out terms like kinetic action with straight face, ignore this law, but hold open the opportunity to criticize the next President should they someday attempt the same thing.

Bush jumped through all the hoops, House, Senate and UN.  Then gets ripped by the same people who first supported it for conducting an illegal war.  If the Obamites admitted that war powers law is unconstitutional, challenged it and won, they would be robbed of using the issue back against the next President.  Who can still take these people seriously?
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DougMacG
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« Reply #426 on: June 18, 2011, 10:57:48 AM »

10th amendment case of significance: "... the [federal law] interferes with the powers reserved to States."

http://www.supremecourt.gov/opinions/10pdf/09-1227.pdf

When petitioner Bond discovered that her close friend was pregnant byBond’s husband...Bond put caustic substances on objects the woman was likely to touch.

Bond was indicted for violating 18 U. S. C. §229, which forbids knowing possession or use, for nonpeaceful purposes, of a chemical that “can cause death, temporary incapacitation or permanent harm to humans,” §§229(a); 229F(1); (7); (Cool, and which is part of a federal Act implementing a chemical weapons treaty ratified by the United States. The District Court denied Bond’s motion to dismiss the §229 charges on the ground that the statute exceeded Congress’ constitutional authority to enact. She en-tered a conditional guilty plea, reserving the right to appeal the rul-ing on the statute’s validity. She did just that, renewing her Tenth Amendment claim. The Third Circuit, however, accepted the Gov-ernment’s position that she lacked standing. The Government has since changed its view on Bond’s standing.

Held: Bond has standing to challenge the federal statute on grounds that the measure interferes with the powers reserved to States.
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bigdog
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« Reply #427 on: June 18, 2011, 08:01:38 PM »

http://www.msnbc.msn.com/id/43451712/ns/politics-the_new_york_times
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G M
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« Reply #428 on: June 18, 2011, 08:12:59 PM »


http://www.nytimes.com/2011/06/18/world/africa/18powers.html?_r=1

2 Top Lawyers Lost to Obama in Libya War Policy Debate
 
By CHARLIE SAVAGE
 
Published: June 17, 2011



WASHINGTON — President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.

Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.

But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch.


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DougMacG
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« Reply #429 on: June 19, 2011, 06:00:13 PM »

Picking through the 'news' about Justice Thomas with my own bias I found: "ethically sensitive", "financing of the museum", "justices [are] exempt from the code of conduct for federal judges", 'judges “should not personally participate” in raising money for charitable endeavors', "Legal ethicists differ", "in the case of Justice Thomas...the ethical complications appear more complex.", “I’ve been in the company of the two of them together...and they certainly really are friends.”, "One item not required to be reported in Justice Thomas’s financial disclosures is the millions of dollars Mr. Crow is spending on the museum." (  - I suppose not!)

The whole thing reminds me of false hit pieces the NYT has run on the Koch brothers, and then halfway through, sure enough, they tied Thomas to the (evil) Koch brothers - as if that is al qaeda of the mafia.
-------
I posted a link previously in Media Issues of a long worthwhile read (actually a series) regarding the Koch brothers and their ties to their congressman in Wichita in Powerline called 'The Anatomy of a Smear':
http://dogbrothers.com/phpBB2/index.php?topic=1066.msg47345#msg47345
http://www.powerlineblog.com/archives/2011/03/028666.php
Also: http://www.powerlineblog.com/archives/2011/03/028733.php
NY Times retraction: http://www.powerlineblog.com/archives/2011/04/028775.php?format=print
http://www.nytimes.com/ref/pageoneplus/corrections.html
More: http://www.powerlineblog.com/archives/2011/04/028803.php

No response to my post then but we could take that side of it up on media issues if anyone is interested.  People should read that story all the way through; there is no way to summarize how that process actually works. 

One theme throughout this piece(this is my take) is that ties to conservatism or ties to money are bad.  My own biased reading of it is that they kept pointing out ties to great Amercans doing great work, including his wife.

The idea that justices with life appointments should stay in robes behind curtains and not come out and advance good causes is never made in the piece, by the NYT or by Thomas' critics.  That Thomas voted alone on one case I doubt is unusual.  IIRC I have often read dissents from him that no one joined.  He certainly did not use his inferred wrongful influence to persuade other justices.
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Crafty_Dog
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« Reply #430 on: June 19, 2011, 06:17:48 PM »

There is a reason I call the NY Slimes/Times  "Pravda on the Hudson" (POTH)
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G M
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« Reply #431 on: June 19, 2011, 06:27:36 PM »

http://althouse.blogspot.com/2011/06/nyt-goes-after-clarence-thomas-over.html

The NYT goes after Clarence Thomas over "an unusual, and ethically sensitive, friendship."
 
It's a long article, and you have to comb through it to try to grasp what we're supposed to think Justice Thomas did wrong. I'd just like to highlight the historical preservation that is at the center of the insinuations. You have to get to the 3rd screen of this 4-screen-long article to read:

At first glance the Pin Point Heritage Museum, scheduled to open this fall, would seem an unlikely catalyst for an ethical quandary. That Pin Point’s history is worthy of preservation is not in dispute.

Part of the Gullah/Geechee Cultural Heritage Corridor designated by Congress, it is representative of tight-knit Southern coastal settlements that trace their roots to freed slaves and were often based around fishing. In Pin Point, the Varn crab and oyster cannery, founded in the 1920s, was a primary source of jobs until it closed in 1985....

Justice Thomas, 62, was born and raised near the cannery overlooking the Moon River, where it was not uncommon for babies to rock in bassinets made of crab baskets while their mothers shucked oysters.
Imagine a liberal justice raised under such circumstances. Imagine this historical preservation project without any connection to conservative politics. What article would appear in the New York Times?

But Clarence Thomas is the man that liberals would love to discredit. Here, the idea is that although the judicial code of conduct does not apply to Supreme Court justices, the justices do purport to follow it, and:

The code says judges “should not personally participate” in raising money for charitable endeavors, out of concern that donors might feel pressured to give or entitled to favorable treatment from the judge.
Here's the actual text of the code:

A judge should not solicit funds for any educational, religious, charitable, fraternal, or civic organization, or use or permit the use of the prestige of the judicial office for that purpose, but the judge may be listed as an officer, director, or trustee of such an organization. A judge should not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or is essentially a fund-raising mechanism.
Note how the "personally participate" language relates to "membership solicitation" and there's nothing in the article about that. At most, the article has Thomas saying "I’ve got a friend I’m going to put you in touch with" to the owner of the cannery. So "a judge should not solicit funds..." — let's use the actual text. How is that soliciting funds? You can see the interest in sliding over to the "personally participate" language that relates to "membership solicitation." Pretty sleazy.

And all in the context of preserving a site in the Gullah/Geechee Cultural Heritage Corridor designated by Congress!

The Times notes: "The justices are not bound by the federal judiciary’s conduct code, because it is enforced by a committee of judges who rank below the justices." Right. Of course, that's the way it has to be. Imagine a committee of judges unleashed to have at Clarence Thomas!

The constitutional check on a Supreme Court Justice is impeachment. Picture Congress going after Thomas for playing some background role in preserving a valuable black history site.
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bigdog
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« Reply #432 on: June 19, 2011, 08:51:08 PM »

I don't have much time at the moment but let me say that I agree (mostly) with Charlie Savage, that I posted the Thomas piece because his name being in the news in this manner interests me a fair amount for a few reasons (including the loop that seems to exist with it in there), DMG is right about Thomas' voting record, and there are many checks on SC justices.
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Crafty_Dog
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« Reply #433 on: June 28, 2011, 10:20:10 AM »

By DAVID B. RIVKIN JR. AND LEE A. CASEY
The Supreme Court's most important ruling this year may have been its unanimous decision in Bond v. United States, which held that individual citizens can challenge federal statutes when they encroach on authority the Constitution reserves to the states. The decision, authored by Justice Anthony Kennedy, has far-reaching implications—especially for the government's efforts to defend ObamaCare.

The facts of the case were curious, to say the least. Defendant Carol Bond, having discovered that her close friend was pregnant by her husband, sprinkled caustic substances on a mailbox, car-door handle and door knobs. The substances worked: The hated paramour suffered minor burns.

Instead of being held liable under one of the more common federal criminal laws, Ms. Bond was subjected to federal prosecution under a statute designed to implement the Chemical Weapons Convention. In defense, she argued that the law exceeded Congress's power because its violation required no link to interstate commerce or any other specific federal interest. The government argued that because the state (Pennsylvania) was not party to the suit, Ms. Bond could not defend herself by attacking that law on federalism grounds. The government prevailed in the Third Circuit Court of Appeals.

The Supreme Court disagreed. With an unusual unanimity, the court held squarely that individual citizens have every right to challenge federal laws on the ground that they exceed the limited and enumerated powers vested in Congress by the Constitution. The court stated without equivocation that "y denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When the government acts in excess of its lawful powers, that liberty is at stake."

"Fidelity to principles of federalism," Justice Kennedy further noted, "is not for the States alone to vindicate."

For Supreme Court watchers, Bond is a profound reaffirmation of the centrality of the state-federal "dual sovereignty" system. That's why the decision is bad news for those who defend ObamaCare—the most extravagant challenge to that dual system in our history.

View Full Image

Images.com/Corbis
 .In enacting the ObamaCare law, Congress seized for itself the very type of power—the ability to regulate individual conduct regardless of any significant connection to interstate commerce or another legitimate federal regulatory interest—that the Constitution reserves solely to the states. In defending the law in court, the Obama administration has persistently sought to narrow the Constitution's federalism principles and to trivialize the Supreme Court's recent decisions supporting those principles.

What Bond makes clear is that those principles and cases are meant to be read broadly to achieve their original purpose: securing "the freedom of the individual" by allowing the states to respond "to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power."

Justice Kennedy's opinion posits a vision of federalism in which "[t]he principles of limited national powers and state sovereignty are intertwined." The decision makes it particularly clear that "impermissible interference with state sovereignty is not within the enumerated powers of the National Government." It adds, "an action that exceeds the National Government's enumerated powers undermines the sovereign interests of States."

The long and short of this critical ruling is that, as the various legal challenges to ObamaCare make their way through the courts of appeal, all nine justices have emphatically reaffirmed the importance of the Constitution's federal architecture and the very real limitations that structure imposes on Congress. Stay tuned as those challenges reach the Supreme Court—as early as next term.

Messrs. Rivkin and Casey filed an amicus brief on behalf of six states in the Bond case, and they represent 26 states challenging ObamaCare's constitutionality. They served in the Justice Department under Presidents Reagan and George H.W. Bush.

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Crafty_Dog
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« Reply #434 on: June 30, 2011, 05:30:55 PM »



TIME on the Constitution: 'Does It Still Matter?'
Only if Liberty still matters
"The Constitution, which at any time exists, 'till changed by an explicit and authentic act of the whole People, is sacredly obligatory upon all." --George Washington, September 19, 1796

Unmitigated IgnoranceIn celebration of the 235th anniversary of the signing of our Declaration of Independence, Time Magazine, the "journal of record" for the Leftist Illiterati (or as they prefer to be known, "the intelligentsia"), published a cover story featuring their errant interpretation of our Constitution. On an image of the shredding of that venerable old document Time posited this question: "Does it still matter?"

The short answer is, only if Liberty and the Rule of Law still matter. But Time's managing editor, Richard Stengel, begs to differ, having discarded Rule of Law for the rule of men.

In his boorish 5,000-word treatise on the issue, Stengel unwittingly exposes the Left's patently uninformed and self-serving interpretation of our Constitution, and he aptly defines their adherence to a "living constitution." That adulterated version of its original intent is the result of revision by decades of radical judicial diktats, rather than in the manner prescribed by our Constitution's Article V.

Stengel opined, "To me the Constitution is a guardrail. It's for when we are going off the road and it gets us back on. It's not a traffic cop that keeps us going down the center." According to Stengel, then, our Constitution just exists to keep us between the ditches and entitles us to swerve all over the road without consequence. Of course, that is hardly what our Founders intended, but Stengel insists that to ask "what did the framers want is kind of a crazy question."

Exhibiting a keen sense of the obvious, Stengel observes that times have changed and that our Founders "did not know about" all the advancements of the present era. Thus he concludes our Constitution must be pliable, or, as Thomas Jefferson forewarned in 1819, "a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please."

Stengel insists, "The Constitution works so well precisely because it is so opaque, so general, so open to various interpretations," rather than, as "originalists contend ... a clear, fixed meaning."

To assert that our Founders intended the Constitution to be "so opaque, so general, so open to various interpretations" is beyond any accurate reading of history. As noted previously, our Founders provided a method to amend our Constitution in Article V. The problem, of course, is that Stengel and his Leftist cadres know their agenda would never pass a Constitutional Convention and, thus, they circumvent Article V by discarding Rule of Law in deference to their own rules.

Consequently, we now have a Constitution in exile, one that is little more than a straw man amid increasingly politicized courts that serve the special interests of political constituencies rather than interpreting the document's plain language, as judges are bound by sacred oath to do (Article VI, Section 3).

While it is highly tempting, any effort to rebut Stengel's erroneous claims point by point would violate my own rule against swapping spit with a jackass. However, as it is the eve of Independence Day, let us, for the record, revisit Essential Liberty as "endowed by our Creator" according to our Declaration.


Signing of the DeclarationThe natural rights of man outlined in our Declaration are enshrined in our Constitution as evident in its most comprehensive explication, The Federalist Papers, a defense of that venerable document by its author, James Madison, and Founders Alexander Hamilton and John Jay.

Here is what our Founders actually did write about our Constitution and Rule of Law.

George Washington: "The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution, which at any time exists, 'till changed by an explicit and authentic act of the whole People, is sacredly obligatory upon all. ... If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed."

Thomas Jefferson: "Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction. ... If it is, then we have no Constitution. ... [T]o consider the judges as the ultimate arbiters of all constitutional questions ... would place us under the despotism of an oligarchy. ... In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."

Alexander Hamilton: "If it were to be asked, 'What is the most sacred duty and the greatest source of our security in a Republic?' The answer would be, 'An inviolable respect for the Constitution and Laws -- the first growing out of the last. ... A sacred respect for the constitutional law is the vital principle, the sustaining energy of a free government. ... [T]he present Constitution is the standard to which we are to cling. Under its banners, bona fide must we combat our political foes -- rejecting all changes but through the channel itself provides for amendments."

James Madison: "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers."

Stengel's biggest whopper, however, is one I simply can't let pass without rebuttal. He writes, "If the Constitution was intended to limit the federal government, it sure doesn't say so. Article I, Section 8, the longest section of the longest article of the Constitution, is a drumroll of congressional power."

My chief witness against this ridiculous claim would be James Madison, "the Father of our Constitution." As Madison wrote in Federalist No. 45, "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement and prosperity of the State."

That piece of trenchant prose would, of course, became the basis for the Tenth Amendment, which clearly and tightly limits the authority and scope of the federal government.

Before Stengel next ventures to opine on our Constitution, which for him is clearly uncharted territory, perhaps he should read a copy of "Essential Liberty."


Shredding Rule of LawTime magazine is but one of a surfeit of liberal propaganda tools which play supporting roles in the primary assault on our Constitution.

The lead actor is Barack Hussein Obama who, along with his cadre of "useful idiots," are systematically dismantling the last vestiges of our Constitution's Rule of Law mandate.

As we prepare to observe this Independence Day anniversary, our nation is once again confronting a perilous threat to Liberty.

Thomas Paine once wrote, "[A]n unwritten constitution is not a constitution at all." I beg you take note: Our Constitution is being "unwritten" at an unprecedented pace. Obama has mounted a well-organized and well-funded effort to "fundamentally transform" our nation into a socialist state by thus deconstructing our Constitution. He has deserted his oath to "preserve, protect and defend the Constitution of the United States," in accordance with Article II, Section 1, and clearly never intended to "take care that the Laws be faithfully executed," as specified in Section 3.
As was the case at the Dawn of American Liberty, we are but a small band of American Patriots facing an empire of statists, but we are steadfast in our sacred oath to sustain our Constitution. Please help us combat the ideology and propaganda of the Left in order to restore the integrity of our Constitution.

On behalf of Liberty, if you are able, please support our Independence Day Campaign. We still must raise $112,448 to meet our goal and there are just 4 days left.

Semper Vigilo, Fortis, Paratus et Fidelis!

Mark Alexander
Publisher, The Patriot Post

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Crafty_Dog
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« Reply #435 on: July 02, 2011, 09:42:25 AM »


A federal appeals court on Friday struck down Michigan’s 2006 ban on the consideration of race and gender in public-university admissions and government hiring in the latest round of the decade-long fight over the University of Michigan’s affirmative action policies.

Affirmative ActionThe 2-to-1 ruling by the United States Court of Appeals for the Sixth Circuit, in Cincinnati, said the voter-approved ban “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.”

“This is a tremendous victory,” said George B. Washington, who represented the coalition challenging the ban. “We think we’ll win in the end, however many appeals there are.”

But Michigan’s attorney general, Bill Schuette, promised Friday that he would indeed appeal the decision overturning the ban — known as the Michigan Civil Rights Initiative — through a formal request for rehearing en banc, by all 16 judges of the court.

“The Michigan Civil Rights Initiative embodies the fundamental premise of what America is all about: equal opportunity under the law,” he said. “Entrance to our great universities must be based upon merit, and I will continue the fight for equality, fairness and rule of law.”

Kelly Cunningham, a spokeswoman for the university, said it was too soon to know whether the ruling would lead to a change in admissions policies. “The university is reviewing the possible implications of the court’s decision, and recognizes that there may be further legal steps as well,” she said.

Affirmative action got a lift in Texas last month, when the full Fifth Circuit Court of Appeals voted, 9 to 7, not to hear an appeal of a three-judge panel’s decision upholding the use of race as a “plus factor” in admission to the University of Texas. And another case is pending before the Ninth Circuit in California, where Mr. Washington predicted Friday’s ruling would “have a big impact.”

In the end, the issue is likely to return to the United States Supreme Court, which last considered the question in two 2003 cases involving the University of Michigan.

Michigan’s ban on affirmative action — covering both government hiring and admission to public colleges and universities — was made part of the State Constitution after a 2006 voter initiative that passed by 58 percent to 42 percent. It was known as Proposal 2 and prohibited public institutions from giving “preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin.”

The voter initiative followed the Supreme Court decisions, which found that while the University of Michigan could not set quotas for certain racial groups, or give them extra points, in undergraduate admissions, it could consider race as one factor in the holistic law school admissions process.

Jennifer Gratz, a white student who was wait-listed at the University of Michigan in 1995 and was the lead plaintiff in one of the Supreme Court cases, led the campaign for the voter initiative to amend the State Constitution. She was backed by Ward Connerly, a wealthy black Republican who was a former regent of the University of California, and had successfully campaigned for a similar anti-affirmative-action proposition in California in 1996.

The following year, the United States Supreme Court declined to hear a challenge to the California ban. But in 2010, based on the ruling in the University of Michigan law school case, Mr. Washington filed another case challenging the California ban, the one now on appeal to the Ninth Circuit.

Bans like Michigan’s are currently on the books in California, Nebraska and Washington. But the Sixth Circuit decision is binding only in Kentucky, Michigan, Ohio and Tennessee.

Judge R. Guy Cole and Judge Martha Daughtrey of the Sixth Circuit issued the majority opinion on Friday in the case. Judge Julia Smith Gibbons wrote a dissent.

Legal experts said it was extremely difficult to predict how the Sixth Circuit, ruling en banc — or, for that matter, the United States Supreme Court — would vote on the Michigan ban.

“That circuit is very divided on social issues like the death penalty and affirmative action” said Carl Tobias, a professor at the University of Richmond law school. “And the Supreme Court split 5-4 in the Michigan law school case. Of course, the composition of the court has changed, but we’re still fighting these questions out.”
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DougMacG
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« Reply #436 on: July 05, 2011, 12:45:11 PM »

See Crafty's post 7/2 in this thread.  Isn't U of Michigan Affirmative Action the case where Sandra Day O'Connor discovered the bizarre 25 year rule in the constitution: we need preferences now but not forever?

"The proposition that “All Men Are Created Equal” was ultimately forged into our Constitution in the form of the equal protection clause of the Fourteenth Amendment. In its 2-1 decision, the 6th Circuit Court of Appeals held—incredibly—that the Constitution’s equal protection guarantee forbids the people of Michigan from voting the elimination of racial preferences in college and university admissions."

Kirk Kolbo (writing above and below) represented the plaintiffs in the historic Gratz  and Grutter cases in the United States Supreme Court:
http://www.powerlineblog.com/archives/2011/07/the-6th-circuits-affirmative-action-decision-a-critique.php

    It is unfortunate that on the eve of our Fourth of July weekend, a federal appeals court handed down a decision delivering injury and insult to the most important of those self-evident truths for which we honor and celebrate the signing of the Declaration of Independence. The proposition that “All Men Are Created Equal” was ultimately forged into our Constitution in the form of the equal protection clause of the Fourteenth Amendment. In its 2-1 decision, the 6th Circuit Court of Appeals held—incredibly—that the Constitution’s equal protection guarantee forbids the people of Michigan from voting the elimination of racial preferences in college and university admissions.

    The court’s decision came in a challenge to an amendment to the Michigan constitution enacted in 2006 after passage (by a 58% to 42% margin) of a state-wide voter initiative banning race and gender preferences in college and university admissions and other government activities. The initiative was a reaction to the decisions of the United States Supreme Court in Gratz v. Bollinger and Grutter v. Bollinger, companion cases challenging racial preferences in admissions at the University of Michigan’s flagship undergraduate college (Gratz) and Law School (Grutter). While the Supreme Court struck down the undergraduate admissions policies at issue in Gratz, it ruled in Grutter that race could be used in a limited way in the admissions process: one “plus” factor among others to achieve a racially diverse student body, and it upheld the admission policies of the Law School on that basis. Jennifer Gratz, one of the lead plaintiffs, headed up the Michigan initiative effort. After its passage, an assorted group of plaintiffs immediately challenged the new law as it applied to Michigan’s colleges and universities, and last week’s decision by the 6th Circuit is the latest word, but not likely the final one, on that challenge.

    The Supreme Court has never held that the equal protection clause requires the use of racial preferences in admissions or other areas (e.g., hiring, firing, contracting). The decisions instead have all focused on whether in particular circumstances it is permissible for the government to employ those preferences by means “narrowly tailored” to accomplish what the Court concludes to be a “compelling government interest.”

    So how came the 6th Circuit to its decision? The court looked principally to two decades-old Supreme Court opinions recognizing an equal protection challenge to government actions that single out race issues for a distortion of the government decision-making process to the disadvantage of racial minorities. In the first of these cases, Hunter v. Erickson, after the Akron, Ohio city council enacted an ordinance to enforce anti-discrimination in housing, the people of Akron passed by referendum an amendment to the city charter requiring all regulations of real estate on the basis of race to be approved by a city-wide referendum, while all other real estate regulation required only city council approval. In a subsequent case, Washington v. Seattle School District No. 1, an elected Seattle school board passed and implemented certain school desegregation policies, including mandatory busing of students, designed to alleviate racial imbalances in the schools due to segregated housing patterns. Opponents of the school board’s measures were successful in getting a state-wide referendum passed prohibiting any of the State’s local school boards from mandating busing for desegregation, except when ordered to do so by a court.

    In both cases, the Supreme Court invalidated the referenda on grounds that they reallocated the political structure impermissibly to the disadvantage of racial minorities in violation of the equal protection clause. The decisions do not furnish any plausible basis for striking down the State of Michigan’s decision to eliminate racial preferences in admissions. The focus of the Court in Hunter and Seattle was on the removal of political decision-making authority on race issues from a locally accountable entity (city council and school board) “to a new and remote level of government” (city- and state-wide electorate). The Court compared such a restructuring to voter dilution. In both cases, the change made it more difficult for minorities to obtain “beneficial legislation” because the political restructuring made it more burdensome, onerous, and complex to “enact legislation.” The rulings in Hunter and Seattle protected “the ability of minorities to participate in the process of self-government.” (Emphasis added).

    The 6th Circuit held that by removing the authority of college and university admissions officials to grant preferences based on race through the successful state-wide initiative, there had been an impermissible political restructuring. It reached this conclusion by equating the admissions officials at Michigan colleges and universities with the elected city council and school board in Hunter and Seattle. This is, of course, preposterous. The dissenting opinion lays out the record showing how admissions decisions at the schools at issue are made by assorted faculty (often tenured) and administrators not accountable to any voting electorate. And any parent or student who has gone through the admissions process knows well that those anxiously-awaited admissions decisions are made pursuant to policies over which they have no control and the workings of which are from them and the rest of the public generally shrouded in mystery and secrecy. Because neither minorities nor others in the public possess any political authority over admissions committees and decision-makers it is absurd for the court to have found that there has been a “restructuring” of such authority.

    The 6th Circuit also took no account of the fact that the challenged actions in Hunter and Seattle had the effect of overturning and making it more difficult to enact anti-discrimination legislation. The racial preferences eliminated by the voters of Michigan are themselves, however, as the Supreme Court has held repeatedly, presumptively invalid under the equal protection clause. They are “potentially so dangerous” that they must be subject to strict scrutiny. In eliminating racial preferences and mandating race-neutral admissions decision-making, the voters of Michigan have furthered what the Supreme Court has repeatedly referred to as the “core purpose of the Fourteenth Amendment”—“to do away with all government imposed discrimination based on race.”

    In Grutter, the Court wrote approvingly of experiments in race-neutral admissions and specifically mentioned state laws prohibiting racial preferences in admissions in California, Florida, and Texas. It also held that a “permanent justification for racial preferences would offend [the] fundamental equal protection principle.” Accordingly race-based admissions policies must be of “limited duration.”

    So the 6th Circuit’s decision is neither compelled by the “political restructuring” doctrine of Hunter and Seattle, nor consistent with what the Supreme Court has held about the lawfulness and desirability of race-neutral policies. To the contrary, the court’s decision throws obstacles in the way of a body politic wanting to achieve the constitutionally favored goal of race-neutral decision-making. Under its rationale, any local or other low-level governmental authority (elected or not) could enact racial preferences which would be immune from interference or elimination by a larger government body or electorate on grounds of a “political restructuring” violation.

    Even the liberal and independent-minded 9th Circuit has rejected the contention that a State is prohibited from requiring race-neutral admissions policies. It upheld California Proposition 209 against an equal protection and “political restructuring” challenge. Fortunately, the prospects are good that the 6th Circuit’s decision will be reheard by the entire court (en banc). There is a strong dissent, and the panel’s decision conflicts with the decision of an earlier panel that considered the same issues in staying a preliminary injunction against enforcement of the Michigan law. Both are good indicators for eventual review and a decision by the full 6th Circuit. Finally, while the odds are against any given case being accepted for review by the Supreme Court, should it get there, last week’s decision would almost certainly be reversed by the current Court.
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DougMacG
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« Reply #437 on: July 06, 2011, 10:33:35 AM »

James Taranto/WSJ Opinion: "Not only is Judge Cole's decision unlikely to withstand appeal, it could provide an opening for the Supreme Court to revisit its 2003 ruling that upheld Michigan's racial preferences."

How do you find 5 justices to uphold race discrimination without O'Connor? "Roberts wrote [in 2007] "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Scalia, Thomas and Alito joined that portion of Roberts' opinion..." and Kennedy (and Scalia and Thomas) already dissented in 2003 Gretter v Bollinger.
-----------------------------------
Justice O'Connor's Lax Scrutiny
A new ruling in favor of racial preferences could spell their doom.

By JAMES TARANTO

"Michigan Attorney General Bill Schuette said . . . he will appeal a court ruling that overturned the Michigan Civil Rights Initiative, which bans the use of race and gender preferences in college admissions," the Detroit News reported Friday. Earlier the same day, a panel of the Sixth U.S. Circuit Court of Appeals voted 2-1 to strike down the initiative, also known as Proposal 2, as unconstitutional.

If you're hearing about this for the first time, you may have the same reaction we did, which is to wonder how in the world a court could find that Michigan's racial preferences in college admissions--which barely passed constitutional muster when the Supreme Court upheld them eight years ago--are constitutionally required. Perhaps the Equal Protection Clause allows for some exceptions, but it's downright Orwellian to claim that equal protection implies mandatory discrimination.

Well, it's complicated. Judge R. Guy Cole, who wrote the ruling in the unwieldily named case of Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary v. Regents of the University of Michigan (hereinafter BAMN), was clever enough to avoid reaching a conclusion that is ridiculous on its face. Instead, taking his cue from the plaintiff organization's name, he came at it from a different angle.

His ruling concedes that the Equal Protection Clause does not require Michigan to maintain policies that discriminate in favor of minorities. It concludes, however, that the means by which the state banned such discrimination--a ballot measure amending the Michigan Constitution--violated the clause. "Proposal 2 unconstitutionally alters Michigan's political structure by impermissibly burdening racial minorities," he wrote.

That conclusion is consistent with a pair of decades-old Supreme Court precedents. But it is too clever by half. Not only is Judge Cole's decision unlikely to withstand appeal, it could provide an opening for the Supreme Court to revisit its 2003 ruling that upheld Michigan's racial preferences.

The two precedents on which Cole bases his conclusion are Hunter v. Erickson (1969) and Washington v. Seattle School Dist. No. 1 (1982). In Hunter the Supreme Court struck down an Akron, Ohio, ballot initiative that had repealed a municipal fair-housing ordinance and required that any future laws against housing discrimination be approved by a majority of voters as well as the City Council.

In a decision by Justice Byron White, the court held 8-1 that although Akron was under no obligation to enact a fair-housing law, the creation of an additional hurdle that such legislation must pass constituted an invidious distinction "between those groups who sought the law's protection against racial, religious, or ancestral discriminations in the sale and rental of real estate and those who sought to regulate real property transactions in the pursuit of other ends." Since those in the former group belonged to minorities that are protected from discrimination, the ballot measure violated equal protection.

But how could the Akron initiative, whose effect was to permit discrimination, be the equivalent for equal protection purposes of the Michigan initiative, which prohibited discrimination? That's where Seattle comes in. Washington's largest city used what was known as "forced busing" to encourage racial mixing in its public schools. Washington voters approved Initiative 350, a statewide ban on busing for racial integration. The high court struck down the measure, holding that, like the Akron one 13 years earlier, it unconstitutionally burdened minority members, who were the presumed beneficiaries of busing.

Justice Harry Blackmun's opinion took the court into Orwellian territory. He wrote "that the initiative established an impermissible racial classification in violation of Hunter v. Erickson, . . . 'because it permits busing for non-racial reasons but forbids it for racial reasons.' " By such logic, if one can even call it that, the Equal Protection Clause violates itself, because it permits discrimination for a host of nonracial reasons but forbids it for racial reasons.

There is nonetheless an important distinction between forced busing circa 1982 and racial preferences in college admissions today. The constitutionality of the former was not then in dispute. In Swann v. Charlotte-Mecklenburg Board of Education (1971), the justices had unanimously blessed judicially mandated busing as a remedy for de jure (state-imposed) segregation.

Seattle's segregation was merely de facto, and its busing program had not been imposed by a court. The justices had not expressly upheld busing in such circumstances. But Blackmun noted in a footnote that the "appellants . . . do not challenge the propriety of race-conscious student assignments for the purpose of achieving integration, even absent a finding of prior de jure segregation." (Such assignments would be successfully challenged, in Parents Involved in Community Schools v. Seattle School District No. 1, in 2007.)

By contrast, the constitutionality of the University of Michigan's racial preferences had been called into question before Proposal 2 was enacted, in a pair of cases that reached the Supreme Court in 2003. In Gratz v. Bollinger, the court struck down the university's undergraduate preferences. In Grutter v. Bollinger, the court, in a 5-4 ruling written by Justice Sandra Day O'Connor, upheld the law school's supposedly somewhat looser preferences--but on very narrow grounds (citations and needless brackets omitted from all quotations of court opinions):

    As part of its goal of "assembling a class that is both exceptionally academically qualified and broadly diverse," the Law School seeks to "enroll a 'critical mass' of minority students." The Law School's interest is not simply "to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin." That would amount to outright racial balancing, which is patently unconstitutional. Rather, the Law School's concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce.

Here is Judge Cole explaining why Proposal 2 resembles Washington's antibusing initiative:

    Proposal 2, like Initiative 350, has a "racial focus," because the Michigan universities' affirmative-action programs "inure primarily to the benefit of the minority, and [are] designed for that purpose," for the reasons articulated by the Court in Seattle. Just as the desegregative busing programs at issue in Seattle were designed to improve racial minorities' representation at many public schools, race-conscious admissions policies increase racial minorities' representation at institutions of higher education. Indeed, underrepresented minorities lobbied for the adoption of such policies at Michigan's universities in the first place for this reason, and, further, the unrebutted evidence in the record indicates that Proposal 2 will likely negatively impact minority representation at Michigan's institutions of higher education. Ample evidence thus grounds our conclusion that race-conscious admissions policies "inure primarily to the benefit of the minority."

How can Judge Cole's finding that Michigan's racial preferences were designed to "inure primarily to the benefit of the minority" be reconciled with binding Supreme Court precedent that such preferences can be justified only by "the educational benefits" of a "diverse student body"?

Cole's awkwardly written attempt to finesse the problem only makes it more glaring. He claims his conclusion that Proposal 2 has a "racial focus" as required by Hunter and Seattle "is not impacted by the fact that increased representation of racial minorities in higher education also benefits students of other groups and our nation as a whole." Thus he reduces the purported educational benefits of diversity--the entire basis on which the high court rested the constitutionality of Michigan's racial preferences--to an afterthought.

Unless the full Sixth Circuit overturns Judge Cole's ruling, it is a certainty that the Supreme Court will take it up, for it raises questions of the sort that only the justices can resolve. Not only does it expose a tension between two lines of the high court's jurisprudence, but there is also a split between appellate courts. The Ninth Circuit has upheld Proposition 209, a similar ballot initiative from California.

The justices could resolve BAMN in three different ways. The narrowest, because it would leave all existing precedents undisturbed, would be to hold that the Hunter and Seattle framework does not apply to Proposal 2 because the court has already held in Grutter that the constitutionality of the policies in question depends on their having not been designed to "inure primarily to the benefit of the minority." Since the four liberal justices have a strong interest in preserving the "diversity" rationale for racial preferences--especially Elena Kagan, a former elite law school dean--such a ruling could very well go 9-0.

The court could strike down the 1982 Seattle ruling and hold that ballot initiatives or similar measures that affect race are constitutional as long as the substance of the policy in question does not offend equal protection. Seattle is an anachronism anyway: a 5-4 decision in favor of an obsolete social policy by a court whose members have all since retired, died or both. So it's hard to predict how today's justices would come down on that one.

The most aggressive approach--and therefore perhaps the unlikeliest, but also the one that would be most satisfying to those of us who care about the integrity of the law--would be to use BAMN as an opportunity to revisit Grutter. Judge Cole's assertion that Michigan's racial preferences were designed to "inure primarily to the benefit of the minority" may, after all, be true. We think it is. If we are right, the "diversity" rationale that the Grutter majority accepted was a fraud.

That would mean the court was derelict in its duty, as Justice Anthony Kennedy argued in his Grutter dissent:

    The separate opinion by Justice [Lewis] Powell in Regents of Univ. of Cal. v. Bakke is based on the principle that a university admissions program may take account of race as one, nonpredominant factor in a system designed to consider each applicant as an individual, provided the program can meet the test of strict scrutiny by the judiciary. . . . If strict scrutiny is abandoned or manipulated to distort its real and accepted meaning, the Court lacks authority to approve the use of race even in this modest, limited way. The opinion by Justice Powell, in my view, states the correct rule for resolving this case. The Court, however, does not apply strict scrutiny. By trying to say otherwise, it undermines both the test and its own controlling precedents.

If the current court revisits Grutter, the result will certainly be a 5-4 ruling over bitter liberal dissent. It probably won't quite spell the end of racial preferences in university admissions, for Kennedy endorsed the "diversity" rationale in theory. His dissent was from O'Connor's travesty of a mockery of a sham of a mockery of a travesty of two mockeries of a sham of strict scrutiny.

Justices Antonin Scalia and Clarence Thomas, by contrast, did not accept the proposition that diversity justifies discrimination. And although Chief Justice John Roberts and Justice Samuel Alito have not weighed in directly on the question, Roberts wrote in his 2007 Parents Involved opinion that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Scalia, Thomas and Alito joined that portion of Roberts's opinion, but Kennedy did not.

It is unusual for the court to reconsider its own constitutional precedents when it can decide a case more narrowly. But that's just what the justices did last year in Citizens United v. Federal Election Commission, when a 5-4 majority led by Justice Kennedy overturned another 2003 O'Connor precedent. If BAMN reaches the high court, Kennedy will again have an opportunity to correct one of O'Connor's mistakes.
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DougMacG
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« Reply #438 on: July 08, 2011, 10:28:33 AM »

Speculation by everyone but Ruth Bader Ginsburg (78) that she may need to step down shortly or risk 4, no 8-16 years of Republican rule.  I wonder what type of Justice that a President Bachmann would pick to replace her...  grin

My view is that 78 is not that old if everything upstairs is working.  To abandon her term midway (pulling a Palin?) for political timing purposes to manipulate justice decades out would be an insult to the framers, the voters and to the republic. Stay the course Prof. Ginsburg!

http://www.bloomberg.com/news/2011-07-07/liberal-fears-threaten-a-justice-s-job-commentary-by-stephen-l-carter.html

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Crafty_Dog
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« Reply #439 on: July 08, 2011, 01:21:45 PM »

I thought I heard she was having some sort of health issues?  (Cancer?)
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JDN
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« Reply #440 on: July 08, 2011, 02:45:10 PM »

Everything "upstairs is working", but she was diagnosed with cancer.  It seems to be in remission.

"To abandon her term midway (pulling a Palin?) for political timing purposes to manipulate justice decades out would be an insult to the framers, the voters and to the republic."

To abandon her term?  She has a lifetime appointment; she can resign whenever she wants and never be accused of "abandoning her term."  Or is she suppose to die of old age in her office?

What insult to the framers?  Since time beginning appointees can leave whenever they want and in the past have done so.

And what about the voters?  Huh?  She wasn't elected by the voters; she was appointed.

And what insult to the republic?  If anything, her love for the republic and her legacy may influence her decision to retire.

But it's her choice.  I'll respect her choice (no insult to anyone, including the framers, the voters, or the republic) whatever she decides.

http://www.chron.com/disp/story.mpl/nation/7636935.html
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G M
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« Reply #441 on: July 08, 2011, 06:14:37 PM »

"And what insult to the republic?  If anything, her love for the republic and her legacy may influence her decision to retire."

Sarcasm, right? No one with an American Criminal Liberties Union membership has anything but contempt for the republic.
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Crafty_Dog
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« Reply #442 on: July 08, 2011, 06:26:00 PM »

Tis not a common event, but I mostly agree with JDN's comments.  She can retire whenever she pleases without it being a negative on her or an insult to anyone else.  We have seen judges hold on so a current Prez is not the one who chooses a replacement, so why not retire to ensure the current Prez does get to choose? 
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bigdog
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« Reply #443 on: July 08, 2011, 08:09:17 PM »

There is a rich literature about justices' decisions to retire.  If you are interested in some particular articles, let me know.

She has been on the bench for a long time.  There is no shame in choosing to retire, whatever the reason and whenever the time.  I don't remember anyone saying that Jim Brown's legacy was tarnished because he retired "early". 

Separate issue: To say that an ACLU membership means that there is no love for the Republic is complete and utter nonsense.
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G M
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« Reply #444 on: July 08, 2011, 08:27:20 PM »

"Separate issue: To say that an ACLU membership means that there is no love for the Republic is complete and utter nonsense."

**Yes, the founders of the ACLU had a deep seated love of.......Stalin. How silly of me to question their patriotism.

The ACLU’s untold Stalinist heritage
 

By John Rossomando - The Daily Caller   2:11 AM 01/04/2011





Noted author Paul Kengor has unearthed declassified letters and other documents in the Soviet Comintern archives linking early leaders of the ACLU with the Communist Party.
 
Kengor found a May 23, 1931 letter in the archives signed by ACLU founder Roger Baldwin, written on ACLU stationery, to then American Communist Party Chairman William Z. Foster asking him to help ACLU Chairman Harry Ward with his then-upcoming trip to Stalin’s Russia.
 
The letter suggests Ward intended to visit the Soviet Union to find “evidence from Soviet Russia” that would undermine the capitalist profit motive.
 
Baldwin wrote the letter at a time when Stalin was deporting 1.8 million Ukrainian peasants to Siberia under his policy of the forced collectivization of agriculture, which resulted in the deaths of up to 10 million Ukrainians in the two years that followed.
 
The Ukrainian government considers this to have been an act of genocide.
 
Foster was a key figure in the early years of the American communist movement who belonged to the ACLU’s National Committee in the 1920s, according to FBI documents. He later wrote a book titled “Toward Soviet America” in 1932 and also testified under oath before Congress that  he opposed American democracy.
 
Another letter on ACLU letterhead Kengor found in the Soviet archives dated Sept. 2, 1932 asks the Communist Party of America for a schedule of Foster’s trips around the country and offers to help keep the police at bay. It also asks for the names and addresses of Communist Party representatives in the cities where Foster was speaking.
 
Kengor also found a flier from 1933 advertising ACLU board member Corliss Lamont as the headline speaker for “Soviet Union Day,” which its organizers hoped would “answer lies and slanders of enemies of the Soviet Union.”
 
The documents found their way into the Soviet archives because the Communist Party sent all of its correspondences to the Comintern in Moscow for safekeeping, according to Kengor.
 
Other documents released in the 1990s by KGB defector Vasili Mitrokhin show the American Communist Party was under the Moscow’s direct control until 1989.
 
“These guys were advocating a regime that arguably was the biggest mass murderer in all of human history,” Kengor said. “Where is the moral authority in that?”
 
Kengor told The Daily Caller he found numerous other documents in the Soviet Comintern archives that also show a close relationship between the Communist Party and the ACLU.
 
These documents corroborate rumors that have circulated about the ACLU’s founders and early leaders dating back to the 1920s.
 
The ACLU would not comment on Kengor’s research, but the ACLU’s official history describes its founders as a “small group of idealists” who began the organization amid the “Palmer Raids” of late 1919 and early 1920 against “so-called radicals”.
 
“The problem here is what is being left out of the narrative,” Kengor said. “Palmer, who was attorney general to Woodrow Wilson, the great progressive’s progressive, understood, as did the Wilson administration, that many of these radicals were American communists who were literally devoted to the overthrow of the U.S. government and its replacement with a ‘Soviet-American republic.’
 
“American communists actually stated such things in their proclamations, documents, and fliers.”
 
Kengor catalogs many of these in his book “Dupes.”
 
“If you look at a lot of things about the ACLU’s early history, you will see a lot of things that are pro-communist,” Kengor said. “What I’m trying to say about this group is that from the outset was on the farthest extremes of the left.
 
“It was atheistic. Certain members were pro-communist, and would argue that the ACLU itself in the 1920s was pro-communist, as defined by the writings and the beliefs of its founders, key officials and board members.”
 
Kengor, however, does not believe today’s ACLU is communist, but he argues it still pushes its founders’ militant atheism.
 
Kengor said a conservative group would not receive the same sort of a pass from the press and the left were it to be discovered its founders had Nazi or fascist ties during the same time period.
 
Baldwin’s writings and public comments along with those of Ward, Lamont and longtime board members such as Elizabeth Gurley Flynn and John Dewey, show they looked to Soviet Russia for inspiration, according to Kengor.
 
“It’s not like they were outside of a bar and blurted out something stupid about the Soviets after a few drinks,” Kengor said. “These guys actually went to the Soviet Union … and came back and wrote whole books gushing about the brave new world they found in the Soviet Union.
 
“But [most people] don’t even know any of this stuff today.”
 
Baldwin was a complex figure among them because he initially sympathized with the communists in the 1920s and 1930s, but later backed away after the extent of Stalin’s evil became apparent.
 
He never joined the Communist Party as a formal member, but evidence shows he sympathized with the Soviet cause, Kengor said.
 
“The Red Web”, a 1925 book written by Justice Department official Blair Coán, describes Baldwin as having been a “red” and a communist.
 
Baldwin’s radicalism caught the eye of the FBI, which quoted him in a 1924 report as having said: “The right to advocate a violent revolution, assassination, and proletarian Red guard, are all clearly within scope of free speech …”
 
The ACLU founder traveled to Stalin’s Russia in 1927 and wrote a book titled “Liberty Under The Soviets” the following year, which defended the Lenin’s and Stalin’s repression of dissent because they “are weapons in the transition to socialism.”
 
Baldwin later repudiated what he wrote in this book as “naïve” in the 1950s after he became an anti-communist.
 
The ACLU’s founder was active in numerous pro-Soviet fronts throughout the 1930s, but experienced a change of heart following the signing of the 1939 Nazi-Soviet Non-Aggression Pact, according to Robert Cottrell’s biography of Baldwin.
 
Baldwin pushed through a measure in 1940 banning open communists from being part of the ACLU’s National Committee that led to Ward’s resignation. Ward had served as chairman of the ACLU’s board of directors since its founding in 1920.
 
Ward, a Methodist minister, later penned a book in 1944 praising Stalin’s Russia for having abolished private property and for having diminished individualism in a book titled “The Soviet Spirit.”
 
Baldwin’s push to rid the ACLU of open communists also led to Gurley Flynn’s ouster in 1940 because of her open Communist Party membership. She would die in the Soviet Union and receive a Soviet state funeral.
 
Lamont, who coincidentally was 2006 Connecticut Senate candidate Ned Lamont’s uncle, clashed with Baldwin over his effort to purge the ACLU’s National Committee of known communists because he believed it was a betrayal of civil. He remained on the ACLU’s National Committee until 1951 when he resigned to protest being asked to take an anti-communist oath.
 
Although Lamont never formally joined the Communist Party, he was active in numerous pro-Stalin fronts throughout his ACLU tenure, such as the Friends of the Soviet Union, according to Kengor.
 
Lamont never acknowledged the truth behind Stalin’s atrocities, and his 1933 book, “Russia: Day By Day,” which details his 1932 trip to the Soviet Union, Lamont praises Stalin’s destruction of churches and glosses over the atrocities being committed against Ukraine’s peasants at the time of his trip.
 
His book also claims the communists had brought an era of “happiness” and  that “the new world of the twentieth century is the Soviet Union.”
 
Lamont later defended Stalin’s show trials during the Great Purge of 1938-39 and his installation of communist governments in Eastern Europe.
 
Kengor considers Lamont one of the worst among the ACLU’s early leaders because he never repented of his support for Stalin even after the extent of his crimes became apparent.
 
“The narrative today is that they were all noble liberals and progressives, but it’s never considered that they were actually pro-Soviet or pro-communist,” Kengor said. “These guys were terrible because they gave support to a totalitarian regime that arguably was the greatest mass murderer in all of human history.”


Read more: http://dailycaller.com/2011/01/04/the-aclu%e2%80%99s-untold-stalinist-heritage/
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DougMacG
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Posts: 6166


« Reply #445 on: July 08, 2011, 11:35:55 PM »

Famous and influential people have been known to read the forum (we allege) and what I wrote was partly tongue in cheek taunting her to stay on, in the face of others telling her to move on.  Did anyone who criticized me read the Bloomberg link that caused the post?  Bloomberg, and Bloomberg quoting the AP: "the growing chorus calling for Justice Ruth Bader Ginsburg to step down... what 'Democrats and liberals' consider a 'nightmare vision of the Supreme Court’s future'... "   

This story is about what others are telling Ginsburg, not about Ginsburg.  I am aware she is a cancer survivor, but the word 'cancer' is not in the story nor anything else about her being sick, tired, bored or wanting to spend more time with family.  She did NOT retire and so cancer is not / was not the reason (so far) for her departure... (Is there an emoticon for frustration?)  Even the subtitlers at Bloomberg called this aging court watch obsession "A Creepy Pastime"!  The justices or the morgue will tell us when they are done; it is a lifetime appointment.  Most guesses about who will DIE next are wrong BTW.

If liberals are telling her their fear that Obama is about to lose the White House and Democrats are about to lose the senate, that the American people cannot be trusted to choose either body correctly and that we are about to face "a nightmare situation" (aka consent of the governed), but that could be avoided (manipulated) if only she would give up her seat BEFORE she otherwise wants to in order to influence or control decisions beyond her own years of service... if they can say THAT, then I can step up on my soapbox and tell her the other side of the story.  That is my right and she can handle a little taunt and pull in the opposite direction: 

Ruth, if you have a couple of good years left, serve them.  Serve America.  How could some newbie have the wisdom you have gained from your experience, and they keep picking them younger and younger.  This is still YOUR term.  78 is nothing, you look great.  Being a cancer survivor is not a disqualifier and you are not responsible for decisions made after your lifetime of service.  Oliver Wendell Holmes served until 90 and women live longer on average than men.  Don't let the nattering nabobs of negativity push you out of the job you earned and are entitled to.  Do it for yourself.  Do it for America.  Trust the American people and whoever they choose for President and Senate next (could be 4 more years of the same) to do the right thing whenever YOU say you are done.  Do it for the other cancer survivors that deserve respect, dignity and all the longevity they can get in their own lives and careers.  Stay the course Ruth!  smiley
--------------------
This whole thing sounds like Monty Python Holy Grail plague humor in real life:

  MORTICIAN:  Bring out your dead!
      [clang]  (repeat)
  CUSTOMER:  Here's one -- nine pence.
  DEAD PERSON:  I'm not dead!
  MORTICIAN:  What?
  CUSTOMER:  Nothing -- here's your nine pence.
  DEAD PERSON:  I'm not dead!
  MORTICIAN:  Here -- he says he's not dead!
  CUSTOMER:  Yes, he is.
  DEAD PERSON:  I'm not!
  MORTICIAN:  He isn't.
  CUSTOMER:  Well, he will be soon, he's very ill.
  DEAD PERSON:  I'm getting better!
  CUSTOMER:  No, you're not -- you'll be stone dead in a moment.
  MORTICIAN:  Oh, I can't take him like that -- it's against regulations.
  DEAD PERSON:  I don't want to go in the cart!
  CUSTOMER:  Oh, don't be such a baby.
  MORTICIAN:  I can't take him...
  DEAD PERSON:  I feel fine!
  CUSTOMER:  Oh, do us a favor...
  MORTICIAN:  I can't.
  CUSTOMER:  Well, can you hang around a couple of minutes?  He won't
      be long.
  MORTICIAN:  Naaah, I got to go on to Robinson's -- they've lost nine
      today.
  CUSTOMER:  Well, when is your next round?
  MORTICIAN:  Thursday.
  DEAD PERSON:  I think I'll go for a walk.
  CUSTOMER:  You're not fooling anyone y'know.  Look, isn't there
      something you can do?
  DEAD PERSON:  I feel happy... I feel happy.
      [whop]
  CUSTOMER:  Ah, thanks very much.
  MORTICIAN:  Not at all.  See you on Thursday.
  CUSTOMER:  Right.
      [clop clop]
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bigdog
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« Reply #446 on: July 09, 2011, 09:26:34 AM »

The US was allied with the Soviet Union during WWII.  Does that mean that the entire "Greatest Generation" was also unAmerican? 
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G M
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« Reply #447 on: July 09, 2011, 09:46:25 AM »

The US was allied with the Soviet Union during WWII.  Does that mean that the entire "Greatest Generation" was also unAmerican? 

Yes, an alliance of necessity in a war for national survival made at the executive leadership level is exactly the same as a group of Stanlinists forming a group with the intent to use the American legal system to damage America.  rolleyes

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G M
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« Reply #448 on: July 09, 2011, 10:00:47 AM »

http://townhall.com/columnists/alansears/2007/06/16/the_aclu_never_forgets_its_pro-communist_roots/page/full/

Alan Sears   


The ACLU Never Forgets Its Pro-Communist Roots

 6/16/2007

 
Just as a leopard cannot change its spots, nor a zebra its stripes, an organization whose founder admired the “ideals” of the hammer and sickle can never really abandon those destructive beginnings.

 More than a quarter-century after his death, the “legacy” of American Civil Liberties Union founder Roger Baldwin – a self-professed fan of Soviet communism and of Joseph Stalin – is still going strong. With the collapse of the Soviet empire, current ACLU leaders have thrown more of their support to one of the last remaining bastions of the Soviet ideal: Cuba.

 In 2005, for example, the ACLU endorsed an amendment lifting the ban on tourist travel to Cuba – a long-distance slap in the face to Cubans, who now watch foreign tourists feed corruption, pesos and dollars to the Communist machine, while they themselves are stripped of nearly all human rights. The insult was multiplied a year later, when the ACLU demanded an end to bans on academic travel, so scholars could lend their support to the regime.

But ACLU leaders are as eager to export Cuban communism as they are to import American tourist dollars. Last week, the ACLU was in federal court, arguing that a Miami-Dade County school board broke the law by removing from its school libraries a book entitled Vamos a Cuba (Let’s Visit Cuba), which offers a strangely luminous view of life in Castro’s island “paradise.” A federal judge has already ruled that the book be returned to the shelves until the case can play out in court.

 The school board’s beef isn’t with what is on the pages, but with what isn’t. Parents filed complaints after finding the book to be devoid of any mention of the oppressive regime instituted by Fidel Castro nearly 50 years ago. Instead, its pages are filled with breezy commentaries on how Cubans enjoy chicken with rice (under the country’s subsidized ration plan, the average Cuban is allotted a whopping 8 ounces per month) and boating as a leisure activity (“boating” being a rather ironic term for the fragile, homemade rafts so many launch out onto the ocean, in desperate bids to escape the regime).

The book’s cover, available in both English and Spanish versions, is adorned with beaming children dressed in the uniform of the Pioneers, the Communist youth organization that Cuban children are required to join. They look like Cuban Bobbsey Twins.

Obviously, the Miami children targeted for this book have never been told that questioning the Cuban government is likely to lead to imprisonment … that milk is far too expensive for most on the island to purchase … that access to everyday activities like surfing the Internet is not only severely limited, but closely monitored by the government for any shred of dissent against Castro and his cronies.

Absent from the pages of Vamos a Cuba is any mention of the ruthless 20-year prison sentences levied on Cuban poets and journalists and priests who failed to fawn over their fearless leader. Instead, the book depicts Cubans as living as freely as they please.

Incredibly, the ACLU claims that removal of these fictions somehow violates students’ constitutional rights to “access of information.” That’s right: your kids have a constitutional right to absorb misinformation. If a pro-Communist wants to lie about the impact of the Party on the people, your tax dollars should encourage children to read those lies.

 Of course, this same “right to access” doesn’t apply to information that the ACLU’s intolerant agenda deems misleading. They’re not nearly as interested in allowing both evolution and intelligent design to be discussed in science classes, or in letting a student who disagrees with homosexual behavior present his views openly and peacefully to a fellow student. It’s doubtful that a biography stressing John Paul II’s resistance to Communism, a children’s book stressing the importance of having both a mommy and a daddy, or, of course, a revisionist view of the impact of the ACLU would make the organization’s suggested reading list for Florida public schools – or the subject of an ACLU lawsuit to protect children’s “access.”

After all, when it’s not promoting Communism, the ACLU is promoting atheism. As the Number One religious censor in America, they’re probably more responsible than anyone for removing Bibles, books on Christian faith, history, and heritage, and textbooks debunking Darwinian theory from public library shelves all over the country.

 And yet blocking the truth isn’t enough. The ACLU chooses clients who want to replace factual information with lies, like the blatant misrepresentations of Cuban life in Vamos a Cuba. In its determination to keep a book so ridiculously backward on the shelves, the ACLU is clearly bent on a mission of disinformation.

 But then, it would have to be, to promote the current Cuban regime. Cuba’s own Constitution declares that: "Citizens have freedom of speech and of the press in keeping with the objectives of socialist society.” Translation: Toe the party line, fellow Cubans, or face the consequences.

Perhaps the book should be retitled, Vamos a Prisión.
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Crafty_Dog
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Posts: 31806


« Reply #449 on: July 09, 2011, 10:33:14 AM »

For one year in the 1980s I was a member of the ACLU.   The in-house material was extremely leftist and dishonest in its pretense of a commitment to freedom and quite pro-socialist.  I did not renew.
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