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Archive for the ‘Justice’ Category

While many of my posts mock American politicians for their foolish, short-sighted, and corrupt choices, I’m still very happy to be a citizen of the United States. Or, to be more accurate, I’m glad that I live in a nation that is part of Western civilization.

Consider what it would be like to live in Iran, where the government executes people for victimless crimes. Here’s part of a report from AFP.

Iranian courts on Sunday sentenced two people to death for running porn sites, prosecutor general Abbas Jafari Dolatabadi said, quoted on the Islamic republic’s official IRNA news agency. …Last December, Canada expressed concern over the reported death sentence handed down to an Iranian-born Canadian resident for allegedly designing an adult website. …Malekpour was detained in Iran after returning in 2008 to visit his ailing father. He was sentenced to death in December. The Netherlands froze contacts with Tehran after Saturday’s hanging of an Iranian-Dutch woman for drug smuggling, having initially been arrested for taking part in anti-government protests.

Iran also executes gay people, so the thugs running the government get bent out of shape about all sorts of private, consensual acts.

And let’s not forget that these nutjobs apparently are on the verge of getting nuclear weapons.

I rarely comment on foreign policy, and I don’t pretend to know what, if anything, should be done about Iran. My libertarian instincts tell me that any Western intervention would backfire. That being said, the world might be a safer place if Iran’s nuclear weapons program was disabled by an Israeli strike.

The best outcome, at least to my untrained eye, would be a domestic revolution. Some people fear this means instability, but Anne Applebaum persuasively argues in today’s Washington post that the uncertainty of change is better than the certainty of oppression. She’s commenting on Egypt’s turmoil, but I think her message has wide application. As such, one can only hope that the Iranian people rise up and overthrow the current regime. At which point, maybe gay Persians should be allowed to decide an appropriate punishment for the ousted tyrants.

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I’m not a lawyer, so I certainly can’t pretend to have expert views, but everytime I read something like this, my regard for Justice Thomas rises even higher.

In the McDonald case, the justices were asked by the plaintiffs to strike down Chicago’s gun-control ordinance as a violation of the Second Amendment to the Constitution.

In order to do so, the justices would have to make two maneuvers. Of course, they’d have to rule that the ordinance runs afoul of the Second Amendment’s prescription that “the right of the people to keep and bear Arms, shall not be infringed.” But they’d also have to rule that the Second Amendment restricts not just Congress’s ability to make laws controlling the use of guns, but that of state governments as well. Remember, the Bill of Rights, as originally constructed, only applies to the federal government.

In order to extend the Second Amendment to laws passed by states or cities, the court was faced with a choice of two clauses embedded in the 14th Amendment. It could “incorporate” the Second Amendment to the states through the 14th Amendment’s Due Process Clause. Or, pursuant to the 14th Amendment’s Privileges or Immunities Clause, it could deem “the right to bear arms” one of the “Privileges” or “Immunities” that the states are forbidden from taking away.

So you’ve never heard of the Privileges or Immunities Clause? We’re not surprised. The clause was largely neutered in a set of cases decided in 1873.

…Those arguing for resuscitation of the Privilege or Immunities Clause pinned their hopes on Justice Antonin Scalia and Justice Clarence Thomas, both known for their “originalist” approach to constitutional interpretation.

But Justice Scalia on Monday opted, along with Justices Alito and Kennedy and Chief Justice Roberts, to use the Due Process Clause. As Liptak noted, Justice Scalia, in a concurrence, “acknowledged misgivings about using the due process clause to apply Bill of Rights protections to the states” but went along with it “’since straightforward application of settled doctrine suffices to decide it.’”

But in a separate concurrence, Justice Thomas boldly went where no justice has gone before: to the arms of the Privileges or Immunities Clause. He wrote:

[T]he text of the Privileges or Immunities Clause . . . command[s] that “[n]o State shall . . . abridge” the rights of United States citizens . . . the Clause establishes a minimum baseline of federal rights, and the constitutional right to keep and bear arms plainly was among them.

The rationale didn’t carry the day, but many legal commentators were thrilled by Justice Thomas’s concurrence. “He’s sticking with the text of the Constitution,” said Georgetown law professor Randy Barnett, to the Law Blog. “At the same time, nobody voices disagreement with Justice Thomas. And that’s because they can’t.”

Writing at Scotusblog, George Mason’s Nelson Lund cheered Thomas’s opinion:

His opinion is scholarly and judicious, and it cements his standing as the only Justice who is more than a half-hearted originalist.

Barnett and others hope that Thomas’s lone dissent has planted the seeds for a constitutional reawakening rooted in the Privileges and Immunities Clause.

http://blogs.wsj.com/law/2010/06/28/is-his-gun-control-concurrence-justice-thomass-finest-hour/

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I don’t know what will happen when the Senate Judiciary Committee grills Obama’s Supreme Court nominee, but I hope at least one member reads George Will’s column and uses some of his suggested questions. They are all worth reading, but here are my three favorites: 

The government having decided that Chrysler’s survival is an urgent national necessity, could it decide that “Cash for Clunkers” is too indirect a subsidy and instead mandate that people buy Chrysler products? …Can you name a human endeavor that Congress cannot regulate on the pretense that the endeavor affects interstate commerce? …Should proper respect for precedent prevent the court from reversing Kelo? If so, was the court wrong to undo the 1896 ruling in Plessy v. Ferguson that segregating the races with “separate but equal” facilities is constitutional?
http://www.washingtonpost.com/wp-dyn/content/article/2010/06/24/AR2010062403178.html 

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