Judicial activism Archives

Bookworm Beat 10/4/17 — the Second Amendment edition

October 4, 2017 by Bookworm 14 Comments

While not all of the links in this post discuss the Second Amendment, most do. There’s other stuff too, about health care, the economy, etc. It’s all good.

A great book about the Second Amendment. This post focuses heavily on the Second Amendment because, once again, Progressives are using an evil act to justify depriving Americans of a singularly important Constitutional right. I’m therefore opening by shilling my own little book on the subject: Our Second Amendment Rights In Ten Essays. The ten essays are

A Typical Discussion With Gun Grabbers; Or, What Second Amendment Supporters Are Up Against
Guns Are Most Dangerous When The Government Is The Only One That Has Them
America’s Founding Fathers Ratified The Second Amendment Because They Knew That Government Is Dangerous
A Self-Defended Society Is A Safe Society
Gun Grabbers Ignore That Guns Not Only Take Lives, They Save Lives
Beware Of Arguments Comparing American Gun Crime To That In Other Nations; These Arguments Are Always Dishonest
The Only Way Gun-Control Activists Can Support Their Position Is To Lie
Disarming Americans Is A Racist Thing To Do; Therefore, Second Amendment Supporters Are Anti-Racists
Jews, Of All People, Should Always Support The Second Amendment
If We Really Want To Protect Our Children, We Shouldn’t Ban Guns, We Should Ban School Buses

Those who took the time to review the book were good enough to say nice things:

“An exceptional set of essays addressing with the common progressive attacks on our Second Amendment right, as well as the historical origins of the right and its tremendous importance to our “free state.” In light of the stated intent of certain of our politicians to overturn the Heller decision and make a nullity of the Second Amendment, I would recommend that you read these essays closely.”

“A quick read, but packed with commonsense tracing the history & variously failed implementations of gun control in contravention of our Constitution.”

“Read it, live it, breathe it … for freedom. History shows time and time again that only despots want to disarm citizens. The result? Learn from history.”

“An excellent and incisive book written by one who has a firm grasp of both the subject and the issues at stake.”

“Well written, understandable, and timely. Excellent information.”

“Read this. Your freedom is a risk.”

“Well written and quite thoughtful.”

At the risk of sounding immodest, as the Progressives’ increase their strident demands that we turn all of our weapons over to Donald Trump (yes, that’s effectively what they’re demanding), this book has some useful ways of thinking about guns and a civil society that may help you rebut the insanity.

Nothing like a little data to reveal the stupidity behind gun control. If you haven’t already heard about and read Leah Libresco’s anti-gun control opinion piece at the WaPo, you must. It’s an honest acknowledgement that everything that the gun control crowd argues is wrong — and it comes from one who once supported those arguments until her data studies revealed they had no basis in reality:

Before I started researching gun deaths, gun-control policy used to frustrate me. I wished the National Rifle Association would stop blocking common-sense gun-control reforms such as banning assault weapons, restricting silencers, shrinking magazine sizes and all the other measures that could make guns less deadly.

Then, my colleagues and I at FiveThirtyEight spent three months analyzing all 33,000 lives ended by guns each year in the United States, and I wound up frustrated in a whole new way. We looked at what interventions might have saved those people, and the case for the policies I’d lobbied for crumbled when I examined the evidence. The best ideas left standing were narrowly tailored interventions to protect subtypes of potential victims, not broad attempts to limit the lethality of guns. (Emphasis mine.)

Read the whole thing — and then politely, ingenuously wave it under the noses of your anti-gun friends and colleagues. [Read more…]

If only the opinion from the Fourth Circuit was retroactive to Obamacare

May 30, 2017 by Bookworm 3 Comments

The Fourth Circuit held that a president’s reputation for honesty has to be read into his official acts. If only that rule were retroactive to Obamacare.

Eagle-eyed readers will have noticed that I haven’t comment on the latest atrocity from the Fourth Circuit, in the form of a decision striking down Trump’s executive order limiting new immigration from countries harboring terrorists — countries that, not coincidentally, are Muslim majority. That same order, it should be noted, targeted only six countries, leaving untouched most of the world’s Muslim majority countries.

Although the decision is long, it can be summed up in a single sentence that the Fourth Circuit included to describe its take on “an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.” In other words, the order itself meets Constitutional standards; the Court rejects it because it comes from Trump.

Since I blog for pleasure not money, I most certainly do not get paid enough to slog through a constitutionally infirm, badly reasoned political hit piece from an ostensibly “neutral” federal court. I therefore left the legal analyses to better thinkers than I ever will be; e.g., Hans von Spakovsky, >David Rivkin and Lee Casey, Paul Mirengoff, and John Hinderaker.

The only reason I mention that misbegotten excuse for legal reasoning is because of a Washington Post article about Trump’s defeat at the hands of the Fourth Circuit. You don’t even have to read the article to get the point. Here’s the Facebook link the WaPo put up to promote its article: [Read more…]

Constitutional Originalism or the “living Constitution”: Gorsuch’s nomination and a tale of two law profs

April 4, 2017 by Wolf Howling 23 Comments

The Gorsuch nomination, pitting Originalism against a “living Constitution,” is a fight for America’s soul — so pay attention because this is important!

Judge Neil Gorsuch’s nomination has brought to the fore the seemingly dry argument about two competing theories of Constitutional interpretation, Originalism and the “living Constitution.” Gorsuch himself is an “originalist” while the Democrat party arrayed against him puts its faith in a “living Constitution.”

Two recent essays both discuss Originalism and “the living Constitution”: Prof. Glenn Reynolds’ “Who the People?” in USA Today, and Prof. Mary Bilder’s “The Constitution Doesn’t Mean What You Think It Means” in the Boston Globe. Dry though the argument may seem to those not already steeped in the law, Progressives have turned this into the single most important issue facing our nation, so pay attention to this one.

Why is this so important? Because whichever of those two theories, Originalism or living Constitution, wins goes to the heart of how we will be governed in the future. It will determine whether we will be a Republic under a government with limited powers that the people control through the ballot box — as the people who drafted the Constitution envisioned — or whether we will be a nation pushed ever further left by non-democratic, extra-constitutional means, morphing to the point that the Constitution is meaningless and our Republic gutted in a brave, new, progressive, socialist nation.

The competing theories are easily explained. “Originalism” is a wholly apolitical theory holding that one interprets the Constitution as it was understood when passed. This is not inherently conservative or liberal, Republican or Democrat. It is merely adherence to a framework that allows for the people of the nation — not judges — to amend it.

Automatic adherence to Originalism explains why, for more than a century, there were no politics attendant upon confirming Supreme Court justices or judges holding other positions in the federal system. Judges were not ideologues, using their position to create new laws or Constitutional rights; they were just judges, applying the Constitution and the law as written to the facts before them. Progressivism was not ascendant in American politics until Woodrow Wilson was elected President in 1913. Only by the 1980s, after several decades of decisions from Progressive activist judges, did legal scholars coin the word “Originalism” to apply to the traditional judicial approach to the Constitution.

In an act of pure projection, progressives have falsely labeled Originalism as “conservative.” As Prof. Reynolds says in USA Today:

[C]ourts have a duty to enforce the Constitution as written, whether those results further the aims of a political majority or of a minority. When courts do so, even if they strike down laws passed by the majority, they are not engaging in judicial activism. They are simply doing their jobs. . . .

Arrayed against Originalism is the “living Constitution.” The very term is polish on excrement, much akin to “Democratic People’s Republic of [stick in the name of your preferred police state / dictatorship here].” Just as there is nothing Democratic or Republican about a socialist dictatorship of any stripe, there is nothing constitutional to be found in the theory of a “living Constitution.” The term is used to give an air of legitimacy to the wholly illegitimate.

Under the progressive socialist’s theory of a “living Constitution,” un-elected judges are free to ignore the original intent of those who crafted and voted in a referendum to pass our Constitution and take unto themselves the power unilaterally to proclaim new law or otherwise amend the Constitution upon their whim. The Constitution itself spells out, in Article 5, the only two means by which the Constitution could be amended — and neither of those include amendment by judicial fiat. The incredible genius of the system our Founders crafted, limiting the power of any one branch of government by a series of “checks and balances,” is lost through this judicial usurpation of power at the expense America’s citizens.

So how does Prof. Mary Bilder attempt to justify this obscene “living Constitution” assault on our republican form of government in her essay, “The Constitution Doesn’t Mean What You Think It Means“? To begin with, what a perfect title. At least there she’s not hiding the ball. The contents of her essay, though, are a different matter entirely. To be that honest would be to invite a second watering of the tree of liberty.

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Judges invent an entirely new, and very illegal, “legal standard” for Donald Trump

April 4, 2017 by Bookworm 11 Comments

When it comes to Donald Trump, Obama-appointed judges are inventing new legal standards unrelated to the Constitution, statutes, cases, or even facts.

Progressives are very excited that a federal judge in Kentucky has held that Trump can be sued for inciting violence. Perfectly illustrating this excitement is a WaPo analysis carrying the headline, “A judge rules Trump may have incited violence … and Trump again has his own mouth to blame.”

At this point, of course, you may be wondering what words Trump used to madden the mob. Perhaps he said, “If they bring a knife to the fight, we bring a gun. Because from what I understand folks in Philly like a good brawl.” Sorry. My bad. That was Obama.

Or maybe he said that he was actively looking for “whose ass to kick.” Nope. Another mistake on my part. That was also Obama.

I distinctly remember a political type analogizing the maddened marches in January and the mob attacks in February to the Civil Rights movement, “They’ve marched. They’ve bled. Yes, some of them have died. This is hard. Every good thing is. We have done this before. We can do this again.” That sounds a bit like a call to blood and riot, but it was Loretta Lynch who said it, not Donald Trump.

What Donald Trump actually said was “Get him the Hell out of here. Get him out of here. Throw him out,” in response to protesters who were disrupting a rally:

Classy? Probably not. Incitement to violence? I doubt it. In fact, the only thing we know for certain about “incitements to violence” at Trump rallies is that the Democrat party deliberately planted bird doggers whose goal was to foment violence. (It would not surprise me to learn that those same people, after the election, became “antifa” freelancers, spreading out to places such as UC Berkeley or Middlebury College to use violence against free speech.)

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Bookworm Beat 3/29/17 — web design and teaching an old dog new tricks

March 29, 2017 by Bookworm 10 Comments

I have been a bit remiss in blogging the past few days, but that’s because I’ve been caught up in web design and lose track of time.

I’m creating the web as a companion piece to my app project. Learning web design provides me with fun and frustration in equal measure.

If you’re thinking of designing your own blog, I highly recommend the DIY videos from NYC Tech Club. The videos clearly walk you through each step for building a website, from getting a domain, to finding a server, to designing a WordPress site.

This is my second site build — I did the first for our local Navy League chapter — and there’s been a huge leap in website design in just the last couple of years. This means that I’m starting at square one. As an old dog, learning these tricks can be time-consuming. I also lose track of time. If the dogs didn’t bark me off when it’s time to feed or walk them, I’d never look up from the computer.

Still, I always do sneak in some reading and I’ve got posts I want to share with you. In no particular order:

Stop panicking about politics. The Left is in perpetual panic/aggression mode since the election, but conservatives are doing a good job of panicking as well following the first attempt at healthcare and the endless claims that Trump committed treason with the Russians.

Regarding health care, Scott Adams says, “Don’t worry. Trump is a systems guy and the systems are working just fine.”

And on the subject of Russia, Charlie Martin, one of the most intelligent thinkers and analysts, has this to say:

Folks, doing business with Russia isn’t illegal.

Being a lobbyist who lobbied for Russia in the past isn’t illegal. For Democrat NeverTrumpers: You don’t want to push this, since John Podesta did quite a lot of lobbying with Russians, and the Clinton Foundation did a lot of business with the Russians. It’s not illegal to talk to Julian Assange. It’s not illegal, it’s not even cooperation, to say: “Hey Russia, why don’t you release Hillary’s emails?” And frankly, it would take a complete nincompoop to think that Trump was illicitly coordinating with the Russians by saying something in a press conference.

Judges are morons. To any of my readers who are judges or have are associated with judges, I’m sorry for saying this, but it has to be said. Judges — at least if they’re Progressive — are morons. Evil too.

The latest example of how dreadful Progressive judges are comes from the Supreme Court of the State of California. In a move that actually impresses me in a bizarre way, a Republican governor managed to put into place a Chief Justice who is more stupid and harder Left even than the infamous Rose Bird.

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The Bookworm Beat 3/16/17 — the Rule of Law is Dead edition and open thread

March 16, 2017 by Bookworm 7 Comments

While the rule of law is not completely dead, it’s dead enough to justify the title for this quick round up of today’s lawless news.

The latest federal opinions would bar President Trump from ever again issuing an executive order. William Jacobson, of Legal Insurrection, has looked beyond the obvious failings of the legal decisions issued against Trump’s most recent executive order (specifically, the absence of any analysis involving statutes, case authority, or the Constitution), and discovered the real canker at the heart of these stinking roses:

Two big developments on judicial usurpation of presidential immigration and national security powers.

The federal district court in Hawaii issued a TRO and the 9th Circuit denied en banc hearing of the first appeal. Both Orders are embedded in full at the bottom of this post.

The net result is that Trump has been stripped of his constitutional and statutory powers to protect the nation through control of who is permitted to enter the country.

I warned about this, and the danger of Trump not seeking Supreme Court review in the first case, President Trump must not back down on immigration Executive Order:

The decision of the 9th Circuit Court of Appeals to leave in place a broad Temporary Restraining Order freezing President Trump’s Executive Order on visas and refugees presents a serious threat to the constitutional and statutory authority of the presidency.

By leaving an overly broad TRO in effect that protects even persons who are abroad with no prior connection to the United States, and by refusing to narrow the TRO, the 9th Circuit effectively extended to such persons U.S. constitutional due process rights both to apply for a visa and in the visa process….

I have seen many analyses critical of the 9th Circuit ruling which urge the Trump administration to take a step back, to withdraw the current Executive Order and rewrite it to fit what is acceptable to the 9th Circuit. The Trump administration, according to some reports, is considering doing that.

That would be a grievous mistake.

The Executive Order, as the Trump administration has said it would be enforced (for example, excluding green card holders from its reach), is perfectly lawful and within the President’s power and authority. To accept the 9th Circuit ruling is to accept that the President does not have the powers vested in him by the Constitution and Congress.

And now it’s playing out.

There’s a very tight relationship between Obama and Judge Watson. This morning, in my illustrated round-up, I included the poster below, along with a comment saying that I was sure that Obama’s arrival in Honolulu was just a coincidence, but a funny one:

It may still be a coincidence, but it’s a coincidence with attendant coincidences attached to it:

Watson, 50, was appointed by Obama in November 2012 and confirmed by the U.S. Senate in April 2013. Watson said in a June 2013 interview with the Honolulu Star-Advertiser that he never met Obama at Harvard and knew him only as head of the school’s law review.

Yes, Harvard has slightly large class sizes (about 550 students per year), but I find it surprising that Watson claims never to have met Obama. I too attended a large school, and I knew everyone in my year, at least in passing. Yeah, I’m sure there’s nothing there.

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Found it on Facebook — more stupid and/or dishonest posters from the Lefties

July 15, 2016 by Bookworm 9 Comments

Between the Islamic terror attack on Nice, Ruth Bader Ginsburg’s decision to go full Bulworth, and Hillary’s semi-pass from Comey (a scathing indictment followed by a “get out of jail free” card), there’s been a bumper crop of stupidity in the Facebook feeds of my Lefty friends. I have to go to work soon but before I do I wanted to share three emblematic examples with you. The first is from The World Post which is, as best as I can tell, an arm of the Huffington Post:

That’s it from the Left — not angry, not defiant, not determined, not militant, just “tired.” And of course, still unable to name the ideology that sends out its brainwashed troops to engage in myriad individual acts of war directed at civilian populations. If you’re a Lefty, you can name all the locations where Islamists have hit, and you can make vapid claims that you’re the living embodiment of those places, but you can’t make yourself name the poisonous ideology behind all these massacres, nor are you willing to fight against it.

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Trump and the judge — and many of you are going to hate me, but I’m going to say it anyway

June 4, 2016 by Bookworm 11 Comments

Donald Trump went into full attack mode against Judge Gonzalo Curiel, who is presiding over the case against Trump University. You can find here a video, with transcript, of Trump defending his contention that a “Mexican” judge is a problem for him because of Trump’s outspoken opposition to illegal immigration from Latin America. I have a few comments to make.

First, if I were Trump’s attorney and was dealing with a judge or seemed unduly hostile to me or my client, I would definitely think about making a motion saying that the judge’s hostility derives from my attacks against a special interest group of which the judge is a member ( in this case, “Hispanic Americans”) and that he should recuse himself if for no other reason than “the appearance of impropriety.”

The basis for my motion would be the Code of Conduct for United States Judges, which states explicitly that “Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities.” (Emphasis added.)

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Kevin Williamson zeroes in on the core problem with the Supreme Court

March 17, 2016 by Bookworm 6 Comments

In response to the Left’s claim that Judge Merrick Garland, Obama’s nominee for the Supreme Court, is a moderate, Kevin Williamson hones in on the central problem with our Supreme Court:

It is a testament to the corruption of the Supreme Court that there is never any question about how any of the so-called liberals on the Court — who are anything but liberal — will vote on any given question. Elena Kagan swore up and down during her confirmation hearings that there was no constitutional right to gay marriage — it was the usual exercise in Democratic taqiyya. But no serious person ever doubted for a second that she would discover one lurking in the penumbras the second she had a lifetime appointment and the power to substitute her own will for the content of the Constitution.

A judge isn’t a little bit of an activist any more than a person suffers from a little bit of cancer. Activism is activism, and cancer is cancer. There are better and worse cancers to have, to be sure, but you either have cancer or you don’t. Which is not to say that there will not be honest disagreements among justices about the meaning of a particular constitutional provision or how a statute should be construed. But the party-line character of the Supreme Court shows us the institution’s true nature: It is, effectively, a super-legislature, not a court. That the party-line character is lopsided, with a few conservatives still using Scalia’s Stupid But Constitutional stamp while the so-called liberals operate as a unit, is of course relevant; but the attention that is paid to the ratio of progressives to conservatives on the Court fails to account for the fact that this should not matter.

It should not matter — if the law were the law. If the law is whatever our black-robed secular clerics say it is, then it does matter what sort of political views justices hold. And if it matters what sort of political views justices hold, then the Supreme Court is not a court, but something else.

Or as a friend said, it’s dangerous leaving nine people believing that they can act as a politburo. My friend would have Congress pass a law saying that judges are completely bound by the Constitution’s written words, as seen (if necessary) through the filter of original intent. And if the Constitution doesn’t address a situation at all — such as gay marriage — it’s a matter for the states, not the federal government and the Supreme Court, and retrofitting the Second Amendment doesn’t make it so. It just means that the judges are engaged in constitutional legislation, which ought to be done away with forever.

All systems can be abused, says my friend, but the situation we have now is completely out of control.

Vote in 2016 as if your life depends on it — because it does

February 15, 2016 by Bookworm 5 Comments

The Bookworm Beat 7-7-15 — the “some things never get old” edition and open thread

July 7, 2015 by Bookworm 5 Comments

None of these links have current dates because they’ve been sitting on my spindle for a while, but each addresses a current issue, and it would be criminal if I didn’t share them with you:

Nevada puts education power back in parents’ hands

People who oppose the power of the teachers’ unions and who believe in parents’ rights to educate their children as they, not the government, see fit, should keep an eye on Nevada, which makes it possible for all Nevadans to opt out of the public school system:

[Read more…]

Here’s something to give you nightmares — Obama on the Supreme Court

June 30, 2015 by Bookworm 11 Comments

Yes, he’s not even out of office, but the Lefties are seeing which way the wind blows — and that is to an unanswerable Supreme “Court” that operates to permanently enshrine Leftist initiatives. What better place for Obama? And so it is that I find this poster popping up all over my Facebook feed:

“He’s a superb writing, a former constitutional law professor, and has the right temperament and values.” I disagree with every single statement in that sentence. When others don’t write for him, he’s a turgid, ponderous, and sometimes incoherent writer and speaker; he was a “lecturer,” not a “professor,” with the former having lower status than the latter; he has a vindictive temperament; and his values are hard Left, anti-American, anti-Israel, pro-sharia, and generally distasteful and dangerous.

No wonder the Lefties want him to be their chief rubber-stamper.

How the Supreme Court should have ruled on the gay marriage question

June 29, 2015 by Bookworm 3 Comments

As we all know to America’s cost, when confronted with the question of gay marriage under the Constitution, Justice Kennedy found the right lurking in the heart of the Constitution, right between the Amendments about unicorns and leprechauns. In other words, he made it up out of whole cloth.

The correct ruling, of course, would have been to say that the Constitution is silent on all marriages, let alone gay marriage, but is quite loud about religious freedom. Therefore, to the extent that “marriage” is inextricably intertwined with religion, the answer isn’t to add gay marriage to the Constitution but, instead, to take all state-sanctioned marriage out of the Constitution, reserving it solely for religious institutions. The states would have to be content with issuing licenses for “civil unions.” These unions would be subject to each state’s determined about what is best for the state’s (and its children’s) overall well-being. End of story.

Of course, the sad truth is that not a single one of the Leftists on the Supreme Court (and that includes Justice Kennedy) is either as intelligent or as principled as I am. 😉 That’s a shame too, because we’re going to have one Hell of a mess in this country in the coming years (as I predicted long ago) thanks to the Supreme Court’s inevitable bow to political correctness and delusional takes on reality.

The Bookworm Beat 6-29-15 — the “house divided against itself” edition and open thread

June 29, 2015 by Bookworm 14 Comments

My dog woke me early, which bothered me at the time but now seems like a good thing, since I can get a little blogging in before the work day begins. Without further ado, a few posts I think are worth you time:

On Democrats and racism

If you read one thing today, you have to read Jeffrey Lord’s open letter to Debbie Wasserman-Schultz asking her when Democrats are going to confess to and apologize for the fact that racism is their legacy to America — and one that they pursued aggressively for more than a century.

After you’ve read it, if you won’t turn yourself into a pariah amongst family and friends, share it around. After all, two can play at the Alinsky game, but for conservatives, the Alinsky game is one in which each individual conservatives must be an activist, because there won’t be a media/Hollywood conglomerate around to do the heavy lifting.

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If you read one thing today, read Andrew McCarthy’s take on the U.S. Supreme Court

June 28, 2015 by Bookworm 8 Comments

Andrew McCarthy outdid himself on this one, honing in on the giveaway that the Supreme Court is a legislative branch of the Progressives:

Yet, for all the non-stop commentary, one detail goes nearly unmentioned — the omission that best explains this week’s Fundamental Transformation trifecta.

Did you notice that there was not an iota of speculation about how the four Progressive justices would vote?

There was never a shadow of a doubt. In the plethora of opinions generated by these three cases, there is not a single one authored by Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, or Sonia Sotomayor. There was no need. They are the Left’s voting bloc. There was a better chance that the sun would not rise this morning than that any of them would wander off the reservation.

How can that be? Jurisprudence is complex. Supple minds, however likeminded, will often diverge, sometimes dramatically, on principles of constitutional adjudication, canons of statutory construction, murky separation-of-powers boundaries, the etymology of language, and much else. Witness, for example, the spirited debate between the Court’s two originalists, Scalia and Clarence Thomas, over a statute that, in defiance of Obama policy, treats Jerusalem as sovereign Israeli territory.

But not the Court’s lefties, not on the major cases.

And it is not so much that they move in lockstep. It is that no one expects them to do anything but move in lockstep — not their fellow justices, not the political branches, and certainly not the commentariat, right or left.

It is simply accepted that these justices are not there to judge. They are there to vote. They get to the desired outcome the same way disparate-impact voodoo always manages to get to discrimination: Start at the end and work backwards. Guiding precedents are for the quaint business of administering justice. In the social justice business, the road never before traveled will do if one less traveled is unavailable.

But there’s a problem. Once it has become a given that a critical mass of the Supreme Court is no longer expected, much less obliged, to do law, then the Court is no longer a legal institution. It is a political institution.

That is where we are. We should thus drop the pretense that the Court is a tribunal worthy of the protections our system designed for a non-political entity — life-tenure, insulation from elections, and the veil of secrecy that shrouds judicial deliberations.

Please be sure to read the whole thing. And then start thinking about how to mobilize a grassroots force that addresses this damage to our constitutional system.