The Right State

Wow! The Supreme Court struck down the D.C. gun ban. This is a significant development. For years there has been a debate between gun rights supporters and anti-gun activists on the meaning of the 2^nd Amendment to the Constitution. Anti-gun activists have long viewed gun rights as belonging not to individuals but to the militia or another words to individuals empowered by the government to provide defense during times of national or state emergencies. The Supreme Court has struck down this argument saying gun ownership is an individual right. This is great news!

According to Justice Scalia, the 2^nd amendment gives an individual a right to own a gun.

Anti-gun activists have been targeting gun ownership for years. They have attacked the meaning of the 2^nd Amendment, they have attacked gun manufacturers, and they have a whole host of lawyers who are willing to work for free to deny gun owners their rights. These lawyers have gun so far as to blame guns for violence instead of the gun wielder. They have sued gun manufacturers for making defective guns because a criminal will sometimes use a gun to commit a crime. What a crock!

Thank Goodness the US Supreme Court finally took a stand on the Constitution.

More updates later.

Tags: Culture, Supreme Court by Chuck
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The Supreme Court is finally set of look at whether certain portions of the landmark case of Brown vs. The Board of Education-Topeka, Kansas should be overturned or at least its meaning modified.  The 1954 Brown decision came at a pivotal time in US race relations.  Everywhere across the US in the first half of the twentieth century, evidence of the previous 1896 landmark case of Plessy vs. Ferguson could be seen: separate water fountains, separate eateries, separate restrooms, and separate schools.  Signs clearly marked the areas as colored only.  Plessy laid out the idea that blacks and whites could have separate facilities as long as they were equal.  This test of equality was never applied since having separate services turned out to be only separate and not equal.

Fifty-eight years later black students in various states challenged the inequality found in the Plessy case.  These students wanted to attend their neighborhood white schools, but could not due to laws which made such attendance illegal.  The Supreme Court rightfully overturned the wrongly decided Plessy with the Brown decision.  In fact Chief Justice Earl Warren writing for the majority of the court had to say about the separate but equal provision in the case.

We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does. (snip)

We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.

As I stated earlier, the Brown case was correct since separate but equal facilities were inherently unequal.  What followed after Brown v. Board of Education was an attempt to re-do the injustices of the past.  The justices held that segregation was wrong, but what followed was the whole sale busing of students from black schools to white schools and white students to white schools as states and cities across the nation attempted to correct past injustices.  Parents who once moved into neighborhoods based on the quality of the schools no longer had the luxury of sending their children to the school down the street.  States and lower courts turned the Brown ruling into an abomination as school kids were sometimes bused several miles from their homes to attend schools in the name of diversity.

From this one case other atrocities came into existence, all stemmed from Brown and all were inaugurated with the intended purpose of righting past wrongs.  Among the most notable of this redresses was the practice of institutional racism, otherwise known as Affirmative Action.

Finally the high court can once again right wrongs by undoing the worst part of Brown—busing.  If this case is overturned or at least redefined, the justices will show that the wrong implementation of a good decision can make the entire decision wrong as well.

Interestingly enough, it is the Los Angeles Times who boils this controversial issue down to once single question.

State-enforced segregation laws are long gone, but for school officials today, a key question remains: Did the historic decision commit them to a policy of seeking integrated schools, or did it tell them not to assign students to a school based on their race?

Even a cursory reading of the majority opinion should answer that question.  The justices did not like separate schools based on race.  In their arguments, lawyers on both sides of the issue will be using the landmark Brown case in trying to score points with the Supreme Court Justices.  Unlike the earlier court decision, this time it is Brown in reverse.  White parents of school children are asking the court to rule that their children are being discriminated against based solely on the color of their skin.  Chief Justice Earl Warren in his decision reasoned that very same point in Brown—“To separate them [school children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

Justice Warren was right in every way.  To give an advantage or disadvantage to one race based on the color of one’s skin is wrong, whether the subject is busing or affirmative action. With the additions of Justices Samuel Alito and John Roberts to the High Court, the Brown decision may very well be redefined allowing parents of whatever color to send their children to the neighborhood schools.  And rightfully so.  Racism is wrong, even institutional racism.

Martin Luther King’s dream has been achieved in many respects.  Kids of every color attend school together, eat together, and play together.  People of every color work together and play together.  But King’s dream of a color blind society has been replaced with one focused on race more than ever before. Racial preferences are used to give an unfair advantage to one group over another all in the name of diversity.  This is just another term for racism.  Racial preferences make the color of one’s skin the dominate issue.  Instead of binding us together, preferences are making all of us more sensitive to race and are a source of animosity and tension instead of healing.  The Supreme Court with this one ruling could send a message once and for all saying: racism is wrong, even if it is done for the right reasons.

Tags: History, Culture, Supreme Court by Chuck
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Chet Edwards was on Fox News lamenting the Supreme Court’s decision upholding most of Texas’ redistricting plan.  The districts of Texas were redrawn after the 1992 election which greatly favored the Democrats.  After the 2000 election and after the Republican Party won a majority of statewide offices in the state, they tried to redraw the districts which would favor Republicans.  The Democrats both filibustered the plan and left the state in an attempt to thwart redistricting efforts.  With no plan in place the courts stepped in and redrew the lines which again favored Democrats even though a majority of Republicans had been elected.  That is why all of this mid-term redrawing had occurred, but that did not stop Chet Edwards from trying to make an issue of the Supreme Court decision.

“I respect the court’s decision,” Edwards said of the Supreme Court’s ruling that a state has the right to redistrict anytime it wants, even it if is more than once in a decade. The decision effectively dismissed charges that the redistricting was unconstitutional gerrymandering.

“I’m not sure anyone is the winner in the Texas redistricting. It has cost taxpayers millions. It has created terrible divisiveness in the state … and uncertainty to this day,” Edwards told FOXNews.com on the day of the ruling, June 28. (snip)

Chet Edwards is the only Democrat left in the Texas redistricting effort.  He won re-election in 2004 in a close race.  This time Chet is facing not only a veteran, but a Marine corps veteran who served in Iraq.  For many years Chet has run on being a conservative, but has consistently voted as a liberal.  This liberal record will not hold up under scrutiny in one of the most conservative districts in Texas having voted for George Bush over John Kerry 70% to 30%.  One reason Edwards votes so liberal on so many issues could be because he is beholding to a great number of PACs.  On the other had, Edwards opponent, Van Anderson, is a fairly wealthy businessman.

So far, Taylor has raised more than $1.1 million, almost $500,000 of it his own money, to Edwards’ $1.6 million, of which half comes from political action committees. The tally makes this, so far, the most expensive House race in Texas.

But money is not an issue in this race, the redistricting is.  Chet Edwards does not like running in a Republican district and is willing to do anything to prevent this from happening again.  According to Patrick Barkman, a highly partisan local citizen of Cleburne who writes for the Cleburne Times-Review…

To prevent this kind of insanity from spreading, U.S. Rep. Chet Edwards, D-Waco, is proposing a law that would ban mid-decade redistricting. That’s a good start, but the House Democratic Leadership should also pledge that, if they win a majority, they will use Congress’ power under Article I, Section 4 of the Constitution to mandate that congressional district lines be drawn by non-partisan panels without regard to protecting incumbents.

And the Dallas Morning News says the same thing: Rep. Chet Edwards, D-Waco, quickly demanded a legislative ban [on so called mid-term redistricting].  He proposes limiting the redrawing of legislative districts to once a decade.  What this proposal does not address is what happens when the courts overstep their authority and redraw districts on their own which was one reason why Republicans sought to redress this issue.

All of this looks like Chet Edwards is running scared.  He is afraid his records will be displayed for the whole district to see.  Chet would have had a better chance in his old district which was more liberal.  A liberal voting record will not help Mr. Liberal in TX-District-17.  On the other hand, a former Marine Captain turned businessman like Van Taylor should do very well.

Tags: Democrats, Texas, Politics, Supreme Court by Chuck
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While I was waiting for my new computer to come in, I spent a lot of time reading and re-reading the Supreme Court’s decision in Hamdan.  While no expert on law, I do believe the Court’s majority opinion is wrong on several counts including the decision of what constitutes a prisoner of war.  The opinion of the High Court confers the status of Prisoner of War to the terrorists at Gitmo when in fact they are not by the very document used to prove their status, the Geneva Convention.  Article IV defines what constitutes a POW.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.  (emphasis added by TRS)

By the very text the Supreme Court consults, the terrorists are not POWs and therefore are not afforded the rights of POWs.  But there is another problem seemingly even more ominous because the court in taking this case is ignoring the DTA (Detainee Treatment Act) which does not allow the courts to rule on the terrorists.

Justice Scalia in writing for the dissent notes that the Supreme Court has absolutely no jurisdiction in this case.

On December 30, 2005, Congress enacted the Detainee Treatment Act (DTA). It unambiguously provides that, as of that date, “no court, justice, or judge” shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee. Notwithstanding this plain directive, the Court today concludes that, on what it calls the statute’s most natural reading, every “court, justice, or judge” before whom such a habeas application was pending on December 30 has jurisdiction to hear, consider, and render judgment on it. This conclusion is patently erroneous. And even if it were not, the jurisdiction supposedly retained should, in an exercise of sound equitable discretion, not be exercised. (snip)

For the court to rule on this case when DTA clearly says the courts can not interfere begins to show a bit of partisanship where there should be none.  Perhaps some of the more liberal members of the court just could not pass on the change to take a slap at George Bush.  This in particularly appalling since this ruling will clearly hamper the President’s ability to conduct this war.

Justice Scalia goes on to note that the opinion of the majority had in the past decided not to include legislative history in deciding cases since such material was not helpful.  In this case the majority used the language of Democratic Senator Levin in arguing against passage of the DTA as a reason to ignore the law.  It should be noted no legislative history was used by the Supreme Court which supported DTA’s passage.

But selectivity is not the greatest vice in the Court’s use of floor statements to resolve today’s case. These statements were made when Members of Congress were fully aware that our continuing jurisdiction over this very case was at issue. The question was divisive, and floor statements made on both sides were undoubtedly opportunistic and crafted solely for use in the briefs in this very litigation.

This really sounds like political partisanship.  When only the dissenting opinion of a far left wing Senator is used when deciding a case, the court is really reaching.  Further on Scalia notes the High Court is also overturning precedence by conferring rights afforded American citizens on to non-citizens with whom we are fighting.

Because I would hold that §1005(e)(1) unambiguously terminates the jurisdiction of all courts to “hear or consider” pending habeas applications, I must confront petitioner’s arguments that the provision, so interpreted, violates the Suspension Clause. This claim is easily dispatched. We stated in Johnson v. Eisentrager, 339 U. S. 763, 768 (1950):

“We are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.”

Absolutely correct!  Our rights as American citizens are for Americans.  That does not mean we confer second class rights to non-citizens since all are treated fairly under our system of justice.

Justice Thomas goes on to note in his dissent that not only does the Supreme Court lack the jurisdiction to try the case, but notes the court also is not set up to run a war which was clearly approved by Congress under the AUMF (Authorization for Use of Military Force).  For the Supreme Court to even try to oversee the ‘correctness’ of this war is dangerous to this country and under the Constitution is not the purview of the Supreme Court.

I note the Court’s error respecting the AUMF not because it is necessary to my resolution of this case–Hamdan’s military commission can plainly be sustained solely under Article 21–but to emphasize the complete congressional sanction of the President’s exercise of his commander-in-chief authority to conduct the present war. In such circumstances, as previously noted, our duty to defer to the Executive’s military and foreign policy judgment is at its zenith; it does not countenance the kind of second-guessing the Court repeatedly engages in today. Military and foreign policy judgments

“ ’are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.’ ” Hamdi, supra, at 582-583 (Thomas, J., dissenting) (quoting Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 111 (1948)).

What else can be said, the courts can not react fast enough to conduct a war.  For that very reason, the Constitution gave the President the power to conduct a war with Congress giving its approval, which it did in this case.  In wartime, the Courts have NO jurisdiction that I can see.

And finally Justice Alito notes the majority decision in Hamdan decided Article III of the Geneva Convention giving a ‘POW’ a regularly constituted court applied to Hamdan giving him the same rights afforded to American citizens is wrong.  He based his decision on one of the most common books in existence, the dictionary.

I agree with the Court, see ante, at 69, n. 64, that, as used in Common Article 3, the term “regularly” is synonymous with “properly.” The term “constitute” means “appoint,” “set up,” or “establish,” Webster’s Third New International Dictionary 486 (1961), and therefore “regularly constituted” means properly appointed, set up, or established. Our cases repeatedly use the phrases “regularly constituted” and “properly constituted” in this sense.

Why would a military tribunal not be a ‘regularly constituted court,’ especially when we are at war?

To me, the entire episode has set up a constitutional crisis.  This is extremely dangerous on several fronts.  The Supreme Court has ignored the law which forbade the court system from intervening.  It has also ignored Supreme Court precedent giving the President wide lattitude when conducting a war.  President Bush now has a choice, convince Congress to write yet another law making military tribunals legal or ignore the Supreme Court as President Jackson did after Worcester v. Georgia (1832).  This ruling was an obvious slap at President Bush and is extremely partisan on its face.  The High Court is entering the arena of the President, trying to conduct a war from the bench, and obscuring the lines between the branches of government.  During a wartime, this is particularly dangerous.

Tags: Bias, Democrats, Iraq, Politics, Supreme Court, War by Chuck
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I don’t think the ruling by the Supreme Court has handed the American people and George W. Bush a defeat for wanting to try the detainees at Gitmo under military tribunals as the Dallas Morning News suggests.

The Supreme Court ruled Thursday that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees.

The ruling, a rebuke to the administration and its aggressive anti-terror policies, was written by Justice John Paul Stevens, who said the proposed trials were illegal under U.S. law and Geneva conventions.

This ruling is wrong on so many fronts.  First is the fact that we are at war with terrorism.  Congress voted on the war, the troops have been fighting it.  We are at war.  Second is these people are not US citizens.  Only American citizens are afforded rights by US courts.  Third, these terrorists are not a uniformed army, so the Geneva Convention does not apply.  I can not help but wonder what the five Supreme Court justices were thinking when they wrote this opinion, which can be found here.

In reading the opinion of the court, the justices seem to limit their opinion only to Hamdan.  The justices focused a good portion of their opinion of the fact that Hamdan was not charged with any crime therefore he could not be tried under a military tribunal.

The more liberal members of the Supreme Court have been biting at the bit for some time to try this case.  While not a surprise, I am not sure this ruling is a setback.  PA Pundits says the same thing, but for different reasons.

What I see is that the President needs to go to Congress to get authorization for the military commissions. I don’t see that as an issue. Congress will more than likley sit on their thumbs until after the mid term election before they do anything, leaving the current “in-mates” at GITMO in limbo until some time later this year.

This is by no means a get out of jail free card for the guys at GITMO. If it does anything, it increases the amount of time that many of the prisioners will stay at GITMO until both Congress and the President can work to get a plan agreed upon on how to deal with them.

In some cases, I just think we should shoot them and have it over with.

I absolutely agree with the last statement.  In fact I predict this ruling will lead to just such a thing.  When our soldiers are faced with the choice of either risking themselves to capture a terrorist only to have US courts try them, or save everyone a lot of time and just shoot them, I say shoot them.  Either that or turn these terrorists over to their own governments.  Don’t miss understand me, if a terrorist is giving up, then take him prisoner.  But we don’t need to wait our court system with a terrorist who is fighting against us.  Many times their own country can do a far better job of taking care of them than we can.

The ACLU will most likely call turning them over to their home countries as ‘cruel and unusual punishment.’  Then again the ACLU most likely considers living in the US cruel and unusual punishment.

Tags: Supreme Court, War by Chuck
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At what point does the state have an interest in deciding who attends what school based on race?  Affirmative Action is a failed social engineering project whose time has come and gone.  Craig Martelle of Strategic Outlook has the same view: “I am an opponent of Affirmative Action - its useful time is well past and at this point, it is discriminatory because the content of one’s character is not as big a factor as the color of one’s skin.”  The Supreme Court has maneuvered itself into the fray long ago with the landmark case of Brown v. Board of Education, Topeka, Ks.  In that ruling the court rightly reversed another landmark ruling in Plessy v. Fergusson which instituted ‘Separate but Equal’ stating it was okay for blacks and whites to have separate facilities as long as they were equal.  In reality, the facilities were neither separate nor equal.

Unfortunately the outcome of the Brown case led to the massive bussing of white students in mostly white schools to mostly black schools and vice versa.  Apparently busing was considered an option because of a shortsighted belief that it was white kids who make a school better.  All it did was bus white students to poor schools and black students to poor schools.  This was NOT the intention of our founding fathers when they encouraged communities to build area schools.  This was a time when children walked to their schools, where parents went worked in unison with their children’s teachers to educate the kids, and it was a time when teachers and parents were neighbors working towards the same goals.  The Brown ruling reversed almost 200 years of neighborhood schools or rather it was how the lower courts construed the Brown case.  This lower court ruling which allowed busing was a blight on the American consciousness and, in my opinion, set back race relations for years.  One remedy would have been to equalize funding between white and black schools.  When the educational and monetary discrepancies between the two group equalized, they would begin to integrate on their own.  Forcing blacks and whites together only made tensions higher.

Since then the High Court has attempted to focus and narrow what constitutes discrimination and how to make Affirmative Action more palatable to the American people.  With the Bakke decision the Supreme Court intervened in the University of California Medical School at Davis.  Again they intervened in a Michigan Case in which Sandra Day O’Connor writing for the majority ruled that race could be used in admissions as long as it is only one of several factors.  I might note here that in my opinion, the Michigan case was wrongly decided.  Racial discrimination is racial discrimination no matter what the color of the one affected.

Now the US Supreme Court has a chance to make things right.  At issue are two cases, one in Seattle and one in Kentucky.  In the first, the Seattle schools system allows students to pick which schools they wish to attend with the only caveat being the schools rely on tie breakers including race to decide who goes where.  This is wrong.  Does the school district use such factors as social class and gender in their determinations instead of just race.  Probably not.

The second case from Kentucky is also troubling.

The court also will also consider a school desegregation policy in Kentucky. That case is somewhat different, because the school district had long been under a federal court decree to end segregation in its schools. After the decree ended, the district in 2001 began using a plan that includes race guidelines.

A federal judge had said system did not require quotas, and that other factors were considered including geographic boundaries and special programs.

Craig at Strategic Outlook pretty much sums up how I feel on these Affirmative Action cases before the Supreme Court where the very legality of Affirmative Action is at stake.  As I said earlier, discrimination is discrimination, no matter what the color of the individual.

We need no more victims. We need people to make good of themselves, just as the NAACP’s president has done. And when the Supreme Court hears the cases from Kentucky and Wasthington, I think you’ll see that any public school concessions regarding skin color, violate the equal protection clause of the Constitution. This will be the first step in removing race barriers and getting that much closer to true equality.

Tags: Affirmative Action, History, Culture, Politics, Supreme Court by Chuck
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I am finally able to post after returning from the Texas GOP Convention. I want to write about some of the impressions I got from the Convention while they are still fresh in my mind.

The Convention delegates selected their first black Vice Chairman of the Republican Party of Texas in Dr. Robin Armstrong. The new leader is the first African-American to serve in his position since Reconstruction. I believe Armstrong will be an effective leader having been involved in grass-roots Conservative movement for the past eight years in Galveston. This flies in the fact face of the words of DNC leader Howard Dean when he said the only blacks at a GOP Convention were the cleaning crews. Shows what he knows.

There were several speakers including John Cornyn, Kay Bailey Hutcheson, Rick Perry, and many Congressmen and women. I came away from the Convention with several impressions.

First, Republicans stand united against illegal immigration. John Cornyn stated that he regretted he had only one vote against that bad Senate bill. Fortunately for us, the Senator has been appointed to the Conference Committee to merge the two competing bills.

Kevin Brady (R-TX) also had some strong words for Senate Immigration Bill. ‘Yes, the House will stand united against the Senate immigration bill. And No, I don’t know what the Senate was thinking.’ Brady also had blistering words for Senator John McCain saying ‘the Senator should know when he gets in bed with Senator Ted Kennedy, he can expect more than just sleep’. (Quotes are paraphrased-based on notes)

Governor Rick Perry is very much against providing illegal immigration with social services. He also spoke against the ‘catch and release’ program the government is now conducting. The Governor stated that the national government might as well play that South West Airlines phrase: “Ding, you are free to move about the country.”

Second, the Republicans support the War in Iraq, they support the troops, and they support the GWOT. They all understood why we are in this war; we were attacked. They also understand the way to win this war is to take it to our enemies. As Kay Bailey Hutcheson said, “Never Again!” Never again will we treat terrorism as a crime, never again will we respond to terrorist attacks with a few lame missiles, never again will we do nothing to defend this country while there are those who would do us harm. This is a war in which we are ‘fighting for our children’s future.” The Senator also stated that ‘the best weapon we have against terrorism is the American soldier.’ Amen to that.

Third, the Republicans stood united against gay marriage, raising taxes and activist judges.

As expected, one thing Republicans did not do was to distance themselves from President George W. Bush. And one thing Republicans never do is to leave God out. Of course I have to wonder if Democrats have something like a Prayer Rally? Doubt it.

It was a great weekend for conservatives. All in all, I feel good about the Republicans chances of holding on to their majorities in both the Senate and the House.

Tags: Immigration, President Bush, Heroes, National Elections, Judges, Supreme Court, Politics, Iraq, War by Chuck
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There was a time when judges, especially Supreme Court judges, were held in high esteem.  It was a time when these same judges gave sound advice to others on the law, and what was right and wrong.  At no time did they advocate breaking the law.  It was a time when two documents were held in high regard: the Holy Bible and the Constitution.  A good judge knew that our laws were derived from the 10 Commandments.  And when a judge promoted the belief that either of these documents were dispensable, they were courting early retirement.  It is with this concept in mind that we jump ahead to today.  Powerline has a great piece detailing how Justice Ginsburg gave a speech before the Constitutional Court of South Africa last month called “A decent Respect to the Opinions of [Human]kind”.   In this piece, she said,
 

I should disclose the view I have long held: If U.S. experience and decisions can be instructive to systems that have more recently instituted or invigorated judicial review for constitutionality, so we can learn from others including Canada, South Africa, and most recently the U. K. - now engaged in measuring ordinary laws and executive actions against charters securing basic rights.