damnum absque injuria

July 7, 2010

A Partial Defense of Substantive Due Process

Filed under:   by Xrlq @ 12:30 am

NK asks, I presume rhetorically, if every stupid law is unconstitutional. This brings me to a topic I’ve been meaning to blog about since the McDonald decision: was the reasoning of the Alito plurality really that bad, or even all that different from Justice Thomas’s position? In other words, is a law forbidding law-abiding residents to exercise one of their constitutionally protected liberties really any more consistent with this:

No State shall …. deprive any person of life, liberty, or property, without due process of law[.]

Than it is with this:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States[.]

And if so, why? Because it would seem to me that any law that arbitrarily deprives citizens of their freedom, without so much as the pretense that they’ve committed any crime (let alone due process to determine whether or not they have) is every bit as problematic under the Due Process Clause as it is under the Privileges or Immunities Clause – unless you think there’s some reason why freedoms secured by the Constitution are properly described as “privileges or immunities” but not simply as “liberty.”

Tell me why I’m wrong.

February 12, 2010

“Money Is Not Speech”

Filed under:   by Xrlq @ 9:58 pm

One of the most oft-quoted – and IMNSHO lamest – arguments in support of First Amendment “Reform” is that draconian restrictions on campaign contributions and ads are okey dokey under the First Amendment because “money is not speech.” Technically, of course, it’s not, but has anyone seriously considered the implications of the theory that money can be divorced from what it is spent on? Let’s try applying McCain-Feingold logic to other cherished constitutional rights:

  1. Congress can pass a law forbidding any resident of a state that voted for McCain/Palin in 2008 to spend any money on a marriage license or any aspect of a wedding. Courts have ruled that marriage is a fundamental right. May sound a bit tough on marriage, but no matter: money is not marriage!
  2. DC and Chicago find a clever way around the ruling in Heller and the expected ruling in McDonald. Can’t ban handguns? No problem. Just pass an ordinance forbidding any resident to spend any money on any guns, ammunition, etc. No constitutional defect there; money is not guns!
  3. No one likes a justice system that works for the rich but not the poor, so rather than having justice for The Rich (TM), let’s tax the hell out of everyone to pay for free legal services for all who meet specified criteria, and then make it illegal for anyone to pay an attorney on his own. No problem there; money is not due process!
  4. OK, so maybe this “Money is not X” theory doesn’t work well outside the confines of the First Amendment. Well, surely it applies to the rest of the First Amendment itself, right? To test that theory, let’s pass a law providing for “clean” religion. To keep religions “clean,” the government will provide public funds to every religious organization that meets certain criteria, and then forbid every citizen to donate any of his own money to any of these organizations. No problem with that proposal, right? Money is not religion!
  5. Last but by no means least, let’s not forget the most important constitutional right of all, the one the framers considered too important to even mention in the Constitution, the right to choose so long as that choice is to obtain an abortion. South Dakota gives up the losing battle of trying to ban it outright, and instead passes a new law making it illegal to spend any money on an abortion, or on transportation to or from another state for purposes of obtaining an abortion. Surely Justices Stevens, Breyer, Ginsburg and Sotomayor would have no problem with that law, right? Money is not abortion!

Or we can use a teensy bit of common sense and recognize, as only a bare majority of our nation’s top court did, that while money technically is only property, it is fungible property which, as a practical matter, embodies whatever it is you choose to spend it on. And when a restriction on money specifically targets money spent on the expression of political ideas, then money sure as hell is speech. Thank God that a bare minimum of Supreme Court Justices understand this.

October 4, 2009

Yawner of the Day

Filed under:   by Xrlq @ 11:01 pm

Whenever you hear the H-word, check twice, and a third time. Usually it’s some liberal screaming “hypocrisy” whenever a conservative proves to be human on an issue where liberals and conservatives generally agree (and where liberals are every bit as prone to failure as conservatives, but somehow their hypocrisy doesn’t count). When the right plays the H-card, we generally at least try to limit it to issues where the left and right disagree, e.g., when anti-gun zealots like Carl Rowan or Roland Burris end up owning the same guns they say no one else should be allowed to have.

Unfortunately, “try” does not always equal “succeed.” Insty links to a forum alleging that “anti-gun” State Senator R.C. Soles had shot an intruder in self-defense. What a hypocrite! Maybe, if by “hypocrite” you mean “guy whose record on guns is ‘not excellent’” according to NC’s leading gun group (whom Insty pooh-poohs as “these folks”), even if he is good enough to warrant an A rating by the NRA.

Move along, people. There’s nothing to see here.

August 29, 2009

Ikean 201

Filed under:   by Xrlq @ 3:40 pm

Swedish names sound even dumber when butchered by Southerners.

Ikean 101

IKEA has an annoying habit of being too lazy to write instruction manuals for their furniture, relying instead on a bunch of cutesy drawings that are supposed to tell you what you need to do. Recently I purchased a bookshelf (Expedit) and learned this lesson the hard way. For future reference, this:

means “on the off chance you are not clairvoyant enough to figure out from these cryptic drawings everything you could possibly need to know, but are clairvoyant enough to recognize that there’s something you don’t get from the pictures, and are also clairvoyant enough to know Ikea’s phone number off the top of your head, but are too stupid to know that it’s Ikea you should be calling for assistance, here’s what to do.

Also note that this:

means “Don’t even think of putting this bookshelf in an upright position until it is fully assembled or the damned thing will collapse under its own weight.”

Betcha didn’t know that.

UPDATE: To their credit, they took it back without incident. Heading home now with a new one, and one more opportunity to find my same butt with my same two hands and the same flashlight, but a slightly more detailed butt-map.

FINAL UPDATE: The butt-map makes all the difference. Once I knew what should have been in the instruction manual but wasn’t, assembling the next one, and the rest of Mrs. X’s new set, was easy.

August 12, 2009

Score One for the Birthers

Filed under:   by Xrlq @ 7:27 am

Fiorello La Guardia famously quipped that “I don’t often make a mistake, but when I do, it’s a beaut.” That quote applies to yours truly, as well. One aspect of the birther debate I’ve been pushing for months is that as long as Stanley Ann Dunham really was Barack Hussein Obama’s mother (and I don’t see any even the most rabid birthers going Sullivan on that count), and as long as she really was a U.S. citizen who had spent at least five years on U.S. soil and at least two following her 14th birthday, BHO would be a natural born citizen no matter where he was born. The basis of my argument was a misreading of 8 U.S.C. § 1401(g), which provides as follows:

The following shall be nationals and citizens of the United States at birth:
(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date;
[Emphasis added.]

When I originally checked out the statute, I read the “this proviso” language as applying to subsection (g) in its entirety, i.e., that the 5/2 year requirement under the current version 8 U.S.C. § 1401(g) was intended to apply retroactively to anyone born after 12/24/1952, rather than only to those born after November 13, 1986, the date on which the present version of 8 U.S.C. § 1401(g) took effect. However, as commenter Sue noted in a comment thread on Tom Maguire’s blog, the U.S. State Department does not read the statute that way. Rather, they apparently read “this proviso” to refer only to the portion of Subsection (g) that follows the word “provided,” which does make sense. By this reading, which I now believe to be the correct one, the only retroactive portion of Subsection (g) is the “proviso” that time spent abroad as a dependent of a person serving in the armed forces or employed by the U.S. government or a recognized international organization will count toward whatever limit was otherwise in effect at the time of one’s birth. In other words, a person born abroad to one U.S. citizen married to one non-U.S. citizen will still only qualify as a “citizen and national at birth” (i.e., natural born citizen) if the citizen parent had resided in the U.S. for 10 years total and 5 following his/her 14th birthday; the only difference would be that time spent abroad as a military, U.S. government or international organization dependent would now count toward these minimums. Which means that the number of people who were retroactively converted to natural born citizens in 1986 is rather small indeed, and would not have included a foreign-born Obama, whose mother had (barely) fallen short of the 5-year rule at the time of his birth (and for whom military/government service abroad was irrelevant).

One more possible angle: per the State Department, one year’s residency in the U.S. is enough to transmit citizenship if the child is born out of wedlock. To the extent Barack Hussein Obama, Sr. was still legally married at the time he purportedly married Stanley Ann Dunham, does that mean BHO was actually born out of wedlock? And if so (and again, assuming counter-factually that there is any evidence he was born outside the U.S.), does that make him a citizen at birth, or does it merely qualify him to become a naturalized citizen?

January 2, 2009

Barack Obama Is Not My President

Filed under:   by Xrlq @ 7:31 am

Recently, several commenters fell into the sarchasm when I pointed out something I thought would be obvious, so I’ll spell it out a bit more clearly now. Aas of today, January 2, 2008, the President of the United States of America is George W. Bush. Not Barack H. Obama. Therefore, Barack Obama is not my President. Or yours. Or anybody’s. Capisce?

OK, now to the real point. Currently, a Google search for “Barack Obama is not my President” yields a few sarcastic hits to this blog (see also this entry), and a few serious ones to moonbats who are already disowning the guy for not being moonbatty enough. It also turns up a few hits to legitimate conservatives making the opposite point, apparently because the presence or absence of “not” has little impact on what Google will or will not find. My goal is to get as many sarcastic “Barack Obama is not my President” out there as possible while it is still true, so that months or years down the road, when it is not true, and Glenn Greenwald, Rick Ellensburg, Thomas Ellers, Ryan, Ellison or anywhere else goes trolling for evidence that conservatives are just as immature as liberals and just as prone to play the “I don’t support so-and-so, so he’s not my President” card as their liberal counterparts, he’ll find nothing but sarcasm instead. Best case scenario, he/she/it/they take the bait and post an exposé on all those eeeeevil conservatives without checking the dates on the posts, and the rest of us will have a nice big belly laugh at his/her/its/their expense. Worst case scenario: he/she/it/they don’t take the bait, but at least we made his/her/its/their job that much harder.

I say, it’s the duty of every American conservative to say, loudly, proudly, early and often, “Barack Obama is not my President,” for as long as that is still true (if you’re not a U.S. citizen, it will always be true, so feel free to continue saying it after he’s been inaugurated, at which point he will indeed be my President but not yours). What say you?

December 24, 2008

Airing of Grievances: North Carolinians

Filed under:   by Xrlq @ 5:10 pm

I haven’t been pinned yet so here’s one last grievance for the year. What’s up with the new “North Carolina Education Lottery,” which is all going to help our schools, with no offset against the general fund to help less popular expenditures? Every other state in the union learned the lesson the hard way, decades ago. So why aren’t y’all wise to this one now? Fool me once, shame on you. Fool 49 other people once, and still manage to fool me once, megashame on me.

I don’t blame the state for offering up the scam. They did it because they can, and besides, every tax on stupid people is one less tax I have to pay. But did you really have to pick a Pee Wee Herman look-alike as a spokesman?

October 15, 2008

Final Debate (Laphamized Whining)

Filed under:   by Xrlq @ 7:57 pm

I know the debate hasn’t started yet but no matter, Obama won. Of course McCain won among FoxNews viewers, Drudge and Instapundit readers, uh-counters, Freepers and anyone who actually paid attention to what was said. None of that matters because Obama won big among the coveted can’t-see past their noses middle without whom no one, least of all a Republican candidate in a rabidly anti-Republican election cycle, can ever win. Time to welcome the new overlords, and say hello to the 21st Century’s answer to the Great Depression and the new Warren Court.

You read it here first.

UPDATE: I was wrong on one count: it sounded like McCain committed more false starts than Obama, including an amusing spoonerism. Otherwise, I think the pre-mortem was about right. Meanwhile, we learn that Sarah Palin has a pretty good excuse for not having confronted the guy who yelled “kill him!” at a recent rally: he doesn’t exist. <church-lady>Isn’t that convenient?</church-lady> Of course, no one will care. Like Joe Biden’s made-up version of the Constitution, all that matters is that it sounded good during the debate, not whether it’s true or not.

August 23, 2006

Allen’s Machaca

Filed under:   by Xrlq @ 6:48 pm

Until recently, Virginia Senator George Allen was a shoo-in for easy reelection in November. All this changed at an August 11 campaign event, in which he mouthed off to tracker/stalker S.R. Sidarth. Allen said a few really dumb things in that exchange, and reports conflict as to which one sparked the greatest outrage. No one’s really sure which statement sparked the most outrage, but possible contenders include:

  • “Hey Darky, welcome to Jesusland.”
  • “Yo, Fairfax-boy. Welcome to real America, and the parts of Virginia where we say y’all and write ya’ll.
  • “Dude, you are soooo a newcomer. Welcome to the state that you’ve live in all your life, but which I only moved to as an adult!”
  • “¡Oye, vato! You the delivery man for Paco’s Taco’s, ¿sí? I’ll have the machaca.”

The smart money says that last quote was the straw that broke the camel’s back. Aside from the fact that Sidarth is of Indian rather than Mexican descent, and that he works for opponent James Webb’s campaign rather than for Paco’s Tacos, Allen didn’t even pronounce machaca correctly. He mumbled the rest, so most observers, including Sidarth himself, heard little more than “blah blah blah … mi caca,” which is Spanish for “my crap.” This is a problem becuase, believe it or not, Senators really do have rules of decorum, one of which prohibits them from talking crap. Of course they do it all the time, but generaly in a semi-discreet way. To openly advertise mi caca is as unseemly as inadvertently farting in other people’s presence at a formal event, and then asking everyone present if they enjoyed a good whiff of mi pedo rather than playing it off like nothing happened. To be sure, the no-crap rule of the Senate does have an unwritten exception for lobbyists, major donors and advocates of major political causes, the gentleman’s understanding being that anyone who hopes to re-elected must talk crap for these guys every once in a while. Depending on how close a Senator is to his donor or lobbyist, such accepted crap is known alternatively as su caca or tu caca, both of which are generally accepted as a necessary evil. Talk crap if you must to keep a major donor happy, but talking crap for yourself? That’s just tawdry.

Anyway, between his regional, national and ethnic insults and his newfound ability to get in touch with his inner feces, Allen now appears appears to be in trouble in the polls. While earlier polls had Allen trouncing Webb by an ungodly margin, more recent polls show him beating Webb by a margin almost narrow enough to leave Webb’s personal dignity intact. To avoid such a horrible event from materializing in November, Allen is looking to hire a right-wing Virginia blogger, with a probable assist from Chad Dotson, to do for him what all the ‘bats have long been doing for Webb.

I think Senator Allen should hire me. We’re both California transplants, and we both have long histories of really, really, really pissing off our opponents and even alienating some of our potential allies. Enlisting me in his campaign won’t win Allen any actual votes, of course, and might even lose a few, but so what? As long as the polls stay anywhere in the ballpark of where they are now, Allen will still win. He doesn’t need more votes, he just needs to make his supporters feel better and his opponents feel worse. I can do both. A nuclear fisking or two from the Xrlqmeister, and Webb and his minions will be reduced to tears and in need of therapy in no time flat. By Election Day, their self-esteem will be so horribly battered they won’t even have the nerve to spin their 52-48 loss as a “moral victory.” They’ll be far more humiliated that way than they would by the 60-40 trouncing they likely would have gotten if Mr. Allen had not made the embarassing statements in the first place, let alone by the 55-45 loss which is the best any blogger could accomplish for him now. I won’t win him any votes, but I will make him feel better when I fisk his more vocal opponents to a pulp. With or without my help or that of any other blogger, Allen will win unless he does something else that’s just as dumb as mi caca between now and November. If he does do something that dumb, all the blogging in the world won’t save him. So why waste campaign dollars, ones and zeroes to convert a decent victory into a landslide, when you can have a fisk-for-all instead?

 

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