damnum absque injuria

August 1, 2010

The Anchor Baby Amendment

Filed under:   by Xrlq @ 2:38 pm

Lindsey Graham seems intent on shedding his nickname “Grahamnesty” and is hinting he may soon introduce a constitutional amendment denying citizenship to children of illegal aliens born as a result of their illegal presence in the U.S.  It seems like a reasonable enough idea, but of course President Obama will veto it.*  Kudos to Graham and Kyl for going the constitutional route rather than making funny business over the “subject to the jurisdiction thereof” language of the 14th Amendment, which is basically the conservative equivalent of liberals arguing that “well-regulated militia” means “kindly ignore the following clause in its entirety” and “freedom of the press” means “let’s prohibit all corporations that don’t own newspapers from expressing political views at any time when voters are in any danger of acting on those views.”  Not all bad ideas are unconstitutional, and not all good ideas are constitutional.  A ban on anchor babies is a good idea, but it’s unconstitutional.  So let’s amend the Constitution to fix that – or force all of the allegedly blue dogs in Congress to explain to voters why they won’t.

*Yes, I realize that the President has no power to veto a constitutional amendment.  Since when has that stopped him from doing anything else?

July 27, 2010

North Carolina Laws Are So Gay

Filed under:   by Xrlq @ 10:46 pm

If you are straight, unmarried (or separated) and living in North Carolina, I’ve got some bad news for you: getting laid is illegal. North Carolina General Statute 14-184 provides that:

§ 14‑184. Fornication and adultery.
If any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed and cohabit together, they shall be guilty of a Class 2 misdemeanor: Provided, that the admissions or confessions of one shall not be received in evidence against the other.

If you are gay, however, no problem. Two men or two women are, after all, not “any man and woman,” and are therefore incapable of violating NCGS § 14‑184 even if they wanted to. Granted, they would violate NCGS 14-177, which provides that:

If any person shall commit the crime against nature, with mankind or beast, he shall be punished as a Class I felon.

but as long as the “crime against nature” is committed with mankind rather than beast, it’s clearly protected under Lawrence v. Texas. So if you are married and feel like doing anyone other than your spouse, or if you’re an unmarried and feel like doing anyone at all, just remember this. If either you or your partner has got a schlong, the other had better have one, too.

UPDATE: Commenter Robert notes that this law is probably unconstitutional. I say probably because a judge so ruled in 2006, but the ruling was never appealed so its precedential value is debatable. Then again, it does appear to enjoin everyone who could ever enforce the law, so if you have a law no one can enforce, is it really a law? If a tree falls in the forest, etc.

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.

July 4, 2010

Waiting Periods

Filed under:   by Xrlq @ 5:53 pm

Gaston County is considering a 30-day waiting period on marriages performed by magistrates, unless the couple can show they’ve received premarital counseling. That strikes me as a very reasonable idea, particularly if Kinston Free Press’s editorial against it is the best its opponents can do:

The proposal originated from a pro-marriage advocacy group in Gaston County and is based on the premise that counseling will help couples, when faced with marital struggles, work through their differences rather than take them to divorce court. Fewer divorces will mean fewer single-parent families, and two-parent families are generally good for raising children.

Ah, it’s intended as a pro-marriage measure, rather than a deterrent to the same (think waiting periods on guns?). In that case, surely it’s the duty of every good newspaper to oppose the measure vociferously. Oh wait, there’s more:

It’s important to note that while the idea has been floated, no such bill has been introduced in the General Assembly. And the idea that’s floating around would have the program initially operate as a pilot program in Gaston County.

However, pilot programs have a way of spreading like wildfire. Once they catch on in one county, they tend to spread across the state.

Translation: the real problem with this proposal is that it might actually, like, work.

We’re not here to argue against couples getting counseling or lots of advice before getting hitched. But we don’t think it’s wise for the government to make such counseling a stipulation for getting married by a magistrate.

Ah yes, the old “don’t let big government go paternalistic on you” argument against government imposing its own restrictions on a government institution. In a state that requires divorcing couples to wait an entire year before they can get out of a bad marriage, is it that much to ask that they obtain counseling or wait 30 days before rushing into one in the first place?

The waiting period wouldn’t apply to weddings officiated by ministers. The thinking there, legislators say, is that ministers won’t join a couple in matrimony unless he or she has counseled the couple first.

While some ministers do make premarital counseling a practice, not all do.

OK, then. Let’s make the requirement apply to religious and non-religious weddings alike.

Having such a requirement could put kinks in couples’ wedding plans.

Correction: having such a requirement could put kinks in foolish and immature couples’ impulsive wedding plans. It imposes no kinks whatsoever on the plan of any couple wishing to remain engaged for one whole month – or even on those who don’t but are willing to obtain premarital counseling.

Making getting married more complicated could likely lead to more couples going to other states — states with less-restrictive marriage laws — to get married.

Here we find the limits to the domino theory. What gets tried on a pilot basis in one NC county will spread like wildfire to the other 99 counties within the state, but will stop in its tracks as soon as it hits a state line. If there’s one thing worse than slippery slope logic, it’s the “slippery to a point, after which it will magically cease slipping at all” logic employed here. Besides, if the real problem is other states’ laws not being restrictive enough for our tastes, the answer is to change our marriage law so as not to recognize out of state marriages between NC residents that do not comport to our standards. We don’t let residents get divorced in other states or countries, so why should marriage be any different?

Good intentions are behind the idea to impose the waiting period for people getting married by magistrates. But good intentions don’t always make good law.

No, but last time I checked, they didn’t automatically make bad law, either. If the worst thing its opponents can say against this proposal is that it is motivated by good intentions, I think it’s well worth a try.

May 20, 2010

Gun Show Loophole, Defined

Filed under:   by Xrlq @ 7:55 pm

Me no like gun shows. Gun shows legal. Loophole!

May 14, 2010

At the Debate

Filed under:   by Xrlq @ 12:12 pm



Here are pics of Alan “Mr. Second Amendment” Gura and Paul Helmke dba Brady Center to Prevent Gun Violence, soon to face off at the Federalist Society. More later.

May 12, 2010

Some Crime Victims Are More Equal Than Others

Filed under:   by Xrlq @ 8:57 pm

Here’s a capital idea. Since everyone knows that black people are generally stronger than white people, let’s pass a law making simple assault one thing, and “assault on a white boy” another. The statute would read like this:

(a) Any person who commits a simple assault or a simple assault and battery or participates in a simple affray is guilty of a Class 2 misdemeanor.
(b) Unless the conduct is covered under some other provision of law providing greater punishment, any person who commits any assault, assault and battery, or affray is guilty of a Class A1 misdemeanor if, in the course of the assault, assault and battery, or affray, he assaults a Caucasian person, he being a person of African descent of at least 18 years of age.

No constitutional problems there, right? After all, nobody is being punished simply for being black, only for assaulting other people, which you’re not supposed to do, anyway. So surely a law like this would pass constitutional muster. It wouldn’t, of course, and rightly so. However, G.S. § 14-33(c)(2) sure comes close – just substitute “female” for “Caucasian person” and “male person” for “person of African descent,” and there you have it.

OK, you say, but surely this one of those crazy laws that just sits on the books, right up there with that one about cussing boisterously on public streets in counties other than Pitt or Swain. No one really gets charged under such a blatantly unconstitutional law, do they? Yes, they do.

Just Say No to Kagan Truthers

Filed under:   by Xrlq @ 7:49 am

It’s a trap, folks. Speculating on Elena Kagan’s sexuality is a no-win. Attempting to out her, makes it look like you look like a complete douchebag if you turn out to be wrong, and even if you’re right it makes you look like the Spanish Inquisition for caring – only this time, they do expect the Spanish Inquisition. Just don’t go there. We already know where she stands on gay rights, namely fanatically pro, even to the point of endorsing an attack on the Solomon Amendment so frivolous that all eight participating Justices, which included all four liberals, rejected it. Where she stands on issues like that is our business. Whether she is gay or not herself, or whether she now lives in the world’s most transparent closet, is not.

UPDATE: The original draft said all four liberals currently on the court rejected Kagan’s position on the Solomon Amendment. Of course that is wrong, as Justice Sotomayor was not on the court yet.

May 9, 2010

Elena Kagan: The Third Woman on the Court?

Filed under:   by Xrlq @ 10:50 pm

Howard Bashman reports that the Obama Administration has unofficially promised to appoint Elena Kagan to replace John Paul Stevens and become the third woman to serve as a Supreme Court Justice. I hereby offer a free gram of cocaine* to the first person who can persuade me as to how Ms. Kagan, if confirmed, would be the third woman on the Supreme Court. Possible theories:

  1. Sandra Day O’Connor wasn’t really a Supreme Court Justice.
  2. Ruth Bader Ginsburg isn’t really a woman.
  3. Sonia Sotomayor … um … you tell me.

*Offer void where prohibited by law.

May 8, 2010

Yes, Frisco, The Equal Protection Clause Does Require What It Barely Permits

Filed under:   by Xrlq @ 1:22 pm

Once again, the California Supreme Court has been called upon to decide if the Constitution is unconstitutional. At least this time they picked the right Constitution, but…


Powered by WordPress. Stock photography by Matthew J. Stinson. Design by OFJ.