According to Pat Robertson, Christians Are Crazy and Bloodthirsty

President Obama recently signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. Pat Robertson is very upset. He believes that the law is bad news for Christians:

The noose has tightened around the necks of Christians to keep them from speaking out on certain moral issues. And it all was embodied in something called the Hate crimes bill that President Obama said was a major victory for America. I’m not sure if America was the beneficiary. . . .We have voted into office a group of people who are opposed to many of the fundamental Christian beliefs of our nation. And they hold to radical ideology, and they are beginning put people sharing their points of view into high office. And not only that, they not only have control of both houses of Congress.

Assuming that people who believe Pat Robertson have the capacity to read, here is the actual language from the statute that addresses "hate crimes" committed on the basis of sexual orientation (and other categories):

Whoever . . . willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person. . . [shall be liable for criminal penalties stated in this legislation].

So, in order to believe Robertson, one must also believe that Christians, by definition, want to "willfully" cause "bodily injury" to people in the listed categories. Robertson's grotesque logic also requires the listener to ignore the fact that the law also protects Christians -- and everyone else -- from religion-based violence.

Earth to Robertson: Your blatant lies are a bigger threat to Christianity than this legislation.

Palin: Former Beauty Queen Who Left Job for More Money Calls Ex-Son-In-Law a Ho'

In Sarah Palin news, the former Governor of Alaska had harsh words for Levi Johnston, her ex-son-in-law and the father of her grandchild. Palin criticized CBS News for reporting critical comments that Johnston, slated to appear in Playgirl Magazine, has made about her:

CBS should be ashamed for continually providing a forum to propagate lies. Consider the source of the most recent attention-getting lies -- those who would sell their body for money reflect a desperate need for attention and are likely to say and do anything for even more attention. . . .

How odd. Sarah Palin is a former beauty queen who left her government job in order to make millions in the private sector and who has become the "Bloggacuda" on Facebook and who is desperately trying to get lucrative speaking gigs across the globe. Yet, she basically called Johnston an "attention whore" and a "ho.'" Nice.

Demented Senators? Voting to Kill, But Not to Heal

Hearing Mary Landrieu, Joe Lieberman and other moderates express discontent with a public plan option is too much to bear. These centrists say they oppose a public plan for various reasons, including expense. If they had exhibited such caution before they voted to authorize military force in Iraq, the country could possibly have avoided the unnecessary expenditure of hundreds of billions of dollars and the loss of thousands of lives fighting a senseless war.

Several moderate Senate Democrats (Lieberman is now an "Independent") voted to authorize military force in Iraq, but they now oppose the public plan. These Senators include Evan Bayh, Landrieu, Lieberman, and Ben Nelson. In 2002, every Senate Republican voted to authorize military force in Iraq. Today, every Senate Republican opposes the public plan.

These Senators voted to spend hundreds of billions of dollars to kill Iraqis and to lead young Americans to their deaths, but they refuse to finance life-saving medical care for Americans. Apparently, this is how "pragmatism" looks.

Was Reid's "Public Option" Move Simply a "Show"?

Earlier this week, Senate Majority Leader Harry Reid announced that proposed healthcare reform would include a "public option." Reid's announcement came while the Washington, DC rumor mill debated whether the White House truly supported a public plan. Shortly after Reid's announcement, Senator Joe Lieberman announced that he would not support a public plan. Lieberman, who has received over $1 million from the insurance industry during his career, claims that the public plan would harm the economy.

Without Lieberman's support, the public plan will lack the 60 votes needed to overcome a filibuster. It seems impossible that Reid could have made the announcement without realizing Lieberman's position. Ross Baker, a professor of political science at Rutgers University, argues that Reid's dramatic announcement regarding the public plan probably represents his effort to appease liberal backers, including labor unions and leftists:

You put on a good show for certain elements of the electorate and say with all candor that you tried your hardest and you got it debated, but it’s very difficult to corral 60 senators. . . .That will satisfy most people.

This theory sounds immensely plausible.

Illinois Prosecutors, Take Notice: Innocent Man Released After 12 Years in Prison

Anita Alvarez, the District Attorney for Cook County Illinois, has served the Medill Innocence Project at Northwestern University with a controversial subpoena. The subpoena seeks the "grades, grading criteria, class syllabus, expense reports and e-mail messages of the journalism students themselves."

Commentators have almost uniformly criticized the subpoena, and many journalism and legal experts view it as an attempt to harass and chill the work of the students and their professors. The Medill project has secured the release of 11 wrongfully convicted Illinois inmates during its 10-year history. Alvarez (to quote the late-Justice Brennan) is apparently afraid of "too much justice."

A judge will ultimately determine whether the Medill project must submit to Alvarez's heavy handed tactics. Meanwhile, innocent persons undoubtedly languish in Illinois prisons.

CBS News, however, reports that one wrongfully convicted Illinois man will soon get the opportunity to try and piece his life together again. 41-year-old Dean Cade was recently released from prison after serving 12 years for a rape he did not commit. DNA evidence proved his innocence. The work of the Innocence Project at Benjamin Cardozo Law School (part of Yeshiva University) in New York City secured his release.

Alvarez's subpoena shows a contempt for justice. Although Alvarez is cynical about the work of students and professors who run innocence programs, their efforts serve a vital function in the administration of justice. Legal professionals should encourage, rather than impede, the work of innocence projects.

Senator Lieberman Would Vote to Block Legislation With Public Plan

Senator Joe Lieberman says he will vote with Republicans to filibuster legislation with a public plan option. Remarkably, some of the reporting on this issue fails to mention that Liberman has received over $1 million in donations from the insurance industry over the course of his political career.

NWA Pilots Busy on Laptops, Overshoot Airport

The Northwest Airlines pilots that flew past their Minneapolis destination last week say they were distracted by their laptops. Apparently, the pilots were so engrossed reading their new flight schedules that they missed the airport and about an hour of communication with frantic air traffic controllers.


Irony: As the flight attendants told passengers to turn-off their laptops in preparation for landing, the pilots missed the landing because they were playing with their laptops!

Durbin on Public Plan: The Liberals Made Us Do It

Senator Durbin has stated that progressives forced the hand of the rest of the Senate Democrats and caused them to agree to a public plan with an opt-out provision. Olympia Snowe finds this "deeply disappointing," but I do not believe 60 Democrats should cater to one Republican.

Apparently advocacy works, but the political battle has not ended. Even though many articles have portrayed the public plan as a "done deal," the vote has not taken place yet. Furthermore, the conference committee process will produce any final version of the reform package.

Warning: Read the fine print, and carefully watch the proceedings after things go into conference committee. Liberal elements of legislation vanished during conferences earlier this year (e.g., forceful limits on executive pay).

Obama Releases Statement "Supporting" Public Plan, But In Washington, Talk Is Cheap

President Obama has released another statement indicating his support for the inclusion of a public plan in healthcare reform. The statement comes after a new round of rumors portray him as unsupportive of a public plan option.

Last week, a coalition of liberal groups sent a letter to the White House demanding that President Obama lobby strongly for the public plan option. The difference between "lobby" and "support" probably means a lot in this context.

Although Obama has stated his support for the public plan, some liberals believe that he is not exercising the leadership needed to make inclusion of the plan in legislation a reality. Also, NPR's Tavis Smiley says that Senator Charles Schumer told him off-the-air that Obama was "noncommittal" on the public plan in a closed-door meeting with Senators last week.

Supporting the public plan does not mean fighting for it. So, perhaps the liberal groups were correct to demand more than Obama's support.

Shameful and Pathetic Tactics by Illinois Prosecutors: Attacking "Innocent" Students

Students in the Medill Innocence Project at Northwestern University investigate claims of innocence and wrongful conviction by inmates. Over the course of a decade, the Medill project has helped secure the release of 11 innocent persons, 5 of whom were slated for execution.

Rather than applauding the students for their difficult and compelling work, prosecutors have hit them with a low blow. In a current case involving a claim of innocence by Anthony McKinney, Cook County prosecutors have served the Medill project with a shocking subpoena. According to the New York Times, the subpoena demands "the grades, grading criteria, class syllabus, expense reports and e-mail messages of the journalism students themselves."

The Subpoena Is Highly Inappropriate
The subpoena raises several red flags. First, the information the prosecutors seek is completely unrelated to the question of McKinney's guilt or innocence. Second, student grades are normally protected from disclosure by federal law. Third, the program is operated by the school of journalism and likely qualifies for protection by state journalism shield laws and the First Amendment. Fourth, the professor's course materials are possibly protected from disclosure by the concept of academic freedom -- which the Supreme Court has construed as a value secured by the First Amendment.

Sally Daly, a spokesperson for the Cook County District Attorney's Office, denies any wrongdoing by prosecutors. Instead, Daly points the finger at students. Daly claims that prosecutors are concerned that students could have qualified for higher grades if they concluded that the inmate was innocent. This is a highly unusual -- and insulting -- assertion. First, any reputable professor would grade a student's research by evaluating the methodology and written presentation, rather than using the final conclusion as a litmus test. Second, prosecutors should make their own independent determination regarding McKinney's guilt or innocence -- rather than treating the students as suspects.

During interviews the students conducted, several key witnesses recanted their testimony. The students have already turned over videotapes of these interviews to prosecutors. Prosecutors should question these witnesses rather than fishing for the students' personal materials.

Daly makes other nonsensical and outrageous arguments in defense of the subpoena. Although the subpoena extends to grades, she says that "[w]e’re not trying to delve into areas of privacy or grades. . . ." Daly also likens the subpoena to the routine disclosure of information by "detectives." Police detectives, however, work for the government and assist the prosecution. They are colleagues. Although private detectives do not work for the government, they have an unambiguous financial stake in the outcome of their investigation. The students, by contrast, are private citizens and journalists. The Medill project exists to monitor and improve the criminal justice system -- not to service the prosecutors' office or inmates.

Northwestern University Vows to Fight the Subpoena
Fortunately, Northwestern University is fighting the subpoena. As the New York Times reports:

Northwestern University and David Protess, the professor who leads the students and directs the Medill Innocence Project, say the demands are ridiculously overreaching, irrelevant to Mr. McKinney’s case, in violation of the state’s protections for journalists and a breach of federal privacy statutes — not to mention insulting.

John Lavine, the dean of the Medill School of Journalism, said the suggestion that students might have thought their grades were linked to what witnesses said was “astonishing.” He said he believed that federal law barred him from providing the students grades, but that he had no intention of doing so in any case.

Professional journalism groups have also stepped forward to defend the students.

Irony
The outcome of this matter could turn on whether a judge treats the students as "journalists" under Illinois law. If the students are journalists, their work is protected from disclosure.

Ironically, the prosecutors' brief provides the best argument for treating the students as journalists. In awfully butchered and revealing prose, prosecutors complain that: "The school believes it should be exempt from the scrutiny of this honorable court and the justice system, yet it should be deemed a purveyor of its inadequacies to the public. . . ." The prosecutors are uncomfortable with the idea of shielding journalists who investigate and publicize "inadequacies" in the criminal justice system. But having an additional "check" on the government is one of the strongest justifications for vigorously protecting the work of journalists.

Illinois prosecutors are blatantly using the strong arm of the state to harass Medill journalism students. The prosecutors' behavior evinces a deep contempt for the law, which makes the students' efforts to uncover wrongful convictions even more compelling.

Very Hot Air From "Hot Air" -- Regarding Healthcare Reform

Ed Morrissey of Hot Air has pumped out an essay defending the rightwing's largely unsuccessful effort to convince any reputable constitutional law scholar (on the right or left) that proposed healthcare reform would violate the Constitution. Morrissey's essay takes issue with my recent post that applauds Nancy Pelosi for dismissing a CNSNews reporter's question on the subject. Morrissey makes several arguments. I find none of them persuasive.

Conservatives Have Demanded "Absurdly Specific" Language Justifying Healthcare Reform
Morrissey says that "our argument has never been that Congress cannot pass laws, or that Congress cannot pass laws without some absurdly specific mention in the Constitution." This is disingenuous. On September 22, Hot Air posted a viral video (via CNSNews) that shows a high school "government" teacher pleading with Mark Warner for specific language in the Constitution authorizing the government to "run healthcare." Certainly, a citation to Article I, or even more specifically to the Commerce Clause or to the taxation and spending powers, would not have alleviated her anxiety. Nor would it have satisfied Hot Air and CNSNews.

Furthermore, the CNSNews article that served as the basis for the Hot Air piece ominously reported that Warner said "there is 'no place in the Constitution' that mentions health care. . . ." If conservatives are, as Morrissey claims, uninterested in absurdly specific text, then Warner's statement is not newsworthy. Clearly, the Constitution does not mention health care (or education, telephones, etc.). This silence, however, does not deprive Congress of any authority over the industry.

In addition, Morrissey himself has argued that unless the Constitution "covers" a power, then Congress must "butt out." He made this assertion in response to Representative Shea-Porter's rejection of a strict reading of the Constitution that would limit Congress to the exact wording of the text. If Morrissey is not demanding exact language regarding healthcare, then he should not have found Shea-Porter's argument worthy of discussion. Although Morrissey has been more flexible at times, he has (intentionally or unintentionally) pushed a method of constitutional interpretation that he now labels "absurd."

The Framers Did Not Know About Airplanes
Morrissey also takes issue with my argument that demanding specific text on a subject would nullify the government's authority to create the Air Force. Morrissey, of course, does not point to language in the Constitution that refers to the "Air Force" or even to airplanes. Instead, he cites to more generalized language empowering Congress to provide for the "common defence." This, however, is the exact same type of constitutional interpretation that should guide debates over the constitutionality of healthcare reform. Interstate commerce, taxation, spending, and "general welfare" come to mind as places to anchor healthcare reform. Conservatives, however, have demanded precise language from liberals, while embracing generalized provisions to justify policies they favor.

Furthermore, Morrissey completely ignores more difficult questions that the strict approach implicates. For example, he specifically evades the question of Medicare's constitutionality, and he is absolutely silent regarding federal bans on partial-birth abortion, crack cocaine, acts of terrorism and other issues my essay raises. I do not believe these laws necessarily fall outside of the scope of federal authority, but I have not approached the Constitution from the constrained perspective that conservatives have advanced.

The Tenth Amendment Does Not Make Healthcare Reform Unconstitutional
Finally, Morrissey's interpretation of the Tenth Amendment -- which other conservatives seem to share -- is also flawed. In a prior essay, Morrissey argues that:

The Constitution sets their power and circumscribes it rather clearly in Article I, Section 8 and Section 9 of the Constitution. The Tenth Amendment reserves all other powers to the states or to the people, underscoring the explicit limitation on Congressional power. . . .Therefore, when the Constitution does not “cover” a subject, it explicitly and expressly intends for Congress and the federal government to butt out.

The Tenth Amendment is a truism: every power that is not delegated to the federal government is retained by the states. The provision, however, does not tell us what is in fact delegated. Nor does it state that the text of Article I expressly "covers" the entirety of permissible federal authority.

Morrissey is stuck in the era of the repudiated and supplanted Articles of Confederation. Anyone who has read McCulloch v. Maryland should know that the Court rejected the notion that unless the power was "expressly" mentioned in Article I, then Congress lacked authority; this was the law under the Articles of Confederation. Under the Constitution, Congress (as Morrissey seems to concede) has implied powers. Accordingly, the Tenth Amendment does not provide any useful information about this subject.

Pelosi Was Right to Dismiss Question Regarding Constitutionality of Healthcare Reform

Updated Thread: Very Hot Air From "Hot Air" -- Regarding Healthcare Reform.

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Today, a "reporter" from CNSNews.Com, a conservative blog, asked Nancy Pelosi to point out language in the Constitution that specifically authorizes Congress to mandate that individuals purchase health insurance. Pelosi dismissed the question by responding, "Are you serious?" Pelosi's response was absolutely warranted.

Conservatives have tried unsuccessfully to argue that the Constitution does not permit various aspects of Democratic healthcare reform. Liberal and conservative Constitutional Law scholars have rejected these arguments, but people continue to assert them.

I am particularly perplexed/annoyed by the conservative assumption that unless explicit text directly authorizes a legislative enactment, then Congress necessarily lacks the power to pass the law. This is a extraordinarily foolish and unsupportable view of the Constitution. The Constitution is written in general terms; only a few provisions define individual rights and governmental powers with precision. To make this point more concrete, I quote from a previous essay on the subject:

It is absolutely absurd to ask whether the constitution specifically or explicitly allows Congress to regulate or reform healthcare. The Constitution speaks broadly and ambiguously. Only a few provisions are specific and beyond dispute (like the age requirement for presidents and members of Congress).

The Constitution does not specifically or explicitly authorize the creation of the Air Force or Medicare, nor does it discuss the federal prosecution of crack cocaine possession. And the "Framers" certainly did not specifically contemplate airplanes, prescription drug and hospital plans for seniors, or crack cocaine because these things were not realities when they wrote the Constitution.

If conservatives only believe Congress can regulate things that are explicitly mentioned in the actual text of the Constitution, then they should essentially advocate the abolition of the federal government. At a minimum, they should seek the immediate repeal of laws banning partial-birth abortion and kidnapping; the Constitution does not mention children or abortion.

Also, as many students of high school and college civics classes know, Article I of the Constitution contains the "necessary and proper" clause, which endows Congress with unenumerated powers that are needed to carry out its expressly delegated powers. In the very first case interpreting this provision (McCulloch v. Maryland), the Supreme Court rejected the narrow interpretation offered by anti-federalists.

Many of today's conservatives pretend that the Necessary and Proper Clause does not exist or that courts can only interpret it conservatively. Nothing in the history of the clause or the Court's interpretation of it compels an exclusively narrow interpretation.

In addition to the above observations, a method of constitutional interpretation that demands specific and unambiguous textual support would mean that the following federal rights or powers could not exist: the right to pray during school or to be free of racial quotas in college admissions; and the power to ban child pornography on the Internet; "drill drill drill" for oil in Alaska; force air passengers to submit to safety screening; and to criminalize acts of terrorism. The Constitution does not specifically mention any of these things.

I am happy to debate the meaning of the Constitution -- but, please: let's retire ridiculous and unserious arguments.

UPDATE: Hot Air chimes in, and I respond: Very Hot Air From "Hot Air" -- Regarding Healthcare Reform.