Wednesday, October 20, 2010

Some Constitutional Links

10th Amendment Case: what should the feds do? (Nod to Neanderbill)

Miss O'Donnell is powned, by asking what she thinks is a "gotcha" question: "Where is this 'separation of church and state' in the Constitution?" Remember, she was a "Constitutional Scholar" at Claremont. I was open-mouthed watching the video. This debate was at a LAW SCHOOL. That's why the laughter. O'Donnell actually looks around and grins, certain that they are laughing at her clever gotcha question. (Nod to Anonyman)

UPDATE: From the National Review..... And, sorry Ms. Trinko, but that is a fail. There are two parts to the guarantee of the separation of church and state in the 1st Amendment. The first is the restriction on establishment. The second is the restriction on free exercise. BOTH of those together, where the government cannot choose one sect, and ALSO cannot restrict what individuals practice, together constitute the separation of church and state. So, the defense that "free exercise" somehow requires the teaching of intelligent design in schools is just nonsense. It DOES mean that the state cannot prevent it from being taught in church, and that's all. Ms. O'Donnell is an idiot, but at least she is an idiot in the first instance. Ms. Trinko, in defending this nonsense, is a derivative idiot in the second instance.

Federal judge hears case on Obamacare. This has already gone further than I expected.

7 comments:

Andy said...

Amazingly important correction:

All interwebs folks who are "in the know" spell that word "pwnt." Not "powned" although that's not too far from the correct pronunciation.

Thanks for continuing your excellent blog.

John Thacker said...

From the video and the transcript, it seems clear that she's arguing about the phrase itself not appearing in the First Amendment, even though it's generally clear as a matter of doctrine and implication, particularly after the 14th Amendment incorporated it against the states-- although Justice Thomas argues that was a mistake here.

Of course, people would equally claim that the Commerce Clause obviously implies that Obamacare is perfectly Constitutional, and that existing Supreme Court doctrine (like Wickard v. Filburn) backs it up, and that the 10th Amendment issues have been repeatedly discussed by the Court, and the P&I Clause has already been dealt with for years by Slaughterhouse and others, so libertarians are being just as idiotic as O'Donnell when they insist on textual readings that contradict longstanding doctrine.

The New York Times article on the Tenth Amendment makes that clear with its references to the Amendment being a "Tea Party darling."

And Munger's alluding to this same thing when he says that "this has already gone further than I expected," regarding the Obamacare lawsuits, since he (like me, really) expected arguments based on (one reading of) the text that ignore existing trends, doctrine, and jurisprudence to be ignored or laughed out of court.

I think that in some sense O'Donnell was being too intelligent for her audience, but in general it was a mistake to treat it like a debate over minutia rather than boil things down to broad generalities.

John Thacker said...

One must also assume that you think that Obama voter and law professor Ann Althouse is a derivative idiot in the second instance.

John Thacker said...

And it's not surprising that one of only two Justices to rule in the previous 10th Amendment case that post-sentence detention was not authorized, the one wrote wrote in 2005 about medical marijuana that "if Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers," and the one who was willing to throw out Slaughterhouse and resuscitate the P&I Clause in McDonald, is also the same one who argued that the Establishment Clause was not incorporated by the 14th Amendment.

So it seems that it takes "an idiot in the first instance" like Justice Thomas to question current interpretations of the text, such as whether local school boards are bound by the Establishment Clause, or in cases more dear to libertarian hearts, like with the 10th Amendment, or with the Commerce Clause and Obamacare or medical marijuana.

Anonymous said...

All interwebs folks who are "in the know" spell that word "pwnt." Not "powned" although that's not too far from the correct pronunciation.

Actually I believe it is "pwned", as in "owend" but with the "p" instead of "o".

Now let us never speak of that awful, brain cell killing word again.

Anonymous said...

One must also assume that you think that Obama voter and law professor Ann Althouse is a derivative idiot in the second instance.

I never thought there was any doubt of this. Ann is regularly savaged for her idiotic views by a number of liberal websites, and this new post of hers will likely draw some of their attention. And she was also a W voter, claiming that "national security" prompted her vote for him in 2004. Honestly. She's one we'd rather not be associated with.

I think that in some sense O'Donnell was being too intelligent for her audience, but in general it was a mistake to treat it like a debate over minutia rather than boil things down to broad generalities

O'Donnell has never been "too intelligent" for any audience. She trying to nitpick in order to proudly display her ignorance of the Bill of Rights and its application. She did this as part of a larger argument where she dismissed evolution as "merely a theory", proudly demonstrating her ignorance of even basic scientific principles, in order to argue that publicly funded schools should be allowed to teach religious fables as legitimate science.

Tom said...

About the Constitution being "dear to libertarian hearts," libertarians view the Constitution as a tool for use by the populace to control the government. Period. It's NOT sacred, in any sense of that word; it's Useful.

Some of our applications of the Constitution are like using a pistol as a hammer. For a particular purpose, the tool may not be well suited to the purpose, but if you must hammer and you lack a better tool, then you whack away with the Constitution.