Cowboy Confessional

One normally does not picture a sitting federal judge adorned in both a black robe and a red rubber nose.

Yet this is the common mental image we have of the U.S. Court of Appeals for the Ninth Circuit, alternately referred to as the Ninth Circus or the Numb Circuit due to the paired inanity of it’s decrees and a rate of overturned decisions bested only by mothers arguing with their kids over cotton candy being a dinner entrée.  With consistency bordering on either persistence or lunacy, the Ninth Chronic announces one or another decision which the Supreme Court eventually tosses out due to the self-evident self-medication of the lower bench.

Such is the case with a recent ruling in which Nonsensical Ninth declared that your driveway was not private property.  Allow me to repeat this, because you may have had a different notion when you paid money for and received a deed to your land, which included a driveway.  The Nutty Ninth has decided – at least for acts of espionage on citizens – your driveway is not private nor property.

The case revolves around a Federal government agency that wanted to track a suspected marijuana grower.  Without the benefit of a warrant or other authorization, one or more DEA agents crept onto the suspect’s formerly private property and attached a tracking device to his vehicle.  In every other circumstance of past jurisprudence, a warrant was required to violate property boundaries in order to electronically monitor a suspect.  Not having such authorization – a requisite check-and-balance to preserve liberty – has caused numerous cases to be tossed out of courts from leftist to right-wing coasts.

The Cuckoo Court has now sanctified government trespassing for surveillance.

Skipping past legal incantations and misdirection’s that would impress Penn and Teller, the Ninth Numbnuts insisted that ungated driveways are openly accessed by members of the public including folks like your milkman, UPS driver and neighborhood kids.  The point that our Ninth Circuit Nimrods nimbly pranced past is that citizens give express or implied permission to certain people to come onto a driveway.  You do not expect the FedEx delivery man to leave your overnight envelope on the sidewalk.  Your milk would rot before you discovered it on the curb.  And even though you might not like kids in your yard, you expect and accept that as part of living in the suburbs.

You do not expect or accept the Feds crawling onto your turf on a moonless night to plant bugs on your buggy.

Assume that the Schizophrenic Supremes will overrule the Cloud Nine Ninth – ­ they have made a habit of it.  But the case stands as an example of incrementalism via judicial eradication of rights.  Before FDR was laying under mistresses, federal courts held that the Constitution’s commerce clause only allowed congress to make equal the buying and selling of goods between states.  Some sloppy Raw Deal era linguistic nonsense caused this otherwise limited authority to become the ‘anything goes clause’ and created the federal leviathan we battle today.  It was not a moment of legal revolution, but the beginning of an incremental evolution and decent of the American constitutional species.

Left unchecked, an equally hideous erosion of the definition of ‘private’ and ‘property’ would prevail.  Under the same theory of public access, a future court could assume any place where you allow strangers to enter would no longer be private.  Make the mistake of inviting a Jehovah Witless into your living room and your family space would then no longer be a private place – installing surveillance cameras inside and without a warrant would be permitted.  Same might apply if you are prone to leaving your curtains open, as that would be an indication that you do not consider what occurs in your living room to be private activity.

Next stop, concealing a homing device in your wife’s cooter.

All this brings us to why this won’t bother  Democrat Senators.  If availability of access is the criteria for privacy, then people with tall fences and iron gates achieve automatic immunity from government surveillance (and if the Supreme’s do not overrule the Ninth Nuthouse, then I’m buying stock in fence companies).  Thus rich people are granted protections not afforded to the average Joe or Jane.  The richer the person, the less worry they’ll endure about federal law enforcement improperly entering their property because of visibly advertised privacy preferences.

This would be 7/10ths of congress … the Democrats.

Of the top ten wealthiest members of the most exclusive club in America, 70% are of the party of the little guy.  Senator and failed presidential candidate John Kerry tops the list, though in all fairness to him he married his money (and given how sobering scary looking his wife is, he is better off being married to her mulla).  Kerry carries company with filthy rich folk like Senator Rockefeller, Senator Lautenberg and a woman who steers government projects to her contractor hubby, Senator Feinstein.

I wager all these folks have very high fences and gates with enough iron to build a battle ship.

UPDATE: Sanity prevails elsewhere in the court system.  A different count has ruled that data from cell phone towers is detailed enough that government acquisition of said data requires a warrant.

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Who should you trust the least, a politician, a used car salesman or Satan?

(yes, I know, the differences are vague on the surface, but as always I’ll go deeper into a philosophical subject than you are otherwise prepared)

Of the three Satan is most trust worthy.  Aside from a brief cameo in Eden, Satan is what he is.  Like any garden variety redneck, you pretty much know what you are getting with Scratch.  Used car scammers are trustworthy in as much as you know where they work, and fear of baseball bat retribution keeps them more-or-less honest.

Politicians?  You can trust them as far a you can throw a used Buick.

Trust is tricky.  The odds of anyone being both honest and reliable can buckle under the superior force of human frailty.  Selfish interests get the better of everyone eventually, though most folks outgrow it.  Perpetual children (a.k.a. politicians) practice deceit to get what they cannot get honestly, and thus no trust of politicos can exist.  One or another statesman might well be honest, but why risk reliance when badgering, belittling and abuse are better tools for keeping them as close to conscientious as can be managed.

Of course, we can trust them not to be trustworthy.

The essence of trust revolves around the paired concepts of reliability and integrity, the latter word encompassing our mutual visions of virtue.  Not only must the object of trust be relied upon to do something, his/her/its actions must be within the scope of what we consider to be honorable, just and decent.  You can rely on Satan’s actions to be consistent, but his chewing on your bones while butt-bumping your mama likely is not within your definition of ethical behavior.

A politician would commit the same heinous acts, but would first promise not to.

Over the last four and a half million years of human evolution, people have devised various ways of enforcing trust.  In civilized societies and San Francisco, the process is normally left to the tort courts, where people debate which person lacked either integrity or reliability in modes of contract.  This occurs between former business partners and former spouses, though the latter source provides more scandalous amusement (“Your honor, she asked me to do her sister.  Honestly!”)  It occasionally occurs between citizens and their government though appealing to the government (i.e., the courts) with claims of violation of trust by the government (i.e., legislative or executive branches) is a stacked deck.

Bazookas work better, though tar and feather are not completely out of vogue.

People also enforce trust without the benefit of intermediaries like courts.  Despite being illegal, dueling is not unheard of in the modern South, though gentlemanly demands for satisfaction have largely fallen to more common protocols.  Nationally, wives have been known to bobbit unfaithful husbands, lawyers are occasionally used for target practice, and discourtesies often enough encourage corrective reaction from flying fists.  For most people civil discourse or social outcasting is sufficient.  Every breech of trust can be corrected in small and large ways (such as changing a former boyfriend’s online dating profile password to ‘dumbass’).

Politicians and judges are another matter.  Having been granted temporary power, they have means for justifying their deceptions.  Combined they can eradicate the most fundamental form of trust between the people and their government: The Constitution.  Such great power requires those elected and appointed to be trustworthy, to have and maintain reliability and integrity.  This is reflected through adherence to the express written will of the people in their constitution.  Yet over the decades of American existence, judges redefined The People’s will and politicians found ways of further violating public trust.

Hell, we’d be better off with Satan sitting on the Supreme Court than Sotomayor.

This brings us to the disquieting direction in which America is heading.  When people can compromise, or at worst have an allegedly disinterested third party mediate, then trust can be enforced without assault or onslaught.  If you can talk-down a drunken bully, the two of you might well knock back a beer once mutual tension subsides.  Trying to settle with Satan just means you are his next penile piñata.  Such is the nature of man and government.  When government behaves with integrity – when it obeys – then trust reigns, or at least the judicial branch will enforce the trust.  When Uncle Sam becomes Uncle Satan and abandons integrity and reliability, then few other corrective actions are open aside from blunt trauma.

A scorned wife will never again trust a philandering husband, but frying pan therapy might keep him from doing it again.  The People are one government indiscretion away from pummeling politicians and jack-hammering judges.  I don’t advocate savagery to extract satisfaction, but I can’t say I wouldn’t crack a smile if it occurred to my congressman.  People maintain the ultimate power and direct correction would be an obvious outcome for the current state of the untrustworthy state.

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Can we get our money back on Eric Holder?

Like any consumer, taxpayers have a right to demand a refund if a product is defective.  Eric Holder is proving himself to have many mental design defects and as such is a completely inoperable device.  He is the Yugo of the American legal system.

Ignoring his leadership, participation in or apologies for previously demonstrated intellectual incapacity, his recent suit against Arizona ranks among the most feeble of legal constitutional law actions.  In twenty five pages of disorganized discourse, Holder managed to give lawyers a bad worse name.  Those of serious con law scholarship – which apparently excludes Obama and Holder – are struggling to regain respiration after reading Holder’s brief.

For those who fleeting moments of sanity have forced to ignore the evening news, Arizona recently enacted a law which will cause illegal aliens to be incarcerated.  AZ decided to do so because the federal government won’t.  In crafting the law, the Deep Ditch State studiously avoided redefining the definition of immigration or legal entry into the U.S.  In other words, they did not want to violate the federal governments defined role as the body that defines immigration law and policy.

Which Holder claims Arizona did.

Our legal system has the notion of preemption, which in simplified forms means if a higher level of government (and by higher I mean more elevated, not more stoned) is granted authority in one aspect of law, any decision they make overrides decisions made by lower and allegedly more sober governing bodies.  Holder rightly cites that the Constitution grants both this preemptive power and that the feds have the authority to define naturalization and immigration law.  Then again kids riding the short bus could make such a simple observation.

This is where Holder leaves the intellectual highway and tumbles into the ditch of dementia.  In his briefs he continually harps on preemption in an apparent attempt to convince somebody that Arizona law is preempting federal law (which, as noted above, is not the case).  He veers into irrelevancies like Congress allegedly having other objectives in immigration policy aside from making unauthorized immigration a crime.  Not seeing the irony, Holder notes that the “President of the United States [has] the authority to ‘take Care that the Laws be faithfully executed.’”  {Note to Eric:  He has the duty, not the authority}  If Holder is pitching this perspective to Supreme Court justices, then he runs the risk of one or all nine of them applying a gavel to his skull.  I doubt Eric is so errant as to file suit simply to convince voters of some righteous element of his bosses administration – filing frivolous law suits is for small time criminals, like John Edwards, a level so low that even Eric cannot sink to it.

This, sadly, leaves imbecility as the remaining explanation for his actions.  Eric is not lucid.  Holder is half-baked.  His faculties are deficient, his dendra defunct.  In short, Eric is unsuited and unsuitable for the job that Barack Obama gave him.  As with any useless appliance, he needs to be taken back, the money invested in him refunded, and his parts salvaged for spares.

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Maybe we should quit celebrating the 4^th of July and start celebrating the 28^th of June.

Today has been a complex and interesting day at the intersection of America and Freedom.  We witnessed another fundamental right incorporated against the states, an enemy of freedom die, and another enemy of freedom approach the same court that confirmed the fundamental right that weaves its way through these varied news items.

Thank Gawd for Jack Daniels, the all purpose tool for celebrations and relieving dull headaches from dumpster diving into constitutional law, politics and other unsavory pursuits.

Foremost is the Supreme’s decision in the case of old man McDonald of Chicago, who lives in a crime infested neighborhood in a crime infested city replete with a crime infested government.  Chicago would not let this kindly codger own a pistol for fear he might shoot a criminal, or even someone who didn’t hold office.  Two years ago (Heller case) the Supreme Court ruled that the right to keep and bear arms, oddly enough, protected a right to keep and bear arms.  Only imbeciles (and by this I mean Justice Breyer) failed to grasp English and concluded otherwise.

But that decision did not address if the stated right applied to anything but federal territories – the folks in Guam were elated, and people in Chicago were rightly jealous. Old man McDonald argued that like the rights to speech, religion, assembly, press, due process, self-incrimination, public trial, council, trail by jury, reasonable bail and not being beaten up by cops, the right to own a heater could also not be denied by whatever Al Capone descendents were running the local patronage parlor.  McDonald’s argument presented a bit of a conundrum to liberal political activists (Ginsberg, Stevens, Breyer, Sotomayor and their intellectual equals Larry, Curly and Moe):  The court had previously prevented unlisted rights, such as the right to privacy, from being infringed upon by lower levels of government.  Ruling that a clearly stated, enumerated right was not equally protected meant that most of the social liberal enactments of the last 100 years could evaporate in a puff of illogic.

Which is what they tried anyway, launching a thousand mocks.

Court Jester Stevens went into a rambling discourse of irrelevancy that departed jurisprudence and entered the realm of science fiction.  In a rare instance of judicial bitch slapping, Justice Scalia rhetorically mugged Stevens for the latter’s flagrant display of senile dementia.  In words and tone that were openly derogatory – which is relatively unknown in the decorum of the court – Scalia excoriated Stevens and thus gave the old codger a swift kick in his retiring tokus.  Scalia wrote about Stevens’ dissent “The notion that the absence of a coherent theory of the Due Process Clause will somehow curtail judicial caprice is at war with reason.”

This is one judge’s way of saying to another “Your mama!”

Odder than Stevens (a notion that is nearly incomprehensible) was Breyer (who is always incomprehensible).  Breyer squanders his script rearguing the Heller case of two years before, establishing nothing new and picking a fight with the prevailing majority of the court.  This I find amusing for in all confirmation hearings it is the liberal bank of the Senate who grill potential justices on stare decisis, the doctrine that existing decisions should stand lest the judicial activism of the last century vanish due to constitutional fidelity.  If stare decisis is indeed a desirable mandate, why then is a liberal judge trying to unilaterally invalidate a recent court ruling?  Doing so seems to indicate that stare decisis is about as healthy and robust as Ted Kennedy (oh, too soon?)

Buried in this muddle of con law mastication is the corner case of how to keep states from telling old black men they cannot shoot Crips gang members breaking into their homes.  The 14^th Amendment was written to assure that a federal freedom was also a state freedom, and was done so because after the civil war a lot of disgruntled Democrats were routinely robbing free black men of the freedoms they had just received, typically first by disarming them, and then by stretching their necks.  For reasons too laborious to delineate, the better of two clauses in the 14^th Amendment was invalidated by the courts as the means for keeping disgruntled Democrats from re-enslaving black folk (“privileges and immunities” clause and the Slaughterhouse Cases for people with autodidactic masochistic streaks).  Despite the wrongheaded reasoning in the Slaughterhouse Cases, stare decisis (there’s that dirty word again) required that the court ignore pleas made by McDonald to keep Chicago politicians out of private gun safes.  Justice Thomas, an old black man whose parents were not lynched, took it upon himself to write a concurring opinion to educate the court that their previous ruling about the privileges and immunities clause was as coherent as Justice Stevens, which is not at all.  Since the 14^th Amendment and the privileges and immunities clause were written specifically to keep Justice Thomas’ ancestors from being becoming strange fruit, he may well have had very personal reasons for suggesting that stare decisis be a little less rigid and that Supreme Stupidity be subject to review.  It might just keep the Ku Klux Klan from getting uppity.

Of course, that will be more difficult with its reduced membership.

While freedom was being expanded by the Supremes, a supremacist stopped breathing.  Senator Robert Byrd of West Virginia (where the state flower is the satellite dish) was the oldest living and longest serving senator and Klan member.  Through the latter half of his career – when being a racist was out of vogue – he made feeble excuses for having joined the Klan.  Byrd enjoyed expanding the power of the federal government and recklessly spending money, which made him a liberal and got him a seat at the leftist table next to Barbara Lee (there is a dinner conversation I would have enjoyed overhearing). This put the liberal establishment in the odd position of apologizing for and praising Byrd while campaigning in black neighborhoods.

We cannot whittle a fine enough point with which to poke Byrd’s corpse.  It is not like the Ku Klux Klan has an obscure brand – when you join you pretty much know the group’s policy and you agree with it.  Claiming, as Byrd did, that joining the Klan was a youthful mistake is like joining the local cannabis club and later being horrified that the members there actually smoke the stuff.  Byrd was a racist – period – and those who make excuses for him are as well.

Amusingly odd then is that on a day when a free black man in a black robe is vigorously defending a constitutional clause designed to promote the liberties of free blacks, that a man who openly sought to keep minorities in servitude goes to God to argue his own case.  This explains why the temperature got a little warmer this morning.  Hell has one more log on the fire.

The last leg of today’s con law carnival is the opening hearings on Elena Kagan, Barack Obama’s latest insult to America.  Now Kagan may be a nice human, but like Obama, she is a proponent of judges redefining the express written will of the American people (a.k.a. The Constitution).  Like his last nominee – who today voted against the right of blacks to own guns – Kagan has no desire to obey The People.  Along with Sotomayor, she has openly said that she is unsympathetic to the notion that there is an individual right in the Second Amendment (you know, the one that says ‘the right of the people to keep and bear arms …’).  She was also an instrumental actor in Bill Clinton’s campaign to increase gun control.

I bet she even believes in stare decisis … when it suits her.

The key to disallowing Kagan onto the court is that The People have the right and privilege of knowing with reasonable certainty how a justice will rule, and this requires some judicial history of which Kagan, an academic, has none.  Without such insights, elevating anyone to the Supremes is a crap shoot and you end-up with people holding the judicial stability of Justice Stevens (and he had the benefit of being a lower court judge).  Such judges, like the four who wanted to keep an old black man in Chicago disarmed, subject people to the same dangers that Dixicrats always inflict.

Hmmmm.  Does Kagan’s robe come with a matching hood?

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The only person more dangerous to freedom than a sitting president is whomever he appoints to the Supreme Court.  After all, president’s have term limits.  We can theoretically impeach a Supreme, but it is damn difficult.  Hence, a free people must keep certain individuals off the bench and out of robes (except for Ruth Bader Ginsburg – she needs to remain clothed).

Which brings us to the unacceptable submission of Elena Kagan.  We can dismiss her gravitas for a seat on the highest court given her lack of validatable decisions.  Smart as she is alleged to be (which is nonsense as we will see momentarily), having never served as a judge means she served-up no judicial opinions.  Thus The People have nothing solid on which to evaluate her ability as a lower-caste jurist and thus her ability to protect the Constitution, the freedoms of Americans or even if she looks good in a robe (I retain doubts about her visual desirability disrobed).

Keep in mind that she accepted a job in an administration that will last no longer than Jimmy Carter’s, so her judgment skills are already proven deficient.

But we do have her limited work as Solicitor General to review.  For those unacquainted with the mechanics of the monstrosity called constitutional law, the Solicitor General (not to be confused with generals who solicit) represents the alleged position of the United States government when arguments are hurled at the Supreme Court … which is the United States Government.  The SG is appointed by the President and rarely represents anything but the president’s opinion, though that occasionally agrees with the opinion of congress and even more rarely that of The People.

Yes, the game is rigged.

Kagan filed briefs in U.S. vs. Stevens, a nasty affair involving dog fighting and free speech.  Distasteful as they be, the most vile members of society often test and confirm constitutional rights.  Larry Flint argued that Hustler magazine was a form of protected speech and thus made sure every adolescent male could ogle photos of panty hamsters.  Thus in U.S. vs. Stevens the First Amendment was tested again over something more degenerate than Hustler, though the mind boggles at the very prospect.

In Kagan’s brief to the Supremes, she wrote in part:

“Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs” [emphasis clearly not hers]. In her words court watchers hear echoes of Breyer the Senile from his dissent in the Heller gun control case where he waxed ineloquently about a non-existent judicial power to balance enumerated rights with perceived societal “costs.”

What Kagan argued is that judges have the domain to determine what (if any) balance should be struck between a right of The People and the power of the state.  The Constitution is silent on this subject (i.e., The People who ratified the Constitution never granted courts that power) which means that Kagan has already driven off the road of reason and into the rhetorical weeds. There is also the annoying aspect of regulating any right.  As the old law school song would go (if any J.D. candidate had lyrical skills) “How can a right be regulated and not be wrong?”

Aside from the huge sticking point of the judiciary not being granted the power to make such decisions, the other insurmountable obstruction (and one that I devote an entire chapter to in my next book, Catalog of Canards) is that “cost” is a malleable concept.  Some interpret social costs to be direct financial costs to individuals.  Other folk think it is out-of-pocket government expenses including welfare, indigent medical care and congressional bourbon therapy.  Berkeley residents still riddled with psilocybin from their last Grateful Dead road trip perceive more spiritual expenses before subsequent hallucinogenic experiences overtake them.  The definition of social costs is as precise as that for “assault weapons”, both definitions being as narrow as nuclear weapon target diameters.

Quantifying social costs is impossible.

So put yourself in a judge’s robe and picture being so delirious that you believe you have the authority to identify a balance between rights and “costs.”  Where do you begin?  Costs, a concept as solid as Jell-O, has too many parties, angles and elements to measure.  Thus it becomes a judgment call, and judgment is always biased.  Since Kagan comes from the statist klan, we know which side of the scale she’ll lay her finger.

For those issues that the Constitution permits government intrusion into private affairs (which at the federal level is a short, clearly enumerated list) Congress was given the authority to find balance, not the courts.  Kagan professes that the power given to elected officials (who we can fire more easily, or in joyful moments decorate with tar and feathers) be usurped by unelected judges.  Further, given the broad role judges have assumed, they could attempt balancing acts on items over which the Federal government has zero jurisdiction.  In short, Kagan professes to become the conscious of the people and the arbitrator or everything.

The syntactic similarities between arbitrator and traitor may be pertinent here.

Reading further into Kagan’s brief, we see the disturbing instance where she defends indefensible law because it allegedly stops “the erosion of important public mores.”  I love reading this passage to my gay friends and noting that conservatives made the same claims about California’s Proposition 8 which banned gay marriage.  Thus Kagan is intellectually aligned with those who believe that individual rights are subject to majority morality (which is one semantic step away from her being a member of the Moral Majority).  She is confirming my oft spoken observation that there is not a dimes worth of difference between hard-left liberals, hard-right conservatives, and your garden variety jihadist:  they all seek to control their neighbor’s non-destructive behavior.  The liberals have Kagan, the conservatives had Falwell and the jihadists have bombs.

Come to think of it, liberals used to have bombs too.

Let us not waste time on a Senate confirmation process since Kagan has already confirmed her lack of understanding about the express written will of the American people as well as her proffered role therein.

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