Category Archives: Rule of Law

The end of gerrymandering? Depends how bad you want it…

You may have thought the Supreme Court did some big stuff last week.

Pshaw.

The ACA ruling? It maintained the status quo. Nothing changed, nothing to see. Move along.

The same-sex marriage ruling? Aw, who was really surprised by that?

Today, in the midst of several other rulings — the Court seemed to be tossing them out like Mardi Gras revelers throwing beads to the kids — the justices did something significant, something that could potentially solve most of the things that are wrong with politics in America:

A divided Supreme Court on Monday said voters concerned that partisan gerrymandering is creating unfair elections are entitled to take reapportionment away from state legislatures.

The court ruled 5 to 4 that the Constitution does not give legislatures exclusive control over congressional redistricting and said voters may vest the power in independent commissions by ballot initiative, where this option exists.

“The animating principle of our Constitution [is] that the people themselves are the originating source of all the powers of government,” Justice Ruth Bader Ginsburg wrote for the majority….

If you don’t know what this means, I’ll tell you: No more districts drawn to serve political parties rather than the nation. No more parties getting more and more extreme because all incumbents have to fear is a primary opponent who is more extreme than they are, since general elections don’t matter. Maybe, maybe even no more creating one majority-minority district by drawing all the ones around it super-white (there are other barriers to changing that, though — I think).

Competitive elections between sensible centrists! How wonderful!

But wait! How does one take this power away from partisan legislatures? Oh… with a ballot initiative.

Dang.

So… you’re saying we have to kill representative democracy to improve it? Because that’s what government by ballot initiative amounts to. No, thanks. Dang.

Hey! Maybe, with enough pressure, lawmakers could be persuaded to give up the power themselves. Impossible, you say? Yes, well, I would normally say the same. But I just saw the political leadership of South Carolina decide to take down the Confederate flag, so pretty much anything is looking possible to me right now.

At least let me dream…

Justices find right to marry, extend it to same-sex couples

Here’s the main news:

The Supreme Court on Friday delivered a historic victory for gay rights, ruling 5 to 4 that the Constitution requires that same-sex couples be allowed to marry no matter where they live and that states may no longer reserve the right only for heterosexual couples.

The court’s action marks the culmination of an unprecedented upheaval in public opinion and the nation’s jurisprudence. Advocates called it the most pressing civil rights issue of modern times, while critics said the courts had sent the country into uncharted territory by changing the traditional definition of marriage.

“Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right,” Justice Anthony Kennedy wrote in the majority opinion. He was joined in the ruling by the court’s liberal justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

All four of the court’s most conservative members — Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — dissented and each wrote a separate opinion, saying the court had usurped a power that belongs to the people….

In his first-ever dissent, Justice Roberts asked, “Who do we think we are?” He argued that same-sex marriage was rapidly gaining acceptance across the country legally, and that the court, “in a government of laws and not of men,” had no business pre-empting that democratic process.

Here’s the text of the opinion.

Supreme Court keeps Obamacare alive

I really haven’t had much time to pay attention to this today, but I thought I’d better put up a post for those of you who would like to comment on this major piece of good news (good news for the whole country, including the GOP, although they won’t admit it):

Affordable Care Act survives Supreme Court challenge

The Supreme Court on Thursday upheld a key provision of the Affordable Care Act and in a broadly written opinion agreed with the Obama administration that government subsidies that make health insurance affordable for millions of Americans should be available to all who qualify.

By a 6-to-3 vote, Chief Justice John G. Roberts Jr. reaffirmed the foundation of President Obama’s landmark domestic achievement and seemed to take the starch out of legal efforts to undermine the basic structure of the law. The ruling endorsed the administration’s view that subsidies should be available for all low- and moderate-income Americans wherever they live, not just in states that have set up their own health insurance exchanges.

The decision was broad enough that Obama claimed in a Rose Garden speech: “The Affordable Care Act is here to stay.”…

Signs, signs, everywhere the signs…

No hand-holding! This, however, is allowed...

No hand-holding! This, however, is allowed…

While y’all have been wondering, “Where’s Brad?,” I’ve been at the beach with my two youngest grandchildren.

And the youngest, my 3-year-old grandson, is quite the playground lawyer.

Yesterday, my wife and I walked him and his big sister down the street to a little municipal park there at Surfside Beach so they could play on the playground equipment.

As we arrived there, he announced, “No holding hands,” and pulled his away from me. Since we were there, I let him go, but I had to ask: “Where does it say no holding hands?”

Without missing a beat, he said in an offhand manner: “That sign over there,” and resumed climbing up on the equipment.

He had indicated one of those signs you find at municipal parks that indeed say such things as, “No bare feet,” and “Children must be accompanied by adult.”

I was impressed. I knew we had used these signs in the past as justification for telling him to do things we wanted. You know, like, “Don’t go up the slide backwards. Don’t look at me; that’s what the sign says.”

Since it worked on him, he figured it would work on us. He doesn’t grok the concept of reading, so it doesn’t occur to him that he can’t con us with that. He doesn’t know that he’s the only person in the group who can’t read the sign.

I thought it was a very legalistic gambit, for a guy who just turned 3 last month…

Now THIS is courage in the cause of free speech

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A lot of people have had trouble understanding my point that there is nothing noble about holding contests to see who can mock Mohammed the most, It’s just stupid, immature and offensive.

Many imagine that those who participate in such pointless insults to Islam are courageous defenders of freedom of expression.

No. In case you’re still having trouble telling the difference, this is the kind of cartoonist that we have a First Amendment to protect:

Iran’s thin-skinned mullahs have jailed an artist who drew a cartoon disparaging members of parliament over their decision to restrict birth control for women.

Atena Farghadani, 28, had what Iran considers a trial in Tehran’s Revolutionary Court on May 19 and is now awaiting a verdict. She was charged with “insulting members of parliament through paintings” for drawing  the officials as animals, according to Amnesty International. It is not clear what kind of maximum sentence she could face.

“She’s truly an angel,” a relative of Farghadani told FoxNews.com on condition of anonymity. “She just loves people and animals, and besides for all her artistic talent, she is such a strong supporter of human rights.”…

See the difference? Standing up and criticizing the powers that be in your own oppressive country is courageous, and has a point. We have a First Amendment to protect people who do that in this country. That is essential to being a free country.

Being intentionally offensive to millions of innocent Muslims who have done you no harm is just being a jerk, not a hero. You’re free to do it, but don’t expect me to pat you on the back for it.

There is no ‘wall’ between church and state

First, I agree with Unitarian Rev. Neal Jones that if our governor is going to invite us to a day of prayer, she ought to invite everybody, and not just Christians.

And in the video above from the website of the upcoming event, she does seem to invite everybody. Unfortunately, Rev. Jones received a letter from the governor that seemed to imply a more restricted invitation, in that it said “this is a time for Christians to come together to call upon Jesus to guide us through unprecedented struggles.”

Rev. Jones felt left out because Unitarian-Universalists are not what you would call Christians. Instead, they firmly believe that… um… ah…. Well, they’re not, strictly speaking, what you would call Christians.

So if the governor meant to stiff-arm his congregation, and Jews, and the Sikhs in her own family, then that’s not good. If she really meant to do that.

But… I have to object to the fact that in making the argument that Nikki Haley should not have done such a thing, Rev. Jones repeated a popular misconception, and I feel the need to correct him:

So I will not be attending the governor’s day of prayer, because she didn’t actually mean to invite me, as I am the minister of the Unitarian Universalist Congregation of Columbia. But even if she had, I would not attend. I am not against prayer, but I am for the Constitution, the First Amendment of which establishes a “wall of separation between church and state,” to use Thomas Jefferson’s famous phrase. That wall protects the integrity of both government and religion. It prevents religious zealots from using the power and purse of the government to force their beliefs and practices on the rest of us, and it prevents overreaching politicians from intruding into religious affairs. Each institution does better when it minds its own business — when ministers pray and politicians pave roads….

You see the error, right?

The First Amendment does not establish a “wall of separation between church and state.” That oft-repeated quote was Thomas Jefferson — who was not involved in drafting the Constitution or the Bill of Rights — expressing his opinion regarding the effect of the actual amendment. It was in a letter he wrote as president to the Danbury Baptist Association explaining why he, unlike his predecessors and some who followed him, refused to proclaim days of fasting and thanksgiving. The operative passage:

Believing with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state…

Jefferson was on solid ground when he said the amendment provided that the Congress “should make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” But he ventured into opinion, and for his part wishful thinking, when he added “thus building a wall of separation between church and state.”

(Interestingly, after rhetorically erecting this wall and standing firmly on the secular side of it, he closed his letter with these pious words: “I reciprocate your kind prayers for the protection and blessing of the common Father and creator of man…”)

By the way, I place more store on the opinion of James Madison that there should be a “total separation of the church from the state.” But it must be noted that Madison did not insert such language into the amendment itself, and no amendment with that wording was ever ratified or adopted.

Too many folks continue to believe that what Jefferson chose to believe the amendment said is actually what the amendment says.

When it isn’t.

We are not to have an established church, and the government may not interfere with anyone’s particular religious beliefs or practices. This is not the same as having a wall of separation; it’s not even close.

In Jefferson’s day, a lot of folks wanted there to be such a wall, and he was among them. A lot of folks want there to be such a wall today, and furthermore sincerely believe the Constitution provides for one.

But, again, it does not.

Rev. Jones concludes:

I realize that in South Carolina, indeed across the South, it is tempting for politicians to overstep their civil authority and meddle in religious matters. Southern politicians win lots of votes by making a public display of their piety. The next time Gov. Haley prays, she might consider praying for the strength to resist that temptation … for her own spiritual health and for the health of our constitutional democracy….

Rev. Jones may find it distasteful when “Southern politicians win lots of votes by making a public display of their piety.” I might, too, depending on the circumstances and the nature of that display. Not because the civic realm is damaged by mentions of God, but because God is blasphemed by having His name yoked to an individual politician’s aims.

Many of my readers might be offended in far more instances than I would. But when politicians thus offend, they generally do not “overstep their civil authority.”

Naming a courthouse for Judge Waring

As you probably know, I don’t hold with naming buildings (or roads, or what have you) for living people. They’ve still got time to make you sorry for doing so sometime in the future.

Even naming things after dead people is sometimes problematic.

But sometimes, there’s a late somebody who just didn’t get the kind of honor and recognition he or she deserved in life. And that makes me think this proposal is a pretty good idea:

CLYBURN INTRODUCES LEGISLATION TO RE-NAME FEDERAL BUILDING
AND U.S. COURTHOUSE AFTER J. WATIES WARING

WASHINGTON – U.S. House Assistant Democratic Leader James E. Clyburn released the following statement after joining the entire South Carolina Congressional delegation in introducing a bill to designate the Federal building and United States courthouse located at 83 Meeting Street in Charleston, South Carolina, as the “J. Waties Waring Judicial Center”: 

Waring“I want to thank my colleagues in South Carolina’s Congressional delegation for working together to honor the memory of Judge J. Waties Waring, a great South Carolinian and American hero who paid a heavy price in his pursuit of racial justice.  In his 1944 Duvall v. School Board ruling, Judge Waring ordered the equalization of teacher pay in South Carolina.  In the 1947 Elmore v. Rice decision, Judge Waring struck down South Carolina’s white-only Democratic primary.  Judge Waring’s best known opinion, a dissent in Briggs v. Elliott arguing that ‘separate but equal’ was unconstitutional, laid the groundwork for the U.S. Supreme Court to adopt his reasoning unanimously in the landmark Brown v. Board decision, which struck down racial segregation in all public schools in America.

“Thankfully, history has given Judge Waring the favorable recognition denied to him during his life, and passage of this bill will rightfully add to this acclaim.  His courage in standing up for what was right, even at the cost of social ostracism, will endure in our nation’s memory as a powerful example of statesmanship that must continually be sought, regardless of the issues of the day.

“Former United States Senator Ernest F. Hollings has been the leading advocate for this change, even though it will remove his own name from the facility.  This selfless act of statesmanship is just the most recent example of Senator Hollings’ visionary leadership in a stellar decades-long career in public service.

“It is often stated that ‘the difference between a moment and a movement is sacrifice.’  I cannot think of a more fitting example of that maxim than the life and legacy of Judge J. Waties Waring.  Judge Waring was at the forefront of a movement, and I urge my colleagues to pass this bill expeditiously.  It honors Judge Waring’s extraordinary life and elevates him and Senator Hollings as public servants we should all strive to emulate.”

Companion legislation to the House bill is being introduced by South Carolina Senators Lindsey Graham and Tim Scott.

–          30 –

Judge Waring lived on Meeting Street, until his fellow Charlestonians ran him out of South Carolina. That makes this particularly apt.

Of course Graham voted for Lynch, and good for him

When I saw the Post and Courier headline, “Loretta Lynch confirmed as attorney general today; S.C. senators split,” I didn’t have to read further to know that Graham had voted “aye,” and the other guy did the knee-jerk GOP thing and voted against.

That’s because of what Lindsey Graham says, believes and lives by — the principle that elections have consequences. A president gets elected, he should get to pick his team. The Senate should only refuse to confirm if the nominees is obviously, clearly unqualified — not just because the nominee might not share the senators’ respective political views.

As he said following the vote:

I also believe presidents should have latitude in picking nominees for their Cabinet, and Ms. Lynch is well-qualified for the job. My goal is to have a Republican president nominate the next Attorney General so we will not be forced to choose between Eric Holder and Loretta Lynch.

He’s not the only one who says this. John McCain says the same. But Graham practices the principle more consistently. (Graham voted to confirm Sonia Sotomayor for the Supreme Court; McCain voted against.)

And of course, he’s right to do this. It shows he understands the proper roles of the president and the Senate under the Constitution.

If you want someone else for the job, work to elect someone else president. But if your candidate loses, you don’t spend the next four or eight years sulking and obstructing the process of governing.

We’re lucky that one of our senators understands that, and in fact understands it more thoroughly than most people in Washington.

Americans concerned about crime used to favor gun control. Not so much now…

People used to say "He who lives by the sword dies by the sword," Ned Stark being a case in point. Today, they seem to think that if you outlaw swords, only outlaws will have swords...

People used to say “He who lives by the sword dies by the sword,” Ned Stark being a case in point. Today, they seem to think that if you outlaw swords, only outlaws will have swords…

You know, today would be a good day to just let Bryan take over the blog, the way he did while I was out of the country. I’d suggest that, but I’ve been binge-watching “Game of Thrones” via HBO NOW, and if there’s anything to be learned from that, it’s that it can be dangerous to leave someone else in charge of your kingdom.

Here’s the second topic today suggested by Bryan. He alerted me to this report from the Pew Research Center, which is summed up in this lede:

For most of the 1990s and the subsequent decade, a substantial majority of Americans believed it was more important to control gun ownership than to protect gun owners’ rights. But in December 2014, the balance of opinion flipped: For the first time, more Americans say that protecting gun rights is more important than controlling gun ownership, 52% to 46%….

I think this is related to what’s been happening in the GOP the last few years.gun poll

Increasingly, “conservatism” is really libertarianism in disguise, and is related to anti-government feeling in the country. People who once upon a time would have wanted just the cops to have guns don’t trust cops that way any more. It’s a two-edged blade — distrust of government on one side, a libertarian view of the 2nd Amendment on the other.

Also, as the Pew report notes, people have an exaggerated sense of the prevalence of crime. They think the streets are more dangerous than they are, and since they don’t trust government to protect them from all that imagined mayhem, they want to pack heat….

It’s not THAT unusual in SC for white cops to be charged with shooting unarmed black men

post shoot

That’s kind of a two-edged headline, isn’t it? On the one hand, it suggests that it’s not that unusual for white cops to shoot unarmed black men in SC. And indeed, The State recently reported that police have shot at people more than 200 times in the past five years.

But my point was that the charges against North Charleston cop Michael Thomas Slager for shooting and killing motorist Walter Scott are not unique.

That was in my mind last night when I was sort of surprised to see the story leading the NYT. But I was in a rush, and my laptop was taking an absurd amount of time to perform the most basic operations, so I didn’t stop to look up the recent incidents that were at the back of my mind.

But this morning, when I saw the Washington Post story (which The State led with) that characterized the charge as “what seems to be an unprecedented move in South Carolina,” I thought I should take a moment to do some basic research. I was further spurred by this quote from my old friend Joe Darby, also in the Post:

“I am surprisingly and gratifyingly shocked because to the best of my memory, I cannot think of another occasion in which a law enforcement officer was actually prosecuted for something like this in South Carolina,” said the Rev. Joseph Darby, first vice president of Charleston’s NAACP branch.

Warming to his subject, Joe further spread his rhetorical wings:

“My initial thought was, ‘Here we go again. This will be another time where there will be a cursory investigation. It will be the word of law enforcement versus those who are colored as vile perpetrators. People will get very mad, but at the end of the day nothing will change.’ This kind of changed the game,” Darby said of the video and Slager’s arrest.

When Joe says he cannot think of another case ” in which a law enforcement officer was actually prosecuted for something like this in South Carolina,” I believe him. But his memory is dead wrong.

Just in the last few months, there have been at least two such cases, which I found in just a few moments this morning:

  • State Trooper Sean Groubert was fired and charged with a felony, assault and battery of a high and aggravated nature, after his dashboard video showed him shooting Levar Edward Jones in the Columbia area. Groubert’s trial has not yet been held, but Jones  has received a nearly $300,000 settlement from the state.
  • Former Eutawville police chief Richard Combs was charged with murder in the May 2, 2011, shooting death of Bernard Bailey. A mistrial was declared in the case when the jury deadlocked in January.

Now, let’s be clear: As The State reported, no cop of any race has yet been convicted in any of those 209 shootings in the past five years.

And these three cases seem to be unusual in that there was video evidence in two  cases, and the other took place right in front of the courthouse in Eutawville. So this should certainly add fuel to the national movement to have cops wear body cameras at all times.

But it’s plain that these charges were not “unprecedented,” and that Joe Darby’s memory is lacking. And maybe the world’s press got excited over this “unprecedented” case for the wrong reasons. (Based on modern news standards, it’s still a good story, because of the video causing the authorities to reverse themselves. The horrific video itself — which you can see below — is enough for such a story to go viral. But it’s not man-bites-dog.)

Finally, I just noticed that the Post has corrected itself. Its current version of the story no longer contains the unwarranted speculation that the situation is “unprecedented.” But the story still leads the Post’s site. More to the point, thestate.com is still leading with the old, erroneous version.

SC shooting case leading the NYT

NYT homepage

I thought this was interesting. This story is leading the New York Times website at the moment:

A white police officer in North Charleston, S.C., was charged with murder on Tuesday after a video surfaced showing him shooting and killing an apparently unarmed black man in the back while he ran away.

The officer, Michael T. Slager, 33, had said he feared for his life because the man took his stun gun in a scuffle after a traffic stop on Saturday. A video, however, shows the officer firing eight times as the man fled. The North Charleston mayor announced the state charges at a news conference Tuesday evening.

The shooting in North Charleston comes on the heels of high-profile incidents of police officers using lethal force in New York, Cleveland, Ferguson, Mo., and elsewhere around the country. The deaths have sparked a national debate over whether police are too quick to use force, particularly in cases involving black men.

Why? I suppose because the editors consider a situation in which South Carolina is prosecuting a white cop for shooting a black man a man-bites-dog situation, in light of stories that have made national news elsewhere in the past year.

Hey, we could be making headlines for a lot worse reasons than that. And we have.

So this is improvement.

Maybe someone can ‘splain this to me

Consider this the beginning of the “transition period” back to your regularly scheduled programming of Brad’s Blog. He’s back (but jet-lagged) so I’ll put this up here for y’all.

Maybe one of y’all can ‘splain this to me:

The question I have is: Why? There’s already a federal law in place that prohibits anyone convicted of a “misdemeanor crime of domestic violence”  or even “subject to a domestic violence protective order” from possessing a firearm.

So why do we need a state law? It’s already the law. I’m just a simple ol’ lawyer, but I’m pretty sure that a federal law works just as well as a state law.

ACLU: Hey, um, you guys? The OU SAE expulsions actually aren’t constitutional.

So, the ACLU is finally getting around to doing their job, here.

As a state-run institution of higher education, the University of Oklahoma must also respect First Amendment principles that are central to the mission of every university. Any sanction imposed on students for their speech must therefore be consistent with the First Amendment and not merely a punishment for vile and reprehensible speech; courts have consistently and rightly ruled as such. Absent information that is not at our disposal, it is difficult to imagine a situation in which a court would side with the university on this matter.  We are closely monitoring the situation and will appropriately respond to new details as they emerge. In the meantime, we stand in solid support of the brave and thoughtful students whose public dialogue on race and the rights of all minority students in response to the incident have embodied the spirit of the First Amendment.

Now, before you get all upset and put some crazy comment here, stop and take a breath. I’m not condoning the bird-brained students who said the things they said. They were dopey, hateful, and base. Now that I think of it, I actually kind of like my insult of “bird-brained” there. That may be my new insult for people these days. Anyway, I digress…

Did you stop and take a breath? Ok.

Despite saying bird-brained things, these students clearly can’t be punished in this summary form, and the ACLU is finally coming around to saying the correct position. Before you jump all over me for “siding” with these morons, let me clarify: I am not siding with these idiotsI am siding with the rule of law. Unfortunately, defending free speech necessarily requires defending disagreeable, foul, unpopular, and yes, bird-brained speech. That’s kind of the point.

If you only support free speech that you agree with, you’re not a free speech advocate – you’re a hack.

Perry’s happy with the judiciary, not the executive, taking action where the legislative branch should

Had to raise an eyebrow when I saw this:

I mean, Perry’s happy with the courts acting on something that the Congress won’t act on? True, this may fall short of judicial activism since it’s the court saying the President can’t do something, rather than doing something itself that it shouldn’t.

But still. If the Congress would just pass a sensible comprehensive immigration reform package — something Obama has essentially begged it to do — we wouldn’t be in this situation.

The really sad part is, now nobody’s doing anything about the problem. And that’s not good at all.

S.C. lawmakers discuss U.S. Constitutional convention

When I saw this this morning:


I had nothing to go on, so I facetiously responded, “Here we go again. Tell the boys at The Citadel to break out the red flag…”

But based on the reporter’s subsequent Tweets, I’m guessing this is what it’s about:

Amending the U.S. Constitution to make marriage between only a man and woman. (Main sponsor: Larry Grooms, R-Berkeley)

That one kinda snuck up on me. I missed that story when it ran. Or maybe I saw it, and missed the thing about Grooms wanting a U.S. con-con, which was only mentioned in a bulleted sidebar, not the main story.

I’ll let you know if it turns out I’m wrong and its about something else.

A U.S. Constitutional convention, eh? If we do that, can we straighten out the language in the 2nd Amendment this time, do something about that oddly placed comma? Not this one, the first one.

Do you believe in the concept of the rule of law? If so, what is your personal relationship with it?

Rep. Hill, from his campaign Facebook page.

Rep. Hill, from his campaign Facebook page.

On a couple of occasions during my years chairing The State‘s editorial board, someone who had come to meet with us to advocate for a position on some complex issue would say, in response to our questions, “Wow. Y’all understand this better than a lot of legislators.”

I can’t recall now whether I was ever startled into saying this out loud, but I know what I wanted to say whenever this happened: “Well, I certainly hope so!”

You may think that sounds arrogant and conceited. But it wasn’t really. It was based in extensive experience with legislators like Rep. Jonathon Hill, R-Anderson, who distributed to SC judicial candidates a questionnaire with such questions as:

9. Do you believe in the “Supreme Being” (SC Constitution, Article VI, Section 2)? What is the nature of this being? What is your personal relationship to this being? What relevance does this being have on the position of judge? Please be specific….

14. Please name an example of a Federal violation of the 10th Amendment of the U.S. Constitution, and state how you would respond as a state-level judge.

15. What role do you wish to play in effecting policy change?…

19. Would you ever assign the death penalty in a particular case? Under what circumstances?…

21. Do you believe unborn children have rights? If so, how would those factor in to your decisions as a judge?…

24. Would you perform a homosexual marriage, either voluntarily or involuntarily?

25. Does the 2nd Amendment of the US Constitution apply only to the militia and military, or to the people at large?…

To which one naturally wants to reply:

  1. Do you believe in the rule of law and not of men?
  2. If your answer is “yes,” what’s with the questions?

This case illustrates well something else I’ve learned over the years, something which I continue to have trouble convincing Doug of: Experience as a lawmaker has value. Which is why, if all other things are equal, I’ll pick a veteran lawmaker over a novice.

You see, Mr. Hill is a freshman lawmaker, in his first month in office. He is, in fact, a 29-year-old freshman legislator, which means that not only does he not know much about the way the political and legal worlds work, but he’s not overly burdened with life experience in general.

To his credit, he seems to understand this, and is willing to learn. As he said after staffers of the state Judicial Merit Selection Commission diplomatically told him some of the questions were “problematic:”

“You live and learn,” said Hill, a 29-year-old Anderson businessman and freshman legislator. “Maybe next year I’ll be in a better position to — if I put out a questionnaire — to craft it in a way that would work a little bit better.”…

I find that reassuring. I am less comforted that he also said this:

Hill said he tried not to ask leading questions because he wanted honest answers. “If you’re a candidate and you tell me … what you think I want to hear … that doesn’t help me at all.”…

So, apparently, he actually thought that no one could infer where he was coming from from these questions. But again, he’s young.

Fortunately, as of The State‘s reporting of the matter, no judicial candidates had actually answered Rep. Hill’s questions. This should make us all feel better.

Legislative progress (or at least, progress toward progress) against criminal domestic violence

Just a couple of things to share with you from the last couple of days, reflecting progress on criminal domestic violence over in the State House — actual progress in the Senate, and movement toward progress in the House.

This came from Senate Republicans on Wednesday:

Senate Judiciary passes Criminal Domestic Violence Bill

Proposal Heads to Full Senate for Debate

Columbia, SC – January 21, 2015 – Recognizing the need for immediate movement on the issue of domestic violence, the Senate Judiciary today passed legislation that would get tougher on offenders, as well as restrict gun ownership for many of those convicted of criminal domestic violence.

S.3, sponsored by Judiciary Chairman Larry Martin and others, is the first major piece of domestic violence legislation in years. Among other provisions, the bill would increases the penalties and prohibits those who have committed Criminal Domestic Violence from possessing a firearm for 10 years.

“We in state government have a duty to protect the most vulnerable in South Carolina, and tragically, that too often ends up being members of an abuser’s household,” Martin said. “South Carolina has been among the worst in the nation in domestic violence for far too long, and I’m hopeful the full Senate will address this bill quickly.”

“As a former solicitor, I’ve seen the tragedy of domestic violence more than I’d care to recall,” said Senator Greg Hembree. “When you look at those statistics, domestic violence deaths have too often involved firearms and repeat offenders. This is a commonsense way to make sure that offenders with a history of committing violence in the home are punished have a lessened ability to commit violence in the future.”

“I’m incredibly proud of my colleagues of Judiciary for moving so quickly on this bill,” said Senate Majority Leader Harvey Peeler. “This is a bill that has been a long time coming, and I’m hopeful that we can get it to the House quickly for consideration.”

Then, this came across from the new House speaker yesterday:

Speaker Lucas Applauds CDV Ad Hoc Committee
Legislation will introduced in the House next week 

(Columbia, SC) – House Speaker Jay Lucas (District 65-Darlington) issued the following statement after the House Criminal Domestic Violence Ad-Hoc Committee completed its responsibilities and reached an agreement on legislation.

South Carolina unfortunately ranks second in the nation for women killed by men as a result of domestic violence.  This unacceptable statistic deserves immediate attention and the government has a responsibility to enact significant reforms to our laws.  Speaker Lucas is very pleased that the dedicated members of this committee have been working diligently since August to extensively investigate ways to better protect our citizens from abuse.

“Criminal domestic violence has no place in a civil society,” Speaker Lucas stated.  “Our government has a responsibility to dramatically change our laws so that we can offer our citizens the best possible protection from those who attempt to inflict senseless harm. I applaud Chairwoman Shannon Erickson and the rest of this steadfast committee for their dedication and hard work on this extremely important issue and I look forward to seeing this piece of legislation progress through the South Carolina House of Representatives.”

Chairwoman Shannon Erickson stated, “I am proud of the work of this committee. We were able to spend time listening to the concerns of domestic violence victims in addition to concerns from the law enforcement agencies charged with prosecuting their offenders. After months of work, we have a piece of legislation that will give added protections to victims, respect individual rights as well as crack down on violent domestic offenders. I want to thank Attorney General, Alan Wilson, and each individual who contributed to this much needed reform. Our work is not yet done, but we remain dedicated to strengthening justice for victims in South Carolina.”

The legislation agreed upon in this ad hoc committee will be introduced in the House of Representatives next Tuesday and proceed through the proper legislative channels.

Members of the Criminal Domestic Violence Ad-Hoc Committee:

            Rep. Shannon S. Erickson, Chairwoman (District 124-Beaufort)

Rep. J. David Weeks, Vice Chair (District 51-Sumter)

Rep. Gilda Cobb-Hunter (District 66-Orangeburg)

Rep. MaryGail K. Douglas (District 41-Fairfield)

Rep. Ralph Shealy Kennedy (District 39-Lexington)

Rep. Deborah A. Long (District 45-Lancaster)

Rep. Peter M. McCoy, Jr. (District 115-Charleston)

Rep. Mia S. McLeod (District 79-Richland)

Rep. Robert L. Ridgeway, III (District 64-Clarendon)

Rep. Edward R. “Eddie” Tallon, Sr. (District 33-Spartanburg)

Rep. Anne J. Thayer (District 9-Anderson)

Key provisions included in the legislation:

·         Removes the word “criminal” because domestic violence itself is a crime

·         Increases penalties for criminals by moving from a strictly occurrence based model to one that considers degree of injury; orders of protection; occurrence; and enhancements such as abuse to pregnant women, strangulation or incidents occurring in the presence of a minor

·         Extends time period for a bond hearing to ensure a judge has all necessary information

·         Allows the bond judge to consider not only the danger of the alleged criminal to the community, but also to the alleged victim

·         Develops a fatality review committee to study domestic violence cases which result in death

·         Adds domestic violence education to the curriculum for compressive health classes required in middle school

·         Allows judges to proceed with the case without the presence of the victim

·         Permits the Department of Social Services to study a voucher system for child care to allow the victim to appear in court

I’m noticing that Speaker Lucas has a penchant for these ad hoc committees, I suppose as a means of greasing the skids — getting some consensus from various stakeholders — before going through the actual, official bill-considering process.

Here’s hoping it works, on worthwhile bills such as these appear to be.

In any case, I’m glad to see interest from the speaker’s office in getting some things done. Lucas appears to working energetically to get beyond the malaise — actually, worse than malaise — of Bobby Harrell’s last years in office.

As to the merits of the bills — well, I’ll be interested to see what emerges as these bills move along, and see what comes out in debate. But for now, having GOP leadership in both houses showing this kind of eagerness to protect women, in a state so notorious for not doing so, is encouraging.

‘Selma’ controversy brings ‘inspiration vs. results’ debate back into focus. But it’s not either/or; it’s both/and

The new film “Selma” opens in theaters in Columbia Friday. So I haven’t seen it, any more than you have. But I’d like to comment on the controversy regarding the movie’s portrayal of LBJ.

Go read Richard Cohen‘s latest column, headlined “‘Selma’ distorts the truth about LBJ.” A couple of excerpts:

In its need for some dramatic tension, “Selma” asserts that King had to persuade and pressure a recalcitrant Johnson to introduce the Voting Rights Act of 1965. The movie also depicts Johnson authorizing FBI Director J. Edgar Hoover to smear King and — as King himself suspected — try to drive him to suicide. It is a profoundly ugly moment.

But a bevy of historians say it never happened. It was Robert F. Kennedy, the former attorney general, whoauthorized the FBI’s bugging of King’s hotel rooms. Yet, for understandable reasons, Kennedy appears nowhere in the film. By 1965, he was no longer the AG and, anyway, he remains a liberal icon. But LBJ — Southern, obscene and, especially when compared to the lithe Kennedy, gross of speech and physique — was made the heavy. He should get a posthumous SAG card….

[Those defending LBJ] include the historian Mark K. Updegrove, director of the LBJ Presidential Library; Diane McWhorter, author of “Carry Me Home”; David J. Garrow, author of “Bearing the Cross: Martin Luther King, Jr., and the Southern Christian Leadership Conference”; and, when it comes to the atmospherics of the Johnson-King relationship, Andrew Young, once King’s deputy. He told The Post that the contentious meeting between King and LBJ depicted in the film was, in fact, cordial. “He and Martin never had that kind of confrontation.” Young was there.

As for Garrow, he told the New York Times that “if the movie suggests LBJ had anything to do with” Hoover’s attempt to destroy King, “that’s truly vile and a real historical crime against LBJ.” The movie depicts exactly that….

As I say, I haven’t seen the movie, but I’ve seen the above trailer, which hamhandedly drives home the same falsehood that LBJ, and every other authority figure in the country, stood as a barrier that only MLK’s witness, courage, and eloquence could knock down. (If the filmmakers were not trying to make that point in the trailer, they should go back and try again).

We’ve been here before. Back during the 2008 presidential primaries, Hillary Clinton enraged some when she said that the eloquence of an MLK or a JFK — or, by implication, a Barack Obama — only gets you so far. You need an LBJ to effect real change. She, of course, was casting herself as the savvy insider, the latter-day LBJ. Here’s my column at the time on that subject, to refresh you.

But there’s more here than whether you prefer fine words or practical action. There’s also the constant tension between people who believe sincere passion, emotional purity expressed through public demonstrations by ordinary folk is better, more legitimate, and ultimately more effective than working through a system of laws, through elected representatives, to bring about needed reform.

I don’t have to tell you that I believe in the rule of law, in effecting change through the mechanisms of a republic, as opposed to marching in the streets. I had little patience with Occupy Wall Street, as you’ll recall. And as for the protests following the Ferguson fiasco, I think Dave Barry hit the nail on the head with this passage from his satirical look at the year just past:

Domestically, the big story is in Ferguson, Mo., which is rocked by a wave of sometimes-violent protests following the fatal shooting of Michael Brown by police officer Darren Wilson. The shooting ignites a passionate national debate whose participants have basically as much solid information about what actually happened as they do about Malaysia Airlines Flight 370….

So am I discounting the importance of all those civil rights marches, at Selma and elsewhere? Absolutely not. In fact, I believe they represent the one time in my life that such demonstrations were needed, were essential, and made a positive difference in the country. The moral, peaceful witness that Dr. King and the other marchers placed before the eyes of the country led to the development of a political consensus that made LBJ’s efforts possible. They prepared the ground.

But those protests did NOT force concessions from a hostile country, or hostile leadership in Washington. What they did was force the country to face the reality of Jim Crow. They made it impossible to look away. And the country, the great mass of public opinion, white as well as black, decided that we needed the change that the Voting Rights Act and Civil Rights Act represented. And master legislator-turned-president Johnson was the one who led us through that essential process.

It’s not either/or. It’s not black vs. white, or The People vs. The Man. It’s not passion vs. reason.

It’s both/and. We needed MLK and LBJ.

Cohen calls attention to an earlier piece by Joe Califano, vehemently defending his old boss LBJ from the film’s slander. I like this passage from a recording of the conversation:

On Jan. 15, 1965, LBJ talked to King by telephone about his intention to send a voting rights act to Congress: “There is not going to be anything as effective, though, Doctor, as all [blacks] voting.”

Johnson then articulated a strategy for drawing attention to the injustice of using literacy tests and other barriers to stop black Southerners from voting. “We take the position,” he said, “that every person born in this country, when he reaches a certain age, that he have a right to vote . . .whether it’s a Negro, whether it’s a Mexican, or who it is. . . . I think you can contribute a great deal by getting your leaders and you, yourself, taking very simple examples of discrimination; where a [black] man’s got . . . to quote the first 10 Amendments, . . . and some people don’t have to do that, but when a Negro comes in he’s got to do it, and if we can, just repeat and repeat and repeat.

“And if you can find the worst condition that you run into in Alabama, Mississippi or Louisiana or South Carolina . . . and if you just take that one illustration and get it on radio, get it on television, get it in the pulpits, get it in the meetings, get it everyplace you can. Pretty soon the fellow that didn’t do anything but drive a tractor will say, ‘Well, that’s not right, that’s not fair,’ and then that will help us on what we’re going to shove through [Congress] in the end.”…

You have a couple of key points there:

  • First, the president is stating clearly that he not only appreciates what Dr. King is doing, but sees it as essential to educating the public so that it will embrace change. Change will come when that average guy says “that’s not right; that’s not fair.” After that, and not before, you can “shove” reform through Congress.
  • Then, you have his assertion that in the end, however, true change will be effected through the system — by black Americans voting, as well as by raised consciousness among whites. Marching in the streets only gets you so far.

Which is why he pushed so hard for his signature achievement, the Voting Rights Act.

The trailer flits past this image so quickly that I had trouble freezing it on this frame to grab this image. But the reason what happened in Selma was effective was because it caused THIS reaction in mainstream America.

The trailer flits past this image so quickly that I had trouble freezing it on this frame to grab it. But the reason what happened in Selma was effective was because it caused THIS reaction in mainstream America.

You want to REOPEN the epic school-equity case? Really?

I was a bit surprised that this was played at the bottom of The State‘s front page today. Back in my front-page-editor days, I would have found a way to get it above the fold along with the Metts plea deal — to the right of it, in the traditional lede position.

We spend two decades trying a case in which the poor, rural school districts of our state petition for an equal chance for the children in their charge. Finally, finally, the state Supreme Court issues its ruling — that the state is indeed not providing an equal chance for all its pupils, and must remedy the situation.

And now, this:

Gov. Nikki Haley and state lawmakers are fighting a court order aimed at improving the state’s school system in rural, poor districts.

In two petitions filed with the S.C. Supreme Court on Tuesday, attorneys representing Haley and lawmakers asked the justices to rehear a landmark school equity lawsuit that rural school districts, including Abbeville, brought against the state more than 20 years ago…

The court ruled 3-2 in November that the state failed to provide children in poor, rural districts with an adequate public education as required by the S.C. Constitution.

Without recommending specific policies or actions, the court ordered lawmakers and the school districts to devise a plan to address the problems the court identified, including weak rural tax bases, aging facilities and the difficulty of recruiting quality teachers to rural areas. The court also said the state’s method of paying for schools was unfair and needs to be updated, and hinted some small school districts may need to be merged.

However, Haley and Attorney General Alan Wilson’s petition for a rehearing says the Supreme Court’s majority “overlooked recent education initiatives put in place by (Haley’s administration) and the General Assembly that will directly affect rural school districts in South Carolina.”…

Really? You want to reopen a case that took this long, rather than go ahead and do what you should have done without a lawsuit?

What — do you think the court didn’t spend enough time pondering it before?

Look, I appreciate that the governor and lawmakers took steps in this past session to do more to help the poorer schools out. I’ve praised them for it. But that improvement is the sort of thing you would hold up to show, as we go forward, that you’re trying to implement the ruling — not used as an excuse to ask the court to reconsider.

But going back and trying to drag this thing out further is no way to follow up that good first step. The governor and lawmakers should instead be competing with one another to come up with the best ideas to improve the rural schools, starting perhaps with something that most politicians at least give lip service to — consolidating districts, to eliminate duplication in administration and give the poorest districts access to the tax base in the more affluent districts in their counties.

Or something. Show some leadership, folks. Instead of what I can only categorize as sullen foot-dragging.