Opinion

The Great Debate

Despite Scalia, Supreme Court sends Obama a progressive message

breyer-and-scalia-1024x707

In a decision widely perceived as a setback for President Barack Obama last week, the U.S. Supreme Court rejected the president’s recess appointment of three members of the National Labor Relations Board. Though the ruling could mean Obama never makes another recess appointment, the court’s reasoning is a substantial victory for progressives. It decisively rebuffs the wrongheaded, rigid brand of originalism that argues only the framers’ original intent is relevant in interpreting the Constitution — which conservative justices have supported for decades.

The court’s judgment was unanimous, yet the two separate opinions issued highlight the deep ideological fissure dividing the four conservative justices from the five who joined the court’s opinion. A majority of justices embraced a pragmatic reading of the Constitution, taking account of the nation’s rich experience over the past 225 years. That approach is far removed from the conservative justices’ unrealistic insistence that the Constitution is frozen in the late 18th century.

This starkly divided faux-nanimous decision, as Dahlia Lithwick labeled it in Slate, is the latest public conflict between the radical justices on the right, led by Justices Antonin Scalia and Clarence Thomas, and the more moderate traditionalists on the high bench. Scalia, as his opinion reflects, is the senior justice promoting the twin doctrines that the Constitution’s meaning was not only fixed in stone in 1789 but is also based on the literal words in the text.

True, the framers’ intended meaning, as presented in the text, is an important starting point. But it is unrealistic and ultimately destructive to insist that courts must close their eyes to the nation’s intervening experience — including the evolution of the government’s political branches, astonishing changes in technology and the needs of modern society.

U.S. President Barack Obama stands next to the new Director of the Consumer Financial Protection Bureau Richard Cordray in WashingtonFortunately, the founders themselves recognized that they were creating a document for the ages — and used broad, flexible terms that could incorporate unforeseen changes in society. A majority of the court on Thursday joined in an opinion consistent with the framers’ desire to create a lasting document.

Can National Popular Vote end the voting wars?

One of the most pernicious outcomes of the intense political struggle between Democrats and Republicans is the parties’ breathtaking capacity to game our voting rules. Nothing makes voters more cynical than seeing political leaders seemingly supporting or opposing election laws based solely on their partisan impact — from redistricting reform to fights over whether to allow early voting. ­

But a reform win in New York could foreshadow a cease-fire in the voting wars. On April 15, Governor Andrew Cuomo signed legislation making New York the 10th state to pass the National Popular Vote (NPV) interstate compact for president. Overwhelming majorities of both Republicans and Democrats approved the bill, which seeks to guarantee election of the presidential candidate who wins the most popular votes in all 50 states and the District of Columbia.

We don’t need a constitutional amendment to achieve this goal. The Constitution gives each state power over how to allocate its electoral votes and the ability to enter into binding interstate compacts. The Founding Fathers gave states freedom to structure how to select the president — and national popular vote embodies that tradition.

Executive orders: Part of the framers’ grand plan

President Barack Obama has used his executive authority to stop deporting undocumented immigrants who had been brought to the United States as children. The administration has also announced that it will stop requesting mandatory minimum sentences for low-level, non-violent drug offenders.

Obama is now using executive orders and other unilateral exercises of executive power to advance his agenda rather than wait on Republicans in Congress.

The GOP has grown increasingly outraged by the president’s actions. House Republicans last week passed the “Enforce the Law Act,” part of a continuing campaign to label any action by the president as “executive overreach.” House Speaker John Boehner (R-Ohio) earlier this year felt the need to “remind” the president that “we do have a Constitution.”

Not ‘court-packing,’ GOP’s aim is ‘court-shrinking’

The party that brought you “death panels” and “socialized medicine” has rolled out another term — carefully selected, like the others, for its power to freak people out. “Court-packing” now joins a Republican rogue’s gallery of poll-tested epithets.

Of course, “court-packing” is not a new term, and its menacing overtone is not a recent discovery. “There is a good deal of prejudice against ‘packing the court,’” observed Homer Cummings, the U.S. attorney general, in 1936, on the eve of President Franklin D. Roosevelt’s failed attempt to do just that — to tip the Supreme Court’s balance by increasing the number of seats and filling them with New Dealers. Cummings, who sold the idea to FDR, hoped Americans would not be “frightened by a phrase.”

But they were. And today’s GOP is betting they still are. Hence the resort to a term that has no valid application to the matter at hand: President Barack Obama’s determination to fill the three vacant seats on the U.S. Court of Appeals for the D.C. Circuit.

A call for a right-to-vote amendment on Constitution Day

Are today’s liberal politicians willing to go to the mat for a seemingly old-fashioned, civil-rights era throwback like the right to vote?

If they care about preserving access to the franchise in the face of the many newfangled voting restrictions that conservatives are now aiming at minority, young or poor voters, they will. And, if they care about advancing the ideals of an inclusive American democracy, they must.

When the members of the Constitutional Convention signed the United States Constitution on September 17, 1787, the democracy we have now was unfathomable. Today, the right to vote is not determined by property ownership, skin color, gender or wealth — as it was legally at the birth of our Constitution and for many decades after.  What has remained constant during America’s democratic metamorphosis, however, is the absence of an affirmative right to vote. On this Constitution Day, I echo the call to amend our Constitution so that it includes an affirmative right to vote.

Debating the Constitution in Newtown

The first sign of their presence was the smell of cigarette smoke. There were about a dozen of them, dressed in black T-shirts with yellow lettering reading “Save Our Constitution.” They were holding flags — mostly Stars and Stripes, but also some Gadsden standards with coiled rattlesnakes, “Don’t Tread on Me” emblazoned in black.

Mixed between the high school marching band, the children and the ponies, these were the Oath Keepers. They had come to Newtown, Connecticut to march in the first Labor Day parade held since 20 children and six educators were massacred with a tactical assault weapon in their classrooms. Like the armed attention-seekers who descended on the local Starbucks a few weeks back, the Oath Keepers wanted to make their presence known.

It’s hard to judge whether they were successful in their quest. After they’d extinguished their smokes and got marching, I lost sight of them. They were well ahead of the Avielle Foundation, the non-profit founded by the scientist parents of Avielle Richman, who was murdered at Sandy Hook, that I was supporting.

Tsarnaev: What would Washington have done?

George Washington was ruthless.

As commander in chief of the Continental Army, Washington was prepared to crush those who attacked American liberty. He set up military commissions to swiftly hang enemies. He sparked an international incident when he ordered the execution of a random teenage prisoner. He even justified torture. But he reserved his ferocity for foreign enemy combatants.

Following the firestorm of last week’s Boston bombing and the ensuing violent manhunt, we are trying to find our bearings. We need to aggressively extract information, identify additional threats and hunt down any accomplices, whether foreign or homegrown. Yet we must remain careful not to slide toward an Orwellian state – where Big Brother runs roughshod over local authorities, monitors Americans without probable cause, restrains the movements of innocent civilians or rains drone missiles on U.S. soil.

We can take a lesson from the actions of the Founding Fathers. Washington provides a model for how we can best defend against foreign threats while still guarding our liberties at home.

from Africa News blog:

Are African governments suppressing art?

By Cosmas Butunyi

The dust is finally settling on the storm that was kicked off in South Africa by a controversial painting of President Jacob Zuma with his genitals exposed.

The country that boasts one of the most liberal constitutions in the world and the only one on the African continent with a constitutional provision that protects and defends the rights of  gays and lesbians , had   its values put up to  the test  after an artist    ruffled feathers by a painting that questioned the moral values  of the ruling African National Congress .

For weeks, the storm ignited by the painting  called  ‘The Spear’, raged on, sucking in Goodman Gallery that displayed it and City Press, a weekly newspaper that had published it on its website. The matter eventually found its way into the corridors of justice, where the ruling ANC sought redress against the two institutions. The party also mobilised its supporters to stage protests outside the courtroom when the case it filed came up for hearing. They also matched to the gallery and called for a boycott of City Press , regarded as one of the country's most authoritative newspapers.

  •