Reagan Jurist Decries ‘Judicial Subjectivity' of the Supreme Court’s Gun Ruling

In a posting on August 27, 2008, I documented how the five justices who found in the U.S. Constitution’s 2nd Amendment an individual right to bear arms had really engaged in a blatant exercise in conservative judicial activism.

I showed that all nine justices had presented evidence that, out of several precedents they knew about and could have placed in the Constitution, “what the Framers chose to codify was not some cosmic right to bear arms to defend self and property, but a right to keep and bear arms in order to be militia-ready, to be available if called to active militia duty.”

Rather than spell out what this right means in a post-militia age, the majority concocted a new individual right to kill, while the dissenters denied its legal and logical legitimacy.

No one has offered any comment on my analysis. But it did my heart good to learn from a George Will column in Sunday’s Washington Post that a conservative judge on the 4th U.S. Circuit Court of Appeals, appointed by Ronald Reagan in 1984, also sees judicial activism in the gun-right decision, albeit for reasons I think are less germane.

Will says that J. Harvie Wilkinson, “writing for the Virginia Law Review,” charges that the majority’s behavior in District of Columbia v. Heller showed that “orginalism” is in fact no obstacle to “judicial subjectivity.” His take is that orginalism alone is not sufficient to ensure conservative judicial restraint. As Will summarizes it: “when conscientious people come to different conclusions about the Framers’ intentions, originalist judges must resolve the conflict by voting their preferences.”

The Virginia Law Review website says Wilkinson’s article has not been published yet. The site has an abstract of Wilkinson’s essay, but the Review does not plan to publish it until the April 2009 edition. Thus I rely on Will’s column for the some of the content of Wilkinson’s critique.

According to Will, Wilkinson insists that all of the justices, by referring to original documents that contained conflicting positions, in fact had originalism on their sides. Given that, it was not at all conservative for the majority to impose the position they derived from their preferred sources as the sole meaning of the 2nd Amendment. This is what bothers Wilkinson most about the majority position.

In contrast to the majority’s tactics, Wilkinson argues that a truly conservative approach would have given legislatures broad latitude to decide which of the original positions make most sense in their specific jurisdictions: “Wilkinson says that when a right's definition is debatable, generous judicial deference should be accorded to legislative judgments--particularly those of the states, which should enjoy constitutional space to function as laboratories for testing policy variations.”

In other words, although Wilkinson joins me in seeing unjustified conservative judicial activism in the Supreme Court’s decision, he couches it differently and proposes a different path he thinks the justices should have followed.

I did not conclude in my August 27th analysis that the justices were faced with conflicting original positions they needed to resolve. I said, rather, that the conflicting original positions reflected the variety of precedents from which the Framers could choose. However, it was the Framers themselves who resolved those conflicting precedents. Purposefully and explicitly they excluded several proposed versions of a right to bear arms and instead based the right on the responsibility of the states to assemble militias completely independent of the national military. All of the opinions, majority and dissenting, agreed: what the Framers codified was a right to bear arms in order to be militia-ready.

This still leaves ambiguity for legislators to resolve. But it’s not the ambiguity that Wilkinson sees. The ambiguity is how the flesh out the right to be militia-ready in a modern society where there are no longer state militias and where their closest lineal descendants, each state’s National Guard, are not nearly as independent of the federal military as the militias were supposed to be.

What the Court needed to do was to give state and local legislative bodies guidance on what the 2nd Amendment’s right to be militia-ready permits and precludes in our post-militia society. What does the right to be militia-ready tell us about possession and use of firearms for target-practice, hunting, or defense of self, family and property?

That is the ruling the Court should have made. That is what remained unaddressed by the conservatives’ judicial activism and the dissenters' attempt to block it. And that is the decision the Court is still going to have to make some day down the road, when the Court revisits the shortcomings of its new right to kill.

From Baltimore to Richmond: Where to Park and House 4 Million Inaugural Visitors

CNN political contributor Donna Brazile posted a reflection today on how big an event Barack Obama's January 20th inauguration will be, not only because of its overwhelming historical significance, but also because it will present logistical challenges that the District of Columbia has never experienced before. Excerpts from the posting follow.

Donna Brazile, a Democratic strategist, is a political contributor for CNN. She also is the chairwoman of the Democratic National Committee's Voting Rights Institute, an adjunct professor at Georgetown University and founder of Brazile & Associates, a Washington-based political consulting firm. Brazile, who was the campaign manager for the Al Gore-Joe Lieberman ticket in 2000, wrote "Cooking With Grease: Stirring the Pots in American Politics," a memoir about her life in politics.

Relatives, friends, casual acquaintances and complete strangers are suddenly ablaze with desire to connect with Washington area residents: They are all planning to descend on the nation's capital for the inauguration ceremonies of the first black president of the United States, Barack Obama.

For both those who never knew what it was to live through segregation and those who had to drink at separate water fountains, this is the moment to proclaim freedom and love of country. And every single one of them wants to either participate in it or give witness to its rebirth in 2009.

People aren't just fired up and ready to celebrate Obama's inauguration. In what will be a perfect storm of jubilation and celebration, 2009 is the year we celebrate the 200th anniversary of President Abraham Lincoln's birth, the 100th anniversary of the establishment of the NAACP, and the 80th anniversary of the Rev. Martin Luther King's birth.

A sister of one of my best friends from elementary school e-mailed to tell me that she's bringing three busloads of people from my hometown of New Orleans. Three busloads of folks from my hometown who love the Mardi Gras -- during good and bad times. I told them to come on and we'll see what's cooking on the stove.

Knowing Louisiana people, they will have something spicy or cold ready to go when they stand along the Mall to view the procession from the U.S. Capitol. Many of these people lost everything just a few years ago. And if they have saved up to come, well, come on. Some of us still remember what it was like to sleep four to five to a room.

So, with Washingtonians like me being set upon as if we were the last lifeboat on the Titanic, I have one burning question. Where are all these people going to sleep? Will churches open up their basement floors or pews? Will recreation centers and college stadiums allow buses to park on their expansive lots so people can just catch the Metro downtown?

Well, as a former community organizer, let me offer some advice.

If you're lucky enough to get a ticket from your member of Congress, get ready for a massive crowd of people. We're talking crowds expected to number up to 4 million people.

Hotels, motels, bed and breakfasts, couches, and air mattresses located inside the beltway are already filled. So do what are others are doing and extend your search south into Richmond and north into Baltimore.

Washington Mayor Adrian Fenty is working hard to open up as much public space as possible.

But it's up to federal officials to leave the area from the base of the Capitol Building to the Washington Monument open and to extend the viewing area to the Lincoln Memorial so more people can get a taste, if not a glimpse, of history in the making.

Some people will decide not to bother with all the fuss, especially when their television set offers them a front-row seat. They'll find ways to celebrate right where they are. In the end, they may prove to be the wisest among us.

Let us call upon ourselves to celebrate Obama's inauguration and next year's anniversaries with a renewed commitment to public service, cooperation, and common sacrifice.

Let us focus not on our own wants but the needs of one another.

Let us bring alive in our daily actions King's dream of a promised land, an America reborn in equality of opportunity.

No matter if you come here or stay home, let us together make the inaugural celebration of our nation's 44th president a time of rejoicing, remembrance, and renewal.

Acting Head of Diocese Says Priest Who Told Obama Voters to Repent Went Too Far

The National Catholic Reporter's website has a report from Religion News Service that the administrator of the Diocese of Charleston, SC, acting head of the diocese since its bishop was transferred last year, has issued a statement that a local priest was out of line when he said Obama voters must repent and receive absolution before sharing in the Eucharist. Catholic News Service carried a similar report the same day the statement was released, but the RNS version below is a bit clearer:

A South Carolina Catholic priest was wrong to warn parishioners who voted for President-elect Barack Obama to confess their sin before receiving Communion, according to the head of the priest's diocese.

Monsignor Martin T. Laughlin, administrator of the Diocese of Charleston, said in a statement late Friday (Nov. 14) that "if a person has formed his or her conscience well, he or she should not be denied Communion, nor be told to go to confession before receiving Communion."

Last week, the Rev. Jay Scott Newman of St. Mary's Catholic Church in Greenville, said that by receiving Communion, Obama supporters "drink and eat their own condemnation," because the president-elect supports abortion rights. Newman later said he would not deny the sacrament to anyone "based on political opinions or choices."

Newman's statements "do not adequately reflect the Catholic Church's teachings. Any comments or statements to the contrary are repudiated," Laughlin said. He added that Newman pulled the church's moral teachings "into the partisan political arena" and "diverted the focus from the church's clear position against abortion."

Laughlin cites the Catholic Church's catechism, which states that "man has the right to act in conscience and in freedom so as personally to make moral decisions."

"Christ gives us the freedom to explore our own consciences and to make our decisions while adhering to the law of God and the teachings of the faith," Laughlin said. "We should all come together to support the president-elect and all elected officials with a view to influencing policy in favor of the protection of the unborn child."

Laughlin was appointed the interim administrator of the statewide Charleston diocese when Bishop Robert J. Baker was transferred to Birmingham, Ala., last year.

A Columnist's Not-at-All Modest Proposal: Let Steve Jobs Save GM Jobs

New York Times op-ed columnist Thomas L. Friedman says he is really skeptical about proposals that the federal government give General Motors and the other U.S. automakers another $25 billion in recovery funds, on top of the $25 billion in loan guarantees the same companies have already squandered.

Friedman says he's "as terrified as anyone of the domino effect on industry and workers if GM were to collapse." But if we're going to use more tax dollars in another attempt to head that off, it needs to come with several conspicuous strings attached. Friedman starts by seconding the view expressed in Monday's Wall Street Journal by Paul Ingrassia, the Journal's former Detroit bureau chief:

“In return for any direct government aid,” he wrote, “the board and the management [of G.M.] should go. Shareholders should lose their paltry remaining equity. And a government-appointed receiver — someone hard-nosed and nonpolitical — should have broad power to revamp G.M. with a viable business plan and return it to a private operation as soon as possible. That will mean tearing up existing contracts with unions, dealers and suppliers, closing some operations and selling others and downsizing the company ... Giving G.M. a blank check — which the company and the United Auto Workers union badly want, and which Washington will be tempted to grant — would be an enormous mistake.”

I would add other conditions: Any car company that gets taxpayer money must demonstrate a plan for transforming every vehicle in its fleet to a hybrid-electric engine with flex-fuel capability, so its entire fleet can also run on next generation cellulosic ethanol.

Lastly, somebody ought to call Steve Jobs, who doesn’t need to be bribed to do innovation, and ask him if he’d like to do national service and run a car company for a year. I’d bet it wouldn’t take him much longer than that to come up with the G.M. iCar.

Vatican Plans to Excommunicate 36-Year Cleric for Supporting Women Priests

Today the National Catholic Reporter has posted a copy of a letter from Maryknoll Father Roy Bourgeois to the Vatican's Congregation for the Doctrine of the Faith. The congregation told him he will be excommunicated unless by November 21 he recants his support for ordaining women. Bourgeois tells the congregation his conscience will not allow him to recant. His letter follows.

November 7, 2008
TO THE CONGREGATION FOR THE DOCTRINE OF THE FAITH, THE VATICAN

I was very saddened by your letter dated October 21, 2008, giving me 30 days to recant my belief and public statements that support the ordination of women in our Church, or I will be excommunicated.

I have been a Catholic priest for 36 years and have a deep love for my Church and ministry.

When I was a young man in the military, I felt God was calling me to the priesthood. I entered Maryknoll and was ordained in 1972.

Over the years I have met a number of women in our Church who, like me, feel called by God to the priesthood. You, our Church leaders at the Vatican, tell us that women cannot be ordained.

With all due respect, I believe our Catholic Church’s teaching on this issue is wrong and does not stand up to scrutiny. A 1976 report by the Pontifical Biblical Commission supports the research of Scripture scholars, canon lawyers and many faithful Catholics who have studied and pondered the Scriptures and have concluded that there is no justification in the Bible for excluding women from the priesthood.

As people of faith, we profess that the invitation to the ministry of priesthood comes from God. We profess that God is the Source of life and created men and women of equal stature and dignity. The current Catholic Church doctrine on the ordination of women implies our loving and all-powerful God, Creator of heaven and earth, somehow cannot empower a woman to be a priest.

Women in our Church are telling us that God is calling them to the priesthood. Who are we, as men, to say to women, “Our call is valid, but yours is not.” Who are we to tamper with God’s call?

Sexism, like racism, is a sin. And no matter how hard or how long we may try to justify discrimination, in the end, it is always immoral.

Hundreds of Catholic churches in the U.S. are closing because of a shortage of priests. Yet there are hundreds of committed and prophetic women telling us that God is calling them to serve our Church as priests.

If we are to have a vibrant, healthy Church rooted in the teachings of our Savior, we need the faith, wisdom, experience, compassion and courage of women in the priesthood.

Conscience is very sacred. Conscience gives us a sense of right and wrong and urges us to do the right thing. Conscience is what compelled Franz Jagerstatter, a humble Austrian farmer, husband and father of four young children, to refuse to join Hitler’s army, which led to his execution. Conscience is what compelled Rosa Parks to say she could no longer sit in the back of the bus. Conscience is what compels women in our Church to say they cannot be silent and deny their call from God to the priesthood. Conscience is what compelled my dear mother and father, now 95, to always strive to do the right things as faithful Catholics raising four children. And after much prayer, reflection and discernment, it is my conscience that compels me to do the right thing. I cannot recant my belief and public statements that support the ordination of women in our Church.

Working and struggling for peace and justice are an integral part of our faith. For this reason, I speak out against the war in Iraq. And for the last eighteen years, I have been speaking out against the atrocities and suffering caused by the School of the Americas (SOA). Eight years ago, while in Rome for a conference on peace and justice, I was invited to speak about the SOA on Vatican Radio. During the interview, I stated that I could not address the injustice of the SOA and remain silent about injustice in my Church. I ended the interview by saying, “There will never be justice in the Catholic Church until women can be ordained.” I remain committed to this belief today.

Having an all male clergy implies that men are worthy to be Catholic priests, but women are not.

According to USA TODAY (Feb. 28, 2008) in the United States alone, nearly 5,000 Catholic priests have sexually abused more than 12,000 children. Many bishops, aware of the abuse, remained silent. These priests and bishops were not excommunicated. Yet the women in our Church who are called by God and are ordained to serve God’s people, and the priests and bishops who support them, are excommunicated.

Silence is the voice of complicity. Therefore, I call on all Catholics, fellow priests, bishops, Pope Benedict XVI and all Church leaders at the Vatican, to speak loudly on this grave injustice of excluding women from the priesthood.

Archbishop Oscar Romero of El Salvador was assassinated because of his defense of the oppressed. He said, “Let those who have a voice, speak out for the voiceless.”

Our loving God has given us a voice. Let us speak clearly and boldly and walk in solidarity as Jesus would, with the women in our Church who are being called by God to the priesthood.

In Peace and Justice,

Rev. Roy Bourgeois, M.M.

PO Box 3330, Columbus, GA 31903

Forgive Us Our Debts: The Chief Sacrifice Obama Must Ask? Live Within Our Means!

Houston Chronicle business columnist Loren Steffy noted today how much Barack Obama emphasized the need for sacrifice in his victory speech election night. Steffy says the biggest sacrifice needed, nationally and from each household, is to break out of the "borrow-and-spend" pattern that has been so popular for the last decade. It is especially good to hear this from an experienced business analyst. Several of Steffy's paragraphs follow.

One word, nestled amid the eloquence of Barack Obama’s victory speech, lingered long after the cheers subsided.

Sacrifice.

It’s a word too long absent from the political discourse, one that speaks to the change that Obama claims his presidency will represent.

We cannot fix our finances without it. We can’t address our foreign oil dependence without it. We can’t repair our broken health care system without it.

We can’t simply shop our way through the crisis, and we can no longer afford to delude ourselves into thinking we can.

The Obama presidency faces the worst stock, bond and commodity markets in three decades. Even strong performers such as oil companies are now facing the prospect of weaker earnings because of lower commodity prices.

No stimulus, no bailout, no amount of hope and soaring rhetoric can succeed if it’s not accompanied by fiscal responsibility.

At some point, higher taxes are inevitable to bring the deficit back in line, and Obama’s plan to limit the increases to the rich aren’t likely to be enough.

That is the sort of sacrifice we must make to resolve the crisis.

We must make sacrifices at the personal level, too, by reducing our use of credit and curtailing our spending, building our savings so that we are better prepared.

This is a crisis spawned, in large part, by our own delusion.

We wanted to believe in ever-rising stocks, in a shop-till-the-terrorists-are-defeated foreign policy and homes that were worth whatever our mortgage broker told us.

For eight years, our government borrowed to pay for wars, tax cuts and prescription drugs, while we borrowed to pay for HDTVs, iPhones and Xboxes. Buy now, pay later wasn’t just a sales pitch, it was fiscal policy.

Later is now. To fix our economy we first must change our views of debt and savings.

That will take sacrifice, the one word from the president-elect’s speech that we must hear before all others.

Why Not Equal Civil Unions for EVERYONE—With Churches Deciding Which Ones to Bless?

As the sun rose on California this morning, it was clear from the Los Angeles Times’ county-by-county map of election results that with 95% of the vote counted, Proposition 8—the state constitution revision which “Eliminates Right of Same-Sex Couples to Marry”—had passed statewide by a margin of 52% out of 10 million votes. Click here for the updated map.

‘No’ votes prevailed in 16 of California’s 58 counties: 12 along the Pacific Coast from Salinas to Eureka, Napa and Yolo Counties just inland from Sonoma, and Alpine and Mono counties along the southern Nevada border.

But by that hour, 100% of the vote had been counted in 15 of those counties, and there were not enough uncounted in the sixteenth (Monterey County) to overcome the statewide ‘Yes.’ Nor were there enough votes left in Riverside County, which includes gay-friendly Palm Springs, to overcome the 64% yes-vote margin there. Los Angeles County may have been the closest in the state: with 100% of the votes counted, Proposition 8 won there by less than 1%: yes 1,317,125 (50.4%); no 1,296,319 (49.6%).

Even if Proposition 8 had failed, California would be one of only three states that permit gay marriage (with Massachusetts and Connecticut). Such marriages would remain unrecognized at the federal level, and married gay couples still would not enjoy any of the 1,000-plus legal rights that federal law confers on U.S. married couples.

Moreover, gay people married in California would continue to face opposition from well-meaning people like Stafford Betty, a professor of religious studies at California State University in Bakersfield. Writing in the October 31 edition of the National Catholic Reporter, Betty said his friends include committed gay couples whom he loves and admires, “But we are different in one important respect. When a man and a woman marry, they can have children in the way nature planned. And most do. When gays or lesbians unite, they cannot. They can adopt, and lesbians can get pregnant with the help of a sperm bank. But most do not choose to bring up children. For these reasons I would say that a heterosexual union is one kind of thing, and a homosexual union is another. Therefore, I would prefer different names for them.”

One can quibble with Betty’s logic. But the fact remains that voters in most states find it persuasive, and they aren’t likely to be persuaded otherwise in the foreseeable future.

What should that tell us? It says that trying to get gay unions included in the legal definition of marriage is barking up the wrong tree. Even when the effort moves forward in a specific state, conservatives usually succeed in reversing it and in blocking any progress toward equal federal rights. Trying to make civil marriage the goal, as an expansion of civil-union rights, seems doomed to fail. But with a little imagination, the tables can be turned.

What would be wrong with pushing, instead, for civil unions with equal rights as the legal norm for everyone? Marriage ceremonies performed by clergy could still be available for those who value them. But, for heterosexuals or homosexuals, the durable coupling registered with the state would be a civil union. Church weddings would be a religious add-on to civil unions, conferring whatever significance the church desires, but no superiority in the eyes of the law.

This reform would get the state out of the marriage business altogether. The state’s role would be to acknowledge publicly that a couple has agreed to live together, mingling their income, their assets, their liabilities and their lives. All couples so recognized would have identical rights under state and federal law. Whether a given civil union would also be regarded as matrimonial would be between the couple and their religious community of choice.

Historically, the church got into the civil marriage business to assist Constantine with the civil administration of his empire. The main service the church provided was record keeping. But eventually the churches got into the position of defining what marriage is from a legal standpoint. That may have had value in an age when most nations had an established religion. But once separation of church and state was formalized by the U.S. Constitution, it became impossible for any one religion’s understanding of marriage to remain the legal norm.

That, of course, has not stopped the religious right from trying. But the way to stop them from denying gay couples equal rights is not to fight for inclusion in the right's particular definition of legal marriage. Rather, it is time to challenge their right to define legal marriage at all.

The churches certainly have the right to decide what constitutes matrimony or religious marriage for their members. What they do not have the right to do is define legal marriage in a way that rewards some couples and punishes others.

Let’s work to make civil unions the form of domestic partnership which the state guarantees for all durable couples who seek public recognition. Let the churches fight within themselves and among themselves about God’s requirements for marriage. But let’s remind them that, under the First Amendment, they may not dictate such requirements to the nation or it states.