The Wrong Focus?

Posted on May 18, 2012 by ScottC

According to US Postal Service financials, in 2007 the USPS posted a net loss of $5.1 billion. In 2008 it posted a loss of $2.8 billion. In 2009 the loss was $3.8 billion. In 2010 it posted a loss of $8.5 billion. In 2011 it posted a loss of $5 billion. In the most recent quarter this year, it reported a loss of $3.2 billion, bringing this year’s total loss to $6.2 billion.

So let’s add that all up. Since 2007 the USPS has lost a total of $31.4 billion.

Now, a question for the folks of ATiM: Who should the US taxpayer be more concerned about having to support with a taxpayer funded bailout, the US Postal Service or JPM Chase?

Next up…how much have taxpayers piled into Amtrak over the last 5 years?

Filed under: big government, budget, Constitution, Infrastructure, small government | 13 Comments »

Toobin on Citizens United

Posted on May 15, 2012 by Mike

Jeffery Toobin has an article in the New Yorker about the behind-the-scenes action in Citizens United. It’s long, so I haven’t had the chance to read it in its entirety, but here’s a “review” from Jonathan Adler at VC. The first graf:

The latest New Yorker has an extensive excerpt of Jeffrey Toobin’s forthcoming book, The Oath: The Obama White House vs. the Supreme Court, focusing on the Supreme Court’s Citizens United decision. The story, “Money Unlimited: How Chief Justice John Roberts orchestrated the Citizens United decision,” is everything you’d expect from a Toobin piece. It’s engaging and informative, with exclusive behind-the-scenes reporting of how the decision came to be. This stuff is catnip for court watchers. Yet the article also contains plenty of subtle (and not-so-subtle) spin in service of Toobin’s broader narrative of an out-of-control conservative court. As a consequence, Toobin paints a somewhat misleading picture of the case and the Court.

Filed under: Constitution, Supreme Court | Tagged: , | 50 Comments »

Secession revisited

Posted on April 18, 2012 by ScottC

Last week was the 151st anniversary of the beginning of the Civil War, and yesterday was the 151st anniversary of Virginia’s declaration of secession from the United States. The outcome of the Civil War itself seems to have put an end to any questions about the constitutional legitimacy of secession, but there is no reason it should have. Might, as the cliche goes, does not make right, and so the constitutional question of whether the federal government is acting within its rightful powers to prevent a state from peaceably withdrawing itself from the Union cannot have been settled simply because the federal government was able to do so successfully. And of course, the Confederacy did itself and the underlying question no favors by firing on Fort Sumnter, making the withdrawal not so peaceable and providing Lincoln with a justification for sending in the troops. But I think the question still remains: Does the constitution prevent states from seceding from the Union?

It is interesting to note that between December 20, 1860 and April 12, 1961, the day on which Confederate troops fired on Fort Sumnter, 7 states declared secession from the Union, and neither President Buchanan nor President Lincoln, despite his rhetoric, took any official action against the seceding states. Following the war, Jefferson Davis was arrested for treason, but was never in fact tried, and while there were plenty of political reasons for the blanket pardon granted to those in the Confederacy, uncertainty about the lack of constitutional legitimacy of secession was certainly among them. And the southern states were not even the first to contemplate secession. During the War of 1812, a delegation of Federalist representatives from New England broached the subject of seceding, with the Massachusetts governor even considering coming to terms of a separate peace with Great Britain.

Certainly, in any event, it is difficult to square a view of the constitution as prohibiting secession with the foundation of the United States itself, of which an animating feature was the very presumption that a people could, by right, “dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them”. Indeed, reading the Declaration of Causes of Seceding States, one can’t help but hear the echo of the original Declaration of Independence, upon which they were so obviously modeled.

So, putting aside the moral question with which the secession movement of 1861 was inextricably linked, ie slavery, was the Federal government justified in waging war against the South, and does a proper reading of the constitution really grant it the power to wage such a war?

Filed under: Constitution, secession, states' rights | Tagged: , | 43 Comments »

Youth Sentencing

Posted on March 20, 2012 by markinaustin

Should the juvenile offender, charged as an adult, be susceptible to life without parole sentencing?  Two cases were before the Court.  Read Lyle Denniston’s review and you will see that the various Justices likely raised every argument you would have raised, among you, among them.

Argument recap: Compromise on youth sentences?

A paragraph to chew upon if you do not read the link:

In the cases of Miller v. Alabama (10-9646) and Jackson v. Hobbs (10-9647), most of the Justices appeared to share the sentiment expressed early by Justice Anthony M. Kennedy that the Court did not want to be forced to choose between two opposite choices: no life-without-parole sentences for any minor, or no limit on the sentence for anyone no matter how young.  And there also seemed to be considerable support for Kennedy’s apparent willingness to focus mainly on the question of whether such a sentence should be mandatory and, if so, whether that should be keyed to a specific age.   Kennedy’s views may be crucial, since he has been the author of the Court’s key rulings on youths’ sentencing.

I am willing to accept that the concept of what constitutes “cruel and unusual” punishment changes over time based on neuroscience.  For an originalist, “cruel and unusual” does not change over time and this case presents no difficulties.  For me it presents difficulties.  However, I am a bit calloused in these particular cases.  In short, once we choose to prosecute a youth as an adult, we place him in the penitentiary system for the term of his sentence.  We do not place him in a home where he is wanted, or in a juvenile justice facility with serious pretensions for education, training, and reconstruction of a life.  In short, once we choose to treat them as adults, I think the die is cast.  I think they are less likely to reform than adult first time offenders, given the reality of the penitentiary as a high school, a college, and a career.  So for me, while the world could be a better and more forgiving place, in our everyday reality, it is not.

I would be more inclined to say that treating any juvenile as an adult offender before the age of 16 is cruel and unusual than I would be to say the life sentence without parole is cruel and unusual.  These are my own musings, not those of any of the Justices, according to Denniston.

 

 

Filed under: Constitution, Supreme Court | 7 Comments »

RIGHTS

Posted on February 27, 2012 by markinaustin

The word “rights” has been used to describe both liberties and claims against others (including “entitlements”). We rebelled against a monarchy that made broad claims of entitlement for itself, and we had run away from established churches that made claims of entitlement for themselves. We understood the limits of government to require the establishment of liberties, and not entitlements, as a natural result of our seminal experience(s).

 
We have attempted to expand liberties and encroach on entitlements by increments, notably including the freeing of the slaves and the expansion of the voting franchise.

 
We have also created entitlements, most notably SS and Medicare. To the extent these were modeled on insurance schemes, they were either intended to, or disguised to appear to, create common quid pro quo legal claims. Common quid pro quo legal claims are often spoken of as “rights”, as well. When I provide you a legal service that you requested, typically I am “entitled” to be paid for it. Thus we have words with mixed usages and should be careful in this conversation to be clear.

 
I concede that a society could adopt a quid pro quo entitlement in which all were charged for a service through a tax and all were entitled to receive it upon reasonable demand.  We have certainly done so in our nation’s history and I think we would find that all free countries have done so in modern times.

 
At this point in my monologue I pause to say that while I understand and can accept “entitlements” of various sorts, I do not place these on the same plane as liberties. I consider entitlements and claims to be less worthy than liberties, although we often permit entitlements to trump liberties. Life, liberty, and property can actually be taken by the state – with due process. The fact that Congress is “entitled” to tax, and the understanding that a government can levy taxes as an inherent power, limits our property rights. That Congress is “entitled” to call us to serve in time of war or national emergency limits our liberty rights. Examples abound.

 
Phrased in the rough manner that I have laid out, “liberties” and “entitlements” are always bound to be in conflict. I accept more in the way of “entitlements” than QB would and I may claim more in the way of “liberties” than he would, based on my reading of QB over time. But I would be just as adamant as he on the general proposition that “liberty” is the higher form of “right”, and while I am comfortable with calling many statutory claims “entitlements”, and many legal claims “claims of right”, I personally have reserved the word “rights” to describe our claims as citizens of a free state to life, liberty, and property.  Recognizing that these rights are bounded and that we can choose to limit them in other ways by creating entitlements is linguistically clearer to me than trying to equate entitlements with liberties.

 

I believe the UN Declaration cited by Yjkt incorporates aspirations for a post WW2 world in ruins.  It is an attempt to invoke the myth of Phoenix rising from the ashes.  As such, it is beautiful.  There is no form of government possible that could deliver on that entire Declaration because of the internal conflicts, and because of the fact of scarcity.  It is better to preserve the liberty rights while attempting whatever limited aspirations we can afford, in the world of limited resources.  Or so Mark opines.

 

I anticipate some here may argue that there are entitlements that are as important as liberty interests, and that some may argue that liberty interests must trump aspirations at every turn.  That debate would be more productive than trying to call everything we might want a “right”.

Filed under: Constitution, rights theory | 23 Comments »

Religious Freedom Under Attack

Posted on October 4, 2011 by quarterback

A week or two ago, we briefly discussed the future of religious freedom in the Supreme Court, with Mark posing a question about how the Court would deal with laws against polygamy, if such a case came up. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the issue is the existence and scope of the “ministerial exception” recognized by all federal courts of appeal to protect religious organizations from employment-related lawsuits. The Obama Administration has taken the position in its brief filed on behalf of the EEOC (see Brief of Federal Respondents at the link) that there is no ministerial exception under the Constitution, and, as a fall-back position, that if there is such an exception it should be limited to persons “who perform exclusively religious functions” (emphasis added).

This case and the position of the Obama Administration may have sweeping significance to the future religious freedom. Who, if anyone, has “exclusively” religious functions? As some have pointed out, the Pope probably does not even meet this test. If there is no ministerial exception at all, then haven’t we opened the floodgates to lawsuits against churches and other religious organizations, and forever entangled the courts in their affairs? And, stepping back, consider how the ever-expanding reach and proliferation of federal regulation itself creates these conflicts and entanglements. The more the government regulates, the more conflicts with religious freedom it creates.

Filed under: Constitution, First Amendment, legal theory, rights theory, Supreme Court | Tagged: | 81 Comments »

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