Saturday, January 1, 2011

Highlights and notes from Erwin Chemerinsky's "The Conservative Assault on the Constitution." (My first read on the Kindle.)

Following are a few of the passages I noted and saved to the Kindle page for Erwin Chemerinsky's "The Conservative Assault on the Constitution":

A case that involved narrowing speech rights was the decision in 2006 in Garcetti v. Ceballos, denying free speech protection to public employee whistle-blowers. In a 5–4 decision, the Supreme Court held that the government does not violate the First Amendment when it punishes an employee for exposing wrongdoing on the job. This was an enormous loss of rights for the millions of people who work for the government, but even worse, it meant that the public is much less likely to learn of serious misconduct by their government.

Note: And, since the press is unwilling to do anything approaching investigative journalism, muzzling whistle-blowers results in Wikileaks.

Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas already were on record expressing the view that the length of a person’s sentence never could be challenged under the cruel and unusual punishment clause of the Eighth Amendment. Nothing that I could say could change their minds.

Note: The next time I read something that convinces me either Scalia or Thomas is qualified to be on the Court will be the first time.
I saw that there was a ground-swell of opposition to Bork because most people believe that there is a right to privacy under the Constitution.

Note: "[M]ost people"? That's putting it mildly. I suspect the group is actually "all reasonable people."
These decisions are tragically wrong in holding that there is no fundamental right to education.
Education is essential for the exercise of constitutional rights, for economic opportunity, and ultimately for achieving equality.

Note: This is one of the areas the Founders failed us. A child's right to an education should have been emumerated in the Constitution or a subsequent amendment. The failure is ongoing. (Similar to our conspicuous failure to guarantee health care to all.)
The Nixon administration then argued that this act was an unconstitutional limit on executive power, claiming uncheckable authority to stop Congress from spending money. Dick Cheney, for example, has taken this position and argued that the Impoundment Control Act unconstitutionally restricts executive power.

Note: The conservative contempt for democracy is stunning; the conservative contempt reason and truth is utterly mind-boggling.
The United States was instrumental in drafting and ensuring the ratification of the Geneva Conventions, which govern how those captured in battle are to be treated. In part, it is a sense that our own humanity is degraded when we engage in such practices. In part, too, it is the knowledge that there is little evidence that torture produces useful information; those being tortured will say anything that they think will end the pain. But also quite importantly, it is a way of protecting Americans who may be caught on foreign battlefields.

Note: Contrast the conservative portrayal of the Geneva Conventions as foreign undermining of our national security.
Supporters of the Bush administration’s Guantanamo policy take the failure of the Obama administration to close the facility as vindication. But many factors account for the failure to move detainees: strong congressional opposition to moving detainees to the United States; lack of political will to deal with the situation; and the reality that once executive power grows, it is difficult for even administrations of a different political party to relinquish it.

Note: Wrong is wrong. The Obama administration is as bad as the Bush administration in this regard. It is a national disgrace.
A city hall with a large cross on its roof makes those of different religions feel unwelcome, that it is not their government.

Note: Exactly.
Four justices—Rehnquist, Scalia, Kennedy, and Thomas—repeatedly had said that they rejected the notion of a separation of church and state. Their view was that this idea was unduly hostile to religion and impermissibly limited the ability of the majority to govern as it wished.

Note: Unqualified. All four.
There are instances of defense lawyers in capital cases literally sleeping through the trial. In a famous case in Texas, Burdine v. Johnson, two of three judges on the United States Court of Appeals for the Fifth Circuit said it was not ineffective assistance of counsel when the defense lawyer slept through a good deal of the trial. The court said that it could not be shown that the lawyers slept through important parts of the trial.

Note: Bloodlust, pure and simple.
This situation might be acceptable if there were reason to believe that the criminal justice system almost always got it right. But that is not the case. The work of Innocence Projects across the country has brought to public attention people who are wrongly convicted and then sentenced to death. In Illinois alone, the Innocence Projects were able to show that more than a dozen individuals were unquestionably wrongly convicted and then sentenced to death.

Note: One is too many.
Justices Scalia and Thomas are concerned about the effect of a large number of petitions from those on death row on the court system. They are willing to accept the risk of executing an innocent person to avoid these costs. But it seems unthinkable that justices on the Supreme Court could say that there is no constitutional violation in executing an innocent person.

Note: Only unthinkable if you disregard the stunning lack of qualification and intellectual deficiencies of those august robe racks.
Thankfully, he lingered for only a few days after his request; but there are many terminally ill patients who suffer for months because of the lack of a right to death with dignity.

Note: Instead of wasting everybody's time with made-up Death Panel bullshit, it would be nice if Republicans could join the rest of us in reality and help craft reasonable guidelines for end of life care.
Certainly it is not just Roe that is responsible for this change; conservatives have generally opposed expanding most, though not all, individual rights.

Note: The one you can rely on conservatives to expand - the right to bear arms. Again, bloodlust.

Chemerinsky makes a strong case for his book's brash title. Frankly, the title is the brashest wording in the book; he's measured, deliberate, cites cases and sources for every example, and never lets emotion overheat the argument. I could not have been so restrained.

(I need to figure out a more graceful way to bring these into a blog post. Will work on that.)
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