Abusing the Constitution: health care and the case of the Commerce Clause

August 26, 2010

While we rightly agree to abide by the decisions of the Supreme Court as the final arbiter of what is and isn’t constitutional (barring changes via amendment), that doesn’t mean all its decisions are correct, or that its errors are without consequence. Among the more famous errors of the Court, consider Dred Scott v Sandford, which upheld fugitive slave laws; Plessy v Ferguson, which upheld segregation in state law; Buck v Bell, which upheld state laws mandating forced sterilizations; Korematsu v United States, which permitted the forced internment of Japanese-Americans during WWII; and the recent Kelo v City of New London, which made a mockery of the 5th Amendment’s takings clause.

So, it should come as no surprise that another bad Court decision, Wickard v Filburn, is at the heart of the Federal government’s vast expansion of its power via an upside-down interpretation of the Commerce Clause. In the following short video essay, Reason.TV looks at the Commerce Clause, the expansion of federal power its abuse enabled, and frames it via interviews with two legal scholars: Erwin Chereminsky, Dean of the UC Irvine Law School and an advocate of the “living Constitution,” and John Eastman, Professor of Law at Chapman University and a constitutional originalist. I think you’ll find it worth the ten minutes:

I think for anyone who understands that the Constitution is a document intended to limit the Federal government’s powers, Chereminsky’s arguments are almost frightening. (Side note: Professor Eastman ran for the Republican nomination for state attorney general in the last election; I voted for him and I’m sorry he didn’t win.)

This debate isn’t just academic, as the video points out: rather, it is of immediate urgency as  Congressional Democrats and the Obama Administration try to justify their statist health care plan and its individual mandate under the Commerce Clause. It also shows why Wickard, the foundation of Congress’ metamorphosis into Leviathan, needs overturning, whether through the Court in upcoming cases, or via a constitutional amendment that refines the meaning of the Commerce Clause.

If limited government is to have any meaning at all, this hole the Left has exploited must be plugged.

LINKS: More from Hot Air. Justice Scalia criticizes the theory of the living Constitution.

(Crossposted at Sister Toldjah)


So, let me get this straight

May 20, 2010

We’re supposed to elect San Francisco District Attorney Kamala Harris as California’s next Attorney General? But we’re not to pay attention to her lousy courtroom record?

The records show that while Harris’ overall conviction rate has reached new highs over the past several years, that success is based almost entirely on plea deals negotiated before defendants accused of serious crimes proceed to trial. (Such pleas form the bulk of any D.A.’s convictions.) By contrast, felony convictions for cases that actually go to trial and reach a jury verdict — a comparatively small group that nevertheless includes some of a district attorney’s most violent and emotionally charged cases — have declined significantly over the past two years.

In 2009, San Francisco prosecutors won a lower percentage of their felony jury trials than their counterparts at district attorneys’ offices covering the 10 largest cities in California, according to data on case outcomes compiled by officials at the San Francisco Superior Court as well as by other county courts and prosecutors. (Officials in Sacramento, the state’s seventh-largest city, did not provide data.) Harris’ at-trial felony conviction rate that year was 76 percent, down 12 points from the previous year.

Okay, so she’s better at plea bargains than winning in court. Maybe she’s a great manager who will lead the Attorney General’s office to better days?

Um… no.

A well-known private defense attorney whose “unimpeachable judgment and independence” will assist District Attorney Kamala Harris with a brewing scandal and has contributed thousands of dollars, and public support, to Harris’ political aspirations.

On Friday, Harris announced that John Keker, the founding partner of a San Francisco law firm who rose to prominence as the chief prosecutor of Oliver North, would be assisting the District Attorney’s Office free of charge after prosecutors failed to follow basic legal protocols, putting convictions of hundreds of criminals at risk.

The office has come under scrutiny because, by law, prosecutors are required to provide any information that could be used to disqualify the testimony of an expert witness, such as criminal history or internal disciplinary actions. But the Police Department has never provided information about its own employees to prosecutors, and the prosecutors failed to ask for the basic information, jeopardizing convictions.

But the issue recently came to light in the fallout of the police drug-testing lab shutdown amid allegations that lab technician Deborah Madden took cocaine from evidence samples. Madden had a criminal past that was never divulged to defense attorneys. The scandal has already led to more than 600 drug cases being tossed.

So, Kamala Harris is lousy in court and can’t manage a large department. Tell me again why California voters should elect her in November?  I dont know

For the record, the coveted* Public Secrets endorsement for Attorney General goes to John Eastman, running for the Republican nomination.

*(Yeah, right.)

UPDATE: A San Francisco judge rips into Harris for her mismanagement.


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