Dana Pico, a former Virginian, is not impressed by the hothead we just elected to the Senate. I suspect that more than a few Virginia voters will have to admit they misoverestimated the guy’s political acumen.

For once, I am speechless.

Patterico beat me to the punch. Glenn Reynolds, who proudly coined the phrase “fair-weather federalism,” now lives up to it.

UPDATE: Reynolds dismisses the charge as “silly,” citing the Fourteenth Amendment proscription against depriving citizens of life, liberty and property without due process of law. O-kay. In the column in which he originally coined the term (linked above), Reynolds disingenuously decried the federal government’s practice of “regulating science,” which is really just a cute way of saying “funding science, but making such funding contingent on adherence to certain restrictions Glenn Reynolds doesn’t like.” So what exactly is Reynolds’s position now? That any Congress that fully exercises its tax and spend power runs afoul of the spirit (albeit not the letter) of federalism, while a Congress that fully exercises its enforcement power under the Fourteenth Amendment does not? That would be an odd combination of views, but possibly defensible on some level if Reynolds applied it with any consitency. He doesn’t, though. When Terri Schiavo activists, a.k.a. “pro-tubists,” made precisely the same argument under the Fourteenth Amendment concerning the impending starvation death of Ms. Schiavo, Reynolds lobbed the f-word (phrase?) at them, too:

There’s also a lot of contradiction lately. After talking about small government and the rule of law, Republicans overwhelmingly supported a piece of legislation intended to influence a single case, that of Terri Schiavo. As former Solicitor General Charles Fried observes:

“In their intervention in the Terri Schiavo matter, Republicans in Congress and President Bush have, in a few brief legislative clauses, embraced the kind of free-floating judicial activism, disregard for orderly procedure and contempt for the integrity of state processes that they quite rightly have denounced and sought to discipline for decades.”

I think he’s right. As with Bill Hobbs, quoted below, I don’t have an opinion on what should happen to Terry Schiavo — though given the rather large numbers of judges who have looked at this case over the years I’d be especially reluctant to interfere. Can they all be deranged advocates of a “culture of death?” But regardless of the merits, Congress’s involvement in this case seems quite “unconservative” to me, at least if one believes in rules of general application. Florida has a general law, and it’s been followed. That people don’t like the result isn’t a reason for unprecedented Congressional action, unless results are all that matter.

Apparently, using the Fourteenth Amendment narrowly to prevent an intentionally killing that Reynolds supports is “fair-weather federalism,” but using it broadly to prevent a few accidental killings Reynolds opposes is not. The cynic in me says Reynolds is just another “what I like is constitutional, and what I don’t like is unconstitutional” kind a guy. But maybe not. Maybe it’s just a question of which Congress does your dirty work. If a Republican Congress in 2002 limited research spending and another Republican Congress attempts to federalize Michael Schiavo’s God-given right to starve his wife to death, that’s fair-weather federalism. But if the incoming, Democratic Congress passes Reynolds’s power-grab, no one can accuse them of fair-weather federalism. They never claimed to be federalist at all.

Radley Balko, who has a long history of going off half-cocked and avoiding criticisms of his credibility through childish name-calling in lieu of serious rebuttals, is agitated again over the fact that while Glenn Reynolds seems to think he craps ice cream, at least two libertarian-leaning bloggers – Patterico and I – do not.

All this started over Patterico’s initial skepticism, subsequently retracted, about Radley’s early take on the no-knock raid in Atlanta that ended the life of 88-year-old Kathryn Johnston. I have not weighed in on this matter myself and am reluctant to start now, except to say that now that the facts are coming out, it is beginning to look even worse for the Atlanta police than Radley suggested. If you want to know more about the Johnston case, Patterico has more here, here, here, here and here, and Radley has a series of posts beginning here. Dale Franks has weighed in also, and now that real facts are out there, I’m sure many more will in the future. Maybe I will too, but not now. Instead, this post will focus on the drive-by swipes Radley took either at me, or at Patterico on issues I have previously weighed in on.

The first such issue is Balko’s year-old hatchet job on jury nullification, about which Balko now writes:

Patterico once pointed out a mistake I made in a Fox column about jury nullification. I attributed an opinion to the U.S. Supreme Court that actually came from a lower court. Fine. I posted a correction on this site, and plan to correct it in the next Fox column I write about nullification.

That’s a little like saying “I robbed a liquor store and sped away at 60 mph in a residential area. Someone later pointed out that the posted speed limit was 35. OK, I admit it, I was speeding. My bad. But the liquor and the money are still mine.”
(more…)

Last week my neighbors withheld their kid’s $20 allowance for failing to rake and mow the yard as instructed. The kid, who will remain nameless (let’s just call him Bradley), approached me seeking legal advice. Bradley made a persuasive case that to the extent that payment of the allowance is conditioned on his performance of his duties, it is for all intents and purposes a wage. Given that, the wage is clearly too low, as there is no way that Bradley or any other kid his age can be expected to clear and mow five acres in less than four hours’ time, as he would have to do in order for a $20.00 payment to comply with the $5.15 minimum wage law – to say nothing of the obvious violation of child labor laws.

Upon learning that Bradley had consulted a lawyer, his parents tried to consult me as well. I cautioned them that I was already representing their son adversely to them, and therefore they should seek at least minimally competent counsel of their own. They declined, choosing instead to present their competing arguments to me in pro per (fake Latin for “improper,” a private joke among lawyers at the expense of those who choose not to retain them). The parents’ principal argument was that the allowance was a gift, and was technically not conditioned on clearing the yard per se, only on a general behavioral pattern of doing as he was told. Repeating my admonition that they seek competent counsel, I advised them that if that argument worked, every employer seeking to skirt the minimum wage law, mandatory overtime, or any other inconvenient labor law would use it. I also cautioned them that their failure to withhold income tax or, at a minimum, 1099 Bradley as an “independent contractor” could subject them to serious penalties from the I.R.S. Leaving in a huff, the father said “For cripe’s sake Xrlq, he has to do what we say. We have to feed, clothe and educate him, but we don’t have to give him any spending money unless we think it appropriate to do so. We’re his friggin’ parents, for crying out loud!”

Indeed they are, but does that allow them to force Bradley to perform work he does not wish to perform, either for no pay or for a wage he does not agree to voluntarily? The Thirteenth Amendment to the U.S. Constitution suggests that the answer may be “no.” That amendment reads, in relevant part:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Notwithstanding its official designation as a commonwealth, Virginia is in fact a state. Not only is slavery illegal here today, it was outlawed effective January 1, 1863, more than two years before the Thirteenth Amendment was ratified. A two-year difference between events that happened almost as many centuries ago may sound like no great shakes, but consider this: Virginia split during the Civil War. One Virginia abolished slavery in 1863, and has since gone on to become the first U.S. state to elect a black governor, appoint a black Chief Justice, or deny a Senator a second term for using a stupid, obscure slang term that someone managed to construe as racist, while the other Virginia abolished slavery two years later, and is represented in the Senate by an ex-Klansman to this day.

Amendment 13 has no “reasonableness” limitation, so clearly, if the parents are “enslaving” The Brat, that’s not cool, constitutionally or otherwise, no matter how good a case they can make for the arrangement in principle. Of course they would object to the use of the word “slave” to describe an ordinary family environment, particularly of the variety that existed in the antebellum North as well as the South. But what of the phrase “involuntary servitude?” They may counter that given the high cost of raising a kid vs. the low quality of work he puts out when he works at all, he’s getting a good deal. That’s irrelevant. Good deal or bad deal; voluntary is voluntary, and involuntary is involuntary. Nor is there any evidence that Bradley is being punished for any crime. Bradley maintains he never agreed to do the work in question, nor was he advised in advance that his failure to do so would result in the deprivation of his expected allowance. His parents insist that he did agree to do the work, but have no written or other extrinsic evidence to corroborate that assertion which, even if proven, would show at most a breach of contract, not a criminal offense warranting slavery or involuntary servitude as a punishment. So basically, all we’re left with is the definition of “servitude.” I defy anyone to come up with a definition of “servitude” that does not apply to Bradley’s chores, but does apply to anything else of significance to avoid rendering the Thirteenth Amendment meaningless.

The Ninth Circuit Court of Appeals applied the plain meaning test in Goose v. Gander, 123 F’ed Upp. 4th 69 (2003) where it conceded that the drafters of the Thirteenth Amendment probably did not intend this result, but argued that the plain meaning of the Amendment left them no other choice. The Court wrote:

Often we have set up laws feeling that by custom or other legal barriers that it would not apply to some situation or other, though there is no real reason it should not. It is not unreasonable to examine the implications of what general laws should be beyond the intention of the laws authors. That is different from making the words mean something different than what they plainly say, or the opposite of its intention. Expanding something in line with its intention is not the same as expanding something to pervert its meaning such as claiming a law which says everyone should be treated equally under the law means they should be treated differently under the law in order to make the outcome more similar. No such dilemma confronts us here. Petitioner has not asserted any right to tell his parents what to do or assert dominion over them in any way; he merely challenges their right to assert such authority over him.

Goose was appealed to the Supreme Court, but the court denied certiorari, temporarily convincing legal scholars Julian Sanchez, Radley Balko and Richard “Cabeza” Bennett that it endorsed the holding wholeheartedly. These heavyweights were proven wrong, however, when the Supremes took up the issue in the Fourth Circuit case of Fox v. Henhouse, 5 B.S. 1 (2005), to resolve a circuit split. In Fox, the Court held that:

Lest we miss the forest for the trees, we must remain mindful of the reason why the Thirteenth Amendment was put into place. Slavery – the genuine kind, not parenthood, not the draft, not listening to Kenny G. while trapped in an elevator, not even that kinky stuff they do in Frisco – was a moral scourge on the nation that ripped our nation apart and, in fact, very nearly ended it. Family structure was not an issue; indeed, it was probably one of the few things that the North and the South agreed on at the time. While some may quibble in the margins about the various and sundry ironies of the North “enslaving” young men to fight against slavery while the South freed Negro slaves-turned-soldier to preserve it, no one questioned the legitimacy of the traditional family structure (unless, of course, one or more family members were owned by somebody else, but we’ve since resolved that question haven’t we?). More importantly, as respondent has noted, many of the drafters of the Thirteenth Amendment were parents themselves, while petitioner has provided no evidence that any – ANY! – of them were minors under the custody of oppressive parents from whom they were likely to have been attempting to liberate themselves. Thus, we decline to hold, as petitioner argues, that the framers of the Thirteenth Amendment intended their amendment to undermine their own parental authority. The Fourth Circuit’s judgment is upheld, with costs to be paid by petitioner, who is ordered to go directly to bed without passing “go” or collecting dinner, and is hereby grounded for three weeks.

Based on the straight text of the Fourteenth Amendment, I have to say that the Goose court got it right, and Fox got it wrong simply to produce a desired political result. Let me know what you think, but before you do, be sure to brush up on your Thirteenth Amendment jurisprudence here, here, here and here.

Recently FoxNews reported that a deal is in the works in Congress to replace D.C.’s whiny “Taxation Without Representation” license plates with one depicting a bawling infant create a new Congressional district for the District of Columbia. According to a more recent TV report, Law Professor Jonathan Turley has promised to sue, noting that this arrangement would be a blatant violation of Art. I, Sec. 2 of the U.S. Constitution, which states:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
[Emphasis added.]

Proof that not every good idea is a constitutional one, just as not every bad idea is an unconstitutional one. Nevertheless, it got me thinking: what about the boundaries of the District itself? Are they constitutional? Art. I, Sec. 8 cl. 17 limits the boundaries of our nation’s capital, by giving Congress an enumerated power:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States[...]
[Emphasis added.]

In my dialect of English, “ten miles square” doesn’t necessarily mean that your city has to be shaped like a square, as D.C. originally was, but does mean that the total area should be 10 square miles. That is the area you’d get by building a mini-diamond that is just a hair longer than 3.16 miles long on each side, rather than the 10-mile sides that were created under its original borders. That placed the original DC at 100 square miles, or 10 times the constitutional limit, until Alexandria County (now Arlington County and the City of Alexandria) was retroceded to Virginia in 1847. That still leaves 68.3 miles square in the District, 58.3 of which is unconstitutional. So why not retrocede the unconstitutional portion to Maryland?

Better still, let’s retrocede everything to Maryland except a mini-triangle running from 1600 Pennsylvania Ave NW to Capitol Hill to the U.S. Supreme Court. That little triangle is all we need to serve as the “seat” of the U.S. government. Any other federal buildings would remain under federal control, as do federal buildings located in any other state, as the same Art. I, Sec. 8 cl. 17 authorizes Congress:

[...]to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings[.]

Regardless of whether a court buys the argument that “10 miles square” means “10 square miles” rather than “100 square miles,” I can’t see any reason not to give DC residents all the rights and responsibilities of living in the United “States” by returning their land to the “state” from whence it came. Can you?

Kudos to Kate for bringing back the Snark Hunt, but we really need more people to participate next time around. Three snarks a week makes the hunt look more like clubbing baby snarks. We’ve done better in the past, and can do better again. By “we,” of course, I mean you; I was one of the few who actually did submit this time around. Now it’s your turn. Submit to Kate, or end up on her list (and not the good one). Remember:

¡Por la esnarca todo! ¡Fuera de la esnarca nada!

Justin Levine is giddy over the recent decision in Barrett v. Rosenthal, a recent California Supreme Court decision that held unanimously that … um … the Communications Decency Act is a federal statute. Levine hails the decision as a huge victory for free speech. Michelle Malkin disagrees, noting the absurdity of a rule that allows her to blog with impunity what would get her sued in her syndicated column, and asking generally why online speech should be held to a different standard than other speech.

Justin’s answer, in a nutshell, is that if Michelle defamed me in a syndicated column, I would not have a syndicated column of my own with which to respond. On the flip side, if she defamed me on her blog, read by a gajillion readers across the globe, I could respond on this here blog and expect a couple hundred – or, with luck and an Instalanche, a few thousand – readers to read my response. I find that argument less than persuasive. A more persuasive answer to Michelle’s question, I believe, is “because a federal law says that online speech is to be held to a different standard than other speech.” That’s not a substantive argument for the CDA, of course, and if Michelle wants to lead the charge to get that turkey of a law repealed – all of it, that is, not just the immunity provisions at issue here – then I’d be delighted to join the crusade. But as long as CDA remains on the books, the law is the law, and for better or for worse, online speech is a federal matter subject to one set of rules, and ordinary speech is for our traditional federalist (or, for Romney supporters, “disingenuous”) system to sort out.

Contrary to the buzz, this case was not huge, nor even terribly significant. The Ninth Circuit, in which California sits, has already ruled the same way, as has every other federal court to weigh in on the issue. For the court to have ruled any other way would have been an unconscionable example of judicial activism – essentially a judicial nullification of CDA. It also would have produced an absurd result for litigants in California, who could win or lose a case entirely on the basis of which courthouse they filed their case in – even if one courthouse was across the street from the other.

The answer, of course, is “because federal law says that it is.” That’s not a substantive argument for the Communications Decency Act, of course, and if Malkin’s point is that Congress ought to repeal it, I agree wholeheartedly. But as long as we’re going to have a law on the books that says online speech is special, to be treated better than ordinary speech in some respects and worse in others, then at some point we gotta admit that the law is the law, and for the California Supreme Court to have ruled any other way would have been an unconscionable act of judicial activism.

McQ has more.

In an exceptionally lame effort to position himself as the presumptive nominee for the conservative wing of the G.O.P. in ’08, Mitt Romney described as “disingenuous” John McCain’s combined support for traditional marriage and traditional federalism. Per Bill Sammon:

Romney was less charitable to McCain [than he had been toward Newt Gingrich], who on Sunday told ABC News: “I believe that the issue of gay marriage should be decided by the states.” McCain also said, “I believe that gay marriage should not be legal.”

Romney seized on the remarks.

“That’s his position, and in my opinion, it’s disingenuous,” he said. “Look, if somebody says they’re in favor of gay marriage, I respect that view. If someone says — like I do — that I oppose same–sex marriage, I respect that view. But those who try and pretend to have it both ways, I find it to be disingenuous.”

Time was when appealing to states’ rights was a federalist opinion, or even a conservative one. Now, at least according to Romney’s version of conservatism, Real Conservatives don’t need states’ rights any more than FDR liberals did. Everyone knows that anything worth doing is worth shoving down the whole country’s throat, so anyone who advocates “leaving it to the states” is a poseur or at best, a wimp.

Tom Maguire happily admits to being equally “disingenuous,” as do I. After attending the Lawyers Convention of the Disingenuous Society last week, I suspect there may be a lot more disingenuous Republicans out there than Romney might think. Are we really stuck with Giuliani and McCain? I think not. Gay marriage aside, if all federalist conservatives band together now the Coalition of the Disingenuous (or should that be, the Coalition to Have it All 50 Ways?) should be able to line up something better in time for the ’08 primary. You in?

I guess I could blame part of the delay on the Federalist Disingenuous Society Convention, but mostly I’ve just been lazy. Anyway, here are the answers to the recent quiz. As several commenters more-or-less correctly guessed, the theme of the list was songs where the cover version was at least as big of a hit as the original, if not more so. For uniformity, I used the cover version of the lyrics in each case where the two did not match.

1. “Poor Poor Pitiful Me,” originally by Warren Zevon, covered by Linda Ronstadt. These lyrics were specific to the cover version, gender-bent to account for the fact that Warren was a man and Linda was (is) not.
2. “Take it Easy,” originally by Jackson Brown, “covered” by the Eagles, then repackaged by Browne himself.
3. “Blinded by the Light,” originally by Bruce Springsteen, covered by Manfred Mann’s Earth Band.
4. “Der Kommisar,” originally by Falco in German (thick Viennese dialect), covered in English by After the Fire (aka ATF). This song is why I opted for the cover lyrics over originals.
5. “The Green Manalishi (With the Two-Pronged Crown),” originally by Fleetwood back, covered by Judas Priest.
6. “I’ve Done Everything for You,” originally by Sammy Hagar, covered by Rick Springfield.
7. “You Really Got Me,” originally by the Kinks, covered by Van Halen. These lyrics were specific to the cover version.
8. “Hey Joe,” of unknown origin, claimed as an original by Deep Purple but with evidence the song is older than that. Covered by many, but probably best known as a Hendrix tune.
9. “Keep Me Hanging On,” originally the Supremes, covered by Kim Wilde (and Rod Stewart, and others).
10. “Cum On Feel the Noize,” originally by Slade, covered by Quiet Riot.