Category Archives: Judiciary

The Colbert Report: Obamacare & the Broccoli Argument


Get Ready for Several Weeks of Useless Analysis

Inside CNN

This week, the U.S. Supreme Court is expected to render its ruling on the constitutionality of Obama Care. However, the media coverage of the ruling and the resulting political fallout will be the same. Regardless of the ruling, both republicans and democrats will try to spin the Supreme Court’s ruling in a way that benefits their side. Meanwhile, the news media will overflow with coverage concerning the political impact of the ruling, but will ultimately fail to explain the ruling divorced from the typical horse-race coverage.  Horse race refers to the news media’s focus on which candidate is up or down in the latest public opinion polls. My prediction is that the news media, regardless of the Supreme Court’s ruling on Obama Care, will bombard its audience with poll numbers for the next several days along with a bloviated analysis of said poll numbers with a pretentious and misguided sense of accomplishment for delivering what they consider to be the news. Get ready for several weeks of useless analysis and blatant political spin.


Purges and Repubican Forms of Government

Vote Oregon!

Vote Oregon! (Photo credit: jugbo)

According to the Constitution of the United States individual states are required to provide to their citizens a republican form of government.  The guarantee of a republican form of government in the Constitution is vague, but it provides a wide door for rights related to voting, representative-based government, and the sovereignty of the people in all fifty states.  The clause in the Constitution is also used as a foundation for each state to organize and conduct all elections in a state, whether the elections are for local, state, and even federal offices.

The state of Florida is currently involved in a legal dispute with the federal government over the issue of voter registration rolls.  The state of Florida is arguing that it has the right to purge voter registration rolls of names of persons not eligible to vote in Florida elections.  The state is arguing that it has the right to establish voter qualifications that do not directly deny citizens of the United States their fundamental right to vote and that maintaining voter registration rolls that are accurate and based on state law includes taking reasonable steps to protect their integrity.  In the current dispute, the federal government is arguing that the state of Florida recently purged properly registered voters from the rolls causing citizens of the United States to be denied their right to vote simply because they have the same name as a person who is ineligible to vote.  Both sides of the dispute are well-grounded in law, precedent, and practice—unfortunately, the specters or partisanship and electoral self-interest are seen at work on both sides as well.  The current dispute is about to peak in the middle of a presidential election year in a well-known battle ground state.  Do you believe the issue can be addressed by the courts impartially?  Do you think the current dispute is a legitimate clash of opinions and positions or a side-show of the election season we are watching unfold?


Due Process and the American Creed

Benjamin Franklin, John Adams and Thomas Jeffe...

Benjamin Franklin, John Adams and Thomas Jefferson writing the Declaration of independence (1776) were all of British descent. (Photo credit: Wikipedia)

The Fifth and Fourteenth Amendments to the Constitution include references to due process any time a person is in jeopardy of life and property.  While the Amendments themselves do not specifically define what due process is, the Constitution itself provides elements of due process as have subsequent court decisions through the years.  For example, the right to know what one is charged with in all criminal matters is in the Bill of Rights, as are the rights to a public trial and the right to cross-examine witnesses who testify against you.  Any legal proceeding in the United States that fails to uphold these protections is not living up to the protections we claim to value so highly.

A former U.S. Senator is currently fighting for his freedom, as is a former Hall of Fame caliber baseball player.  All over America, people high and low are depending on due process to level the playing field, to diminish the power of Goliath, and to stand a chance when forces that want to destroy them are at play.  In some cases the guilty will go free; in others the innocent will be punished unjustly.  Regardless of the particulars, every American should take a solemn oath to protect and defend the tents of due process, just like the oath sworn by the men who signed the Declaration of Independence.

We mutually pledge to each other our Lives, our Fortunes and our sacred Honor

What do you think?  Is due process something most Americans understand?  Can you identify how various elements of due process have been important in your life?  How important is due process to the American creed? As for me, I pledge my life, my Fortunes and my sacred Honor.


The Unconstitutionality of Prop 8?

English: The inscription Equal Justice Under L...

Last week the Ninth Circuit Court of Appeals declared the Proposition 8 ban on same-sex marriage unconstitutional. Prop 8 was a California ballot proposition passed during the November 2008 election and mandated that “only marriage between a man and a woman is valid or recognized in California.” The measure was previously overturned in United States District Court on August 4, 2010 (Perry v. Schwarzenegger) on the basis that Prop 8 violated the Equal Protection Clause of the United States Constitution:

“no state shall … deny to any person within its jurisdiction the equal protection of the laws.”

However, the reasoning behind the recent Ninth Circuit Court of Appeals decision is interestingly different. The previous rationale concerning the unconstitutionality of Prop 8 rested on the concept that the right to marriage was an inherent right under the 14th Amendments Equal Protection Clause. If heterosexuals have the right to marriage than homosexuals have the same right under the Equal Protection Clause as the U.S. Constitution forbids special laws for specific groups. Yet, the decision by the Ninth Circuit is based on the concept that the majority does not have the constitutional authority to remove rights from the minority via the voting process. The court stated, by “using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the people of California violated the Equal Protection Clause.” In other words, in the United States of America, the people do not have the right to vote on the rights and liberties of others.

What do you think? Should people have the ability to decide which groups have which rights via the ballot box?


The Constitutional Right to Plea Bargain?

In the Fall of 2011 the Supreme Court will be looking at the right of defendants to plea bargain.  Plea bargaining accounts for the resolution of the vast majority of criminal cases brought in the United States.  A typical plea bargain involves a criminal defendant’s pleading guilty to an agreeable offense or offenses—escaping more serious charges that usually carry much stronger penalties.  The benefits for the defendant are obvious; the benefits for the prosecution are also.  Criminal trials and the investigations that can precede them can be very expensive affairs.  In many cases, the prosecution may have substantial evidence, making a conviction likely.  However, criminal jury trials are notoriously unpredictable.  Rather than risk an acquittal or a hung jury, plea bargains guarantee that a defendant will be adjudicated as guilty.

In the two cases coming before the Court individuals are alleging that they were denied their Constitutional Rights to due process, a fair trial, and the assistance of counsel.  Each case presents a different aspect of the practice of plea bargaining, but each case has been reached the level of Supreme Court review, suggesting that the constitutional issues are important.  Based on what you know, does the Constitution specifically provide for plea bargaining?  If not—if plea bargaining is not a fundamental right but is just a practice that has developed as a matter of practicality—what do you believe the Court may rule on the matter?  More importantly, what are the possible ripple effects that might follow the possible rulings in these cases?  If the Court rules that plea bargaining is a Constitutional right, will courts in all fifty states be expected to meet new national standards related to the practice of plea bargaining?  If the Court rules that plea bargaining is not a constitutional right will law enforcement agencies and courts around the country become more aggressive in their practice of plea bargaining?  The criminal justice system in the United States is one of the most strained of all national and state institutions.  The Court’s ruling in these and other cases can have a significant impact on how prosecutors and defendants relate for years to come.


MPSL VLog: Presidential Appointments: Looking More Like Us!

President Obama has nominated far more minorities to be federal judges than past administrations. Professor Gaffaney explains why this is significant for all Americans.