Harvard Law, folks! Let's give them a round of applause.

I'm beginning to wonder if the GOP might not be making an attempt to undercut the President's legal background by having some of its own HLS grads act like complete idiots.

First example: Congressman Cotton of Arkansas.

Sure, I'm obligated to point out how obliviously unconstitutional the Cotton Amendment was. But stunning stupidity aside, there's something really depressing in his follow-up:

“I sympathize with their plight if they are harmless, innocent civilians in Iran. I doubt that that is often the case.”

He seems to be suggesting that it's more likely that people from a country governed by a domestically oppressive, murderous regime are coming to America in order to attack us than that they're coming to seek shelter and aid from us.

Setting aside the rest of the offensively paranoid racism, that's a really sad--and very unpatriotic--sentiment to hear from a Congressman. I tend to think people from countries that murder demonstrators in the streets who come to the U.S. are probably more interested in taking shelter in our freedoms than attacking them. When the world looks up at the Shining City on a Hill, does Rep. Cotton really believe they're thinking "hey, a shining city on a hill! Let's attack it!"?

Next we have someone who I don't think will ever run dry as a fount of entertainment (unless he's actually elected and put in a position of power, in which case I don't think anyone will find it funny at all): the GOP nominee for Lieutenant Governor of Virginia, E.W. Jackson, who doesn't think federal disaster relief is constitutional, says that the idea of GLBT Pride Month "makes me feel ikky all over," and, of course, this:

In an April 28, 2011 statement while he was a Senate candidate, conservative minister and lawyer E.W. Jackson held up the three-fifths clause as an “anti-slavery” measure. The context of his statement was to attack President Obama after a pastor at a church service he attended referred to the three-fifths clause as a historical marker of racism.

“Rev. [Charles Wallace] Smith must not have understood the 3/5ths clause was an anti-slavery amendment. Its purpose was to limit the voting power of slave holding states,” Jackson, an African-American, said in his statement.

The Three-Fifths Compromise was the way that the South was able to dominate American politics until the Civil War. It's why more than half of Presidents before Lincoln were Southern slave-owners. It's why the list of Speakers of the House before the Civil War is dominated by Southerners and slave-owners. To claim that it was an "amendment" is bad enough for someone from HLS (the sort of mistake we expect from the laity), but to claim it was "anti-slavery" is stupid beyond all mortal ken.

Article 3:16

I can't wait until the North Carolina legislature tells us the proper interpretation of the 13th Amendment, too!

A bill filed by Republican lawmakers would allow North Carolina to declare an official religion, in violation of the Establishment Clause of the U.S. Bill of Rights, and seeks to nullify any federal ruling against Christian prayer by public bodies statewide.

...

House Bill 494, a resolution filed by Republican Rowan County Reps. Harry Warren and Carl Ford, would refuse to acknowledge the force of any judicial ruling on prayer in North Carolina – or indeed on any Constitutional topic:

"The Constitution of the United States does not grant the federal government and does not grant the federal courts the power to determine what is or is not constitutional; therefore, by virtue of the Tenth Amendment to the Constitution of the United States, the power to determine constitutionality and the proper interpretation and proper application of the Constitution is reserved to the states and to the people," the bill states. "Each state in the union is sovereign and may independently determine how that state may make laws respecting an establishment of religion."

...

The bill goes on to say:

SECTION 1. The North Carolina General Assembly asserts that the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.

SECTION 2. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools or any political subdivisions of the State from making laws respecting an establishment of religion.

The North Carolina General Assembly may assert that if it wishes, but then the North Carolina General Assembly will affirm it's run by witless, illiterate buffoons who should by all rights be drafting legislation with Crayolas on construction paper.

Someone needs to remind these fine Southern scholars that, when it comes to the federal-state relationship, the courthouse they should be remembering is Appomattox.

SCOTUS marriage cases began today

I think the odds are good for Team Love in the marriage equality cases, but let's be clear about the stakes:

No matter what the Court does, DOMA's expiration date is coming up fast, and we can expect not only federal rights but full faith and credit being extended to marriages entered into in any state.

What we can't bank on is that gay Americans in every state will have the right to marry without sneaking across the border to somewhere more accepting. Without the Court extending constitutional protection to the right to marry, there may, for the rest of our lives, be states that refuse to treat gay and lesbian citizens equally.

You can look at national polls supporting marriage equality and say that gays and lesbians are now powerful enough to get what they want through the democratic process, but that's a very bird's-eye view of the landscape. Take a look at individual states, and you'll understand that in many of them, gay citizens are still viewed as second-class. Unless the Court acts to protect those Americans, this inequality could remain for generations to come.

We don't know for sure if George Zimmerman is a racist*, but ain't no doubt that his mama raised at least one.

--

(* - Yeah, we do.)

This has been another edition of "I Guess Good And Stuff"

Back in February, when Indiana Secretary of State Charlie White became a convicted felon, I wrote

So the next question is: who becomes SoS?

Mitch Daniels seems to be proceeding as if he's going to be able to make a permanent appointment. But there's still a question as to whether the job rightfully belongs to the highest vote-getter in the last election who was actually eligible for the job. If it does, then Democrat Vop Osili would be sworn in.

I think that Daniels' choice will probably be sworn in permanently. I don't really think the courts will want to give the job to someone whom over 60% of the state voted against when it can allow the governor from White's own party to make an appointment to fill the vacancy. Even though Osili was the highest vote-getter who was actually eligible for the office, and has a very good claim to the position, I think the courts will decide to let this one play out politically rather than actively award the office to someone. But I've been surprised before.

The Indiana Recount Commission held he was eligible, and the state Democratic Party chair, who filed the challenge, appealed to the courts. Judge Rosenberg ruled against White. Judge Rosenberg's verdict is being appealed: whether his ruling will stand on appeal is in doubt, and I (not to sound too much like the legal realist that I am) would expect the courts to find a way to allow the governor's appointee to hold office, since they don't want to be seen as giving the job to someone "rejected" by the voters, especially not so long after the actual election.

That's really more my take on the politics of the situation, but I can think of a way for the appellate courts to handle the issue that would let Daniels make a pick (two ways, actually: one based on statutory interpretation, and the other based on laches, a concept generally illustrated here.).

I think the question of whether White was actually ineligible to be on the ballot was somewhat close. I take a very liberal view of residency requirements, and when he initially entered the race I think he might have been okay remaining registered at his ex-wife's home, since he actually returned there for a time in 2010 before his re-marriage (Judge Rosenberg ruled otherwise, but without further knowledge of Indiana case law I could see this being reversed on appeal, or at least remanded back to him with instructions to more carefully consider whether he could not have legally resided at his ex's house as a matter of law, even though that's where his belongings were, where his son lived, and where he seems to have stayed when in town). If an appeals court holds he was validly registered at his ex's in February 2010, he arguably met the statutory requirement for candidacy ("A person is not qualified to run for...a state office...unless the person is registered to vote in the election district the person seeks to represent not later than the deadline for filing the declaration or petition of candidacy or certificate of nomination."). It's not a great argument, but I can see a court grab hold of it if they need a reason to avoid appointing Osili. Based on the findings of fact in the lawsuit to have him removed*, he probably should have re-registered sometime between May 28, 2010--when Judge Rosenberg found he stopped staying at his ex's and removed all his belongings from there--and the nomination deadline in July 2010, but he might have still met the statutory requirement

(*Note: this is just for the matter of him being listed on the ballot, not the question of whether he committed fraud by voting from his ex-wife's address in the May 2010 primary, which he most assuredly did. The jury in the criminal case found that he should have re-registered much earlier than the facts in the lawsuit seem to indicate--I guess that's the difference between actually mounting a defense and sitting silently while a case against you is made.)

Well, the opinion isn't up yet, but it looks like they went with the laches argument, which makes sense in this context.


UPDATE: The opinion is here.

Yes, I have sinned.

I committed the cardinal sin of blogging: I left for an extended hiatus. I was studying for the Maryland Bar, which I took last week. Results come out in November. This seems needlessly cruel.

Anyhow, I'm back. Hi.

LSAC should tell us this stuff before we come to law school

According to ethical rules, attorneys can only charge clients reasonable fees, and are not allowed to sleep with them.


If this was more widely known, I'm guessing that applications to US law schools would drop dramatically.

Oh, for the love of Rahm!

Another residency issue crops up, this time with Senator Richard Lugar of Indiana, who stays in a hotel when in-state.

Guys, looking up Article II, §4 of the Indiana Constitution wasn't exactly hard:

No person shall be deemed to have lost his residence in the State, by reason of his absence, either on business of this State or of the United States.

IC-3-8-1-1 sets the qualification for candidacy at no more than being a registered voter in the election district (in the case of the Senate, that would amount to merely being registered in Indiana). IC-3-5-5-18 expressly allows for residents of "nontraditional residences" to register.


So state law says that he keeps his registration when he's in DC, he's qualified to run by virtue of being a registered voter, and he may remain registered even if his residence is deemed to be his hotel instead of his family farm (which, incidentally, another provision of state law addresses). I'm not saying it would be impossible to make a case to kick Lugar off the ballot, but I am saying that it would be a better use of his opponents' time to just campaign against him and let the voters do their thing.

"I'm not a history major, though." He's also not an Originalist.

State Rep. Hal Wick (R-SD) thought it would be funny to introduce a law mandating that people purchase firearms as a way of protesting the federal health insurance mandate.

What he didn't realize is that we used to have just such a requirement, under the Militia Act of 1792.

[E]ach and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.

If, upon being presented with this information, Rep. Wick had simply admitted that he'd made a mistake in thinking such a law would be unconstitutional, the story would be over. But that, of course, didn't happen. Instead, he offered an explanation for why it would have been constitutional to mandate gun ownership then but not now:

In the course of the interview, I asked whether this would change his opinion on individual mandates. "No," he said. "I really don't feel like a gun mandate would be constitutional under these circumstances."

What does he mean by the circumstances?

"Well, it was shortly after the Revolutionary War, and it was before the War of 1812," he said, "which may have been something that was on the radar screen -- that they knew there could be another challenge coming from overseas. I'm not a history major, though."

Let's set aside for a moment the obviously ridiculous argument that a war 20 years in the future could justify something that's otherwise unconstitutional whereas a present crisis in health care would not. Notice that he's arguing that something that once was constitutional no longer would be, despite the Constitution's language on the issue remaining unchanged.  That's the antithesis of originalism. Originalists come in various stripes, but the idea that the Constitution's meaning is fixed until properly amended is common to all of them.

I'm not really an originalist, though I practice originalism on occasion (it's a useful tool for determining statutory or constitutional meaning, though it isn't the only one, and it isn't the only valid one). But, in today's GOP, anti-originalism is akin to apostasy. The legal challenge to the health care reform bill's mandate is based on an originalist view of the Commerce Clause. Originalism was the basis for the opinion (and Justice Stevens's dissent!) in District of Columbia v. Heller, one of the most important Second Amendment cases ever decided. For someone who's endorsing both gun rights and the challenge to the insurance mandate to also reject originalism is stunning.

Obviously, in addition to not being a history major, Rep. Wick is also not a constitutional law scholar. Perhaps he'll keep both of those facts in mind the next time he wants to pull a stunt like this.

I hate to say "I told you so," but...wait, no, I love it.

Me on Tuesday:

My reading of the statute (and I'm willing to bet the reading that the Ill.Sup.Ct. will adopt in the next day or two) is that being a legal resident of Chicago for the year prior to the election--which Rahm was--is all that's really required.

The Illinois Supreme Court today:

Yeah, what JR said.

Mountains of law school debt: totally worth it!

My prediction: Reversed and Rahmanded

The Illinois Supreme Court (as I expected) issued an emergency stay preventing Chicago from printing mayoral ballots without Rahm Emanuel's name on them, as a divided appellate panel ordered yesterday.

The law at issue reads:

Sec. 3.1‑10‑5. Qualifications; elective office. (a) A person is not eligible for an elective municipal office unless that person is a qualified elector of the municipality and has resided in the municipality at least one year next preceding the election or appointment;

The appellate majority held that the second prong was not met, and that Rahm does not qualify to run for office since, in their interpretation, he hasn't "resided" in Chicago even though he maintained his legal residence there and remains qualified to vote there (which, likewise, is based on a concept of residency).


I don't have anywhere near the experience of people like Rick Hasen when it comes to this little corner of the law, but campaign and elections law is one of my areas of focus (I'm currently the president--ironically appointed by executive fiat--of the Georgetown Election Law Society). And, for whatever it's worth I'm fairly sure that Rahm gets to run. I think the appellate majority misinterpreted the statute at issue. My reading of the statute (and I'm willing to bet the reading that the Ill.Sup.Ct. will adopt in the next day or two) is that being a legal resident of Chicago for the year prior to the election--which Rahm was--is all that's really required. 
If you want a better discussion than this of the case, check out Rick Hasen's article in Slate. Richard Winger has Rahm's brief here.

You don't see that everyday

Thanks to election law guru Rick Hasen, I got to see something pretty strange: a merits brief that cites The Bluebook as an authority.

Not improper or necessarily wrong (though I'm rooting for the other guys in that particular case), but certainly seems unusual.  I can't think of many other instances where an attorney has told the judge how to interpret the word "see" in an opinion.