July 2004
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Day July 14, 2004

Nothing constitutional is sacred…

….to Tom DeLay and the radical right. The Hill is reporting that Republicans are considering other tactics in the fight to ban gay marriage. The principal tactic being discussed is a “jurisdiction stripping” bill (sponsored by Indiana representative John Hostettler) which would bar Federal courts from even hearing lawsuits related to gay sex and marriage.

Tom DeLay is quoted as saying that he plans to use similar “jurisdiction stripping” legislation to achieve other socially conservative policy goals. Key goals seem to be barring courts from hearing cases relating to the Pledge of Allegience, and abortion, but one can easily surmise it doesn’t stop there.

I’ve seen articles saying this kind of maneuver is allowable, but I’m not so sure. It’s true that Article III only establishes the Supreme Court, and leaves lower court establishment up to Congress, but Article III Section 2 seems fairly clear on jurisdiction:

Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State; (See Note 10)–between Citizens of different States, –between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Hmmm…the judicial power extends to all cases arising under the Constitution and the laws of the United States. And the judicial power is exclusively vested in the Federal courts according to Article III Section 1.

Granted, I’m an amateur, but I read that as meaning that Congress can’t strip jurisdiction from the courts. Period. Congress certainly has the right to establish and regulate the number of Article III courts (Article III, section I, and Article I, Section 8, clause 9), but it can’t say that the courts don’t have the right to adjudicate a lawsuit arising under the Constitution or a law of the United States.

Justice Scalia has been a huge proponent of allowing controversial issues to be decided within the “political branches.” And he’s often right — some issues really should be deliberated by the country’s representatives. But that means that the losers have to abide by the results, and not try to tear down the rules in order to change the outcome. That’s not the rule of law, and it’s not what our country stands for.

What the hell are these guys thinking?

This must be posturing, in an effort to keep the radical right “base” believing that Congressional conservatives are working hard for their world-view.

I hope.

But it certainly seems like there is no depth to which the radical right isn’t willing to go in order to win. Apparently heterosexual marriage is sacred, but the Constitution isn’t. Well, I’ll tell you what. I’d be more likely to respect their views if they respect our Constitution and the rule of law.

Ken Lay’s remarkable ignorance

I must come from a strange industry (high tech) because I’ve never met a Chairman of the Board that knew so little about what the company was up to. But live and learn, because apparently in the energy business, the Chairman doesn’t really know how the company works financially.

Or so Ken Lay would have us believe.

Naturally, it takes a willing suspension of disbelief to swallow this. In fact, I’m betting anybody who’s been involved in a company at that level won’t buy it for a second.

Maybe Lay never saw any details. Maybe we won’t find anything in writing proving he knew about off-balance-sheet partnerships, or had knowledge of accounting practices.

But wouldn’t you imagine that a company founder would know a little bit more about what his own company was doing? Particularly when his own fortunes were riding on it? Particularly when he was still Chairman of the Board? Particularly when the board is usually involved in audits, audit standards, and audit results?

The best one can say is that if Lay didn’t know any of this as board Chairman, he was negligent in his duties as Chairman. More likely, however, he was an involved board Chairman, and all 11 charges of conspiracy, wire fraud, securities fraud, and false statements to banks are probably true.

Senate defeat of the Federal Marriage Amendment

Naturally, I’m very glad that the Senate vote to cut off debate failed. I’m even more glad to see that Republicans Olympia Snowe (Maine), John Sununu (NH), John McCain (AZ) and 3 others voted to block the amendment. This is receiving a lot of jubilant press today, with good reason.

But I can’t help thinking that we just did exactly what Frist and the Republicans wanted. Anybody who can count knew the amendment wasn’t going to get a supermajority, and might not even get a normal majority. Normally this would mean that an amendment might not even come up for a vote, which would have been preferable from the Democrat perspective.

The FMA came up for a vote anyway, and it’s not because the Republicans thought a miracle would happen. It’s because they can tar-and-feather everyone who voted against it from now until election day. Expect everyone who voted to block today to be painted as “an enemy of traditional marriage” or worse. We’ve seen what the Republicans are willing to say in the press and in campaign commercials, so I’m expecting it to be fairly ugly from here on out. Republicans have already said that the issue would come up in critical races and areas, to mobilize religious conservatives to turn out in record numbers.

We might have just walked into a trap — progressives couldn’t vote FOR the amendment, but voting to block it opens one to attack in the months ahead. And this may be the issue which motivates record turnout for Republicans. I’m just hoping that all the other issues — the economy, Iraq, and a record of rampant secrecy and lies — will motivate Democrats and independents to turn out in record numbers as well.