March 17, 2010 10:33AM

The Census Asks Too Much

Everyone in America, I presume, has just received a letter from the U.S. Census Bureau urging us to fill out our Census forms. Seems like a very expensive way to tell us to watch for the form to arrive in the mail. But I'm particularly interested in why they say we should promptly fill out the form:

Your response is important. Results from the 2010 Census will be used to help each community get its fair share of [federal] government funds for highways, schools, health facilities, and many other programs you and your neighbors need. Without a complete, accurate census, your community may not receive its fair share.

Obviously this is a zero-sum game. If my neighbors and I all fill out the form, then you and your neighbors will get less from the common federal trough. But at least we'll be getting our "fair share," as the letter tells us twice in three sentences.

But where does the government get the authority to ask me my race, my age, and whether I have a mortgage? In fact, the Constitution authorizes the federal government to make an "actual enumeration" of the people in order to apportion seats in the House of Representatives. That's all. Not to define and count us by race. Not to ask whether we're homeowners or renters. Just to ask how many people live here, so they can apportion congressional seats.

I'm not interested in getting taxpayers around the country to pay for roads and schools and "many other programs" in my community. All the government needs to know from me is how many people live in my house. And I will tell them.

More on the census and the Constitution here.

February 3, 2010 3:54PM

Criminalizing Politics

Steve Poizner, the California insurance commissioner who is seeking the Republican nomination for governor, created a stir this week by charging opponent Meg Whitman's campaign with attempting to coerce him out of the race. He said he had reported her campaign to state and federal law enforcement authorities.

What did Whitman actually do? Well, Poizner said that Whitman consultant Mike Murphy had contacted a Poizner staffer by phone and email to urge him to withdraw from the race. The email, released by Poizner, said: "I hate the idea of each of us spending $20 million beating on the other in the primary, only to have a badly damaged nominee. And we can spend $40 million tearing up Steve if we must; bad for him, bad for us, and a crazy waste to tear up a guy with great future statewide potential." In the email, Murphy went on to suggest that if Poizner dropped out of the race before the June 8 vote, Whitman and her team would immediately get behind him for a 2012 challenge to Sen. Dianne Feinstein.

Poizner says that's not only "strong-arm tactics" but possibly an illegal inducement to get him to withdraw. But isn't this really just politics as usual? Don't candidates as a matter of course say "support me this time, and I'll support you next time" or "run for a different office and I'll endorse you"? Presidential candidates, or their campaign managers, are often said to have promised the vice presidency to more than one rival to clear the field.

The point about spending $40 million of Republican money tearing up fellow Republicans is a pretty common complaint about party primaries. In fact, National Review correspondent John J. Miller raised just that concern about the Rick Perry-Kay Bailey Hutchison showdown in Texas.

Even during the Rod Blagojevich flap over "selling" a Senate seat, the always-provocative Jack Shafer and Jim Harper both asked, Isn't this what politicians do? They make deals -- including deals like "I'll support your campaign if you'll make my buddy (or me) a Cabinet secretary." No doubt the promises are often worthless, but they still get made. Blagojevich and Murphy have reminded pols all over the country that such deals are better made in person, not via email or telephone.

Politics ain't beanbag, Mr. Poizner. Accept the deal or reject it. But "let's clear the field and spend our money fighting the other party" is pretty standard politics. And a darn sight better than another standard political practice, using the taxpayers' money to bribe the voters to support you.

November 4, 2009 10:18AM

One Year Later

This morning, Politico's Arena asks:

"Election 09: What's the message?"

My response:

A note on NY 23, then to the larger message in yesterday's returns. Already this morning we're seeing an effort to spin the NY 23 outcome as a warning to Republicans and a hopeful sign for Democrats. Yet the striking thing about that outcome is how close a third-party candidate came in the face of opposition from the Republican establishment. And the ultimate outcome can doubtless be explained simply by absentee ballots, plus voters unaware of the last-minute developments in the race.

Thus, given those factors, the NY 23 outcome is perfectly consistent with returns in the rest of the country. (In fact, Conservative and Republican votes in that race total more than 50 percent.) And the message will not be lost on blue-dog Democrats. If the internal inconsistencies of ObamaCare did not trouble those Democrats before yesterday, they surely must now. The silence coming from the White House last night spoke volumes.

October 20, 2009 11:15AM

Department of Bias

The Department of Justice just invalidated a move by the residents of Kinston, North Carolina, to have non-partisan local elections. Rationale?

The Justice Department's ruling, which affects races for City Council and mayor, went so far as to say partisan elections are needed so that black voters can elect their "candidates of choice" - identified by the department as those who are Democrats and almost exclusively black.

The department ruled that white voters in Kinston will vote for blacks only if they are Democrats and that therefore the city cannot get rid of party affiliations for local elections because that would violate black voters' right to elect the candidates they want.

This, coming from the same Department of Justice officials that wouldn’t know a civil rights violation if it picked up a club and barred them access to a polling place.

July 15, 2009 2:43PM

Hate Crimes Bill Becomes an Amendment

Unsure about prospects on passing the Local Law Enforcement Hate Crimes Prevention Act as a stand-alone bill, proponents intend to attach it as an amendment to the Department of Defense Authorization bill. As I have said previously, this bill is an affront to federalism and counterproductive hater-aid.

Federal Criminal Law Power Grab

This legislation awards grants to jurisdictions for the purpose of combating hate crimes. It also creates a substantive federal crime of violent acts motivated by the "actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person."

This is a federalization of a huge number of intrastate crimes. It is hard to imagine a rape case where the sex of the victim is not an issue. The same goes for robbery - why grab a wallet from someone who can fight back on equal terms when you can pick a victim who is smaller and weaker than you are?

This would be different if this were a tweak to sentencing factors.

If this were a sentence enhancement on crimes motivated by racial animus - a practice sanctioned by the Supreme Court in Wisconsin v. Mitchell - then it would be less objectionable if there were independent federal jurisdiction.

Thing is, the federal government has already done this, with the exception of gender identity, with the Federal Sentencing Guidelines (scroll to page 334 at the link):

If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person, increase by 3 levels.

The contrast between a sentence enhancement and a substantive crime gives us an honest assessment of what Congress is doing - federalizing intrastate acts of violence.

If Congress were to pass a law prohibiting the use of a firearm or any object that has passed in interstate commerce to commit a violent crime, it would clearly be an unconstitutional abuse of the Commerce Clause.

Minus the hate crime window dressing, that is exactly what this law purports to do.

What this really amounts to is a power grab - giving the federal government power to try or re-try violent crimes that are purely intrastate. Just as the Supreme Court invalidated the Gun Free School Zones Act in United States v. Lopez because it asserted a general federal police power, this law should be resisted as a wholesale usurpation of the states' police powers.

The act also essentially overrules United States v. Morrison, where the Court overruled a federal civil remedy for intrastate gender-motivated violence. Forget a civil remedy; while we're re-writing the constitution through the Commerce Clause let's get a criminal penalty on the books.

Trials as Inquisitions

The hate crime bill will also turn trials into inquisitions. The focus of prosecution could be on whether you ever had a disagreement with someone of another "actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability." Worse yet, it can turn to whether you have any close friends in one of these categories, as demonstrated in the Ohio case State v. Wyant. The defendant denied that he was a racist, which led to the following exchange in cross-examination on the nature of the defendant's relationship with his black neighbor:

Q. And you lived next door . . . for nine years and you don't even know her first name?

A. No.

Q. Never had dinner with her?

A. No.

Q. Never gone out and had a beer with her?

A. No. . . .

Q. You don't associate with her, do you?

A. I talk with her when I can, whenever I see her out.

Q. All these black people that you have described that are your friends, I want you to give me one person, just one who was really a good friend of yours.

David Neiwert says that this won't happen because of a constitutional backstop in the legislation. Unfortunately, the House version of the bill explicitly endorses impeaching a defendant in exactly this manner:

In a prosecution for an offense under this section, evidence of expression or associations of the defendant may not be introduced as substantive evidence at trial, unless the evidence specifically relates to that offense. However, nothing in this section affects the rules of evidence governing impeachment of a witness.

Worse yet, the Senate version of the hate crime bill, the one which will likely become law after conference committee, does not contain this provision. Instead, it explicitly says:

Courts may consider relevant evidence of speech, beliefs, or expressive conduct to the extent that such evidence is offered to prove an element of a charged offense or is otherwise admissible under the Federal Rules of Evidence. Nothing in this Act is intended to affect the existing rules of evidence.

Anyone want to bet that an aggressive prosecutor could find that not having a close enough relationship with your neighbor counts as "expressive conduct" for the purposes of prosecution?

Future Push for More Federal Authority Over Intrastate Crimes

The hate crime bill also pushes a snowball down the mountain toward wholesale federalization of intrastate crime. In a few years this snowball will be an avalanche. By making any gender-motivated crime a hate crime, which will necessarily include nearly all rapes, we will define ordinary street crimes as hate crimes.

With a consistent average of 90,000 rapes a year, this expansion of hate crime definition will come back in a few years where those ignorant of the change in terms will wonder why hate crime is now rampant. "Rampant" only because we have made the relevant definition over-inclusive to the point of being meaningless.

And in a few years, we can revisit this issue with a fierce moral urgency to pass more feel-good legislation that upends state police powers in an effort to do something - anything - to confront this perceived crisis. A perception that Congress is creating in this legislation.

July 9, 2009 4:33PM

The Sotomayor Hearings

judgesotomayor

Nothing has changed in the six short weeks since Sonia Sotomayor was nominated to the Supreme Court: she remains a symbol of the racial politics she embraces. While we celebrate her story and professional achievements, we must realize that she -- an average federal judge with a passel of unimpressive decisions -- would not even be part of the conversation if she weren't a Hispanic woman.

As Americans increasingly call for the abolition of affirmative action, Sotomayor supports racial preferences. As poll after poll shows that Americans demand that judges apply the law as written, the "wise Latina" denies that this is ever an objective exercise and urges judges to view cases through ethnic and gender lenses.

At next week's hearings, Sotomayor will have to answer substantively for these and other controversial views -- and for outrageous rulings on employment discrimination, property rights, and the Second Amendment. To earn confirmation, she must satisfy the American people that, despite her speeches and writings, she plans to be a judge, not a post-modern ethnic activist. After all, a jurisprudence of empathy is the antithesis of the rule of law.

June 29, 2009 11:05AM

The Ricci Ruling: A Victory for Merit over Racial Politics

Ricci is a victory for merit over racial politics—which is appropriate given that the ruling overturns a lower court panel that included Sonia Sotomayor.

In the blockbuster decision we’d been awaiting all term, the Court reached the correct result: The government can’t make employment decisions based on race. While the city’s desire to get more blacks into leadership positions at the fire department is commendable, it cannot pursue this goal by denying promotions simply because those who earned them happen to have an inconvenient skin color.

This ruling is the latest in a series of steps the Court has taken to strike down race-conscious actions that violate individual rights—and thus is a blow both to the Obama administration (which sided with the city in Ricci) and to the nomination of Judge Sotomayor. Those who bring cases before the courts deserve much more than empathy or even “sympathy”—the word Justice Ginsburg uses in her dissent—they deserve equal treatment under the law.