Scalia the ranting old man

The New Neo Posted on by

In yesterday’s SCOTUS decision in Arizona v. US, something about Justice Scalia’s dissent seems to have outraged quite a few commentators, including law professor Paul Campos, who wrote a piece in Salon entitled “Antonin Scalia, Ranting Old Man.”

At 76, I’m not sure Scalia qualifies as definitively “old,” at least not in SCOTUS terms. And although he may not be climbing Mt. Everest, he seems to still have his wits about him. Not according to Campos, though:

Scalia, who 25 years ago had a certain gift for pointing out the blindness and hypocrisy of certain versions of limousine liberalism, has in his old age become an increasingly intolerant and intolerable blowhard: a pompous celebrant of his own virtue and rectitude, a purveyor of intemperate jeremiads against the degeneracy of the age, and now an author of hysterical diatribes against foreign invaders, who threaten all that is holy.

What is the passage Campos gives to illustrate this intolerant, pompous, intemperate, hysterical jeremiad against the foreign invaders threatening all that’s holy? This:

As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona’s estimated 400,000 illegal immigrants ”” including not just children but men and women under 30 ”” are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.

Now, a person may certainly validly disagree with those sentiments or with Scalia’s opinions in general. A person may think that such remarks have no place in a legal opinion written by a Supreme Court Justice. But it’s really really really difficult to see them as meeting Campos’s description of Scalia as ranting and hysterical.

Puzzled, I turned to look at Scalia’s entire dissent (which runs about 20 pages long, beginning at page 30), assuming I’d find a lot more there to justify the criticism of Scalia. But the only other passage I could found in a quick reading that could even remotely be considered to be intemperate editorializing on Scalia’s part was on page 48, when he calls Congress’s allocation of funds for federal enforcement of immigration laws “inadequate” (keeping in mind, though, that the administration itself has said it lacks the resources to enforce federal laws on the matter) and refers to Obama’s targeting of that funding as “unwise.” That last word—unwise, as applied to Obama—is probably the most incendiary passage in Scalia’s entire dissent, and it hardly qualifies as a dreadful rant, even for usually sedate SCOTUS justices.

Although Scalia has never been what you might call sedate, he’s hardly the raving and decrepit old bigot depicted by his critics, who are doing a fair amount of ranting and raving themselves. Perhaps it’s pre-Obamacare-ruling jitters.

Climb every mountain, ford every stream?

The New Neo Posted on by

Tamae Watanabe, 73, has become the oldest woman to climb Mt. Everest. According to the article, this should be an inspiration to us all.

My hat is off to Watanabe, but it makes me a bit weary. Now it’s not enough that as we age we are required to look younger, courtesy of cosmetic and plastic surgery and the relentless drive towards visual perfection. Now we are required to contemplate undertaking feats of athletic prowess that would shame the young.

I do exercise, and hope to keep doing so. It makes me feel better. But many of my activities have injured me, sometimes badly. Swimming—which is supposed to be so relatively innocuous—led to about twelve years of disability and severe chronic pain, as well as lifelong milder pain and limitations. Ballet is notorious for injury, and I sustained quite a few when I was dancing (including and especially a bad back).

Even the elite athlete runs into trouble at any age, but perhaps especially as he/she gets older. A swimmer featured in the article, Dara Torres, who at 45 is still swimming at an Olympic level, has had her share:

Torres has had multiple surgeries, including an innovative procedure after the 2008 Olympics on her left knee to regenerate cartilage. Before that, she couldn’t walk without a limp, and the muscles in her leg were atrophying.

Could it be that for most people, old-fashioned moderation is the key in this, as it is in so many other things?

[NOTE: Re the title of this post—boy, is this a static scene:

I much prefer this:

Mark Steyn eviscerates Obama the memoirist

The New Neo Posted on by

Steyn writes:

In an inspired line of argument, Ben Smith of the website BuzzFeed suggests that the controversy over “Dreams From My Father” is the fault of conservatives who have “taken the self-portrait at face value.” We are so unlettered and hicky that we think a memoir is about stuff that actually happened rather than a literary jeu d’esprit playing with nuances of notions of assumptions of preconceptions of concoctions of invented baloney. And so we regard the first member of the Invented-American community to make it to the White House as a kinda weird development rather than an encouraging sign of how a new post-racial, post-gender, post-modern America is moving beyond the old straitjackets of black and white, male and female, gay and straight, real and hallucinatory.

Read the whole thing.

Supreme Court rules on Arizona and immigration

The New Neo Posted on by

SCOTUS handed down a couple of big decisions, but not the one we were all talking about—that wily old SCOTUS.

It will take a while for everyone to chew and digest today’s decisions, which are only appetizers compared to the HCR ruling coming down the pike, perhaps on Thursday. But here’s my quick reaction to one of them.

The Court’s decision in Arizona v. US can be summarized as follows: the federal government is boss in immigration law. If the federal government wants to ignore its own federal immigration laws and refuse to enforce them, a state can’t pass its own laws that are more stringent than the federal ones on the books. But the state can ask those suspected of crimes to produce papers showing they are citizens, although that’s only allowed because the federal government already “requires immigration officials to respond to status checks from local authorities.”

Here’s an example of exactly how the reasoning works:

Although federal law already makes it illegal for someone to be in the country without proper authorization, Section 3 of the Arizona statute also makes it a state crime, subject to additional fines and possible imprisonment. The Court held that this provision was preempted and cannot be enforced. The Court held that Congress has left no room for states to regulate in this field, even to implement the federal prohibition.

Makes perfect sense if the federal government was making any sense—that is, if it was enforcing its own laws. But it’s not, so Arizona is more or less powerless.

Each side is claiming victory, although I see this as somewhat more of a victory for the Obama side. However, it’s an odd one, since it leaves the provision the Obama forces most objected to intact, and it also (if people understand what’s being said here) could easily lead a person to conclude that the only way to change this and make the government enforce its own laws would be to change administrations in November.

Of course, the overarching reality is that it has become an overwhelming and practically impossible task to effectively enforce our immigration laws—and that although it would be nice to get some sort of clarity, where our laws are in line with our policy, all suggestions to do so are pretty wildly unpopular to one faction or another, either because they are too Draconian or too lenient.

[ADDENDUM: Reports are that the federal government will just pretty much ignore what Arizona does anyway:

…[P]olice [in Arizona] can immediately begin calling to check immigration status ”” but federal officials are likely to reject most of those calls.

Federal officials said they’ll still perform the checks as required by law but will respond only when someone has a felony conviction on his or her record. Absent that, ICE will tell the local police to release the person.

As I wrote above, Arizona is powerless to make the feds enforce their own laws if the feds don’t want to. And they don’t want to.]

Waiting for SCOTUS: and by the way…

The New Neo Posted on by

…for what it’s worth, I’m made uneasy by all the assumptions that SCOTUS will declare the individual mandate unconstitutional when it issues its ruling.

Maybe it’s just my tendency towards brooding, but even though I don’t usually make predictions I’ll go on record here as saying my gut feeling is that the Court will not strike down the mandate. Why? Because the Court is exceedingly reluctant to invalidate a major act of Congress, even one passed with such shenanigans and unsupported by the American people, and so it would require a very high burden of certainty that it’s unconstitutional before declaring it so.

However, my gut feeling is that, if SCOTUS does declare the mandate unconstitutional, it will be a very narrow ruling and the Court will not rule that the entire Act is unconstitutional.

If that narrow ruling occurs, the question is what will happen next. If the Democrats still controlled Congress, they could just go back and change the mandate to a tax. Voila!

But they don’t, and so they won’t. My gut feeling (boy, despite belonging to a person who doesn’t like to prognosticate, my gut is pretty active today) is that they will just lay low and hope to change it after the 2012 election, when they might take control of the legislature again, particularly if they campaign on this issue. I don’t think they will actually succeed in taking control of the House in 2012, but they might figure that at least they’ll have a new banner around which to rally the troops for November (restore Obamacare!), plus another cause: re-electing Obama so that he can appoint a couple more SCOTUS justices and finally get a Court that will cooperate fully with the liberal agenda.

[NOTE: And then there’s always court-packing.]

[ADDENDUM: Former SCOTUS law clerks, as well as InTrade, disagree with me. And the Wall Street Journal describes four possible ways the Court could go.

And in this article about why liberal prognosticators originally pooh-poohed the constitutionality problem, when author Peter Baker writes of decades of Court precedent “affirming Congress’s authority to regulate interstate commerce,” that’s a euphemism. Those precedents have not merely affirmed Congress’s authority to regulate interstate commerce, they have expanded it beyond all recognition, beginning with Wickard v. Filburn in 1942, as I wrote in this PJ article.]

How can Obamacare be unconstitutional when it gets us all this nice stuff?

The New Neo Posted on by

Ten things you would miss if Obamacare were to be overruled by SCOTUS. So why would anyone but a meanie want to take away all that nice free coverage?

Take a look at the comments section. A significant number of the commenters don’t even seem to begin to understand that there are constitutional issues involved rather than mere spite. And the ones that do appear to get that basic fact don’t seem to understand that the constitution differentiates very clearly between the powers delegated to the federal government and the powers reserved to states.

And I don’t think that’s pretense, although I believe most of the pundits and politicians themselves understand that principle quite well and yet ignore it for strategic and demagogic reasons.

Sample illustrative comments at the article:

Why be against Obamacare? Most of what the right wants to do is wrong and only benefits the 1%.

The ONLY reason people are against this is because Obama created it. Romney already enacted forced health care in his state.

Seems pretty strange that so many people oppose this. But if you explain what the law actually does, they are for it.

I’m waiting for them to read me the part of the Constitution that says that you cannot mandate anything. Where were these people when President Obama signed the National Defense Authorization Act into law? Where were these people when President George W. Bush started a war without Congress’ concent?

Riddle me this! How can Americans approve of the provisions within a bill, and still be against the bill? We just can’t have nice things.

Because Fox tells them that the bill is bad, since they don’t think for themselves, it makes them think the bill is bad

People will die if the affortable care act is shot down and the SCOTUS will have blood on thier hands!

[ADDENDUM: From Ross Douthat:

Partisan about-faces are inevitable, but they’re arguably easier on constitutional matters. Change your mind on immigration, and your constituents may well revolt. Change your mind on whether a president has the power to do things on immigration policy that your constituents already support, though, and only your partisan critics and the occasional law professor will care.

This is why it’s so remarkable that our constitutional order has lasted so long, given the perpetual incentive ”” common to both parties, and all three branches of government ”” to abandon its safeguards in order to push a particular agenda.

Today those incentives are strongest for Democrats ”” visible in their support for Obama’s more dubiously constitutional forays, and also in the widespread liberal attempt to explain his struggles by casting him as a Gulliver tied down by an antiquated system of government.

Conservative pundits have noted that similar explanations were proferred to explain the failures of Jimmy Carter. That in and of itself isn’t proof that they’re wrong. But it suggests the possibility that some of the ways this president has been baffled, legislatively and perhaps soon in the courts, reflect the genius of our constitutional system rather than its failings. It’s a system that often lacks principled defenders, but that’s designed to defend itself.

Unlike Douthat, I do not think the tendency to reverse or abandon constitutional principles is equally prevalent in both parties. I think the right is more consistent in sticking to its principles even if it makes it hard to achieve the desired outcome on a particular issue. But only somewhat more consistent, and only a certain portion of the right.]

Sandusky convicted

The New Neo Posted on by

No surprise there—Sandusky seems very, very guilty, and will probably spend the remainder of his life behind bars.

This is not the end of the legal ramifications, though; civil suits will almost undoubtedly follow. There are a lot of sad things about this case, but perhaps the saddest is that, despite so much smoke, the fire was allowed to burn for so very long.

Republicans fear Obama’s eloquence? Excuse me?

The New Neo Posted on by

Sometimes I wonder where Peggy Noonan has been for the past few years.

Back when she was Reagan’s speechwriter, she seemed to have her finger on the pulse of something. But “out-of-touch” is too mild a term to describe this:

An odd fact: Republicans more than others, amazingly, have internalized and hold to the idea that this president has some secret magical powers he’s just waiting to unleash. Those powers normally go by the name “eloquence.” But the eloquence was always exaggerated, and to the extent it existed, there’s no sign it’s about to kick in.

I don’t know which Republicans Noonan hangs out with (David Brooks, admirer of the perfectly creased pant? Christopher Buckley?). Actually, I don’t ordinarily hang out with a whole lot of Republicans myself—except on this blog and other spots in the blogosphere. But I have yet to meet one or read of one or hear from one who meets Noonan’s description.

It is Democrats who have internalized that idea, and who aren’t fearing but rather hoping that Obama’s glorious rhetorical powers kick in, just in time to wow the electorate once again.

The only other explanation I can think of for Noonan’s bizarre statement is that she’s been keeping company with too many pundits, wordsmiths, and speechwriters—Democrats and Republicans—who overestimated both Obama’s eloquence (never really in evidence) and the power of eloquence itself without action to go with it. Perhaps she even overestimates her own power, lo these many long years.

Reagan was a good speech-maker, and Noonan assisted him in writing some bang-up speeches. But if that had been all he did, he would have lost his bid for re-election to a second term. Talk—even talk that’s truly eloquent—only goes so far.