Supreme Court Invalidates Section 4 of the Voting Rights Act

Earlier today, the Supreme Court invalidated part of the Voting Rights Act (VRA). Congress renewed the law in 2006, and according to the Supreme Court, used formulas for determining the ratio of minority voter turnout that were outdated by at least 40 years. The decision, while not invalidating the entire VRA, raises serious doubts as to its continued viability.

In the decision, Chief Justice Roberts noted that Sections 4 and 5 (formulas for determining appropriateness of voter laws and federal pre-clearance, respectively) were intended as temporary measures. Not only were the Sections designed as temporary measures, the Court further noted that they were intended to work together. Thus, as Justice Thomas points out in his concurrence, Section 5 no longer has a leg upon which to stand.

Just how this decision impacts voter laws in the south remains to be seen. But for now, the Federal Government has lost its justification to continue enforcing Section 5 of the VRA.

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Kent’s Early View on the First Amendment’s Religion Clause

As I was perusing my copy of Kent’s Commentaries on American Law (12th Ed., O.W. Holmes, Jr.), I came across the following statement in the context of his discussion of the First Amendment:

The free exercise and enjoyment of religious profession and worship may be considered as one of the absolute rights of individuals, recognized in our American constitutions, and secured to them by law. Civil and religious liberty generally go hand in hand, and the suppression of either of them, for any length of time, will terminate the existence of the other.

…It appears from those illustrious examples [Kent has just finished delineating the religious histories of most/all of the original colonies] that various portions of this country became, even in its infant state, distinguished asylums for the enjoyment of the principles of civil and religious liberty, by the persecuted votaries of those principles from every part of Europe.

2 Kent’s Commentaries *34-34, 37 (emphasis original)

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“Pursuit of Happiness”

Ever wonder the source for the phrase “the pursuit of happiness” in the Declaration of Independence? Just for context, the Founders stated in the Declaration that “We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”

The first two unalienable rights come from John Locke and his Second Treatise on Government. “[T]hough men when they enter into society give up the equality, liberty, and executive power they had in the state of Nature in the hands of the society… yet it being only with an intention in every one the better to preserve himself, his liberty and property…” Second Treatise at ¶ 131.

Obviously, Locke’s list does not contain the phrase “Pursuit of Happiness” or anything like it. Instead, you can find this phrase in Sir William Blackstone’s Commentaries on the Laws of England, Volume I. “For [the Creator] has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter.” In consequence of which mutual connection of justice and human felicity [happiness], He has not perplexed the law of nature with a multitude of abstracted rules and precepts, referring merely to the fitness or unfitness of things, as some have vainly surmised; but has graciously reduced the rule of obedience to this one paternal precept, ‘that man should pursue his own happiness.’ This is the foundation of what we call ethics, or natural law.” 1 Blackstone’s Commentaries § 2, pp. 40-41.

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Sex Discrimination and the 14th Amendment

This is an excellent response to Calabresi and Rickert by Josh Blackman. He effectively demonstrates the context of the 14th Amendment. Overall, a great read.

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Always Make Sure to Comply With A Judge’s Order

The prosecution in the Jerry Sandusky criminal case has accused the defense of failing to comply with the Judge’s order relating to subpoenas. The Judge designed his order to keep the identities of Mr. Sandusky’s victims confidential, and the prosecution alleges that the defense is using the subpoenas to get around the gag order, revealing the names of the victims.

Assuming the best case scenario if the allegations are true, this may represent a situation where the defense simply did not exercise the necessary caution to comply with the Judge’s order through the entire subpoena. Small things like failing to exercise the necessary caution when drafting a subpoena can have lasting consequences in a trial. It will require more work, as Mr. Sandusky’s attorney is finding out, responding to the prosecution’s motion, it demonstrates a lack of concern for the court’s order, and may even create a negative impression about the attorney in the eyes of the potential jury pool.

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Faulty Premises

In an example of both bad logic and a faulty premise, Bill Maher tries to distinguishes his demeaning of Sarah Palin from Rush Limbaugh’s demeaning of Sandra Fluke. First, I shall assume that Mr. Maher is unaware of the operational definition of a “public figure.” A public figure is one that injects himself or herself into the public discourse. It is true that Sarah Palin injected herself into the public discourse nearly four years ago. But it is equally true that Ms. fluke injected herself into the public discourse by choosing to testify before a Congressional hearing, complaining about her Catholic school’s refusal to support her admittedly promiscuous lifestyle. Oops, sorry, about the Catholic school’s unwillingness to pay for her contraceptives.

Second, there is no equivalency between Mr. Maher’s profane description of Ms. Palin and Mr. Limbaugh’s tamer, though equally repugnant, description of Ms. Fluke. Mr. Limbaugh’s used words that can be repeated, if anyone should so choose, while Mr. Maher used an expletive to describe Ms. Palin. By his own admission, as well, his expletive was “carefully planned,” while Mr. Limbaugh’s comment was, more or less, off the cuff. Mr. Maher planned to refer to Ms. Palin by an expletive, and did so to draw out a favorable reaction from his audience, while Mr. Limbaugh used a poor, and ill-advised, combination of words. Let me ask you, which is the more offensive to women, an off the cuff remark based on Ms. Fluke’s own testimony, or an uncalled for, unwarranted and highly planned expletive?

Both Mr. Limbaugh and Mr. Maher made their comments to the public (in the sense that the statements were knowingly made to groups of people), so Mr. Maher’s logic is flawed when he justifies his statements stating that his remarks were different because Mr. Limbaugh had a larger audience.

Mr. Maher’s logic cannot stand. His premises are faulty, but such flawed reasoning is commonplace when a person knows he stands at the loosing end of a proposition. Take Mr. Maher’s reasoning as a lesson. When your opponent starts making “equivalency” arguments, you have beaten him.

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Importance of Quality Legal Writing

A lawyer in New York was suspended, in part, for poor quality briefs. Remember, writing is the principle way through which attorneys communicate with the court.

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Why You Proofread In Every Situation

On college basketball’s largest stage, there was one glaring error that could have been easily prevented with just one little proofread. Apparently, next year’s Final Four will be in “Alanta” Georgia.

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Hasboro v. Asus: The Transformer Wars

Rarely does a court have an opportunity to be creative and take full advantage of such an opportunity. The court in the above referenced case did not disappoint. For more on the toy v. computer battle, read here.

Thanks, and kudos, to our friends over at Gizmodo for posting this one.

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Contraception Mandate & Religion Liberty Pt. II; The State, The Church, and The Citizen

“A law targeting religious beliefs as such is never permissible.”

Religious freedom is as much an integral ingredient in American law and society as sand is an integral ingredient in glass. This country was founded upon the freedom of conscience and the principle that the government would never dictate the exercise of conscience. During the eras the Pilgrims emigrated from England and the Constitution’s ratification, it was commonplace for governments to dictate a church’s beliefs and governance. It was equally commonplace for governments to compel their citizenries’ adherence to that particular church’s beliefs. In some instances, the roles were reversed: a church dictated a government’s positions and actions. Because of this relationship, the state, either as an instrument of the church or as the church’s ultimate secular authority, dictated specific, non-optional religious beliefs to its citizenry. It was against this backdrop that our founding fathers drafted the First Amendment to the Constitution, guaranteeing that the government would neither dictate what a church or citizen would believe nor interfere with the free exercise of religion.

I witnessed a particularly troubling exchange on a local public television program between a conservative and a liberal. At the heart of this exchange was the proposition that the conservative should not interpose upon the liberal the conservative’s religious belief as to when life begins. The liberal stated that certain rabbis, contrary to the conservative within her faith believe that life does not begin until 30 days after birth. While we could quibble about whether the liberal accurately represented Jewish sources or whether her position is contrary to the Scriptures to which those rabbis adhere, these points are tertiary to the whole Contraception Mandate debate. First, no conservative or Catholic I know wishes to interpose his or her religion on society. Rather, it is the Obama Administration seeking to abrogate the protected sphere of a church’s influence upon its own, voluntary members. Second, whether the definition of life is a religious belief depends on the definition of religion. Our Founding Fathers believed that a religious belief is “the duty which [we believe] we owe to the Creator, and the manner of discharging it.” With this definition, the time at which life begins is not a religious issue. It would be more likely a matter of empirical or scientific debate than a religious issue.

The liberal’s propositions are in line with the rest of the progressive, leftist movement in this country. The leftist movement, with its roots in Marxism abhors religion. Religion, to quote Marx, “ist das Opium des Volkes;” only those poor, oppressed minds who have no compassion for others cling to their religious beliefs. And to cling to a religious belief, in the eyes of the left, is to interpose it upon others. Since religion is the duty which we owe to our Creator, religion is nothing more (and certainly nothing less) than how we approach the world. If religion is how we approach the world, there is no neutral ground. If there is no neutral ground, then the proposition put forth by the left is equally a religious view. In such a case, we must accept one “religious view” or the other.

Regardless of your religious persuasion, that which is in a pregnant woman’s womb, if allowed to develop through to birth, will become a living person outside of the womb. It is perfectly logical to presume, from the ultimate result, that what is inside the pregnant woman’s womb represents either a life or potential life. If you believe in the truths espoused in our founding documents, whether we are talking about a life or a potential life, it deserves the protection of the government. After all, our country was founded upon the principle that “all men are created equal and are endowed by their Creator with certain unalienable rights, that among these, the right to life…”

This aside, the Contraception Mandate, as promulgated, is not religiously neutral. Its impact falls only upon those with religious objections to providing contraception coverage, and on no others. If you doubt this proposition, read Judge Ronald Leighton’s Opinion in Stormans Incorporated v. Mary Selecky—and specifically the sections leading up to the legal discussion. The facts are quit interesting and recount how Planned Parenthood and the State of Washington specifically intended to eliminate pharmacists’ religious objections to dispensing contraceptives, Plan-B, and other abortifacients. Particularly troubling is the statement that Planned Parenthood is “pushing for national or state legislation” to eliminate religious objections to contraception, Plan-B, and other abortifacients. Knowing the current administration’s adherence to Planned Parenthood’s tenants, is the Contraception Mandate any surprise?

Just as the Patient Protection and Affordable Care Act (“Obamacare”) is intended to change the relationship of the citizen to the government, so also the Contraception Mandate is intended to change the relationship between the state, the church, and the citizen. Before the Contraception Mandate, the citizen could look to the church for guidance on what is right and wrong without state interference. After Contraception Mandate, the state interjected itself between the church and the citizen as the final arbiter of right and wrong. Using the threat of regulatory penalties as a heavy sword, the state has now told the citizen, and the church, that the church’s validly held religious belief—that one should not destroy life or encourage promiscuity—is wrong and must be changed. Further, the state has informed the church that the church will literally pay for the state’s opinion of correct behavior.

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