On Tuesday, we will see the first step in the effort to pass Senate Bill 1 (S1), the Marriage Equality and Religious Exemption Act. It promises to be an exciting hearing. Our friends at Garden State Equality will be there, and I’m sure the proponents of marriage discrimination will be also.
America was founded on principles of individual rights, and it’s appropriate that the marriage equality bill is the first piece of legislation to be considered in this session. That’s not to say that jobs, health care, and education are not critical. But individual rights are the bedrock of our society, and should never take a back seat to the other important issues.
Despite the Constitutional guarantees, there are still people who, as Steven Goldstein of GSE puts it, demand “special rights” of heterosexual marriage. It’s important that we understand and counter their arguments so that we help tip the balance in the legislature toward the side of marriage equality.
One of the best things I ever heard my old rocket scientist boss Rush Holt say was that he longed for a Congress that made decisions based on evidence rather than ideology. That goes to the dead center of my interest in him. I want more people in decisive positions who think harder, and with less limitation. Like scientists do. And I want fewer who come to Congress - guns blazing, as it were - determined to remake the rest of us in some image of their own.
Today Holt spoke on the House floor to oppose H.R. 822, the National Right-to-Carry Reciprocity Act of 2011, which overrides more sensible gun control laws by allowing anyone who who possesses a concealed carry permit in any state to carry their weapon across state lines. There are 245 sponsors. Yes, some of them are Dems, but none of ours. Garrett and LoBiondo are co-sponsors.
What the bill means in essence is that the standards would be lowered in states with strict requirements for gun permits, as all states would have to accept permits from states with lax standards. It essentially nationalizes the weakest requirements. If your aim is to make sure only very well-qualified people can carry a concealed weapon, this bill does the opposite. From a safety standard, it's just bad policy. But the interpretation of the Second Amendment that many conservatives cleave to, as they imagine themselves a well regulated militia, is deeply ingrained in so many, the lone man takin' care of business. Ideological.
Frank Lautenberg joined Rep. Carolyn McCarthy, whose family life was defined by an act of gun violence, wrote Pres. Obama last week urging him to issue a veto threat to this legislation. Obama's not yet weighed in.
Turn on C-SPAN and you can watch the vote, with pending amendments, now. This sucker will surely pass the House tonight. But while we're waiting, here's Rush Holt on the irony of the very people who hold states' rights so dear taking the bite out of states' decisions on their own gun requirements, a shootout between the 2nd & 10th Amendments.
Quote of the Day today, from Rush Holt, and stolen from my facebook Home page:
Because students know that I'm a scientist, they sometimes ask what I think is man's greatest invention. I always give the same answer: the U.S. Constitution. It was not a perfect document when it was written but it created a brilliantly self-correcting system of self-government that has adapted and thrived. On this Constitution Day I encourage you to read it again, as I do often.
Today's the 91st anniversary of the passage of the 19th Amendment to the Constitution, giving women the right to vote. In 1971, the first boss I ever had (later) - Rep. Bella Abzug - got Congress to designate August 26 as Women's Equality Day. Real equality is of course a function of the opportunities and well-being of masses of women. We're not there - in Jersey, or the world. But a few women deserve mention today.
What would happen if a left leaning group forced all Democrats to sign a pledge to push for marriage equality, single payer healthcare like "Medicare for all", a tax rate of 60% on all income over $2,000,000 or free pre-school education for anyone anywhere? And what would happen if that group ran primaries against every single Democrat whose agenda wasn't precisely in line with that pledge - regardless of what the political climate was, what their constituents wanted or more important, ran against the United States (or State) Constitution that they swore to support and defend?
Well, this is precisely what the Republican Party is doing with Grover Norquist and his "tax pledge". Here in New Jersey, every single Republican member of Congress (and one Democrat) has signed this pledge - regardless of the fact that tax cuts for the wealthy don't create jobs and kill the economy. At a time when faux "patriotism™" has taken over the right wing, it is simply amazing that all but seven Republican Representatives and all but seven Republican Senators have publically pledged allegiance and sworn their loyalty to a special interest group whose purpose has been proven time and time again to hurt America and stifle the economy.
If the House has not received a message from the Senate before April 6, 2011, stating that it has passed a measure providing for the appropriations for the departments and agencies of the Government for the remainder of fiscal year 2011, the provisions of H.R. 1, as passed by the House on February 19, 2011, are hereby enacted into law.
Yes, if the Senate fails to vote for a bill that means it becomes law! Congratulations Tea Party "Constitutionalists," you have hit the jackpot with your Representatives.
I'd like to think Rodney Frelinghuysen failed to vote because he being visited by his outraged ghost ancestors but there's probably another reason.
Edited by huntsu to include a basic lesson in the Constitution and how laws are made in the federal government of the United States of America. New Jersey's GOP Congresscritters should take a little lesson and maybe reconsider how beholden they are to the "original intent" morons on the right.
What this bill says is it reiterates again the deadline, and that the Senate should act before the deadline, and that's what the American people are expecting. The bill then says if the Senate does not act, then H.R. 1 would be the law of the land.
Getting rid of the Senate and the President certainly makes passing laws easier. I look forward to seeing how many New Jersey Republicans vote for this bill.
As if you know if you read the national progressive blogs, the Obama Justice Department has defended DOMA in federal courts over the last two years, sometimes making incredibly awful statements cut-and-pasted from Bush arguments, despite candidate Obama's statements that he thought it should be repealed. The official statement gives a long lawyerly reason why they now in the "Second Circuit" are suddenly free to instead follow the President's new instructions:
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases.
To remind you, Section 3 is the part that declares that the Federal Government will not recognize same-sex marriages (or civil unions.) If the courts toss out this section, Obama would be free to recognize state civil unions and marriages: I'm no lawyer but this could affect discrimination laws, Social Security, health benefits, taxes, etc., etc. This would make an enormous positive difference to our New Jersey same-sex couples... if Section 3 is ruled unconstitutional by the Supreme Court. There will never be Marriage Equality without Federal government recognition.
What about Section 2? That's the part that allows states not recognize same-sex marriages from other jurisdictions. I understand New Jersey does recognize such marriages -- albeit within the New Jersey system of civil unions -- but of course if you're moving from here to most other states you'd still be lost. Even if Section 2 were thrown out, it'd be an uncertain path to get your marriage recognized in (say) Nevada even though my Vegas wedding never creates any problems for me outside of Elvis jokes.
I'd also like to say that whatever lawyerly justifications were used, I think this new stance is a side effect of losing the House. When Democrats controlled Congress it was very awkward to argue in favor of a policy that fellow Democrats in Congress were running away from, if not actively opposing. [Update: My lawyer friends tell me that in fact their legal reasoning is quite sound, and the other circuit panels with binding precedents could not have used this argument.]
Those of you who are more knowledgeable should correct me in comments, or better yet write additional posts.
We posted earlier that Rep. Frank Pallone was interrupted as he read aloud part of the Constitution this morning on the House floor. Capitol Police arrested 48-year-old Theresa Cao of New York; she was charged with unlawful conduct, disruption of Congress, was processed and released.
Via Dave Weigel at Slate, we find out Cao is a pretty well-knows birther activist and supporter of Lt. Col. Terry Lakin, an Army doctor who was court-martialed for refusing to deploy to Afghanistan because he doubts President Obama's legitimacy.
Here's the lady's blog, Got Heaven's Bailout?, which looks like a lot of mosque-destroying, Saul Alinsky-hating, anti-Muslim religious mumbo-jumbo to me. She was yelling about Jesus when she was remove from the Gallery. And, via AP, here's Cao's disruption of Pallone's Constitution section (FYI - Pallone told TPM the section readings were assigned on a first come, first serve basis):
Turn on C-SPAN (live feed link). This is a reading of the US Constitution, uh ... well, the current Constitution, by the House GOP, which invited Democrats to join with them in reading aloud one of our founding documents. Clearly, they anticipated Democratic disinterest, given that this is an obvious pander to corral the Tea Party, which assumes none of the rest of us have a clue about the Constitution.
But in fact, this morning the Consitution reading was a bi-partisan affair.
But some of the GOPers, flush with new power, can't seem to rein in the disrespect for duly-elected Members of Congress from the other party. During Rep. Frank Pallone's reading, some asshat shouted:
Get Obama Out!
Also, during a reciting of the requirement that Presidents must be natural-born citizens, another jackwagon yelled out:
Not Obama!
I don't know if visitors in the Gallery or newly-elected Members did the yelling, because I'm listen-only. Anyone have any info?
Scott Garrett has always been on the leading edge of crazy, but his crusade as a "tenther" and his consistent voting against funding most federal agencies and programs is one that he is pushing to a growing audience who is receptive to taking a selectively literal interpretation of the Constitution.
As Herb Jackson noted today, Garrett has big plans with his newfound power and initiative, although the ironic thing here is that in pushing his new Constitution "rules", he neglects the very document he is clinging to.
For starters, Garrett and his fellow "tenthers" like to say that anything not specifically outlined in the Constitution as provided to the federal government is therefore not something that the federal government can impose, since it is then left to the states. However, Garrett and his ilk conveniently and selectively leave out the very important remainder of the amendment: "or the people":
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Garrett is using a selective reading of the tenth amendment to speak out and to vote against such horrors as federal funding for education, clean drinking water and other threats to our country. Not to mention the fact that the Preamble's "promote the general welfare" clause as well as the commerce clause under Article I have both been used successfully (and beaten back challenges) to do exactly what Garrett is falsely claiming as "unconstitutional".
"It has been determined that the qualifications and election of a Member of the United States Senate is a matter of exclusive jurisdiction of federal authority and that neither the United States Constitution nor federal statute provide for a recall proceeding for a federally-elected official.
Therefore, in my capacity as the Chief Election Official of the State of New Jersey, I hereby determine that neither the Notice of Intention to Recall nor the proposed Petition can be accepted for filing or review."
In The Lobby points to New Jersey State 19:27A-2 Power to recall elected officials which specifically states that a Senator or Representative can be recalled. (Though, as I said, the numbers required are too high to succeed.) In The Lobby is partly mistaken -- they think Title 19 is part of the Constitution passed by voters, but it is actually a law passed by the legislature -- but it hardly matters. It sounds like the recall attempt should have been allowed -- though not only do they need 1.3 million signatures, but 19:27A-6 says every copy of the petition will need a statement of how much the election will cost up front for voters to read, so I even more skeptical of success, though they do have 320 days to collect signatures.
Why, then, is it widely believed that despite this state law, a Senator cannot be recalled? That's due to a 1967 federal court case where a judge ruled that a right-wing activist could not try to recall Senator Frank Church over his opposition to the Vietnam War. (Yeah, the more things change, the more things stay the same.) The New York Times described the ruling on October 1, 1967 (page 47):
United State District Judge Alfred C. Hagen has ruled that a United State Senator "cannot be recalled by the people of the state from which he was elected."...
The judge said a state recall of a Senator would violate the portion of the Federal Constitution, which says of Congress that "each house shall be the judge ofthe elections, returns and qualifiications of its members."
The ruling did not go to the U.S. Supreme Court but Lousiana's Attorney General recently rejected a recall drive (for a Republican) on the same grounds. Certainly the activists can hope for different rulings in the courts, perhaps even taking it all the way to the Supreme Court, but the Secretary of State seems to have had a valid reason to reject the petition drive.
Now does this mean that it's impossible to remove a corrupt Senator from office, as I have seen some bloggers rant around the Internet? No. The Constitution's Article I, Section 5 states that "Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member." Members of Congress have been expelled but not one has even been recalled.
So, all the Tea Party activists have to do is convince every Republican in the Senate plus nearly half of the Democrats that Menendez deserves to be kicked out. Well, it's about as likely as getting 1.3 million people to sign a petition saying they want to spend millions of dollars on a special election.
The bottom line is that this is an example of a constitutional controversy: New Jersey state law unambiguously says a Senator may be impeached, but the federal courts have ruled that states do not have that power.
These days, Assembly Republicans don't do much besides put out press releases, praying someone will take notice. Sometimes, this results in them forgetting key provisions of the NJ Constitution, which they're theoretically sworn to uphold. In this respect, Caroline Casagrande has really outdone herself.
In a release criticizing a Democratic bill setting out some of the requirements for the new office of Lt. Governor, Casagrande had this to say:
"The failure to stipulate that lobbying the lieutenant governor must be reported just as lobbying the governor, along with a provision for recalling the officeholder are conspicuous by their absence," said Casagrande, R-Monmouth and Mercer. "It is also troubling that there is no mention about conflicts of interest or a clause discussing the succession of powers."
She then took a different complaint on NJN:
Casagrande's complaints are easily summarized: there's no provision to recall the Lt. Gov, there's nothing dicussing the succession of powers involving the Lt. Gov, and there's no residency requirement for the Lt. Gov. The problem? All of these are already included in the Constitution; it's not necessary to include them in statute. Quick, to the NJ Constitution!
Recall provision?
Article I, 2b. The people reserve the right unto themselves the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress.
Check. Succession of powers?
Article V, Section 1, 6 In the event of a vacancy in the office of Governor resulting from the death, resignation or removal of a Governor in office, or the death of a Governor-elect, or from any other cause, the Lieutenant Governor shall become Governor until a new Governor is elected and qualifies.
Check. Residency Requirement?
Article V, Section 1, 2 ...A person shall be eligible for the office of Lieutenant Governor only if eligible under this Constitution for the office of Governor
And that includes the residency requirement. Check.
Caroline, I know your party's getting desperate these days, come on! This is getting embarassing.
Last week, we learned that former US Attorney and Republican Gubernatorial candidate Chris Christie oversaw a vast warrantless monitoring program to track in real time dozens of Americans' cell phones. In the past few days, Christie has come under attack from both the left and right on this important privacy issue. Christie has defended himself against these attacks by claiming that warrantless monitoring is "lawful." This assertion, which has gone largely unchallenged by the media, is incorrect. Indeed, warrantless monitoring cannot be lawful, because violates the Fourth Amendment prohibition on unreasonable searches.
Christie and other government officials who claim that warrantless cell phone monitoring program is "lawful" rely on two statutes to support this assertion. Both the Pen Register Act and the Stored Communications Act establish a standard less demanding than "probable cause" for the state to obtain a court order forcing cell phone companies, ISPs, and other entities to give up electronic records. Both of these acts were intended to extend privacy protections to certain communications that were previously completely unprotected by affording them some measure of protection. US Attorney Christie, however, blatantly disregarded Congress's intent, interpreting the acts as expanding, rather than limiting law enforcement surveillance powers.
While his disregard for the legislative intent of the two acts weakens Christie's position, his interpretation of the federal law ultimately fails because it runs afoul of the highest law in the land, namely the United States Constitution. There is a principle in constitutional law, called the Avoidance Canon, that states that given two reasonable constructions of a statute, if one conflicts with the Constitution and the other does not, the one that conflicts with the Constitution is always incorrect. Christie's overzealous reading of federal statutes is therefore not valid, and his claim that warrantless monitoring is "lawful" is false.
While neither the Supreme Court nor any US Circuit Court has yet ruled on warrantless cell phone tracking, a majority of federal district court judges who have considered the issue have found such searches to be unconstitutional. The judges who did rule in favor of the government endorsed only the least precise and invasive methods of tracking. While US Attorney, Christie used the most precise and invasive technology available-GPS tracking that can pinpoint the location of a cell phone to within 20 feet. The US Attorney's office continued their warrantless monitoring program even though it could be effectively thrown out when the Third Circuit Court of Appeals (which covers New Jersey) rules on a pending case (an Electronic Frontier Foundation amicus brief on the case can be found here).
Below the fold, I present the most compelling Consitutional argument against warrantless cell phone tracking. I contend that tracking the precise (to within 20 feet) location of a cell phone without a warrant is, in general, an unreasonable search, and thus a violation of the Fourth Amendment.
Blue Jersey readers who are interested in preserving privacy and free speech and promoting innovation in new media should visit the Electronic Frontier Foundation's website. Despite being less than 20 years old, the EFF has become the preeminent advocacy group for civil liberties online. The EFF is, in a sense, the ACLU of the 21st century.
The basic question is this: Is a Constitution meant to hold a special place in society and in law; or is it just another scrap of paper to be blown here and there by the winds of public opinion?
If it is the former; then the amending of that document should be approached with some amount of gravity. It should not be that, when some mundane problem rears its head, the cry of "Amend the Constitution!" is the first resort of our lawmakers. In fact, I would say that it has been the first resort of scoundrels and scalawags of all stripes - to ban flag desecration, to define marriage, to force public school children to participate in prayers... When unable to impose their will through the normal political process, the reactionary forces have tried to game the political system to cut short debate. In such efforts, an amendment is simply an attempt to run an end-around the usual political procedures.
A Constitution's "nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves." Such was the view of Chief Justice John Marshall, in the case of McCullough v. Maryland, and only a few lines before he reminded the Court and the people before it that "it is a Constitution we are expounding." Constitutions work best when they spell out rights and responsibilities in broad terms and leave the details to the realm of normal law (and, of course, the Court must stand ready to hold the meaning of the Constitution in such an arrangement).
Why all of this Constitution 101 discussion? Because, yet again, a member of the New Jersey legislature wants to amend the Constitution to fund his pet project. I'll discuss after the jump.
Taegan Goddard is interpreting the latest Qpoll of the presidential race to say "Bloomberg Could Be Spoiler in New Jersey." Quinnipiac says he's spoiling a Giuliani victory, based off prior polls and that he takes more votes from his predecessor than Hillary Clinton.
The poll shows Bloomberg capturing 18% of Republicans, 12% of Democrats, and 26% of Independents. But as more people take a closer look at this recovering Republican, whose share of the vote will he take?
A good determination can be made by looking at what else the QPoll found out about New Jersey voters and Bloomberg.
At 28%, his "Haven't heard enough" rating is much higher than Clinton and Giuliani's 6% each. For each party, 22% of Republicans, 28% of Democrats, and 29% of Independents need to know more about him.
Of those who currently have an opinion, Bloomberg's highest unfavorable ratings come from New Jersey Republicans (19% of Democrats, 18% of Independents, and 24% of Republicans).
A week ago, the New York Times' Patrick Healy laid out the rationale of a Bloomberg candidacy:
Rather than try to win the White House outright - a long shot - an independent candidate could instead try for a king-making (or queen-making) bloc of votes in the Electoral College.
This is assuming Bloomberg siphons off votes from both parties' candidates leaving him to decide which one gets his electors. As voters learn more -- with more Democrats attracted and more Republicans spurned -- this idea might go out the window.
But the very fact that Bloomberg could attempt such a ploy is just another reason why New Jersey and other states need to pass National Popular Vote legislation.
On Thursday, I wrote about Assemblyman Michael Patrick Carroll's remark to PoliticsNJ on the National Popular Vote legislation currently before the state legislature. He responded with some more thoughts on that soundbyte and other reasons for his opposition over at his blog.
Carroll argues that while the Electoral College is not perfect, it is preferable to the popular vote alternative. I disagree.
If you're interested in diverging points of view on this legislation, please read more below the fold.
Assemblyman Michael Patrick Carroll, via PoliticsNJ:
The President of the United States is the President of the United States, not the president of the people of the United States. The point is, the states mean something.
I get what you're saying, Assemblyman, but I still disagree.
If it's the will of the states that interests you more than that of the people, think about this: the majority of our states are overlooked under this broken system. Both parties' resources and attention are heaped upon a dozen or so swing states. This is because candidates are seeking an Electoral College victory -- not a victory of all fifty states (and even less so of the people, if that's your interest).
So, it would be in the interest of all fifty states -- not just the people -- to sidestep the Electoral College with National Popular Vote legislation.
The Senate State Government Committee will consider legislation that would require New Jersey's electoral votes to be cast for the candidate who wins the national popular vote, not necessarily the statewide count in New Jersey. S-2695, sponsored by State Senators Richard Codey and Raymond Lesniak, seeks to include New Jersey in an "Agreement Among the States to Elect the President by National Popular Vote" ...
With sponsors like Codey and Lesniak, New Jersey is getting serious about National Popular Vote legislation.
Read about the plan in former Senator Birch Bayh's Blue Jersey op-ed, 'A Fifty State Strategy Every Year.' He even mentioned Codey's call to make New Jersey a "Presidential Player" rather than "an ATM machine." The op-ed is pasted below the fold.
