April 21, 2014

Local Judges Helping Illegal Aliens Remain in the Country… Huh? Virginia Supreme Court Finally Issues a Smack Down Yesterday.

Bravo to Commonwealths Attorney Jim Plowman and Chief Deputy James Fisher for their help seeing this issue through.

The topic passed through the media about two weeks ago, but was a bit overlooked here locally, despite Loudoun being a hot-bed of this activity. The spate of crimes committed by those that are not citizens of the U.S. is a serious area of concern regionally and it’s shocking to learn what some local defense attorneys have been doing in our local courts recently.

Background:
“A recent U.S. Supreme Court ruling that noncitizens in criminal cases must be advised of the possible consequences of a conviction has sparked a flurry of appeals by defendants who claim that they didn’t know that conviction would lead to deportation” (WaPo 12-29-10). As such, this case, Padilla v. Kentucky, has fired-up a real battle in Virginia between criminal defense attorneys and the local Commonwealths Attorneys’ offices over whether judges can reopen old cases for the purpose of avoiding a criminal’s mandatory deportation.

“A Loudoun County General District Court judge recently reopened four cases involving defendants who say they would not have pleaded guilty if they had known that they would be deported. In one instance this month, [Loudoun’s Commonwealths Attorney, Jim Plowman] sought a court order to stop the judge from reopening such cases, but a Circuit Court judge refused” (WaPo 12-29-10).

Our local Loudoun Chief Deputy Commonwealth’s Attorney, Jim Fisher, who has been assigned to oversee the recent flood of motions and recently appeared on Fox news about the story, filled me in: A criminal defendant pleads guilty in court. Some period of time goes by and the convicted criminal, who is not a U.S. citizen, discovers that the Federal Government is now taking steps to deport him/her (this applies to legal as well as illegal aliens). The Immigration Lawyer rushes to court and files an obscure motion called a writ of “coram vobis,” (meaning there was a factual error before the court, often used to correct clerical errors) to revisit the old case. As a result, judges have actually been setting the convictions aside (on the basis that their attorneys didn’t tell the offenders the immigration consequences of their pleas) and resetting the case for trial over the objection of our local Commonwealths Attorneys. Some of these convictions that Loudoun has been dealing with are 2, 5 and 10 years old and the sentences have already been served. Seriously folks!? Now the prosecution has to try to dig up witnesses on cases from 2002…good luck with that, Jim explains. The result is that judges often end up rewriting the past so that the conviction doesn’t get the criminal deported…

The Latest and Greatest:
Yesterday’s unanimous decision by the Virginia Supreme Court was a huge win for the law-and-order crowd, firmly rejecting the defense’s argument that these cases be allowed to be reopened under the Padilla decision. The ruling that was joined by the entire court held that “ineffective assistance of counsel does not constitute an error of fact for the purposes of coram vobis.”
The Virginia Supreme Court differentiated these cases from Padilla, saying that “although these defendants may have been subject to the ineffective assistance of counsel, their petitions were not timely because neither defendant learned of the deportation aspect of their convictions until many years after their sentences had been served.”

Expect more on this issue across the nation and perhaps before the U.S. Supreme Court. Full story in WaPo here.

Didn’t take the oath? No problem

A lot of ink has been spilled over the last two days over the question of whether Congressman Pete Sessions (R-TX) and Congressman Mike Fitzpatrick (R-PA) violated Article VI of the Constitution when they skipped out on the traditional oath of office ceremony given last Wednesday as the 112th Congress convened.  The Huffington Post covered it, as did a variety of other news outlets, like ABC.  Democrats had a field day with the event, with Anthony Weiner of New York mocking Republicans for violating the Constitution on the same day they read it aloud.  It made for pretty good copy.

Too bad none of that is accurate.  We live in a republican democracy.  No special incantations, rituals, ceremonies or magic words need to be recited in order to make someone an officer of the United States.  Only the approbation of the voters is needed to turn your average citizen into a member of Congress.

For the life of me, I cannot understand why there is this fixation in the American psyche about the taking of an oath of office being the operative event that makes an elected official “officially” in office.  That is simply not the case.  And, as far as I can tell, this is a recent phenomenon.  Up until the 20th century, Presidents of the United States usually gave their inaugural addresses before being sworn in – were they less the president for not having taken the oath? No.  William McKinley died eight days after being felled by an assassins bullet, passing away early in the morning of September 14th, 1901.  It was almost sixteen hours later that President Theodore Roosevelt took the oath of office at around 3:00 PM.  Did the United States not have a president during those hours?  No.  Roosevelt was president the minute McKinley passed.

Likewise, when President Obama and Chief Justice Roberts mangled the presidential oath of office in January 2009, that did not – contrary to the claims of some hopefuls on the far right – vitiate his inauguration as the 44th President of the United States.  There is some legitimate debate on whether or not he could execute the office without the oath, and Article II is pretty clear that the President cannot execute the office without having said the oath, but that does not stop him from becoming the president.

While Article II is explicit about the oath for the President, there is no reference in Article I to an oath of office for members of the House of Representatives or the Senate.  Article I, which establishes Congress and establishes the qualifications, manner of elections, and powers of the Congress includes no references to any kind of oath of office or any procedure that demands the oath be taken before entering into office.  The only portion of the Constitution that discusses the matter is Article VI.  Article VI is not about Congress – it’s about the Constitution itself  - its legitimacy, its power over the states and the demand that all officers of the United States (including Members of Congress) and state governments swear an oath to support the Constitution.  The clause folks have been citing to bash Fitzpatrick and Sessions reads:

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

Both Sessions and Fitzpatrick – both having been Congressman in previous Congresses – have already sworn an oath to support the Constitution.  I’ve taken that oath myself twice, once when I joined the Navy ROTC and once when I began my political appointment at the Labor Department.  The Constitution doesn’t demand repeated oaths.  Article VI doesn’t require that members of Congress be sworn in each session – the Senate only swears in reelected members, not all members, each new Congress.  Nor does Article VI specify that Congressmen cannot execute their offices – as Sessions and Fitzpatrick did – without having been sworn in at the beginning of each Congress.  It doesn’t even specify who is to give the oath, where it must be taken, or if anybody needs to be there to hear it.  Theoretically, Sessions and Fitzpatrick could have muttered the oath in the shower that morning and that would satisfy the letter of the law under Article VI.  Those who are saying that these two Congressman violated the Constitution are wrong – and generally they’re motivated by partisanship when they say so.

So what makes Sessions and Fitzpatrick Congressmen, if not the oath? Both men were elected last November.  Both were certified by the requisite state authorities and their certifications deposited with the Clerk of the House.  As soon as the 112th Congress began at noon on January 3, as the Constitution requires under the 20th Amendment, they were officially Congressmen.  When the House adjourned sine die on December 22nd (meaning adjournment without setting the date for their next session), the date of the beginning of the new Congress defaulted automatically to January 3 as the Constitution notes.  For the two day period between January 3 and January 5 when Congress officially convened, they were Congressmen.  The oath is not the operative occurrence.

There is no case law on the question of whether a member of Congress can exercise their office without having taken the oath at the beginning of a new Congress – probably because it’s not a big deal and has never been litigated.

For Sessions and Fitzpatrick, what happened was an embarrassment and it did cause some consternation.  There’s no way to be sure that every new member is on the floor to take the oath, usually there’s no evidence that anyone was NOT on the floor.  Sessions and Fitzpatrick happened to get photographed watching the floor action in another room in the Capitol.  And when you’ve got a political party who believes in strict adherence to the Constitution – erring on the side of caution even when it is not strictly necessary – it makes sense that the House took the steps it did to wipe Sessions and Fitzpatrick’s votes before they were confirmed to have taken the oath.  And since those votes weren’t determinative, there’s no need to fight about it.  But it still bothers me when these kinds of myths are allowed to be repeated – and seem to be confirmed by Congressional action – instead of being refuted.

Our democracy doesn’t depend on magic words.  The Constitution isn’t activated after we chant abracadabra and open sesame over it.  Elections determine who serves in our government, not rituals.

Was this embarrassing? Sure.  But not a Constitutional crisis.

NCS Breaking: Fairfax County School Board Being Sued For Violating Virginia Law

In an unprecedented move by Clifton community activists, the Fairfax County School Board (FCSB) is being sued in relation to the closure of Clifton Elementary. In July, the  FCSB voted to close Clifton Elementary School (CES), despite a huge outcry by the Clifton community and no compelling reason for closure. The lawsuit, delivered to the Fairfax County Circuit Court on Friday focuses its attention on the way the School Board decided to close Clifton Elementary, and charges that the FCSB violated numerous laws including the Virginia Freedom of Information Act (VFOIA) by conducting ‘meetings’ in secrecy and depriving the public of an open meeting where the debate could have been observed.

Virginia law mandates that actions taken by government bodies “are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government”. The lawsuit charges that the School Board violated Virginia law by communicating with each other “in secret” regarding the closure of Clifton Elementary.

In addition to violating Virginia law, the School Board also violated its own policies and procedures as outlined in their Strategic Governance Manual. The manual states clearly that, “All gatherings of School Board members when sitting as a body or an entity, or as an informal assemblage of three or more, are ‘meetings’ under Virginia law… With the exception of closed meetings called pursuant to the Virginia Freedom of Information Act, all meetings should be open to the public and held in a location accessible to the public.” Additionally, the School Board’s protocol is for members to, “communicate openly and actively in discussion…at public meetings.” Clearly, this did not happen.

One of the more explosive charges mentioned in the 145 legal petition is that while the School Board had voiced concern about the quality of the water at CES, Dean Tilstad, COO for Facilities emailed a report to School Board members in which they were informed that there was no problem with the water at CES, and therefore no money needed to be allocated. According to the petition, the School Board intentionally withheld the contents of this report until after they voted to close Clifton, thus depriving the public of vital information, which had been one of “reasons” cited for considering the closure of CES.

The lawsuit, which was delivered to the Fairfax County Circuit Court on Friday is an explosive read, and if the allegations are true, the School Board should be ashamed. They showed flagrant disregard for the laws governing open meetings, and denied the public the ability to monitor the discussion regarding the closure of one of the best elementary schools in the country. In a decision as important as closing a school that serves as the center of a community, the School Board showed little interest in ensuring they followed established procedures.

With 2011 fast approaching, and the entire Fairfax County School Board up for re-election, this is certain to become a campaign issue. Of course, the Clifton closure will be the biggest headache for Liz Bradsher, who not only voted for the closure, but made the motion to proceed with the vote! It is important to note that before the vote, one member of the School Board asked other members to give a “compelling case for the closure of Clifton Elementary,” and no one, not even Springfield District Representative Liz Bradsher provided an answer to that question.

It is important to note that School Board members Patty Reed, Tina Hone, Sandy Evans, Jim Raney and Ilryong Moon all voted AGAINST the closure of Clifton Elementary School. Clifton parents should be commended for standing up to this ridiculous decision by the School Board that shows how out of touch many of the members are.

Pursuant to Virginia law, the Court is required to hear FOIA cases in seven days and the Fairfax County School Board is obligated to prove to the Court that it complied with VFOIA.

Health care mandate held unconstitutional – but there’s a lot left to do

As by now I’m sure all of you have heard (and you would have heard from us hours ago had there not been some issues with our site host), the U.S. District Court in Richmond struck down Section 1501 of the Obama health care law, the infamous “mandate.”

The opinion can be found here, if you haven’t had a chance to look at it yet.  It’s pretty interesting reading and I got through it pretty quickly for 42 pages.

A few things I would like to note.  And, yes, I am gloating.  If you look at the analysis in Judge Hudson’s opinion, it is similar to the analysis I gave last March about the mandates.  In Part 1 and Part 2, I went through the Commerce Clause and Tax and Spend Clause issues, and I was pleased to see Judge Hudson cite the same cases I cited.   In particular, he pointed out the Child Labor Tax Cases to strike down the idea that Congress could regulate through taxation things it could not regulate through another enumerated power.  He also used Lopez, Morrison and Gonzalez.  While this shouldn’t be a big deal to anyone other than me, it is gratifying, considering how many times I heard “you’re just a law student” back when we were having these arguments.

I will say that I am frustrated that Judge Hudson consistently referred to the Tax and Spend clause as the “General Welfare clause” in the opinion, because characterizing it that way just throws people off and gives the impression that Congress can do whatever it wants to, so long as what it wants to do is in the general welfare.  That’s absolutely wrong, and one  of the prime things they teach you to look for on the bar exam – if you ever see that as an answer to a multiple choice question, it’s wrong.

I am also glad to see that Judge Hudson did not strike the entire law down  - that would have been chaotic, and if we are going to get rid of Obamacare, it needs to be done in the legislature, where it was created.  I don’t like seeing politically sensitive and controversial pieces of legislation struck down in the courts if they can be dealt with through the same process that created them.  I think we can fix Obamacare without requiring the wholesale invalidation of the whole law, much of which isn’t unconstitutional, even if it is bad policy.  But the mandates are unconstitutional and they can’t be allowed to stand, as the precedent they would create would be devastating to our system of limited government.

Where do we go from here?  Clearly, the government is going to appeal to the 4th Circuit.  While the 4th Circuit is one of the more conservative circuits, there is no way to be sure that they will uphold Judge Hudson’s decision.  Be that as it may, whatever happens, it appears that this case is on a trajectory to hit the Supreme Court, and probably sooner, rather than later.  The case could be there in as little as two years, which is pretty fast by Supreme Court standards.

I’m not going to jump up and down and yell “Victory!” like some of my colleagues have done.  This isn’t even close to being over, and the fact that two other district courts – albeit in different cases with different circumstances – have come to contrary conclusions doesn’t mean we’re out of the woods yet.  There’s still a lot of ground to cover.  What I will say is that this gives the Republican House next year a strong argument to use in taking up a major reform of Obamacare as soon as possible.  Repairing Obamacare so that it isn’t a  ham-fisted government fiat is critical.  Little did the Democrats do to address the real, and most fundamental, problem with health care in America – the cost.

This was an important first step in ensuring Obamacare gets fixed and fixed properly.  But we’ve got a lot more work to do.

Calling everything unconstitutional demeans the Constitution

Social Security.  Medicare.  Medicaid.  The Wars in Iraq and Afghanistan.  TARP.  The auto bailouts.  Unemployment insurance.   Accepting a Nobel Peace Prize (Roosevelt, Wilson and Obama).   The PATRIOT Act.  No Child Left Behind.  Support for faith-based organizations.  The Defense of Marriage Act.

What do all of these various acts of government have in common?  They’ve all been called unconstitutional.

One area where the Tea Party and I agree is our desire to return our government to constitutional principles.  And one area where the Tea Party and I disagree the most is what exactly those constitutional principles are.  Tea Party members are quick to call almost any spending program or other government action that they dislike  unconstitutional.  In arguments and on the blogs over the last week I have had to defend every military action taken since World War II from charges that they’re unconstitutional, I’ve seen No Child Left Behind and Medicare both called unconstitutional, and we’ve all seen the bevy of charges levied from Tea Party candidates like Joe Miller that just about every government program that has any popular support is unconstitutional.  Labeling something unconstitutional has become to the far right what labeling someone a racist is to the left – a cheap, easy, and often unprovable way of dismissing an idea or a person you disagree with.  And I have a serious problem with that.

As you all know, I’m a law student, and my legal training informs my opinions about what things are and aren’t unconstitutional.  But beyond that, I’ve done my best to read as much as I can about the document, reading it scores of times, reading the federalist papers, reading the various ratifying debates and other scholarly works on the document.  For those who want  a good background on the document, I strongly recommend America’s Constitution – A Biography, by Akhil Reed Amar.  It is critical that all of us who claim to be constitutional conservatives not simply know the text of the document, but understand it in context, both the context of its drafting in18th century America, and the context of the major epochs of constitutional interpretation.  Of the many groups out there like the “living constitutionalists,” the “strict-constructionists,” etc. I consider myself to be a “textualist,” which means I want to focus on the words of the document itself and give them a reasonable interpretation, not focusing on the intent of the drafter (originialism), nor taking the strictest meaning of the language (strict-constructionism).  Nor do I want to read into them things that aren’t there but could be there if we start wrapping the gauzy framework of penumbras and emanations around the text (living constitutionalism).  The Constitution, in my opinion, should be read as it was written, given a reasonable interpretation and be given a construction and that doesn’t make any part of the document superfluous or unnecessary.

The real question as to whether something is or isn’t unconstitutional rests in a variety of hands.  Since Chief Justice John Marshall (a federalist, who I consider to be a forerunner of the modern Republican party) declared in Marbury vs. Madison that it was emphatically the province and duty of the  judicial department to say what the law is, the Supreme Court has rested as the final arbiter over the constitutionality of laws.  The founders didn’t expect things to shake out that way.  In his book, Amar makes it clear that the founders intended all three branches to play a role in constitutional interpretation – Congress should refrain from passing an unconstitutional law, the executive should veto them, and the judiciary should refuse to decide cases under them.  While some presidents have been more than willing to veto laws they viewed as unconstitutional (Democrats have used the veto most liberally, Andrew Jackson beginning the trend, with Franklin Roosevelt and Grover Cleveland joining him with over a thousand vetoes between them), most have abdicated that responsibility to the Supreme Court, choosing to let the unelected justices take the heat for overturning popular legislation that runs afoul of the Constitution.  That being the case, what I find most exasperating in many of the arguments of those who call themselves “constitutional conservatives” is the fact that they ignore decisions by the Supreme Court in their analysis of what is or is not a valid law.  Bring up that a law has been found constitutional and inevitably someone will yell “judicial activism” in response.  While that may sometimes be the case, it is the exception, rather than the norm.  If we want to argue about the constitutionality of a law, we should at least respect the opinions of those whose opinion is final on those questions of interpretation, and who – at least in practice if not in actual written authority – are uniquely in a position to determine  those questions under a grant of authority from Article III of the Constitution itself.

Most of the charges of unconstitutionality people make have already been litigated – and some of those have withstood the test of time and deserve to be preserved on a stare decisis basis.

Social Security has withstood multiple court challenges with Helvering v. Davis, 301 U.S. 619 (1937) being one of the most commonly cited. The decision in Helvering can easily be applied to Medicare, Medicaid and other federal government entitlement programs –  which is perhaps the reason why no serious direct constitutional challenge to those laws has been made (at least to my knowledge).  The argument that no war is constitutional unless a formal declaration of war is made was dispensed with in Bas v. Tingy, 4 U.S. 37 (1800), when the Supreme Court held that Congress could authorize limited hostilities without a formal declaration of war, as they had done during the Quasi-War with France.  This decision was confirmed in the Prize Cases, 67 U.S. 635 (1863), which allowed President Abraham Lincoln to blockade southern ports without a declaration of war – a declaration that, had it been made, would have construed nation status on the Confederacy, something Lincoln and the federal Congress were unwilling to do.   The 1973 War Powers act recognized that it was possible to go to war without an active declaration, and that’s why Congress enacted it over a presidential veto – to ensure that, at the very least, any active hostilities that last more than 60 days require some kind of Congressional assent.  The Supreme Court has never construed the War Powers Act, despite multiple chances to do so – nearly every major conflict since the passage of the War Powers Act has resulted in a  lawsuit against the government, including an attempt (which failed) by servicemen to enjoin President Bush from starting the war in Iraq.  See Doe v. Bush, 323 F.3d 133 (2003).  I could go on and on, but the suffice it to say that most of those things listed above have either withstood legal attempts to find them unconstitutional (parts of the PATRIOT Act and DOMA were found unconstitutional, but the bulk of both still stand), or no serious challenge has been mounted.  Thus, we should be wary to simply throw out, without some kind of reasonable basis, the charge that they are unconstitutional.

Which leads to the more fundamental problem with the Tea Party folks who want to call everything under the sun unconstitutional – it cheapens the charge.  Labeling something as unconstitutional should have the same gravity as labeling someone a traitor – it should never be used lightly and it should be based in a rational, well thought out manner.  And it should have some basis in our understanding of the Constitution and the state of constitutional law today.  That’s why when you see me arguing that something is unconstitutional, I hope that my readers will recognize that what I’m saying is a big deal because I don’t use the phrase lightly.  When I argued months ago that the mandates in Obamacare were unconstitutional, I provided analysis and case law from the Supreme Court to support that contention.  I didn’t make it lightly.  Unfortunately, too many people throw the phrase around to characterize anything they dislike and the charge has lost its potency – much like the charge of racism has when coming from a Democrat.

The Onion  had an hilarious article a few months ago that sums up well the problem that many who lead the charge in labeling all legislation with which they disapprove unconstitutional: Area Man Passionate Defender Of What He Imagines Constitution To Be.  There are far too many people – many on our side of the aisle – who use the charge loosely and apply it to anything they disagree with, regardless of whether the law has faced constitutional challenge and passed.  It is important that all of us who claim to be constitutional conservatives check our facts and don’t simply lash out at laws we don’t like by applying a label to them.  That is as demeaning to the Constitution as adopting laws that violate it.

Separation of Church & State?

I’m confused. For the past week I have been listening to the commentators on the news talk about how uninformed Christine O’Donnell is because she did not know that “Separation of Church & State” was in the Constitution. Of course it is! Right? Well, no, not exactly. The Separation of Church & State idea, is one of the most distorted views ever circulated by the secular left.

It all started in the 1801 when the Danbury Baptists sent a letter to President Thomas Jefferson outlining their concerns regarding religious liberty. In response, President Jefferson responded to the Danbury Baptists and used the phrase “Separation of Church and State.” In viewing the statement in context with the rest of the letter, it is evident that Jefferson was underscoring the First Amendment as a guardian of the peoples religious freedom from government interference.

The basis of Jefferson’s letter was to prevent the government from interfering with religious practice as noted in the 1st Amendment where restrictions are only put on the government not the People. But today, the government can stop you from Praying in school, reading the Bible in school, displaying the Ten Commandments in a Court, or having religious displays at Christmas!

So, how did all this start, and how did Mr. Coons, who should know what the 1st amendment says get so confused? For the past half-century the secularist left has convinced the American people that the 1st Amendment says “Separation of Church and State.” In fact, a recent poll indicated that 69% of Americans (and one Democratic Senate candidate) believe the phrase “Separation of Church & State” is in the Bill of Rights. Just to be sure, lets take a look:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

(I’m not seeing it!)

The idea of the “Separation of Church & State”, for what its worth was to prevent government from restricting religious liberties on any one group, not to prevent people from practicing and being open about their faith. However, for decades, there has been an assault on faith, attempting to eradicate it from our public domain. Even Chief Justice William Rehnquist said, “The metaphor of a wall of separation is bad history and worse law. It has made a positive chaos out of court rulings. It should be explicitly abandoned.”

But, even in the face of facts, the chattering class denies reality. In yesterday’s Editorial Section of the Washington Post, writer Michael Gerson wrote, “Does she deny the existence of the establishment clause? Dispute its location in the First Amendment? Reject that it mandates the “separation of church and state”? — is mainly the result of the candidate’s imprecision.”  Again, the Constitution does not mandate a “Separation of Church and State” and the Establishment Clause was never meant to prevent citizens from practicing their faith openly. And most importantly, our Founding Father understood, perhaps more than anyone else the importance that faith played in the moral fiber of our nation. To underscore this, let’s look at their thoughts on faith in the American experiment:

  • John Adams, 1775: “ The general principles upon which the Fathers achieved independence were the general principals of Christianity… I will avow that I believed and now believe that those general principles of Christianity are as eternal and immutable as the existence and attributes of God.”
  • Charles Carroll, 1800: ” Without morals a republic cannot subsist any length of time; they therefore who are decrying the Christian religion, whose morality is so sublime and pure…are undermining the solid foundation of morals, the best security for the duration of free governments.”
  • John Jay, 1816: “ Providence has given to our people the choice of their rulers, and it is the duty, as well as the privilege and interest of our Christian nation to select and prefer Christians for their rulers.”
  • George Washington: “It is impossible to rightly govern man without God and the Bible.”
  • George Washington, 1779: “What students would learn in American schools above all is the religion of Jesus Christ.”

Does anyone truly believe after reviewing just some of the quotes made by our Founding Fathers regarding faith in America, that they ever envisioned our nation to become a place where high school students can be suspended for praying before a football game? Where students are indoctrinated in college that our Founding Fathers were deists who did not want to see faith as part of our nation? That Christian principles did not influence the foundation of America? I think not. Perhaps one of my favorite quotes regarding the importance faith played with our founding fathers is that of Benjamin Franklin, when he spoke at the Constitutional Convention of 1787:

“God governs in the affairs of man. And if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without His aid? We have been assured in the Sacred Writings that except the Lord build the house, they labor in vain that build it. I firmly believe this.”

I must commend the secularist left for they sold perhaps the greatest myth in American history, but that is all that it is…a myth. And, candidates like Mr. Coons should know, especially for the office that he is seeking, that the idea of “Separation of Church & State” is nowhere in the Bill of Rights or any other founding document.

In full disclosure, I am not a particularly religious person. To be sure, I have my faith which I practice and a strong belief in God. But, moreover, I am a student of history and it is critical that history not be distorted by people who have little appreciation of the greatness of America, and why we are so exceptional.

It is ironic that at the very heart of President Jefferson’s letter was the notion that the government will not interfere with people’s right to worship.Yet, the secularist left has used government to regulate that fact, and in the end, violated the very idea of a “wall of separation.”

Lowell Feld accuses me of defamation. My response? Bring it.

Yesterday, I posted a story accusing Lowell Feld over at Blue Virginia of using the two racist emails he received from unknown sources of using racism as a weapon against Scott Rigell in the VA-2 race.

Today, in a poorly spelled, spluttering response, he calls me and J.R. extremists, and accuses us of defamation.  Why? Because I speculated about his motives for releasing those emails and then trying to link them to Scott Rigell two weeks before an election – the textbook definition of an October surprise.

My response? Well, after I laughed and told my wife to come read the story, my response was pretty straight forward:bring it.  You want to waste your time and money pursuing what is, at best, a frivilous suit, I have no problems defending myself.  Hell, I’ll do it pro se, and if you actually find an attorney willing to file this stinkbomb, I’d strongly consider filing for 8.01-271.1 sanctions on him as soon as the case is thrown out on demurrer, if it even gets that far.  Let me save you $500, Lowell – a five minute review of defamation law in Virginia will demonstrate that there’s no case here.  Everything I said was my opinion.

Lowell is simply trying to deflect criticism from himself.  He knows he was used and he doesn’t much care.  And while he can claim as much as he wants that he’s a progressive and hates Glenn Nye, anyone who has read Blue Virginia for more than five minutes recognizes that the blog is a mouthpiece for the Democratic Party in Virginia, and anything he can do to tear down a Republican, any Republican, is fine by him.  That’s why he routinely bans Republicans who post on the site (as he did me months ago), and why he’s been running multiple stories attacking Rigell (see a few here andhere).  If Lowell wants to try and pretend that he’s not supporting Glenn Nye, thats fine, but when he posts stuff about Scott Rigell saying “[t]he question for 2nd CD voters is this: do you want an uninformed, extreme, slippery, used-car salesman representing you in Congress the next two years?  No, didn’t think so[,]” I don’t get the feeling he’s suggesting folks in the 2nd vote for Kenny Golden.

The timing of the release of these emails is questionable.  If this had simply been the Bartholomew email, I wouldn’t have said a thing.  As I have noted multiple times on Bearing Drift, Common Sense and Twitter, I was appalled by that email and I was happy that Bartholomew stepped down – racism has no place in politics, in either party.  No one is ignoring the “frontstory” here – the frontstory was over.  Bartholomew stepped down.  But when another email shows upthe next day, Lowell takes the time to screenshot Scott Rigell’s website before he gets the story up, and DPVA drops a statement based on the story in less than ten minutes – what are any of us supposed to think?  What looked like a one off slip of judgment on behalf of one local Republican leader becomes a coordinated smear campaign.  What does it say that the first inclination of both Lowell and DPVA was to link both of these stories to Scott Rigell?

The fact that Lowell did absolutely no checking of his source or even possibly considered he was being used is laughable.  What kind of a “journalist” posts a story and then, when he’s challenged on it, says “Why I only received the email on October 18, 2010, I have no idea. If anyone would like to look into this and let us all know, that would be great. Personally, I’d be curious.”  Really?  You won’t release the source’s identity, and you’re the only one (other than the source) who knows who the source is, but it’s up to the rest of us to guess and then ask him why he waited months?

What a joke.

As I noted yesterday, racism is wrong and the jokes and videos sent out damaged far more than simply VBRC, David Bartholomew, Karen Beauchamp or Scott Rigell.  They hurt the entire Republican party because they let the Democrats maintain the false claim that all of us are racists.  That’s not true, but that doesn’t stop them from running those stories.

And while I know that racism is wrong, I also know that trying to use racism to score political points is also wrong.  Ending racism should be apolitical and bipartisan – something all Americans do and believe in because it’s the right thing to do.  Lowell, by not questioning his source and just blindly running to the internet without even pausing to wonder why he was being given this email at this time, let himself be used to smear Scott Rigell.  That’s unethical, and anyone who claims to be a “journalist” should be offended that someone believed they were that easy to manipulate.  But, then again, it’s probably not hard to manipulate someone who, by all appearances, wants to be manipulated.  And by linking the stories to Scott Rigell when the link to his campaign is tenuous at best, Lowell and DPVA demonstrated both their desperation and their willingness to do or say anything, no matter how ridiculous, to try and benefit their candidates.  That’s sad.

Oh, one more thing.  I do owe Lowell a big thank you – whenever anyone in my party calls me a RINO for my stance on social issues, like my criticism of Ken Cuccinelli for his letter to Virginia’s colleges on their anti-discrimination policies, my defense of moderates like Susan Collins and Olympia Snowe, or my post applauding the Don’t Ask Don’t Tell decision, I can point to this post where you call me an “extreme right wingnut.”  Thanks for rehabilitating me in the eyes of my colleagues.

(Edited to use the Virginia civil procedure terms)

PS – Congrats to all of my CUA colleagues who passed the VA bar!

Breaking – Virginia health care mandate lawsuit moves forward

A federal court judge denied the national government’s motion to dismiss in Attorney General Ken Cuccinelli’s lawsuit on the health care mandates today.  As I noted in my analysis of the suit and the constitutionality of the health care law back in March, the judge has agreed that Virginia has standing to sue and the lawsuit may move forward.  This is a great first step in rolling  back the unconstitutional mandates and is a win for the Attorney General and for the Commonwealth.

Read the judge’s opinion here.

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Great article about ConLaw

I’ve made it clear here that I think the Obama health care mandates are unconstitutional.  There’s a great article in the Wall Street Journal today about Randy Barnett, a leading “radical libertarian” who teaches at Georgetown.  I would love to see his concept of a “presumption of liberty” be adopted by the courts.

Check out the article in the Journal here.

Kagan Dog and Pony Show Has Begun

In case you missed it, Supreme Court nominee Elena Kagan’s Senate hearings have begun today (and have recessed until tomorrow).  I would discuss them more if the entire ritual wasn’t a complete waste of time.  If you are having trouble sleeping and enjoy watching people talk about nothing for days at a time, here’s C-Span’s coverage. I’ll leave this post up as an open thread on Kagan to let folks vent.

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