Who's running for governor? I don't know. No, he's on third.

The 2006 gubernatorial elections will feature candidates all over the country with colorful nicknames. Musician Richard S. "Kinky" Friedman is running for governor of Texas (and actually has a shot at winning). One of his opponents in that race is Carole Keeton "Grandma" Strayhorn. And don't forget about Nevada gubernatorial candidate Melody Damayo, who is better known by her porn name Mimi Miyagi.

But I want to give a special shout out to David None of the Above Gatchell, who is running for governor and U.S. Senate in Tennessee. That's not a nickname - that is his legal full name. He changed his middle name from Leroy to None of the Above last year. As you might expect, the independent software developer is running so that voters have the chance to vote for "None of the Above." Gatchell previously ran for governor in 2002 (with his old middle name) on the platform of creating a "None of the Above" option on state ballots, winning six percent of the vote.

Voters in Nevada already have the ability to vote for "None of the Above," although the choice is non-binding and cannot win elections. And if a porn star can get on the ballot for governor, I might just check that box if I lived in Nevada.

Unfortunately for Gatchell, the State Election Commission, better known as NAMBLA, voted unanimously to keep his middle name of the ballot. According to MSNBC, "State law says the election commission can omit a portion of the name or require that further information about the candidate be included on the ballot if four or more members agree the name is confusing or misleading."

This is too bad - if Gatchell was creative enough to legally change his name, the state should let his full name appear on the ballot. It's one thing for a candidate to be known by a nickname, but this is his full name. Besides, he's not running to win. He's running to register his displeasure with the people who are running. I believe that allowing voters to select "None of the Above" is actually beneficial to democracy. First, if enough people choice that option, it weakens the mandate that the victor carries into office. As we saw in 2004, George Bush won only 51% of the vote, but claimed that he had earned political capital from the election. Weakening an electoral mandate forces politicians to listen to his opponents and the general public. It also forces them to justify their record from their first day in office.

Second, if voters are dissatisfied with politicians, wouldn't it be better for them to voice their frustration at the polls rather than by staying home? As I have argued before, anything society can do to turn people out to vote is a good thing. Eventually, voters will find a candidate to get excited about, and they will already be conditioned to go to the polls on Election Day. In the long run, people will vote for the right reasons.

Hitting Two Birds With One Cell

Major kudos to Mark Graber over at Balkinization for a brilliant perspective on the stem cell debate:

Seems to me that the perfect compromise that might resolve the stem cell controversy is for the scientific community to agree to do research only on embryos that could possibly mature into terrorists. After all, our president who so emphasizes morality believes there is nothing immoral about torturing persons who are suspected of being terrorists, even in the absence of any legal procedure that even confirms the suspicions are reasonable (much less a legal procedure which convicts them of any crime). Our president who so emphasizes morality also finds nothing immoral about killing innocent civilians and children in military missions that also kill a certain number of terrorists. If we can torture and kill people suspected of terrorism or people who live near people suspected of terrorism, then surely we ought to be allowed to experiment on embryos that we suspect might have become terrorists.

Odds v. Evens: The Battle for Constitutional Supremacy

If you could only keep half the amendments to the Constitution, would you keep the odd-numbered amendments or the even-numbered amendments? Odd-numbered amendments Even-numbered amendments view results

When I debated in college, I heard about this fantastic constitutional law case that I never had the chance to argue. Now that I am too old (and feeble) to be on a debate team, I decided to throw this question out to the the land of dicta to let you settle it. If you had to live in a world where only half the amendments to the Constitution remained in effect, which would you keep: the odd-numbered amendments or the even-numbered amendments? Before you vote, I have prepared a brief primer on both sides.

Odds

1st Amendment - right to free speech, religion, press, assembly, petition

• Pros: Somewhat self-explanatory. The 1st Amendment embodies several fundamental American civil liberties.


• Cons: This amendment only applies to acts of Congress. The Supreme Court eventually incorporated these rights at the state level through the 14th Amendment. If you choose odds, the 14th Amendment disappears.

3rd Amendment - prohibition against quartering soldiers

• Pros: This can be used as a basis for a right of privacy.


• Cons: Since the Revolutionary War, we have not needed protections against quartering soldiers.

5th Amendment - Right to indictment by grand jury, protection against double jeopardy, right against self-incrimination, due process clause)
• Pros: The 5th Amendment is one of the few parts of constitutional law that have entered the vernacular ("pleading the 5th"). This amendment, at its core, ensures that the state must follow the rule of law.


• Cons: Same difficulty incorporating these rights at the state level as noted above. Also, you can keep a due process clause if you choose evens because of the 14th Amendment, although that amendment only applies to the states. Also, these rights are originate in Anglo-American common law. I think judges would continue to apply them even in the absence of constitutional demarcation.

9th Amendment (non-enumerated rights can still exist)

• Pros: This amendment could be interpreted as a vehicle to allow the creation of new constitutional rights.


• Cons: This view would mark a radical change in how the 9th Amendment has been interpreted. The amendment was designed to allow the creation of future constitutional rights not included in the original document.

13th Amendment (abolition of slavery)

• Pros: "Slavery is bad, ummkay," said Mr. Mackey.


• Cons: You could make a strong argument that the value of this amendment is greatly dwarfed by the presence of the 14th Amendment (which you get with evens).

15th Amendment (right to vote cannot be limited by race)

• Pros: This amendment forms the basis for the Voting Rights Act, which Congress recently reauthorized.


• Cons: You could make a strong case that the 14th Amendment mandates equal protection of voting rights for all races, though this would require a new interpretation of that amendment.

19th Amendment (women's right to vote)

• Pros: Elizabeth Cady Stanton and Susan B. Anthony will rest easy in their graves if you choose odds.


• Cons: Same analysis as the 15th Amendment (above).

21st Amendment (repeal of prohibition)

• Pros: I admit that I am biased on this (I LOVE GUINNESSS), but I think this is an incredibly strong argument for odds. The 18th amendment, which established prohibition, is what you get choosing evens. Only by picking odds can you drink alcohol legally.


• Cons: Speakeasies are cool.

Evens

2nd Amendment (right to bear arms)

• Pros: As much as I hate to admit it, firearms play a significant role in our nation's history and traditions, both in hunting and allowing people to defend themselves.


• Cons: The substantive meaning of this amendment have never been fully elucidated by the Supreme Court. The phrase "a well regulated militia" may significantly diminish the reach of the right to bear arms.

4th Amendment (search and seizure protections)

• Pros: This amendment requires the state to justify its intrusive powers by proving probable cause. It also provides a basis for a constitutional right to privacy.


• Cons: With Scalia on the Supreme Court, the 4th Amendment will be destroyed in 20 years anyways.

6th Amendment (right to speedy trial, trial by jury, confront accuser, effective counsel)
• Pros: Along with the 5th Amendment, this amendment ensures that even accused criminals deserve to be treated according to respect for the rule of law.


• Cons: These rights are embodied in Anglo-American common law, and most judges would still enforce them without constitutional sanction.

8th Amendment (prohibition against excessive bail or fines and cruel and unusual punishment)

• Pros: This amendment restrains government from wielding unchecked power against the lowest level of scum in our society.


• Cons: Each of you has seen a medieval torture instrument and been at least a little curious about how it would work.

14th Amendment (all persons born in the U.S. are citizens, due process clause, equal protection clause)

• Pros: Wow, where do I start? First of all, it has been used to extend the rights of the first ten amendments to state law. It creates a uniform citizenship policy. It forms the basis of almost all modern civil rights statutes. It not only protects racial minorities but also women. Also, the due process clause and equal protection clause could easily make up for the loss of the 13th and 15th amendments.


• Cons: Honestly, I'm drawing a blank.

16th Amendment (allows the income tax)

• Pros: This is the primary vehicle for funding federal government programs.


• Cons: Paying taxes stinks.

22nd Amendment (two-term limit on president)

• Pros: George W. Bush is unable to run for a third term.


• Cons: Bill Clinton is unable to run for a third term.

24th Amendment (abolition of poll tax)
• Pros: The presence of this amendment makes up for the fact that the 15th Amendment would not exist.


• Cons: Very few states would try to implement a poll tax, even if they could.

26th Amendment (right to vote at age 18)

• Pros: If you are old enough to die for your country, you should be able to vote.


• Cons: Young people don't give a shit.

Vote for Bush: He's more racially sensitive than Warren Harding

For the first time since taking office, President Bush will address the national convention of the NAACP. Why has the president snubbed the NAACP up until now? "You've heard the rhetoric and the names they've called me," he explained in 2004. Mr. President, please take my advice - pretzel sticks may choke your throat, but names will never hurt you.

White House Press Secretary Tony Snow explained this sudden change of heart: "I think the president wants to make the argument that he has had a career that reflects a strong commitment to civil rights." Snow later put out a press release reminding the press corps that Tuesday was Opposite Day.

According to the Washington Post:

With the appearance, Bush will avoid becoming the first president since Warren G. Harding to snub the predominantly black organization throughout his term.

Enough said.

Vote early and often in Arizona

Apparently, Arizona is trying to import Chicago-style politics to Phoenix. Voters will go to the polls this November to decide a ballot initiative that would pay people to vote.

The initiative would allow the state to give $1 million to one voter drawn in a lottery of all participating voters after every election. (Hopefully) it does not matter for whom the voter casts his/her vote.

Here is the interesting wrinkle - if the voters approve the initiative, the state would draw a lottery from this fall. In other words, voters not only get to approve of a voting lottery, they get to enter themselves in it as well.

The voters are getting pretty decent odds, too. According to the New York Times:

If the general election in 2004 is a guide, when more than 2 million people voted, the 1-in-2-million odds of winning the election lottery would be far better than the Powerball jackpot (currently about 1 in 146,107,962).

I think this is a great idea. I like the carrot approach to voter participation rather than the stick method. In Belgium, for example, people who do not go to the polls have to pay a small fine. In fact, I would take the Arizona approach a step further. If I ran the world, I would create a $100 tax deduction for people who vote. Many states allow tax deductions for political contributions, up to a small amount. Contributing to the public debate is a legitimate state interest, which should be incentivized.

I know bribery is a fairly cynical rationale for civic participation, but I believe in the Blaise Pascal approach to motivation. Pascal, a French philosopher and gambler, developed a game theoretic reason to believe in God (If God exists and you believe in God, you get an infinite reward, If God exists and you don't believe in God, you get an infinite punishment, etc.). Other philosopher criticized Pascal's Wager because people should believe in God for spiritual, rather than game theoretic, reasons. Pascal's response was that once people start believing in God, they will do things that believers do - go to church, study the Bible. Once enough time has passed, believers will believe for the right reasons.

The same analysis applies to voting. Any action done to raise the level of civic consciousness is a good thing. The ends might not justify the means initially, but I think eventually people will vote for the right reasons.

As the New York Times remarks, "To anyone who ever said, 'I wouldn't vote for that bum for a million bucks,' Arizona may be calling your bluff."

**Thanks to the good folks over at the 13th Floor for picking up this story. They are quickly becoming one of my favorite blogs. Check them out for great stories on state politics.

End segregation now!...in Delaware?

Check out this listing of committees in the Delaware House. They look to be very typical of a legislature...except for the sixth committee. I have no idea if this is a new committee or a hold over from the 1960s. Delaware strikes me as the type of state where you wouldn't need a desegregation committee - it's not like they are on a Justice Department watch list. I'm glad that all three black people who live in Delaware will have their rights protected.

Lt. Governor, Tastes like governor but less filling

A bit of political masochism from a great article on Stateline.org, entitled, "Lt gov: Not quite a fifth wheel":

Not everyone sees the lieutenant governor job as an important one. Robert J. Healey, Jr. wants to get elected lieutenant governor in Rhode Island so that he can eliminate the job. "Quite frankly, I find the idea of being the lieutenant governor repugnant. I wish to get elected to abolish the office," Healy said in a written statement announcing his candidacy from a sandy beach in Punta del Este, Uruguay. He chose that location he said because "it demonstrates that no matter where you are in the world, and no matter what you are doing, you can also be serving as Rhode Island's lieutenant governor at the same time."

I worked for a former lieutenant governor and on a campaign for LG in Virginia, and I sympathize with Healey's perspective. In Virginia, all you need to fulfill your constitutional duties as LG are to be a warm body with a decent knowledge of parliamentary procedure (he/she presides over the state senate). Virginia, like many states, decrees that when the governor is outside the boundaries of the state, he/she has no power. You would think that power would revert to the LG in these situations as it does to the vice president whenever the president is under anesthetic, for example. But since the governor and LG are often from different parties, the tradition is to entrust the governor's chief of staff as acting governor. The LG used to chair the Senate Rules committee. Then he was reduced to being an ex-officio member, and then was booted off entirely.

The poor LG, he totally gets the shaft. Actually, it's not all bad, the LG has plenty of time to do his most important job: run for governor.

Retarded state laws: California edition

From Capitol Weekly, a news service that tracks the California General Assembly:

Only the Assembly could create a controversy out of a non-binding resolution calling for the Day of the Cowboy. The trouble began when Jackie Goldberg wanted to amend the measure to include cowgirls. Dennis Mountjoy derided Democrats for wanting to make the measure "cow neutral." Things took a turn for the odd when Greg Aghazarian announced that his wife was the past winner of the "supreme champion heifer award." (We're guessing it was his wife's cow that won the award.) Then Lloyd Levine had to go and bring up Brokeback Mountain, for what reason we're not really sure, though West Hollywood is in the Senate district he'll be running for in two years. Levine's mention brought an angry retort from Doug LaMalfa, who belittled the two Brokeback protagonists as "nothing more than sheep herders masquerading as cowboys." After all the hemming and hawing, the measure did get off the floor. From there, the Assembly took up another resolution honoring the Assembly Fellows, to which Mountjoy wondered, "Why aren't we honoring the Assembly gals?" Just couldn't help yourself, could you Dennis?

Retarded state laws: Michigan edition

It's time for another installment in Supreme Dicta's ongoing tribute to state legislatures and the idiotic things they come up with. I know that I have already picked on the Michigan legislature for its bizarre approach to civil rights, but there are two other bills that similarly fall under the category: "What the *&%# were they thinking?"

First, let us consider SJR H, which proposes a constitutional amendment to make the Michigan Legislature unicameral. There is only one state legislature that is unicameral - Nebraska. I have a tough time believing that Michigan Senator Burton Leland (D) would get up each morning, look himself in the mirror and say, "How can I be more like Nebraska today?" And Nebraska is not exactly a model of political perfection. The state voted to redraw the school district lines in Omaha to resegregate the city - creating one black district, one white district and one Hispanic district. I'm not talking about 1959, it was from this year!!!

Besides, the Democrats are in the minority in Michigan. Wouldn't they want as many checks and balances as possible to curtail the influence of the Republican majority? Apparently this one state senator knows more about political theory than James Madison. I hope Montesqieu comes back from the grave and punches Leland in the face.

The second retarded bill is H.B. 6237, sponsored by Representative Joe Hune (R). Here is the historical backdrop. In 2000, the state passed a law banning the cross breeding of wolves and dogs (reminds me of a recent South Park episode). This sounds like a perfectly reasonable measure, considering these wolf-dogs are more dangerous than, say, a chihuahua. Plus, many other states have taken the same position. Fast forward to 2006, when Representative Hune introduced H.B. 6237 to repeal the ban on wolf-dogs. So apparently the common good of the people of Michigan would be better served by reintegrating pets that look like Xmen characters. What changed between 2000 and 2006 that would justify this change in policy? Have scientist been utilizing stem cell research to create a wolf-dog that isn't quite so vicious? It's still part wolf!



Meet my dog, Fluffy

Turrets? Close. It's bobbleheads!

Thanks to the good folks over at Empirical Legal Studies for bringing to my attention the most important news article about the Supreme Court this week. The Los Angeles Times has a story about collectors of Supreme Court justice bobbleheads. One collector interviewed in the story paid $800 for a Justice Stevens bobblehead.

Who would be so brilliant (or some might say stupid) to think up a wobbling plastic figure of a Supreme Court Justice? It is a promotion used by an eccentric law journal at George Mason University - the Green Bag.

The bobbleheads are annotated to explain the significance of the items depicted in the figurine. For example, the Justice Scalia bobblehead includes a lemon with a pen piercing it (because Scalia is not fond of the Lemon test).

According to the story:

Supreme Court justices [are] the rock stars of the judiciary," said Montgomery N. Kosma, one of the journal's two executive editors and an antitrust lawyer at a large Washington firm. What Green Bag Editor in Chief Ross E. Davies described as one of those "in-the-shower ideas" has sparked a cult following among legal geeks.

I am positively giddy about discovering the Green Bag, which describes itself as "an entertaining journal of law. The journal publishes short, eclectic, and often tongue-in-cheek articles on a variety of legal topics. Plan on seeing many future posts about the articles that grace its pages. The journal is as funky and unconventional as legal academia can get. It is, if I may be so bold, dictalicious.

News Alert: Being raised by gay parents does not cause academic problems

Thank you to the good folks over at ACSBlog for bringing to my attention a unanimous decision handed down by the Arkansas Supreme Court last week. In Department of Human Services v. Howard, the court invalidated a 1999 regulation barring homosexuals from serving as foster parents. Arkansas law allows the department to issue regulations to promote the health, safety and welfare of foster children. But the court ruled that "the driving force behind adoption of the regulations was not to promote the health, safety and welfare of foster children but rather based upon the board's views of morality and its bias against homosexuals."

The court rejected all connections between being raised by homosexual parents and the welfare of children. Some of the effects of homosexuality which the court dismissed were quite laughable:

Being raised by gay parents does not cause academic problems.[1]

Being raised by gay parents does not cause gender identity problems.

The State has no statistics indicating that gays are more prone to violence than heterosexuals.[2]

There is no evidence that gay people, as a group, are more likely to sexually abuse children than heterosexuals.

[The state even admitted that they are] not aware of any child whose health, safety, and/or welfare has been endangered by the fact that such child's foster parents, were homosexual.[3]

The reaction from Arkansas was predictable, if also disheartening. Governor Mike Huckabee (R) said, "I'm very disappointed that the court seems more interested in what's good for gay couples than what's good for children needing foster care." According to the Washington Post, "Democratic gubernatorial candidate Mike Beebe said Friday he was opposed to allowing gay people to become foster parents."

Because the court did not consider the constitutional claims involved in the case, the ruling left open the possibility that legislators could enact a ban by law or give explicit authority to the Department of Human Services to enact regulations based on the sexuality of foster parents. However, the executive director of the American Civil Liberties Union in Arkansas, said the constitutionality of such a law would be in doubt because the court rejected the rational basis offered by the department. One can only hope.

Footnotes
[1] We have all heard the stereotype that gays don’t like books, right?
[2] Cat fights were excluded from this analysis.
[3]Although to be fair, children of homosexuals are more prone to becoming shopaholics than children of straight parents.

Writing love notes to Justice Kennedy

Salon.com's Dahlia Lithwick, writes:

From James Dobson, who famously called Kennedy "the most dangerous man in America," to oral advocates at the court, who increasingly respond to the justice at oral argument with a reverence usually reserved for conversations with the Burning Bush, efforts to influence Kennedy are no longer limited to case conference. The hottest game in current Supreme Court brief-writing is to quote Kennedy gratuitously and often. Even if you find yourself citing an asterisk in the footnote of a Kennedy dissent, inserting something flattering to Kennedy is almost as important as running the spell check.

The other justices are playing the quote-Kennedy game, too, presumably in hopes of wooing him to their side and keeping him there. Read the opinions and dissents in Rapanos v. United States, the major Clean Water decision that came down earlier this month. Embedded within are coded love notes to Kennedy.

The justices may also be cozying up to Kennedy in other ways: He won himself some sweet writing assignments this term (data from the Georgetown Supreme Court Institute's term overview shows him authoring five of the term's most "high profile" opinions. Most of his colleagues authored one or two). Some court-watchers have suggested that the bizarre trio of Stevens, Kennedy, and Chief Justice Roberts, who jointly issued a strange concurring opinion in the refusal to hear Jose Padilla's case this past April, was yet another effort by the court's liberal and conservative leaders to show Kennedy more love. Roberts is a savvy insider who knows that over the years the abuse heaped upon the court's moderates from the right has pushed them into the arms of the court's liberals. Make no mistake about it: Justice Kennedy is now being love-bombed.

Two observations:

1. The author has a fantastic sense of humor.
2. She is absolutely right. The only time that I have every been to an oral argument at the Supreme Court was in Locke v. Davey in 2003. Each of the justices would often preface their question saying, "Isn't that what Justice Kennedy was trying to get at earlier?" or "Wouldn't that solve the problem Justice Kennedy posed?" (Justice O'Connor received similar treatment by her colleagues). I think the Kennedy Court has been in session for longer than most people think, it is just more pronounced that O'Connor has retired.

Remebering the entire Declaration

On the Fourth of July, Americans rightly celebrate the miraculous birth of our country 229 years ago. We look with reverence upon our Founding Fathers and their struggle to establish the first republican form of government in history. Most of all we celebrate the Declaration of Independence (which, ironically, was not signed on July 4th, merely printed and distributed).

While America's birth was a moment of historical perfection, its infancy was far from perfect. Thomas Jefferson's words resound in our civic virtues, but some of Jefferson's words left out of the Declaration make his message ring somewhat hollow. Consider this passage from Jefferson's original draft:

[King George III] has waged cruel war against human nature itself, violating it's most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of infidels powers, is the warfare of the Christian king of Great Britain. He has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce determining to keep open a market where MEN should be bought and sold: and that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, by murdering the people upon whom he also obtruded them: thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of another.

Americans tend to view the Founding Fathers with a reverence usually reserved for deities (I am just as guilty of this as anyone). Although the framers were extraordinary men, we must also realize that they are only men. Compromise and consensus often must take priority over principle. After all, the debate over the Declaration and the Constitution did not take place in an ivory tower of political theory; they were political debates in a political arena. It would be naive to expect the Founders to produce an ideologically perfect America at once.

On the other hand, however, we should take pride in remembering the entire Declaration of Independence, including the section condemning slavery. It was a feat of political courage for to offer this section (especially coming from a southern slave-holder). It also highlighted the enduring wisdom of the Founders to realize that the next great conflict over the meaning of America would be fought over slavery. Although the conflict was not resolved in 1776, we can take comfort that the Founders were willing to fight the first battle in that conflict.

Have a joyous Fourth of July. -- Harlan