Saturday, May 29, 2010

Barker's Pre-Vacation Newsbites!


Well, kids... these will be the last newsbites for a week or so; it's vacation time...!!!

Anyway... newsbites will resume next weekend.

Ciao!

Thursday, May 27, 2010

I Wish Karl Rove Would Just Go Away


Did anyone happen to read Karl Rove's latest op-ed carried in today's Wall Street Journal?

I swear to God... with "friends" like Rove... those reformist individuals hoping to defeat the Democrats in November don't need any enemies....

(*SIGH*)

Allow me to point to Rove's own words in order to illustrate the following:

Karl Rove Is An Idiot...!

Here... decide for yourselves... read Rove's op-ed with my commentary interspaced in italic...

As President Obama prepares to return to the Gulf Coast Friday, he is receiving increasing criticism for his handling of the oil spill. For good reason: Since the Deepwater Horizon rig blew up on April 20, a lethargic Team Obama has delayed or blown off key decisions requested by state and local governments and left British Petroleum in charge of developing a plan to cap the massive leak.

Rove is of course correct in slamming Obama for delaying key decisions requested by state and local governments, but the fact is that when it comes to which bureaucracy I'd rather trust in dealing with this disaster... the answer is clearly BP's and the private sector's.

For Christ's sake, how many times have the closest people the feds have to true experts - the Coast Guard - directly told us that the federal government doesn't have the expertise to deal with this disaster?!

Has Rove not been listening...?!?!

Now the slow-moving oil spill threatens Mr. Obama's reputation, along with 40% of America's sensitive wetlands.

So since obviously 100% safety - "no accidents ever, no way, no how" - can never be guaranteed... what's Rove calling for - an end to deep water drilling...???

Is is just me or do you too see how the environmentalist wackos (the ideological "humans are bad for the planet") could take Rove's comments and turn them on "our side?"

Critics include some of his most ardent cheerleaders, who understand that 38 days without an administration solution is unacceptable.

Obama officials have it backwards: They talk tough about BP's responsibilities but do not meet their own responsibilities under federal law. They should not have let more than a month go by without telling BP what to do.

Listen... intelligent people rightly slam Obama for not ensuring the federal government had the wherewithal to deal with the rig explosion; but at the same time - understanding that reality is what reality is - only a fool would infer that Obama should have charged ahead "giving orders" when neither he nor anyone in government has the technical expertise to know which specific actions to order...!!!

Look... I would have slammed Obama (I've been slamming Obama all along!) for presiding over a federal government that had ignored its own legal mandate to have booms stockpiled for immediate deployment. That's the legitimate initial criticism. It's an effective criticism (which is why you haven't seen it made in the MSM past the first few days of the crisis). But what Rove is doing is bypassing the legitimate and effective criticism of Obama and in its place throw out critiques that the Left can turn around on us! (Imagine this headline: "Rove Calls For Primary Federal Role in Energy Production: Government Knows Best")

And they should avoid recriminations against their partner in solving the problem until after the leak is sealed.

BP is still running tests to see if the "top kill" procedure will be effective while the U.S. government is turning the pressure on high.

Interior Secretary Ken Salazar sounds whiny when he rails against BP. It didn't build confidence when his opening statement to a congressional hearing Wednesday focused on future safety and inspections requirements, and not on what the administration will do now to end the leak.

Initially, Team Obama wanted to keep this problem away from the president (a natural instinct for any White House). It took Mr. Obama 12 days to show up in the region. Democrats criticized President George W. Bush for waiting four days after Katrina to go to New Orleans.

Now the administration is intent on making it appear he has engaged all along. But this stance is undermined by lack of action. Where has its plan been? And why has the White House been so slow with decisions?

Take the containment strategy of barrier berms. These temporary sand islands block the flow of oil into fragile wetlands and marshes. Berm construction requires approval from the Corps of Engineers and the U.S. Fish and Wildlife Service. Louisiana officials asked permission on May 11. They have yet to hear back. The feds are conducting a review as oil washes ashore.

Now THIS is an effective charge... but THIS charge should be the lead - not the charge that Obama should have "taken over" from BP even though BP and the private sector are the experts - the hope - regarding stopping the leak. Rove seems to be talking out of both sides of his mouth. Republicans CAN'T be seen as hypocritical on this issue! In my view Rove comes off as more a partisan hack than someone whose main focus is on dealing with the spill.

The federal government was even slower on the question of dispersants, chemicals used to break up the oil and hasten its evaporation from the surface of the water. On May 8, Louisiana sent a letter to BP and the EPA begging BP not to use dispersants below the surface of the water. Subsurface use of dispersants keeps oil slicks from forming. But when it doesn't come to the surface to evaporate, the oil lingers below, gets into underwater currents, and puts at risk fisheries that supply a third of America's seafood.

Jeezus... again... can't Rove see how an environmental wacko would be clapping his hands together in glee reading this...?!?! (If one were to follow Rove's critiques to their logical conclusion one would have to say... "Stop Drilling!")

Whose side is Rove on...?!?!?!

On May 13, EPA overruled the state and permitted BP to use dispersants 4,000 feet below the surface. Then, a week after BP released 55,000 gallons of dispersants below the surface, EPA did an about-face, ordering BP to stop using the dispersant and to "find a less-toxic" one. Louisiana officials found out about this imprecise guidance in the Washington Post. BP refused, EPA backed off, and Louisiana's concerns about their marine fisheries remain.

Again... the what logically follows from Rove's scattershot "damn the friendly fire casualties" approach is a stronger "anti-drilling" argument.

Last weekend, as winds and currents drove oil towards particularly sensitive wetlands, the state asked Washington to mobilize all available boats to deploy booms and containment devices. Federal officials didn't act. Local officials were forced to commandeer the boats. Even then some equipment went unused.

YES! THAT'S the proper line of attack...!!!

State officials believe their federal counterparts don't have a handle on the resources being deployed and are constantly overestimating the amount of booms, containment equipment, and boats being used.

YES...!!!

Could this be Mr. Obama's Katrina?

Sounds defensive. Rather than weaken Obama, such naked partisan attacks backfire by reminding voters of Bush's perceived incompetence.

It could be even worse. The federal response to Katrina was governed by the 1988 Stafford Act, which says that in natural disasters on-shore states are in charge, not Washington. The federal obligation is to "support . . . State and local assistance efforts" by providing whatever resources a governor requests and then writing big checks for the cleanup. Mr. Bush had to deal with a Louisiana governor and a New Orleans mayor who were, by federal law, in charge.

But BP's well was drilled in federal waters. Washington, not Louisiana, is in charge. This is Mr. Obama's responsibility. He says his administration has been prepared for the worst from the start. Mr. Obama's failure to lead in cleaning up the spill could lead voters to echo his complaint in Katrina's aftermath: "I wish that the federal government had been up to the task."

Again... THIS is the CORRECT line of attack. The rest is simply counterproductive.

Barker's Newsbites: Thursday, May 27, 2010


A Simpler Time...

Tuesday, May 25, 2010

Barker's Newsbites: Tuesday, May 25, 2010


The song which comes to mind when thinking of the Obama administration in action...

In "honor" of the "Age of Obama," allow me to post today's first newsbite right here on the thread post itself:

Paychecks from private business shrank to their smallest share of personal income in U.S. history during the first quarter of this year, a USA TODAY analysis of government data finds.

At the same time, government-provided benefits - from Social Security, unemployment insurance, food stamps and other programs - rose to a record high during the first three months of 2010.

The trend is not sustainable, says University of Michigan economist Donald Grimes.

The federal government depends on private wages to generate income taxes to pay for its ever more expensive programs. Government-generated income is taxed at lower rates or not at all, he says. "This is really important," Grimes says.

[America has lost] 8 million private jobs. Even before the downturn, private wages were eroding because of the substitution of health and pension benefits for taxable salaries.

But not for everyone, my friends...

An additional 9.8% of personal income was paid as wages to government employees [in the first quarter of this year].

On the other hand...

A record low 41.9% of the nation's personal income came from private wages and salaries in the first quarter, down from 44.6% when the recession began in December 2007.

A hallmark of "Age of Obama" economics...

Individuals got 17.9% of their income from government programs in the first quarter, up from 14.2% when the recession started. Programs for the elderly, the poor and the unemployed all grew in cost...

Economist Veronique de Rugy of the free-market Mercatus Center at George Mason University says the riots in Greece over cutting benefits to close a huge budget deficit are a warning about unsustainable income programs.

Economist David Henderson of the conservative Hoover Institution says a shift from private wages to government benefits saps the economy of dynamism. "People are paid for being rather than for producing," he says.

Folks... none of this should come as a surprise to regular newsbite readers.

People... these self-serving power hungry parasites in Washington are destroying our country...!

Monday, May 24, 2010

Barker's Newsbites: Monday, May 24, 2010


This song has been stuck in my head for days...

(*SHRUG*)

I have no idea how it got into my subconscious!

(*GRIN*)

Yes... the video is kinda lame...
but it was the 80's!

(*CHUCKLE*)

Saturday, May 22, 2010

Weekend Newsbites: Sat. & Sun., May 22 & 23


In honor of in-law-kinda-sorta Jeanne, I bring you not just one - but two - weekend newsbite theme songs!

Live... Love... LEARN...

Friday, May 21, 2010

Muehler v. Mena (Thank you, Megyn Kelly!)


It's rare, but every once in awhile watching Bill O'Reilly comes in handy!

(*WINK*)

Last night was one of those nights.

While discussing Arizona's recently passed new immigration control law with O'Reilly, Megyn Kelly pointed out the following:

Muehler v. Mena, 544 U.S. 93 (2005)

A unanimous decision by the United States Supreme Court, which held that the Fourth Amendment to the United States Constitution allows detention of a search subject in handcuffs while a search is being conducted, and that it does not require officers to have an independent reasonable suspicion before questioning a subject about his or her immigration status.

Quoting from the unanimous ruling:

The officers' questioning of Mena about her immigration status during her detention did not violate her Fourth Amendment rights. ... [T]his Court has "held repeatedly that mere police questioning does not constitute a seizure."

Because Mena's initial detention was lawful...there was no additional seizure within the meaning of the Fourth Amendment, and, therefore, no additional Fourth Amendment justification for inquiring about Mena's immigration status was required.

Now, folks... if this is the first you're hearing of Muehler v. Mena - even with all the non-stop chatter from politicians and the media concerning Arizona's new immigration control law - ask yourselves one simple question:

Why...???

Barker's Newsbites: Friday, May 21, 2010


Now how's this for Friday's newbite theme?

The Age of Obama, my friends... the Age of Obama...

Thursday, May 20, 2010

Yeah, yeah... I know... Nobody's gonna read "Graham v. Florida"


That's ok, though!

Believe it or not... I actually enjoy reading Supreme Court rulings!

And who knows... perhaps "somebody who's somebody" will happen upon my "Graham" post via auto-search (key word search/find/notify) and note my brilliance...

(*HUGE FRIGG'N GRIN*)

...thus saving me the trouble of having to constantly remind you folks how much more I know than you do!

(*HEARTY LAUGH*)

(Yeah, yeah... I know... what makes the "joke" funny is the irony that I more than halfway believe it; all evidence to the contrary notwithstanding!)

Anyway... today's newsbites are BELOW the "Graham" post.

As always... check 'em out!

Terrance Jamar Graham, Petitioner v. Florida


Justice Thomas, with whom Justice Scalia joins, and with whom Justice Alito joins as to Parts I and III, dissenting:

The Court holds today that it is “grossly disproportionate” and hence unconstitutional for any judge or jury to impose a sentence of life without parole on an offender less than 18 years old, unless he has committed a homicide.

Although the text of the Constitution is silent regarding the permissibility of this sentencing practice, and although it would not have offended the standards that prevailed at the Founding, the Court insists that the standards of American society have evolved such that the Constitution now requires its prohibition.

Whether "standards of American society" have evolved or not is a matter for the democratically elected branches of government - both federal and state - and "the Peoples' Will" as determined via the Amendment Process outlined in the Constitution itself. The Court's actions are illegitimate on their face. -- BILL

The news of this evolution will, I think, come as a surprise to the American people. Congress, the District of Columbia, and 37 States allow judges and juries to consider this sentencing practice in juvenile non-homicide cases, and those judges and juries have decided to use it in the very worst cases they have encountered.

37 is indeed more than half of 50... is it not? Even viewing the Court's supposed "authority" through the eyes of those I refer to as the Extra-Constitutionalists, Thomas' point that the practice in question is surely not "unusual" is unassailable. -- BILL

The Court does not conclude that life without parole itself is a cruel and unusual punishment. It instead rejects the judgments of those legislatures, judges, and juries regarding what the Court describes as the “moral” question of whether this sentence can ever be “proportionate” when applied to the category of offenders at issue here.

I am unwilling to assume that we, as members of this Court, are any more capable of making such moral judgments than our fellow citizens. Nothing in our training as judges qualifies us for that task, and nothing in Article III gives us that authority.

Notice how Justice Thomas actually looks to the Constitution itself as the measure of the Court's authority. God bless Clarence Thomas! -- BILL

The Court recounts the facts of Terrance Jamar Graham’s case in detail, so only a summary is necessary here.

At age 16 years and 6 months, Graham and two masked accomplices committed a burglary at a small Florida restaurant, during which one of Graham’s accomplices twice struck the restaurant manager on the head with a steel pipe when he refused to turn over money to the intruders.

Graham was arrested and charged as an adult. He later pleaded guilty to two offenses, including armed burglary with assault or battery, an offense punishable by life imprisonment under Florida law.

The trial court withheld adjudication on both counts, however, and sentenced Graham to probation, the first 12 months of which he spent in a county detention facility.

Graham re-offended just six months after his release.

Let's repeat... Graham reoffended just six months after his release. One more time... Graham reoffended just six months after his release. -- BILL

At a probation revocation hearing, a judge found by a preponderance of the evidence that, at age 17 years and 11 months, Graham invaded a home with two accomplices and held the homeowner at gunpoint for approximately 30 minutes while his accomplices ransacked the residence.

At gunpoint... armed home invasion... armed robbery... technically we should add in kidnapping since the homeowner was being held hostage. -- BILL

As a result, the judge concluded that Graham had violated his probation and, after additional hearings, adjudicated Graham guilty on both counts arising from the restaurant robbery. The judge imposed the maximum sentence allowed by Florida law on the armed burglary count, life imprisonment without the possibility of parole.

Too bad the death penalty wasn't an option; why the heck should the taxpayers have to bear the costs of a lifetime of imprisonment? -- BILL

Graham argues, and the Court holds, that this sentence violates the Eighth Amendment’s Cruel and Unusual Punishments Clause because a life-without-parole sentence is always “grossly disproportionate” when imposed on a person under 18 who commits any crime short of a homicide.

The Court majority spun their decision this out of whole cloth, not based upon any legitimate "good faith" reading of the text and intent of the Constitution. As Justice Thomas earlier pointed out, the sentence would not have offended the standards that prevailed at the Founding. Indeed, referring back to my earlier personal remarks concerning the death penalty... anyone familiar with American history would have to admit that had Graham's sentence been "death," even that would not have offended the standards that prevailed at the Founding. -- BILL

The Eighth Amendment, which applies to the States through the Fourteenth, provides that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” It is by now well established that the Cruel and Unusual Punishments Clause was originally understood as prohibiting "torturous methods of punishment" - specifically methods akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted. With one arguable exception (see Weems v. United States, 217 U. S. 349; 1910) this Court applied the Clause with that understanding for nearly 170 years after the Eighth Amendment’s ratification.

More recently, however, the Court has held that the Clause authorizes it to proscribe not only methods of punishment that qualify as “cruel and unusual,” but also any punishment that the Court deems “grossly disproportionate” to the crime committed. This latter interpretation is entirely the Court’s creation.

And again... the Courts were not given authority to create law via their "interpretation" of the Constitution. Doing so is an Extra-Constitutional abuse of the Court's legitimate authority. One of the great tragedies of American history is that the very first time a majority of the Court overstepped their Constitutional boundaries via such Extra-Constitutional action the Legislative Branch did not immediately Impeach, bring to trial, find guilty, and remove from office the offending Justices. -- BILL

As has been described elsewhere at length, there is virtually no indication that the Cruel and Unusual Punishments Clause originally was understood to require proportionality in sentencing. Here, it suffices to recall just two points. First, the Clause does not expressly refer to proportionality or invoke any synonym for that term, even though the Framers were familiar with the concept - as evidenced by several Founding-era state constitutions that required (albeit without defining) proportional punishments. In addition, the penal statute adopted by the First Congress demonstrates that proportionality in sentencing was not considered a Constitutional command.

The Court [majority] has nonetheless invoked proportionality to declare that capital punishment - though not unconstitutional per se - is categorically too harsh a penalty to apply to certain types of crimes and certain classes of offenders.

Thus acting beyond the scope of their Constitutional authority; thus violating their oaths of office... thus acting in an Extra-Constitutional fashion. -- BILL

In adopting these categorical proportionality rules, the Court intrudes upon areas that the Constitution reserves to other (state and federal) organs of government.

Or... as I put it less diplomatically up above... the Members of the Court who do thus "intrude" do so in clear violation of their oaths of office. -- BILL

The Eighth Amendment prohibits the government from inflicting a cruel and unusual method of punishment upon a defendant. Other constitutional provisions ensure the defendant’s right to fair process before any punishment is imposed. But, as members of today’s majority note, “society changes,” and the Eighth Amendment leaves the unavoidably moral question of who “deserves” a particular non-prohibited method of punishment to the judgment of the legislatures that authorize the penalty, the prosecutors who seek it, and the judges and juries that impose it under circumstances they deem appropriate.

The Court has nonetheless adopted categorical rules that shield entire classes of offenses and offenders from the death penalty on the theory that “evolving standards of decency” require this result.

Categorical and Extra-Constitutional! -- BILL

The Court has offered assurances that these standards can be reliably measured by "objective indicia" of "national consensus," such as state and federal legislation, jury behavior, and (surprisingly, given that we are talking about "national” consensus") international opinion.

In other words... a majority of Justices of the Supreme Court of the United States have apparently lost their minds... -- BILL

Yet even assuming that is true, the Framers did not provide for the constitutionality of a particular type of punishment to turn on a “snapshot of American public opinion” taken at the moment a case is decided. By holding otherwise, the Court pretermits in all but one direction the evolution of the standards it describes, thus “calling a constitutional halt to what may well be a pendulum swing in social attitudes,” and “stunting legislative consideration” of new questions of penal policy as they emerge.

Which of course is the inescapable flaw in the argument for placing snapshot "precedent" above clear Constitutional text and intent as understood at the time of ratification of the Constitution and its various Amendments!!! -- BILL

But the Court is not content to rely on snapshots of community consensus in any event. Instead, it reserves the right to reject the evidence of consensus it finds whenever its own “independent judgment” points in a different direction. The Court thus openly claims the power not only to approve or disapprove of democratic choices in penal policy based on evidence of how society’s standards have evolved, but also on the basis of the Court’s “independent” perception of how those standards should evolve, which depends on what the Court concedes is "necessarily . . . a moral judgment" regarding the propriety of a given punishment in today’s society.

In other words... ultimately... we're talking not a democracy, not a Republic, not a nation under the Rule of Law... but instead a nation which can be at any point in time and on any issue "commanded" to do or not to do by a simple five person majority of unelected Justices of the Supreme Court. -- BILL

The categorical proportionality review the Court employs in capital cases thus lacks a principled foundation. The Court’s decision today is significant because it does not merely apply this standard - it remarkably expands its reach. For the first time in its history, the Court declares an entire class of offenders immune from a non-capital sentence using the categorical approach it previously reserved for death penalty cases alone.

Drip... drip... drip... Nudge... nudge... nudge... "Progressive" (Extra-Constitutional) jurisprudence indeed. --- BILL

Until today, the Court has based its categorical proportionality rulings on the notion that the Constitution gives special protection to capital defendants because the death penalty is a uniquely severe punishment that must be reserved for only those who are “most deserving of execution.” Of course, the Eighth Amendment itself makes no distinction between capital and non-capital sentencing, but the “‘bright line’” the Court drew between the two penalties has for many years served as the principal justification for the Court’s willingness to reject democratic choices regarding the death penalty.

Today’s decision eviscerates that distinction.

“Death is different” no longer.

The Court now claims not only the power categorically to reserve the “most severe punishment” for those the Court thinks are "the most deserving of execution," but also to declare that “less culpable” persons are categorically exempt from the “second most severe penalty.”

And again... to be clear... the majority claims this power based upon... nothing other than their own will as six individuals. -- BILL

No reliable limiting principle remains to prevent the Court from immunizing any class of offenders from the law’s third, fourth, fifth, or fiftieth most severe penalties as well.

This is true... -- BILL

The Court’s departure from the “death is different” distinction is especially mystifying when one considers how long it has resisted crossing that divide. Indeed, for a time the Court declined to apply proportionality principles to non-capital sentences at all, emphasizing that “a sentence of death differs in kind from any sentence of imprisonment, no matter how long.” Based on that rationale, the Court found that the excessiveness of one prison term as compared to another was “properly within the province of legislatures, not courts,” precisely because it involved an “invariably . . . subjective determination, there being no clear way to make any constitutional distinction between one term of years and a shorter or longer term of years."

Even when the Court broke from that understanding in its 5-to-4 decision in Solem v. Helm (1983) striking down as “grossly disproportionate” a life without parole sentence imposed on a defendant for passing a worthless check, the Court did so only as applied to the facts of that case; it announced no categorical rule. Moreover, the Court soon cabined Solem's rationale. The controlling opinion in the Court’s very next non-capital proportionality case emphasized that principles of federalism require substantial deference to legislative choices regarding the proper length of prison sentences.

In the 28 years since Solem, the Court has considered just three such challenges [to sentencing decisions] and has rejected them all. Remarkably, the Court today does more than return to Solem’s case by case proportionality standard for non-capital sentences; it hurtles past it to impose a categorical proportionality rule banning life without parole sentences not just in this case, but in every case involving a juvenile non-homicide offender, no matter what the circumstances.

Neither the Eighth Amendment nor the Court’s precedents justify this decision.

Again... to be clear... even if one places the concept of stare decisis upon a pedestal... the Majority in the case of this present ruling ignored precedent just as they ignored the Constitution itself. -- BILL

The Court asserts that categorical proportionality review is necessary here merely because Graham asks for a categorical rule - and because the Court thinks clear lines are a good idea. I find those factors wholly insufficient to justify the Court’s break from past practice.

First, the Court fails to acknowledge that a petitioner seeking to exempt an entire category of offenders from a sentencing practice carries a much heavier burden than one seeking case-specific relief under Solem.

Unlike the petitioner in Solem, Graham must establish not only that his own life without parole sentence is “grossly disproportionate,” but also that such a sentence is always grossly disproportionate whenever it is applied to a juvenile non-homicide offender, no matter how heinous his crime.

Second, even applying the Court’s categorical “evolving standards” test, neither objective evidence of national consensus nor the notions of culpability on which the Court’s “independent judgment” relies can justify the categorical rule it declares here.

According to the Court, proper Eighth Amendment analysis “begins with objective indicia of national consensus,” and “the clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures.”

And in this the Majority is clearly wrong. All Eighth Amendment analysis - indeed all Constitutional analysis including analysis of each and every Constitutional Amendment from the First Amendment to the Bill of Rights to the Twenty-Seventh Amendment - must begin and flow from the text and best faith reading of the intent of the text at the time of ratification.

[Even utilizing the false justification of the Majority], the analysis should end quickly, because a national “consensus” in favor of the Court’s result simply does not exist. The laws of all 50 States, the Federal Government, and the District of Columbia provide that juveniles over a certain age may be tried in adult court if charged with certain crimes. Forty-five States, the Federal Government, and the District of Columbia expose juvenile offenders charged in adult court to the very same range of punishments faced by adults charged with the same crimes. Eight of those States do not make life without parole sentences available for any non-homicide offender, regardless of age. All remaining jurisdictions - the Federal Government, the other 37 States, and the District - authorize life without parole sentences for certain non-homicide offenses, and authorize the imposition of such sentences on persons under 18 [years of age]. Only five States prohibit juvenile offenders from receiving a life without parole sentence that could be imposed on an adult convicted of the same crime.

No plausible claim of a consensus against this sentencing practice can be made in light of this overwhelming legislative evidence. The sole fact that federal law authorizes this practice single-handedly refutes the claim that our Nation finds it morally repugnant. The additional reality that 37 out of 50 States - a supermajority of 74% - permit the practice makes the claim utterly implausible.

Not only is there no consensus against this penalty, there is a clear legislative consensus in favor of its availability.

Undaunted, however, the Court brushes this evidence aside as “incomplete and unavailing,” declaring that "there are measures of consensus other than legislation."

This is nothing short of stunning.

Most importantly, federal civilian law approves this sentencing practice. And although the Court has never decided how many state laws are necessary to show consensus, the Court has never banished into constitutional exile a sentencing practice that the laws of a majority, let alone a supermajority, of States expressly permit.

The Court - represented in this case by a six member Majority - has simply gone off the rails!-- BILL

Moreover, the consistency and direction of recent legislation - a factor the Court previously has relied upon when crafting categorical proportionality rules - underscores the consensus against the rule the Court announces here.

In my view, the Court cannot point to a national consensus in favor of its rule without assuming a consensus in favor of the two penological points it later discusses: (1) Juveniles are always less culpable than similarly situated adults, and (2) juveniles who commit non-homicide crimes should always receive an opportunity to demonstrate rehabilitation through parole.

But legislative trends make that assumption untenable.

First, States over the past 20 years have consistently increased the severity of punishments for juvenile offenders. See 1999 DOJ National Report 89 (referring to the 1990’s as “a time of unprecedented change as State legislatures cracked down on juvenile crime”) noting that, during that period “legislatures in 47 States and the District of Columbia enacted laws that made their juvenile justice systems more punitive” principally by “making it easier to transfer juvenile offenders from the juvenile justice system to the adult criminal justice system."

This, in my view, reveals the States’ widespread agreement that juveniles can sometimes act with the same culpability as adults and that the law should permit judges and juries to consider adult sentences - including life without parole - in those rare and unfortunate cases.

Second, legislatures have moved away from parole over the same period.

Congress abolished parole for federal offenders in 1984 amid criticism that it was subject to “gamesmanship and cynicism.” (By the end of 2000, 16 States had abolished parole for all offenses, while another 4 States had abolished it for certain ones.)

In light of these developments, the argument that there is nationwide consensus that parole must be available to offenders less than 18 years old in every non-homicide case simply fails.

Notice how Justice Thomas just demolishes - using fact and logic - the arguments of the six Extra-Constitutionalists. -- BILL

The Court [majority] nonetheless dismisses existing legislation, pointing out that life without parole sentences are rarely imposed on juvenile non-homicide offenders - 129 times in recent memory, 9 by the Court’s calculation, spread out across 11 States and the federal courts. Based on this rarity of use, the Court proclaims a consensus against the practice, implying that laws allowing it either reflect the consensus of a prior, less civilized time or are the work of legislatures tone deaf to moral values of their constituents that this Court claims to have easily discerned from afar.

This logic strains credulity. It has been rejected before. (Gregg v. Georgia; 1976) It should also be rejected here. That a punishment is rarely imposed demonstrates nothing more than a general consensus that it should be just that - rarely imposed. It is not proof that the punishment is one the Nation abhors. The Court nonetheless insists that the 26 States that authorize this penalty, but are not presently incarcerating a juvenile non-homicide offender on a life without parole sentence, cannot be counted as approving its use.

Absurd! -- BILL

The mere fact that the laws of a jurisdiction permit this penalty, the Court explains, “does not indicate that the penalty has been endorsed through deliberate, express, and full legislative consideration.”

Again... absurd! Absolutely Owellian! --BILL

As an initial matter, even accepting the Court’s theory, federal law authorizes this penalty and the Federal Government uses it.

Remember, folks... (and I know legal rulings are by their nature somewhat repetitious)... we're talking about the federal Constitution's 8th Amendment prohibition against "...unusual" punishment. That's the relevance of Justice Thomas' reiteration of the facts concerning the prevalence of specific legal sentencing practices as placed into law by our democratically elected legislatures and democratically elected State and federal executives. -- BILL

That should be all the evidence necessary to refute the claim of a national consensus against this penalty.

Yet even when examining the States that authorize but have not recently employed this sentencing practice the Court’s theory is unsound. Under the Court’s evolving standards test, “it is not the burden of a State to establish a national consensus approving what their citizens have voted to do; rather, it is the ‘heavy burden’ of petitioners to establish a national consensus against it.” In light of this fact, the Court is wrong to equate a jurisdiction’s disuse of a legislatively authorized penalty with its moral opposition to it.

The fact that the laws of a jurisdiction permit this sentencing practice demonstrates, at a minimum, that the citizens of that jurisdiction find tolerable the possibility that a jury of their peers could impose a life without parole sentence on a juvenile whose non-homicide crime is sufficiently depraved.

The recent case of 16-year-old Keighton Budder illustrates this point.

Just weeks before the release of this opinion, an Oklahoma jury sentenced Budder to life without parole after hearing evidence that he viciously attacked a 17-year-old girl who gave him a ride home from a party. Budder allegedly put the girl’s head "into a headlock and sliced her throat," raped her, stabbed her about 20 times, beat her, and pounded her face into the rocks alongside a dirt road. (Miraculously, the victim survived.)

Budder’s crime was rare in its brutality. The sentence the jury imposed was also rare. According to the study relied upon by this Court, Oklahoma had no such offender in its prison system before Budder’s offense. Without his conviction, therefore, the Court would have counted Oklahoma’s citizens as morally opposed to life without parole sentences for juveniles non-homicide offenders. Yet Oklahoma’s experience proves the inescapable flaw in that reasoning: Oklahoma citizens have enacted laws that allow Oklahoma juries to consider life without parole sentences in juvenile non-homicide cases.

Oklahoma juries invoke those laws rarely - in the unusual cases that they find exceptionally depraved.

I cannot agree with the Court that Oklahoma citizens should be constitutionally disabled from using this sentencing practice merely because they have not done so more frequently.

If anything, the rarity of this penalty’s use underscores just how judicious sentencing judges and juries across the country have been in invoking it.

Justice Thomas' logic is of course irrefutable. -- BILL

This fact is entirely consistent with the Court’s intuition that juveniles generally are less culpable and more capable of growth than adults. Graham’s own case provides another example. Graham was statutorily eligible for a life without parole sentence after his first crime. But the record indicates that the trial court did not give such a sentence serious consideration at Graham’s initial plea hearing. It was only after Graham subsequently violated his parole by invading a home at gunpoint that the maximum sentence was imposed.

In sum, the Court’s calculation that 129 juvenile non-homicide life without parole sentences have been imposed nationwide in recent memory, even if accepted, hardly amounts to strong evidence that the sentencing practice offends our common sense of decency.

Finally, I cannot help but note that the statistics the Court finds inadequate to justify the penalty in this case are stronger than those supporting at least one other penalty this Court has upheld.

Not long ago, this Court, joined by the author of today’s opinion [Justice Kennedy], upheld the application of the death penalty against a 16-year-old, despite the fact that no such punishment had been carried out on a person of that age in this country in nearly 30 years. Whatever the statistical frequency with which life without parole sentences have been imposed on juvenile non-homicide offenders in the last 30 years, it is surely greater than zero.

Nice slam against that self-serving Extra-Constitutionalist Kennedy! -- BILL

In the end, however, objective factors such as legislation and the frequency of a penalty’s use are merely ornaments in the Court’s analysis, window dressing that accompanies its judicial fiat. By the Court’s own decree, “community consensus . . . is not itself determinative.” Only the independent moral judgment of this Court is sufficient to decide the question.

At least that's how the Extra-Constitutionalists look at it. If the President of the United States and Members of the House and Senate were capable of shame... they'd be ashamed of themselves for allowing the Supreme Court to "go rogue." Well... regardless of their ethical and intellectual failings... they should be ashamed. -- BILL

By the way... I'm not including "footnote commentary" in this reprinting (with commentary) of Justice Thomas' dissent. Within his footnotes Justice Thomas eviscerates those of his fellow Justices who refer to foreign law to buttress their faulty reasoning and arguments in support thereof. Well worth reading! -- BILL

Lacking any plausible claim to consensus, the Court shifts to the heart of its argument: its “independent judgment” that this sentencing practice does not “serve legitimate penological goals.”

The Court begins that analysis with the obligatory preamble that "the Eighth Amendment does not mandate adoption of any one penological theory," then promptly mandates the adoption of the theories the Court deems best.

First, the Court acknowledges that, at a minimum, the imposition of life without parole sentences on juvenile non-homicide offenders serves two “legitimate” penological goals: incapacitation and deterrence.

By definition, such sentences serve the goal of incapacitation by ensuring that juvenile offenders who commit armed burglaries, or those who commit the types of grievous sex crimes [previously] described by the Chief Justice no longer threaten their communities. That should settle the matter, since the Court acknowledges that incapacitation is an “important” penological goal.

Yet, the Court [then] finds this [same] goal “inadequate” to justify the life-without-parole sentences here.

A similar fate befalls deterrence. The Court acknowledges that such sentences will deter future juvenile offenders, at least to some degree, but rejects that penological goal, not as illegitimate, but as insufficient.

What Justice Thomas is pointing out is that the Extra-Constitutionalists are all over the lot - that they give no more allegiance to intellectual consistency than they do to the clear text and meaning of the Constitution - or for that matter, in this case, precedent! -- BILL

The Court looks more favorably on rehabilitation, but laments that life without parole sentences do little to promote this goal because they result in the offender’s permanent incarceration. Of course, the Court recognizes that rehabilitation’s “utility and proper implementation” are subject to debate. But that does not stop it from declaring that a legislature may not “forswear . . . the rehabilitative ideal.” In other words, the Eighth Amendment does not mandate “any one penological theory,” just one the Court approves.

Note the pattern, folks... - BILL

Ultimately, however, the Court’s “independent judgment” and the proportionality rule itself center on retribution - the notion that a criminal sentence should be proportioned to “‘the personal culpability of the criminal offender." The Court finds that retributive purposes are not served here for two reasons. First (quoting Roper, 543 U. S., at 569–570), the Court concludes that juveniles are less culpable than adults because, as compared to adults, they “have a "lack of maturity and an underdeveloped sense of responsibility," and “their characters are ‘not as well formed."

As a general matter, this statement is entirely consistent with the evidence recounted above that judges and juries impose the sentence at issue quite infrequently, despite legislative authorization to do so in many more cases. Our society tends to treat the average juvenile as less culpable than the average adult. But the question here does not involve the average juvenile. The question, instead, is whether the Constitution prohibits judges and juries from ever concluding that an offender under the age of 18 has demonstrated sufficient depravity and incorrigibility to warrant his permanent incarceration.

In holding that the Constitution imposes such a ban, the Court cites “developments in psychology and brain science” indicating that juvenile minds “continue to mature through late adolescence and that juveniles are “more likely than adults to engage in risky behaviors. But even if such generalizations from social science were relevant to constitutional rule making, the Court misstates the data on which it relies.

Not surprising... -- BILL

The Court equates the propensity of a fairly substantial number of youths to engage in “risky” or anti-social behaviors with the propensity of a much smaller group to commit violent crimes. But research relied upon by the amici cited in the Court’s opinion differentiates between adolescents for whom anti-social behavior is a fleeting symptom and those for whom it is a lifelong pattern. That research further suggests that the pattern of behavior in the latter group often sets in before 18. And, notably, it suggests that violence itself is evidence that an adolescent offender’s antisocial behavior is not transient.

In sum, even if it were relevant, none of this psychological or sociological data is sufficient to support the Court’s "moral" conclusion that youth defeats culpability in every case.

The Court responds that a categorical rule is nonetheless necessary to prevent the "unacceptable likelihood" that a judge or jury, unduly swayed by "the brutality or cold-blooded nature" of a juvenile’s non-homicide crime, will sentence him to a life without parole sentence for which he possesses "insufficient culpability."

I find that justification entirely insufficient. The integrity of our criminal justice system depends on the ability of citizens [the Jury] to stand between the defendant and an outraged public and dispassionately determine his guilt and the proper amount of punishment based on the evidence presented. That process necessarily admits of human error. But so does the process of judging in which we engage. As between the two, I find far more “unacceptable” that this Court, swayed by studies reflecting the general tendencies of youth, decree that the people of this country are not fit to decide for themselves when the rare case requires different treatment. That is especially so because, in the end, the Court does not even believe its pronouncements about the juvenile mind. If it did, the categorical rule it announces today would be most peculiar because it leaves intact state and federal laws that permit life without parole sentences for juveniles who commit homicides.

Hear! Hear! Bravo, Justice Thomas! -- BILL

The Court thus acknowledges that there is nothing inherent in the psyche of a person less than 18 that prevents him from acquiring the moral agency necessary to warrant a life without parole sentence. Instead, the Court rejects overwhelming legislative consensus only on the question of which acts are sufficient to demonstrate that moral agency.

Outrageous! -- BILL

The Court is quite willing to accept that a 17-year-old who pulls the trigger on a firearm can demonstrate sufficient depravity and irredeemably to be denied reentry into society, but insists that a 17-year-old who rapes an 8-year-old and leaves her for dead does not. Thus, the Court’s conclusion that life without parole sentences are “grossly disproportionate” for juvenile non-homicide offenders in fact has very little to do with its view of juveniles, and much more to do with its perception that “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers.” That the Court is willing to impose such an exacting constraint on democratic sentencing choices based on such an untestable philosophical conclusion is remarkable.

Extra-Constitutional... an affront to our democracy, our Republican form of government, and ultimately an end run around the Rule of Law. -- BILL

The question of what acts are “deserving” of what punishments is bound so tightly with questions of morality and social conditions as to make it, almost by definition, a question for legislative resolution.

Take out the qualifier "almost" and make it "by definition." -- BILL

It is true that the Court previously has relied on the notion of proportionality in holding certain classes of offenses categorically exempt from capital punishment. But never before today has the Court relied on its own view of just deserts to impose a categorical limit on the imposition of a lesser punishment. Its willingness to cross that well-established boundary raises the question whether any democratic choice regarding appropriate punishment is safe from the Court’s ever-expanding constitutional veto.

There is no question. No democratic choice is safe from the Extra-Constitutionalists on those occasions where they cobble together a Majority. -- BILL

Although the concurrence avoids the problems associated with expanding categorical proportionality review to non-capital cases, it employs non-capital proportionality analysis in a way that raises the same fundamental concern. Although I do not believe Solem merits stare decisis treatment, Graham’s claim cannot prevail even under that test (as it has been limited by the Court’s subsequent precedents). Solem instructs a court first to compare the “gravity” of an offender’s conduct to the “harshness of the penalty” to determine whether an “inference” of gross disproportionality exists. Only in “the rare case” in which such an inference is present should the court proceed to the “objective” part of the inquiry - an intra- and inter-jurisdictional comparison of the defendant’s sentence with others similarly situated.

Under the Court’s precedents, I fail to see how an “inference” of gross disproportionality arises here.

The concurrence notes several arguably mitigating facts - Graham’s “lack of prior criminal convictions, his youth and immaturity, and the difficult circumstances of his upbringing.” But the Court previously has upheld a life without parole sentence imposed on a first-time offender who committed a non-violent drug crime. Graham’s conviction for an actual violent felony is surely more severe than that offense.

As for Graham’s age, it is true that Roper held juveniles categorically ineligible for capital punishment, but as the concurrence explains, Roper was based on the “explicit conclusion that juveniles "cannot with reliability be classified among the worst offenders;" it did “not establish that juveniles can never be eligible for life without parole.”

In my view, Roper’s principles are thus not generally applicable outside the capital sentencing context.

By holding otherwise, the concurrence relies on the same type of subjective judgment as the Court, only it restrains itself to a case-by-case rather than a categorical ruling. The concurrence is quite ready to hand Graham “the general presumption of diminished culpability” for juveniles, apparently because it believes that Graham’s armed burglary and home invasion crimes were “certainly less serious” than murder or rape. It recoils only from the prospect that the Court would extend the same presumption to a juvenile who commits a sex crime. -- BILL

(*SNORT*)

I simply cannot accept that these subjective judgments of proportionality are ones the Eighth Amendment authorizes us to make.

It doesn't. The Extra-Constitutionalists have knowingly, deliberately trashed the Constitution and thus should be impeached, convicted, and removed from the bench. Of course they won't be. -- BILL

The “objective” elements of the Solem test provide no additional support for the concurrence’s conclusion. The concurrence compares Graham’s sentence to “similar” sentences in Florida and concludes that Graham’s sentence was “far more severe.” But strangely, the concurrence uses average sentences for burglary or robbery offenses as examples of “similar” offenses, even though it seems that a run-of-the-mill burglary or robbery is not at all similar to Graham’s criminal history, which includes a charge for armed burglary with assault, and a probation violation for invading a home at gunpoint.

If only logic and the facts mattered to the Extra-Constitutionalists... -- BILL

And even if Graham’s sentence is higher than ones he might have received for an armed burglary with assault in other jurisdictions this hardly seems relevant if one takes seriously the principle that "absent a constitutionally imposed uniformity inimical to traditional notions of federalism, some State will always bear the distinction of treating particular offenders more severely than any other State."

Applying Solem, the Court has upheld a 25-years-to-life sentence for theft under California’s recidivist statute, despite the fact that the State and its amici could cite only “a single instance of a similar sentence imposed outside the context of California’s three strikes law, out of a prison population then approaching two million individuals.” It has also upheld a life without parole sentence for a first-time drug offender in Michigan charged with possessing 672 grams of cocaine despite the fact that only one other State would have authorized such a stiff penalty for a first-time drug offense - and even that State required a far greater quantity of cocaine (10 kilograms) to trigger the penalty.

Graham’s sentence is certainly less rare than the sentences upheld in these cases, so his claim fails even under Solem.

Both the Court and the concurrence claim their decisions to be narrow ones, but both invite a host of "line-drawing" problems to which courts must seek answers beyond the strictures of the Constitution. The Court holds that “a State is not required to guarantee eventual freedom to a juvenile offender convicted of a non-homicide crime,” but must provide the offender with “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” But what, exactly, does such a “meaningful” opportunity entail? When must it occur? And what Eighth Amendment principles will govern review by the parole boards the Court now demands that States impanel?

The Court provides no answers to these questions, which will no doubt embroil the courts for years.

I just can't believe that John Roberts signed on to this decision. God help us if this is just the start of Roberts' "growth" in office. -- BILL

The ultimate question in this case is not whether a life without parole sentence ‘fits’ the crime at issue here or the crimes of juvenile non-homicide offenders more generally, but to whom the Constitution assigns that decision.

Unfortunately, a Majority of the Court - in this instance at least - apparently couldn't care less about "to whom the Constitution assigned that decision." Again... I'm not surprised by Kennedy's actions; but Chief Justice Roberts... what in God's name was he thinking...?!?! -- BILL

The Florida Legislature has concluded that such sentences should be available for persons under 18 who commit certain crimes, and the trial judge in this case decided to impose that legislatively authorized sentence here. Because a life without parole prison sentence is not a “cruel and unusual” method of punishment under any standard, the Eighth Amendment gives this Court no authority to reject those judgments. It would be unjustifiable for the Court to declare otherwise even if it could claim that a bare majority of state laws supported its independent moral view.

Exactly right! -- BILL

The fact that the Court categorically prohibits life without parole sentences for juvenile non-homicide offenders in the face of an overwhelming legislative majority in favor of leaving that sentencing option available under certain cases simply illustrates how far beyond any cognizable constitutional principle the Court has reached to ensure that its own sense of morality and retributive justice preempts that of the People and their representatives.

I agree with Justice Stevens that “we learn, sometimes, from our mistakes.” Perhaps one day the Court will learn from this one.

I respectfully dissent.

As do I. -- BILL

Barker's Newsbites: Thursday, May 20, 2010


Simpler times...

Wednesday, May 19, 2010

H.R. 4720 - The Where the Hell Are Boehner, McConnell, and Steele Act


My friends...

As you know, I have a very low tolerance for abject stupidity.

While browsing today's news I came up the following article, "Dem Lawmaker Wants Congress to Give Itself a Five Percent Pay Cut Next Year," in The Hill.

Dem Lawmaker...???

Really...???

Yep! Giving credit where credit is due, the House Member in question is Ann Kirkpatrick, Democrat of Arizona.

In a nutshell, Kirkpatrick's bill - H.R. 4720 - calls for a 5% cut in base salary for Members of Congress which would go into effect starting with the Congress of 2011 (the earliest date constitutionally permissible for a change in congressional pay).

Congresswoman Kirkpatrick has 29 co-sponsors to her bill.

Care to guess how many are Republicans...???

(*GRITTING MY TEETH*)

Eight.

Yep. Eight out of twenty-nine.

These eight Republican co-sponsors are Ron Paul of Texas, Walter B. Jones, Jr. of North Carolina, Blaine Luetkemeyer of Missouri, Cynthia M. Lummis of Wyoming, David P. Roe of Tennessee, Glenn Thompson of Pennsylvania, Robert J. Wittman of Virginia, and John L. Mica of Florida.

Notice... John Boehner's name isn't on the list of co-sponsors.

Nor is Eric Cantor's.

Nor is Thaddeus McCotter's.

Nor is Tom Price's.

In case these names aren't familiar to you...

Cantor is Minority Whip - effectively Majority Leader Boehner's deputy and the number two Republican in the House.

McCotter is Chairman of the Republican Policy Committee of the House of Representatives.

Tom Price? He's Chairman of the Republican Study Committee - the House Republican conservatives' caucus.

To say that I'm a bit... er... perturbed... by the lack of - at a bare minimum - smart public relations on the part of Republican House leaders would be an understatement.

What are these morons thinking...?!?! That's the thought that comes to mind!

If I can clearly see the disconnect inherent in a Democrat being the sponsor of H.R. 4720 as opposed to a Republican...

If I can read through the list of co-sponsors and count 21 Democrats and only eight Republicans...

(*GROWL*)

Then why haven't the movers and shakers within the GOP noticed the disconnect?

Hey Mitch McConnell... perhaps you folks in the Senate Republican minority might consider getting up off your duffs and write, submit, and support a Senate bill along the lines of H.R. 4720.

Hey Michael Steele... not for nothing, but if Bill Barker in Harriman, NY is aware of - and outraged by - the fact that elected Republicans in Washington are once again showing why the GOP is often referred to as "The Stupid Party," shouldn't you - as Chairman of the GOP - be at the very least as aware and outraged?

Mikey... get on the horn to Boehner, McConnell, Cantor, McCotter, and Price and read them the riot act...!!!

I don't know... is it me...??? Am I asking too much...???

I don't think so...

(*SIGH*)

Barker's Newsbites: Wednesday, May 19, 2010


With all due respect to our British cousins...

Monday, May 17, 2010

Barker's Newsbites: Monday, May 17, 2010


(Ignore the "video" itself; it's the sound quality I'm going for...)

They just don't write 'em like this anymore...

(*GRIN*)

United States, Petitioner v. Graydon Earl Comstock, Jr., et al


United States, Petitioner v. Graydon Earl Comstock, Jr., et al
(Decided May 17, 2010)

Justice Bryer delivered the opinion of the Court --

A federal civil-commitment statute (18 U. S. C. §4248) authorizes the Department of Justice to detain a mentally ill, sexually federal prisoner beyond the date the prisoner would otherwise be released. authorizes the Department of Justice to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released.

We have previously examined similar statutes enacted under state law to determine whether they violate the Due Process Clause. But this case presents a different question. Here we ask whether the Federal Government has the authority under Article I of the Constitution to enact this federal civil-commitment program or whether its doing so falls beyond the reach of a government “of enumerated powers.”

We...

[...the majority of the Court: Justices Bryer, Roberts, Stevens, Ginsburg, Kennedy, Sotomayor, and Alito...]

...conclude that the Constitution grants Congress the authority to enact §4248 as “necessary and proper for carrying into Execution” the powers “vested by the Constitution in the Government of the United States” [in] Article 1, Section 8, Clause 18.

TO REFRESH...

Article 1, Section 8, Clause 18 of the U.S. Constitution reads:

"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

So... what are these foregoing Powers granted via the preceding 17 other Clauses of Article 1, Section, 8...

Clause 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Nope... nothing about sexual predators or indeed any type of criminal...

Clause 2: To borrow money on the credit of the United States;

Nope...

Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Nope...

Clause 4: To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Nope...

Clause 5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

Nope...

Clause 6: To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

Nope... nothing about sexual predators; does deal with counterfeiting... but nothing about sexual predators or other "non-counterfeiting" criminals...

Clause 7: To establish Post Offices and Post Roads;

Nope...

Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Nope...

Clause 9: To constitute Tribunals inferior to the supreme Court;

Nope...

Clause 10: To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

Nope... nothing about sexual predators or indeed any type of criminal other than... er... pirates
and others who commit felonies upon the high seas or commit offenses against the laws of nations...

Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Nope...

Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Nope...

Clause 13: To provide and maintain a Navy;

Nope...

Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;

Nope...

Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Nope...

Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Nope...

Cause 17: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;

Nope...

Questions...??? Comments...??? Anything I seem to be missing...???

Interestingly enough, within the Syllabus (digest) of the ruling the Court itself notes...

Thus, although the Constitution nowhere grants Congress express power to create federal crimes beyond those specifically enumerated, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, or to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others, Congress possesses broad authority to do each of those things under the Clause.

Hmm...

While I've read and reread the above several times... while I "understand" what the Court Majority is claiming... try as I might I can't find any foundation whatsoever for the claim from my reading and rereading of the Constitution; certainly not via the "authority" cited, Article 1, Section 8, Clause 18. (et al)

Now reality being what it is I no more expect anyone reading this post...

[By the way... congratulations if you've managed to get this far!]

...to read the actual Decision in its entirety than I do expect you to care whether the Constitution of the United States is being faithfully executed or not; I understand that boat has long since sailed.

That said...

If by chance any reader stumbling upon this post happens to... er... give a damn... about the Rule of Law under what our Founders intended to be a federal Republic... I urge you to read Justice Thomas' dissent - joined in by Justice Scalia in all but Part 3-A-1-B.

Yeah... admittedly it'll probably take you 20 minutes to get through the 23 pages of Justice Thomas' dissent... but in my not so humble opinion... it's worth your time.

Cutting to the chase... Justice Thomas notes:

As every schoolchild learns, our Constitution establishes a system of dual sovereignty between the States and the Federal Government. In our system, the Federal Government’s powers are enumerated, and hence limited. Thus, Congress has no power to act unless the Constitution authorizes it to do so.

The Necessary and Proper Clause empowers Congress to enact only those laws that “carry into Execution” one or more of the federal powers enumerated in the Constitution.

§4248 “Executes” no enumerated power...

The Necessary and Proper Clause does not provide Congress with authority to enact any law simply because it furthers other laws Congress has enacted in the exercise of its incidental authority; the Clause plainly requires a showing that every federal statute “carries into Execution” one or more of the Federal Government’s enumerated powers.

[N]o matter how “necessary” or “proper” an Act of Congress may be to its objective, Congress lacks authority to legislate if the objective is anything other than “carrying into Execution” one or more of the Federal Government’s enumerated powers.

[O]ur precedents uniformly have maintained that the Necessary and Proper Clause is not an independent fount of congressional authority, but rather “a caveat that Congress possesses all the means necessary to carry out the specifically granted "foregoing" powers of [Article 1,] §8 and all other Powers vested by this Constitution.

No enumerated power in Article I, §8, expressly delegates to Congress the power to enact a civil-commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the Federal Government with such a power.

The Government identifies no specific enumerated power or powers as a constitutional predicate for §4248, and none are readily discernible.

This Court...consistently has recognized that the power to care for the mentally ill and, where necessary, the power “to protect the community from the dangerous tendencies of some” mentally ill persons, are among the numerous powers that remain with the States. As a consequence, we have held that States may “take measures to restrict the freedom of the dangerously mentally ill” - including those who are sexually dangerous - provided that such commitments satisfy due process and other constitutional requirements.

In other words, what Justice Thomas is pointing out is that even in terms of pragmatism alone, the States already have all the powers required to deal with sexual predators legally deemed an ongoing "threat to society." (As an addendum to the strictly Constitutional question, there is clearly no "necessity" for Congress to act, to usurp the States' authority.) -- Blog host's commentary.

[T]he Court cites the Second Restatement of Torts for the proposition that the Federal Government has a “custodial interest” in its prisoner and thus a broad "constitutional power to act in order to protect nearby (and other) communities” from the dangers they may pose. That citation is puzzling because federal authority derives from the Constitution, not the Common Law. (In any event, nothing in the Restatement suggests that a Common Law custodian has the powers that Congress seeks here. While the Restatement provides that a custodian has a duty to take reasonable steps to ensure that a person in his care does not cause “bodily harm to others,” that duty terminates once the legal basis for custody expires[.] Once the Federal Government’s criminal jurisdiction over a prisoner ends, so does any “special relationship” between the Government and the former prisoner.)

The fact that the Federal Government has the authority to imprison a person for the purpose of punishing him for a federal crime - sex-related or otherwise - does not provide the Government with the additional power to exercise indefinite civil control over that person.

Absent congressional action that is in accordance with, or necessary and proper to, an enumerated power, the duty to protect citizens from violent crime, including acts of sexual violence, belongs solely to the States.

In closing, Justice Thomas cautioned...

Not long ago, this Court described the Necessary and Proper Clause as “the last, best hope of those who defend ultra vires congressional action.”

Regrettably, today’s opinion breathes new life into that Clause, and - the Court’s protestations to the contrary not withstanding - comes perilously close to transforming the Necessary and Proper Clause into a basis for the federal police power that we always have rejected.

In so doing, the Court endorses the precise abuse of power Article I is designed to prevent - the use of a limited grant of authority as a “pretext . . . for the accomplishment of objects not entrusted to the government.”

And with that Justice Thomas concluded his dissent.

To his and Justice Scalia's dissents... I hereby add my own.

Wednesday, May 12, 2010

Calling All Charleston, South Carolina Foodies...


Let's see if I can get some feedback from the experts...

I'm looking for "insiders" advice on which restaurants, pubs, bars, and "joints" to hit during an upcoming "first ever" trip to Charleston, S.C.

I've gone through "the act" - done my research and narrowing down - and here's what I've come up with:

Robert's of Charleston -- Supposedly the one place you've got to go to when visiting Charleston...

Fulton Five -- Charleston's "most romantic restaurant." Very expensive wine list; least expensive bottle $40! Interestingly enough, the food menu is priced moderate-high; not outrageous. Plenty of yummy dishes for both my wife and I, both appetizers and entrees. Fine dessert and after dinner drinks selection - also reasonably priced for the quality.

Poogan's Porch -- Upscale Lowcountry cuisine. Nice wine list, reasonable number of wines in the $20s and $30s range. Apps and entrees a bit less expensive than other Charleston "fine dining" establishments. We both love the dinner menu! Nice lunch menu too!

The Fat Hen -- Located on Johns Island serving comfort food with a "Lowcountry French" flair. Interesting, affordable wine list. French "comfort" desserts. Very, very nice menu; French with a Southern twist; all priced very reasonably. My wife would love it as much as I!

Swamp Fox Restaurant and Bar at the Francis Marion Inn -- The menu is to die for and for fine dining the prices are a steal!

Magnolia's -- Wine list is upscale but with a fair amount of choices in the $30's and $40s. Great desserts and decent after-dinner drink selection. Yummy dinner menu; plenty of stuff to tweek my palate as well as Mary's. Lunch looks good as well!

Fish -- Nice wine list with a few choices in the mid-$30's plus a truly outstanding cocktail list; less expensive than most similar lists! Same deal with the dessert list; as "fancy" and inventive as any, less expensive than most. Creative "Southern/Asian" fusion menu with plenty of goodies for Mary and lots of stuff I'd just love to try! Affordable "fine dining" choice.

Anson -- Supposed to be (along with Robert's and McCrady's) among the best restaurants in Charleston. Excellent menu; less expensive than I thought it would be; a menu that offers both of us choices we'd be more than happy with.

Sermets Corner -- Eclectic menu featuring everything from soups and appetizers, burgers and paninis, interesting entrees. Mary would be happy here; so would I. "Foodie" food at low prices!

S.N.O.B. (Slightly North of Broad) -- Reasonably priced wine list. "Comfort" desserts! Reasonably priced "fine dining" menu with plenty of choices for Mary.

39 Rue de Jean -- Excellent wine list. Classic French with a "mirror" Asian menu. Mid-priced.

High Cotton -- If we end up hitting a steakhouse... this looks like the one! They seem to have everything going for them at more reasonable prices than you'd expect.

Grill 225 (in the Market Place Hotel) -- Very, very expensive, but... it's where they have prime filet mignon stuffed with Roquefort cheese wrapped in applewood-smoked bacon ($44). For Mary there's a $35 bone-in veal parmesan. Sounds damned yummy!!!

OK... then we have upscale bars...

Rooftop Bar at the Vendue Inn -- A MUST STOP...!!!

Carolina's -- Great cocktails! Definitely stop in for happy hour!

Finally... we have the "joints"...

Momma Brown's -- BBQ joint!

The Hickory Hawg -- BBQ joint!

Mellow Mushroom -- Pizza and Calzones... munchies, soups, salads, sandwiches... and a kick-ass beer selection! Funky, funky place...! (It's actually a mini-chain!)

Hyman's Seafood (and deli!) -- Casual "real deal" seafood restaurant for locals and tourists alike. Huge portions; fair prices; huge menu! Cocktails served in pitchers!

A.W. Shucks -- Another "Charleston tradition" family seafood restaurant. A bit more expensive than Hyman's, perhaps, but still most entrees in the $15-$20 range.

Tommy Condon's Irish Pub -- Great beer list! Pub grub with a lowcountry twist.

The Griffon -- English style pub!

Queen Anne's Revenge -- I'd stop and have a beer there for the atmosphere. Menu looks fine. Not upscale. I'm sure the food's fine. Kitschy yet compelling!

Well, Charlestonians... any thoughts, suggestions, cautions... perhaps some additional recommendations...???

Barker's Newsbites: Wednesday, May 12, 2010


I was just catching up on a backlog of CSI episodes and this song came up...

Man... look at that frigg'n hair...!

And now... back to our scheduled newsbites...

Tuesday, May 11, 2010

Barker's Newsbites: Tuesday, May 11, 2010


As I peruse Charleston, S.C. restaurant menus...

(*SIGH*)

By the way... I remember seeing the movie at Radio City Music Hall with my parents when it first came out...

Dating myself...

Monday, May 10, 2010

Barker's Newsbites: Monday, May 10, 2010


Another of my all time favorites...

(Pretty funny "alternate take.")

Hey... just because the world economy is imploding doesn't mean we can't still do karaoke - at least till the power goes off...

Friday, May 7, 2010

SERIOUSLY, GANG... Check Out My Nephews...!!!


Folks... friends and cyberfriends... guys and gals who have simply found yourselves here via a "keyword alert" or link... check out my nephew's band.

A FRAGILE TOMORROW

They're really good!!! They really are or I wouldn't be wasting your time, folks...

Listen... it's the American Dream, right... striking out on your own against the odds, starting with nothing and making yourself a success...?!?!

These kids started their band years ago... the two older boys - Sean and Dom - were playing back when they were still in elementary school for Christ's sake!

Basically, all three all "self-taught" musicians. They just have a gift.

Sean is a hell of a song writer and young Brendan - who's not even done with high school yet - is just a phenomenon on guitar.

Shaun Rhoades ("Black Shaun," I call him... me being me and all...) ain't half frigg'n bad either!

(*HUGE FRIGG'N GRIN*)

Rounding the boy's band out is nephew Dom - he of the Mohawk haircut - banging on the drums and sharing the "lead vocals" title with nephew Sean.

Listen... google 'em independently! These guys are the real deal! They tour with artists you've heard of!

Anyway... I'm just so proud of them and so I'm passing that pride on through this post.

Pass this info on, folks... I'd appreciate it.

Just pass on the website; the more folks who hear of them... well... you know me folks... your friend Bill's eventual retirement comfort is based in part on these boys getting real successful and making lots of money...!!!