EJ Dionne Redefines Judicisal Activism

EJ Dionne, writing at the Washington Post, projects his own fantasies onto the question of the approval process for a Supreme Court nominee. He argues that the nominating process has always been politicized - not true. And he argues that judicial activism is the hallmark of the right - not only untrue, but insipid and outrageous. Mr. Dionne is attempting to redefine the term "judicial activism."

According to EJ Dionne, the nominating process for appointment to the Supreme Court has always been politicized by both Republican and Democtrat.

To pretend that these judicial fights are about anything other than the court's philosophical direction is a form of willful dishonesty. It's better to be straightforward about the existence of a political struggle over the court than to manufacture phony reasons for opposing a nominee related to "character," "qualifications" or "temperament."

That is palpably false. The nomination process became politicized when the left established as a litmus test that a Judge must acknowledge his obeidiance to Roe v. Wade and that line of cases finding rights that appear nowhere in the test of the Constitution. That very destructive turn of events started under Joe Biden with the hearings for Robert Bork - a hearing so highly politicized as to create of the nominee's name a verb - "borking." Certainly none of the Clinton appointments, Justices Ginsburg or Breyer, were subject to the political circus by the right that surrounded Justices Bork, Thomas, or any of the other Republican appointees since. Indeed, Justice Ginsburg, who has taken some pretty radical positions over the years, sailed through the nominating process - based on her charachter, qualifications and judicial temperament - with almost no Republican dissent. EJ Dionne is simply projecting the left's partisan approach onto Republicans without bothering to check the record.

While Dionne's projection may be false, his next statement is outrageously false:

Today, judicial activism is far more the habit of conservative justices than liberals. The real danger of a conservative Supreme Court is that it will rob Congress and the states of the right to legislate on civil rights, worker rights, the environment and social welfare, just as conservative courts did from the turn of the last century until the late 1930s.

Wow. This is the left's tried and true rhetorical device of redefining words far our of their original meaning. Conservative justices are associated with originalism - the belief that the Constitution should be interpreted to mean what the Founders who drafted the Constitution meant the words to mean at the time. And indeed, if enough Americans disagree with what they wrote at the time, the Constitution provides several methods by which the American people can democratically chage the Constitution. Until the left took over the Court in the last half century, that is how changes were repeatedly made.

But the left of today believes that they can redefine the Constitution to whatever they want it to mean, irregardless of what the Founders meant or, for that matter, whatever the text explicitly says. That is why there is no longer a takings clause prohibition against government taking private property and giving it to another private entity, despite the explicit words of the 5th Amendment. Its why, for the first time in the history, prisoners taken on a battlefield are entitled to court hearing using a habeus petition. Its why there is now a "wall between church and state" that clearly never existed before twentieth century and does not appear in the text of the Constitution. And its why there is today not a state legislated right to abortion, but a Constitutional one founded upon absolutely nothing in the text of the Constitution.

Interestingly, what Dion is referring to is the question of whether the commerce clause has been interpreted by the Supreme Court far beyond the terms of its original meaning. It is also a red herring. Even the most conservative of justices on the Supreme Court has not argued for a wholesale reinterpretation of the commerce clause. It is a very complex issue. But that is certainly not what the disingenuous Mr. Dionne posits. He wants a Supreme Court that will turn us into a far left nation based on the whim of Justices who share Dion's beliefs, irrespective of what our Founders wrote. That is real "judicial activism." And Mr. Dionne is obviously willing to dissimulate to get it.

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Obama's War On Business & The Constitution

Winston Churchill once noted that it is impossible for a country to tax itself into prosperity. Someone needs to remind Obama of that, and along the way explain to him that his proposal to change the burden of proof in tax haven cases is quite likely a violation of the Constitution's due process clause. In America, we don't presume people guilty until they prove themselves innocent. Where did this guy teach Constitutional Law anyway - Moscow University?

Our tax rates on businesses are already ridiculously high. Indeed, our corporate tax rates at 35% are the second highest in the Western world. If you want to drive businesses offshore, that's they way to do it. And if you want to make matters worse, just become more draconian, closing loopholes on this confiscatory tax while leaving the rate unchanged. You can not soak businesses for billions of extra tax dollars without reducing their output and/or driving up their costs - costs which are passed onto to we the consumer in the form of an indirect tax. Yet that is of no matter. Obama today announced that he intended to do precisely that. This from the NYT:

President Obama on Monday called for curbing offshore tax havens and corporate tax breaks to collect billions of dollars more from multinational companies and wealthy individuals.

The move would appeal to growing populist anger among taxpayers but is likely to open an epic battle with some major powers in American commerce.

With the proposals he outlined at the White House, the president sought to make good on his campaign promise to end tax breaks “for companies that ship jobs overseas.”

He estimated the changes would raise $210 billion over the next decade and help offset tax cuts for middle-income taxpayers as well as a permanent tax credit for companies’ research and development costs.

The changes, if enacted, would take effect in 2011, when administration officials presume the economy will have recovered from the recession. But business groups were quick to condemn the White House for proposing tax increases amid a global downturn.

“This plan will reduce the ability of U.S. companies to compete in foreign markets, which will not only reduce jobs, but will also cripple economic growth here in the United States. It couldn’t come at a worse time,” said John J. Castellani, president of the Business Roundtable, a trade association of major businesses.

The proposals would especially hit pharmaceutical, technology, financial and consumer goods companies — among them Goldman Sachs, Microsoft, Pfizer and Procter & Gamble — that have major overseas operations or subsidiaries in tax havens like the Cayman Islands.

. . . At issue are tax laws that were originally intended to prevent multinational corporations from being double-taxed, by the United States and by foreign countries, by allowing companies to defer reporting their foreign income to the Internal Revenue Service and to get tax credits in the United States for foreign taxes paid.

Read the entire article. And you have to love this assessment that they include a little later in the article:

Economists are divided over whether higher taxes would give corporations incentives to move jobs overseas or impair economic growth at home.

That sounds like a comforting debate. Minus six of one or minus a half dozen of the other, eh? As they say, socialism will give us all a chance to share the pain equally.

Update: This, from Hot Air, is a clearer explanation of the consequences of Obama's proposals:

Obama has to find revenue to counter the bleeding. This attempt will backfire in a couple of ways. First, as ATR noted, companies with the wherewithal will simply move overseas to take advantage of better tax environments, limiting their exposure to Obama’s tax-hiking fever and protecting their revenues. He can try to make this as painful as possible, but in the end businesses will act in their own interest. Obama seems to either not realize this or not care much whether companies flee the US, nor does he appear to have learned the value of dynamic tax analysis.

For the rest, the high American corporate tax rate will cause them to invest less in their own businesses, killing expansion and development. It will curtail employment, and in the end, the businesses won’t pay most of the tax anyway. They will do what all businesses do — pass their internal costs to their customers in the form of higher prices. Those higher prices will depress demand, as well as creating inflation on top of stagnation. This will not only cripple the American economy in a similar manner to what we saw in the 1970s, but it will also mean less revenue for the federal and state governments.

If Obama wanted to create jobs and stimulate growth — and therefore tax revenue — he would drop the corporate tax rate instead of attempting to close this “loophole”. If we had a competitive tax rate, businesses wouldn’t need to go abroad to protect their revenue, and we could collect more in taxes in the long run. In order to realize that, though, Obama would have to be cured of his knee-jerk antipathy towards the private sector, which was perfectly clear in his announcement of this new policy.

But it doesn't end there. In order to stop the use of tax havens offshore by individuals, Obama has made an additional proposal - one that likely transgresses the Constitutional protection of due process. This from Yahoo News:

Obama also planned to ask Congress to crack down on tax havens and implement a major shift in the way courts view guilt. Under Obama's proposal, Americans would have to prove they were not breaking U.S. tax laws by sending money to banks that don't cooperate with tax officials. It essentially would reverse the long-held assumption of innocence in U.S. courts.

That is more than a little outrageous. The due process clause "prevent[s] the deprivation of liberty or property upon application of a standard of proof too lax to make reasonable assurance of accurate factfinding." Nothing could be more "lax" than shifting the burden of proof onto the accused from the outset of a hearing. This is an attack on a fundamental right guaranteed by the Constitution.

Obama shredded the Fifth Amendment takings clause a few days ago when he tried to strong arm secured creditors of Chrysler into accepting a deal that grossly favored a junior creditor - i.e., the UAW. Now today he is proposing to violate the due process clause. Two attacks on our Constitution in a matter of days. Not bad for a Con Law prof, eh?

(Hat Tip: Power & Control)

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The Constitution - - The Last Refuge Against A Scoundrel

We have been witness over the past several weeks to White House strong arming of businesses the likes of which have previously been unknown in this country. And now if appears Obama has crossed a threshold that the Constitution forbids.

First there are the TARP loans. The government has refused banks the ability to repay them. Instead, the Obama administration floated a plan, still under consideration, of de facto nationalizing the banks by converting bank TARP loans to common stock. One would think it could not get worse than that, but one would be wrong.

Obama, in proposing to reorganize the auto manufacturers, wants to place his major constituency, big Labour, at the front of the line when it comes to an ownership stake in GM and Chrysler. The end result of such a move is that secured creditors of the two companies would suffer a relative loss far in excess of that which would be suffered by the unions. Not only has the Obama plan been set up to show blatant favortism in contravention of the commercial code, but Obama and his crew were publicly criticizing - and privately threatening - the secured creditors holding out against this plan. Powerline, refering to this as banana republic capitalism, has the whole story. And indeed, there is nothing to distinguish this act of Obama from similar extortions of property by Hugo Chavez in Venezuela or . . . well, pick your favorite dictator.

Fortunately, it seems that the creditors are fighting back. At least one attorney, Thomas Lauria, has gone public about the threat to the entities he represents made by the Obama administration - to use the White House Press Corps to destroy them in the eyes of the public. Today, Lauria has filed a brief challenging the proposed acts of Obama based on the Fifth Amendment. Specifically, he cites to a 1935 case, Louisville Joint Stock Land Bank v. Radford, that dealt with a provision of the New Deal that would have acted to strip a secured creditor of the value of his security by government fiat. The Supreme Court held that, regardless of the government's compelling interest in responding to the economic chaos of the depression, such an act violated the 5th Amendment prohibition against taking private property without just compensation. It is a case dead on point. Hot Air has the story.

I will assume, without looking it up, that this case is still good law. It's interesting to note that this case fell two years prior to FDR's "court packing" scheme. FDR was tired of being stymied by a Supreme Court that found much of his "New Deal" legislation unconstitutional. In 1937, FDR proposed to expand the number of Justices on the Supreme Court and pack the Court in his favor. FDR lost the battle and the legislation failed. That said, FDR won the war. The Supreme Court got the message and began regularly defering to FDR's wishes and taking congressional findings at face value.

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