Judge Vaughn Walker, in deciding that California’s Proposition 8 outlawing homosexual marriage was unconstitutional, managed to: 1) override a majority vote; and 2) assume privilege and expertise to make sweeping conclusions over highly-divisive issues even social scientists cannot agree upon. I wish to concentrate on the role the Courts in a democratic society.
Judge Walker’s opinion is filled with dubious social science ‘facts’ he presupposes to be widely-accepted. Walker claims that evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes. Most legal experts predict the marriage issue will eventually reach the Supreme Court. If the Court decides to take the case, they would repeat the error in Roe v. Wade: namely, trying to remove a morally charged policy issue from the forums of democratic deliberation and resolve it according to the justices’ personal lights. Even many supporters of abortion now consider Roe a mistake. Short of any basis in the text or original understanding of the Constitution, Roe has become a symbol of the judicial usurpation vested in the people and their representatives. By short-circuiting the democratic process, Roe inflamed the culture war that has divided our nation and polarized our politics. Remember: judges should impartially interpret the law, not partially legislate it.
Monday, August 30, 2010
Tuesday, August 17, 2010
Discrimination Against Convicted Felons?
UPDATE: The past two weeks, I have been closely following the Prop 8 SSM legal process. I am working to finish an analysis of this issue.
In the month of July, I posted several pieces on race-politics, specifically affirmative action. Having finished "Audacity of Hope" by President Barack Obama, I noted that although Obama did not expressly condemn affirmative action, he did consign it to a category of exhausted programs that "dissect[s] Americans into 'us' and 'them' and that "can't serve as the basis for the kinds of sustained, broad-based political coalitions needed to transform America." As president, Obama has repeatedly eschewed race-targeting (with respect most notably to employment policy) in favor of "universal" reforms that allegedly lift all boats.
Consider this: The federal Equal Employment Opportunity Commission (EEOC) is warning employers that it is illegal to use a prospective employee's past conviction records, even for serious felonies, as an "absolute measure" as to whether they should be hired because this "could limit the employment opportunities of some protected groups."
This is, the EEOC says, because blacks and Hispanics are over-represented among felons.
But blacks and hispanics also have an unfortunate higher high school and college dropout rates than whites and Asians -- surely this could be determined to be a disparate impact. Employing EEOC's "line of logic", will employers be permitted to consider an applicant's educational background and training in the hiring process? Title IV of the Civil Rights Act of 1964 prohibits discrimination based on age, race, or gender. It does not, however, prohibit discrimination against character.
In 47 of the 50 states, state law holds employers accountable for the irresponsible and/or threatening behavior of an employee if the employer could reasonably anticipate such behavior. With the EEOC's new guideline, employers will be forced to hire an ex-convict, and also be liable for a convict's potential threatening behavior. This is absurd.
While I am in favor of giving people "second chances", I strictly oppose overreaching federal regulations that force businesses to disregard 'character' when determining which prospective employee to hire. When a day care center is forced to hire a man or woman formerly incarcerated for child abuse, we shall see who still disagrees with me.
In the month of July, I posted several pieces on race-politics, specifically affirmative action. Having finished "Audacity of Hope" by President Barack Obama, I noted that although Obama did not expressly condemn affirmative action, he did consign it to a category of exhausted programs that "dissect[s] Americans into 'us' and 'them' and that "can't serve as the basis for the kinds of sustained, broad-based political coalitions needed to transform America." As president, Obama has repeatedly eschewed race-targeting (with respect most notably to employment policy) in favor of "universal" reforms that allegedly lift all boats.
Consider this: The federal Equal Employment Opportunity Commission (EEOC) is warning employers that it is illegal to use a prospective employee's past conviction records, even for serious felonies, as an "absolute measure" as to whether they should be hired because this "could limit the employment opportunities of some protected groups."
This is, the EEOC says, because blacks and Hispanics are over-represented among felons.
But blacks and hispanics also have an unfortunate higher high school and college dropout rates than whites and Asians -- surely this could be determined to be a disparate impact. Employing EEOC's "line of logic", will employers be permitted to consider an applicant's educational background and training in the hiring process? Title IV of the Civil Rights Act of 1964 prohibits discrimination based on age, race, or gender. It does not, however, prohibit discrimination against character.
In 47 of the 50 states, state law holds employers accountable for the irresponsible and/or threatening behavior of an employee if the employer could reasonably anticipate such behavior. With the EEOC's new guideline, employers will be forced to hire an ex-convict, and also be liable for a convict's potential threatening behavior. This is absurd.
While I am in favor of giving people "second chances", I strictly oppose overreaching federal regulations that force businesses to disregard 'character' when determining which prospective employee to hire. When a day care center is forced to hire a man or woman formerly incarcerated for child abuse, we shall see who still disagrees with me.
Monday, August 2, 2010
Understanding Preemption
Understanding the Doctrine of Preemption:
Under the Supremacy Clause of the U.S. Constitution, all federal law, including treaties, shall be the “supreme law of the land” and as such, supersede any state or local state in conflict with federal law. For example, the federal government may require that all U.S. citizens pay a federal tax. If the state of Washington mandated that its citizens do not pay the federal tax, the state of Washington’s law would be in violation of the Supremacy Clause. The federal tax law pre-empts Washington state’s tax law.
As the argument stands, some claim that Arizona’s new immigration law violates the Supremacy Clause or doctrine of preemption. State laws are pre-empted by federal law in two circumstances: 1) when there is a conflict with federal law or 2) when Congress has so thoroughly regulated a field that there is no room for even congruent state laws.
An example of (1): Los Angeles and San Francisco have become “sanctuary cities”. In both cities, the state of California has made it illegal for the police to contact ICE (a federal agency) to report illegal aliens. Hence, for illegal immigrants, they become a “sanctuary”. Because ICE is the mechanism by which federal immigration is enforced, the state of California’s law prohibiting its police force to contact ICE, is in violation of the Supremacy Clause.
An example of (2): If indeed, Arizona’s law agrees with federal law, Congress may have engaged in “field pre-emption” by occupying the entire field of immigration, thus prohibiting even harmonious state laws. Field pre-emption may arise, for example, in the case of federal health and safety laws, so that manufacturers of cars, medical devices, and drugs are not forced to comply with the laws of 50 different states to sell their products nationally. According to the Supreme Court’s most recent pre-emption ruling, Arizona’s law is not pre-empted because Congress did not expressly prohibit state regulation of illegal aliens.
De Canas v. Bica (1976), the Court held 8-0 that a California law prohibiting employers from hiring illegal immigrants was not pre-empted by federal law. Justice William Brennan concluded that “the federal government’s supremacy over immigration is strictly limited to: (1) a determination of who should or should not be admitted into the country and (2) the conditions under which a legal entrant may remain.” In short, there is no “field pre-emption” of state laws dealing with aliens, nor is there an explicit statement from Congress pre-empting state regulation of aliens.
Because the Arizona law precisely coincides with federal immigration law, and because the Court has ruled “field pre-emption” does not apply to immigration, the Arizona law is therefore constitutional. The Arizona law would be unconstitutional if and only if it is a violation of federal law to enforce or uphold federal immigration law.
Under the Supremacy Clause of the U.S. Constitution, all federal law, including treaties, shall be the “supreme law of the land” and as such, supersede any state or local state in conflict with federal law. For example, the federal government may require that all U.S. citizens pay a federal tax. If the state of Washington mandated that its citizens do not pay the federal tax, the state of Washington’s law would be in violation of the Supremacy Clause. The federal tax law pre-empts Washington state’s tax law.
As the argument stands, some claim that Arizona’s new immigration law violates the Supremacy Clause or doctrine of preemption. State laws are pre-empted by federal law in two circumstances: 1) when there is a conflict with federal law or 2) when Congress has so thoroughly regulated a field that there is no room for even congruent state laws.
An example of (1): Los Angeles and San Francisco have become “sanctuary cities”. In both cities, the state of California has made it illegal for the police to contact ICE (a federal agency) to report illegal aliens. Hence, for illegal immigrants, they become a “sanctuary”. Because ICE is the mechanism by which federal immigration is enforced, the state of California’s law prohibiting its police force to contact ICE, is in violation of the Supremacy Clause.
An example of (2): If indeed, Arizona’s law agrees with federal law, Congress may have engaged in “field pre-emption” by occupying the entire field of immigration, thus prohibiting even harmonious state laws. Field pre-emption may arise, for example, in the case of federal health and safety laws, so that manufacturers of cars, medical devices, and drugs are not forced to comply with the laws of 50 different states to sell their products nationally. According to the Supreme Court’s most recent pre-emption ruling, Arizona’s law is not pre-empted because Congress did not expressly prohibit state regulation of illegal aliens.
De Canas v. Bica (1976), the Court held 8-0 that a California law prohibiting employers from hiring illegal immigrants was not pre-empted by federal law. Justice William Brennan concluded that “the federal government’s supremacy over immigration is strictly limited to: (1) a determination of who should or should not be admitted into the country and (2) the conditions under which a legal entrant may remain.” In short, there is no “field pre-emption” of state laws dealing with aliens, nor is there an explicit statement from Congress pre-empting state regulation of aliens.
Because the Arizona law precisely coincides with federal immigration law, and because the Court has ruled “field pre-emption” does not apply to immigration, the Arizona law is therefore constitutional. The Arizona law would be unconstitutional if and only if it is a violation of federal law to enforce or uphold federal immigration law.
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