Constitutional Convention?

Very interesting suggestion in this article by Robert Novak that anti-gay marriage forces, disappointed with the backsliding on the issue at the federal level, are prepared to marshall the forces and seek a Constitutional Convention on the subject.

I've always been intrigued by that avenue of seeking Constitutional change, because it has been unused throughout US history. There are few provisions in the Constitution that have seen similar disuse, and I've always wondered whether, in my lifetime, anyone would seek to revive (or, I guess, utilize for the first time) this provision. Now it seems that I'm going to see at least an attempt made to call a convention.

As I've said before in this blog, I am absolutely opposed to an amendment to the Constitution seeking to define marriage. That said, color me intrigued by this creative method of seeking change. The anti-gay marriage forces may be seen as desperately reaching for straws, but I think that they are a committed group (albeit a group that I think is dead wrong) which has been frustrated at every turn from seeking change through the Federal Government. This provision would allow them to bypass the Feds, as I'm sure it was intended. My guess is that they won't reach the 2/3 of states necessary to even call a convention, and certainly won't come anywhere near the 3/4 of the states necessary to ratify whatever amendment would be agreed upon there. But I salute them for attempting to exercise change through the Constitution, and will be watching to see if this movement gains any traction.

More Dick Morris

Morris wrote another column in The Hill that is available here.

This one isn't as outright wrong as the previous one on which I commented. In fact, I agree with most of what he says. The article is about what the Democrats would have to do in order to gain control of the Senate in November. Trailing 55-45, the Dems need to win 6 seats to get to the magic number of 51 and make Harry Reid the Majority Leader.

Morris correctly points out that five of these seats are certainly winnable. Rick Santorum (PA), Mike DeWine (OH), Conrad Burns (MT), Jim Talent (MO), and Lincoln Chafee (RI) are all in trouble and could conceivably lose (although my suspicion is that Talent, Burns, and Chafee will all survive). Morris then nominates the Tennessee seat being vacated by current Majority Leader Bill Frist as the sixth seat which Democrats may win, thanks to a popular candidate in Harold Ford, Jr.

I don't disagree with this assessment; it's a suitable roadmap for what the Democrats need to do if they are going to take back the Senate. Morris correctly points out that Democrats also face problems in NJ and WA, although he fails to mention what I consider the most likely Republican gain in November, that being Mark Dayton's open seat in Minnesota, which should go to Mark Kennedy.

Overall an interesting assessment of the Senate race in November, but I think written with a little too much optimism from the Democratic side.

Narrow Opinions

Since the much heralded case of Marbury v. Madison, Justices of the Supreme Court have often done whatever was necessary to decide a case in order to bring about a desired result. In Marbury, Chief Justice Marshall could have disposed of the case quickly, efficiently, and without much discussion at all (I'm not going to get into a discussion of how unless somebody asks me for it in the comments section, but that's not bloody likely). Instead, Marshall answered questions that were unnecessary to the disposition of the case. In so doing, he firmly enshrined the concept of judicial review in the legal system.

Judges' motivations are not always so lofty, and a great many decisions have reached beyond what was technically necessary in order to bring out some sort of social change. Sometimes this change has been desirable; sometimes it has been lamentable. Always, however, it has been a breach of the judicial duty. Judges are charged with ruling on questions of law, deciding how laws are to be applied in certain situations. When judges are acting properly, they answer only those questions that are necessary to dispose of the case, thereby avoiding acting in a legislative, or even worse, godlike, manner. This is one of the reasons that courts look to jurisdiction first; they are decision-averse, and if they can dispose of a case by finding a lack of jurisdiction, most courts will gladly, and appropriately, do so.

This article by E.J. Dionne suggests that Chief Justice John Roberts gave a speech at Georgetown paying lip service to this concept. The article holds out hope that the Chief will seek consensus by finding narrow grounds on which to rule on cases. Frankly, I doubt it. This speech saw Roberts saying exactly what judges are expected to say. Don't get me wrong; I think Roberts is a good judge and from everything I've heard he is an amazing Chief. I just don't believe that he is going to be some sort of "consensus builder" on the Court, at least not anytime soon.

The main reason is what that would force Roberts to do. As it is now, he can fairly reliably win Conservative victories by 5-4 votes. That's not desirable, but if he were to construct "narrower" victories, it is likely that he would only achieve 5-4 or 6-3 votes...with HIM joining the four liberals, along with maybe Anthony Kennedy. That strikes me as highly undesirable from his standpoints.

In the short term, my analysis appears to be sound; as the Supreme Court waited until June to start issuing it's most difficult, controversial opinions. Almost exclusively, they have been 5-4 opinions. I don't see a lot of consensus building going on there. It's too early to tell how Roberts will change the institution, but for those hoping for a moderate swing voting Chief, it appears that was a bit of a pipe dream.

Earmarks

Bob Novak is a blowhard, but he's an entertaining blowhard. I usually enjoy reading his columns because they provide some interesting insight, and he doesn't generally spare either side from his withering comments. This article on earmarks was no different from usual.

The discussion on earmarks is interesting. Conservatives seem to be split on the issue, with the hardcore fiscal folks generally opposed to earmarks as a waste of taxpayer money (gee, ya think?), and the more states' rights types tending to support earmarks. This kind of baffles me, because there isn't really a "right" to receive grossly inappropriate federal funding. One argument often advanced on this side is that earmarks are a perfectly acceptable, time-honored way of getting money for your district. As Novak points out, however, the use of earmarks has drastically increased over the past 12 years. Time-honored my ***.

I guess you can tell where I come down on this issue. I may be left of center, but I don't believe in wasteful spending. Virtually all of these projects are innappropriate uses of federal funds, and would never survive if they weren't tucked away discreetly in completely unrelated bills. I believe in simple, clearly-written, on topic legislation. Earmarks are one of the many things that muddle bills up. "Bundling," the practice of including non-relevant items in a bill, has long been practiced. Some even argue that the system was designed to work that way, to force compliance from a President in situations where he doesn't want to comply. That doesn't make it right. I'm not naive enough to think the practice will stop, but I will never support it.

I'll end this post with a shout-out to two Republicans whose views I generally don't agree with, but who on this issue deserve to be listened to. Jeff Flake (AZ) in the House, and Tom Coburn (OK) in the Senate, I salute you. Keep up the good fight, and hopefully someday federal spending will make a wee bit more sense.