Chapter Nine: Socialism from the Bench
1. Milton Friedman, Capitalism and Freedom (Chicago: University of Chicago Press, 1962. )
2. U.S. Constitution, Article I, § 8.
3. Articles of Confederation, Article II.
4. U.S. Constitution, Amendment IX.
5. Steven G. Calabresi, “A Government of Limited and Enumerated Powers: In Defense of United States v. Lopez,” 94 Mich. L. Rev. 752, 770 (1995).
6. Gibbons v. Ogden, 22 U.S.1 (1824).
7. Ibid., 194.
8. U.S. v. Lopez, 514 U.S. 549, 599 (1995).
9. Railroad Retirement Bd. v. Alton R. Co., 295 U.S. 330 (1935).
10. Ibid., 374.
11. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 548 (1935).
12. Ibid., 543.
13. Ibid.
14. Ibid., 546.
15. Ibid.
16. Carter v. Carter Coal Co., 298 U.S. 238 (1936).
17. Ibid., 238.
18. Ibid., 308.
19. Franklin Delano Roosevelt press conference, May 31, 1935. Available at academic.brooklyn.cuny.edu.
20. U.S. v. Lopez, 514 U.S. 549, 555 (1995) (citing NLRB v. Jones & Laughlin Steel Corp., 301 U.S., 37).
21. Wickard v. Filburn, 317 U.S. 111 (1942).
22. Ibid., 113–15.
23. Ibid., 111.
24. Ibid., 128.
25. Richard A. Epstein, “Constitutional Faith and the Commerce Clause,” 71 Notre Dame L. Rev. 167, 172–73 (1996).
26. Maryland v. Wirtz, 392 U.S. 183 (1968).
27. Ibid., 194.
28. Ibid., 195.
29. Epstein, “Constitutional Faith and the Commerce Clause,” 187.
30. Perez v. United States, 402 U.S. 146 (1971).
31. Ibid., 157.
32. Michael W. McConnell, “Federalism: Evaluating the Founder’s Design,” 54 U. Chi. L. Rev. 1484, 1494 (1987). McConnell has recently been confirmed by the Senate and now sits on the Tenth U.S. Circuit Court of Appeals.
33. United States v. Lopez, 514 U.S. 549 (1995).
34. Ibid., 567.
35. U.S. v. Lopez, 514 U.S. 549, 619–20. Internal citations omitted.
36. U.S. v. Morrison, 529 U.S. 598 (2000).
37. Ibid., 613.
38. Ibid.
39. Chris Edwards, “Downsizing the Federal Government,” Cato Policy Analysis No. 515, June 2, 2004, 1.
40. Bill Steigerwald, “Milton Friedman bemoans a 50 percent socialist U.S.A.,” Pittsburgh Tribune Review, April 8, 2001.
41. Clyde Wayne Crews, Jr., “Ten Thousand Commandments: An Annual Snapshot of the Federal Regulatory State,” Cato Paper, June 28, 2003, 1.
42. Ibid., 9.
43. Ibid., 2. U.S. GDP was estimated at nearly $10. 5 trillion for 2002.
44. Ibid., 6.
Chapter Ten: Silencing Political Debate
1. George Washington, “Address to officers of the Army,” March 15, 1783. Appears in John Bartlett’s Familiar Quotations (Boston: Little, Brown and Company, 1980).
2. McConnell v. FEC, 124 S.Ct. 619 (2003).
3. Texas v. Johnson, 491 U.S. 397 (1989).
4. Hill v. Colorado, 530 U.S. 703 (2000).
5. Tinker v. Des Moines Indep. Com. School Dist., 393 U.S. 503 (1969).
6. Santa Fe Indep. School Dist. v. Doe, 530 U.S. 290 (2000).
7. U.S. Constitution, Amendment I.
8. Mills v. Alabama, 384 U.S. 214, 218 (1966).
9. 145 Cong. Rec. S12585, October 14, 1999.
10. Ibid., S12586.
11. Ibid.
12. 2 U.S.C. 431 (2002).
13. U.S. Constitution, Amendment I.
14. Buckley v. Valeo, 424 U.S. 1 (1976).
15. Ibid., 16.
16. Ibid., 20.
17. McConnell v. FEC, 124 S.Ct. 619 (2003).
18. Prior to the Court’s ruling in McConnell, soft money was not subject to federal campaign finance regulation. For example, the Democratic Party expended “soft money” when it conducted “get out the vote” drives. Such activities are now illegal.
19. Campaign Legal Center. Available at www.campaignlegalcenter.org.
20. Adam Nagourney, “McCain-Feingold School Finds Many Bewildered,” New York Times, February 19, 2003.
21. Ibid.
22. McConnell v. FEC, 124 S.Ct 619, 661 (2003).
23. Steve Chabot, Hearing Statement of Steve Chabot, “Constitutional Issues Raised By Recent Campaign Finance Legislation Restricting Free Speech,” June 12, 2001.
24. “A Campaign Finance Triumph,” New York Times, December 11, 2003.
25. “John Kerry for President,” New York Times, October 17, 2004.
26. “Upheld,” Washington Post, December 11, 2003.
27. McConnell v. FEC, 124 S.Ct. at 706.
28. Laura Blumefeld, “Soros’s Deep Pockets vs. Bush,” Washington Post, November 11, 2003.
29. “Soros, George and Susan W., Contributions to 527 Committees,” Center for Public Integrity, August 17, 2004. Available at membership.publicintegrity.org.
30. “Lewis, Peter B., Contributions to 527 Committees,” Center for Public Integrity, August 17, 2004. Available at www.publicintegrity.org.
31. OpenSecrets.org, “527 Committee Activity, Top 50 Organizations,” December 2, 2004. Available at www.opensecrets.org.
32. Jan Withold Baran and Barbara Van Gelder, “Sentencing Guidelines Impose Tough New Criminal Penalties,” Election Law News, March 2003.
33. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001).
34. Ibid., 565.
35. Ibid.
36. Ibid., 566.
37. Let me further clarify my position. I don’t have a problem with tobacco advertising per se. My problem is the logic and consistency of the Supreme Court.
38. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).
39. Ibid., 250. Internal citations omitted.
40. Ibid., 245.
41. Texas v. Johnson, 491 U.S. 397 (1989).
42. Ibid., 419.
43. George W. Bush, “President Signs Campaign Finance Reform Act,” March 27, 2002. Available at www.whitehouse.gov.
Chapter Eleven: The Court Counts the Ballots
1. Donald Lambro, “Democrats won’t knock Jackson,” Washington Times, December 13, 2000.
2. “If the returns for any office reflect that a candidate was defeated or eliminated by one-half of a percent or less of the votes cast for such office, that a candidate for retention to a judicial office was retained or not retained by one-half of a percent or less of the votes cast on the question of retention, or that a measure appearing on the ballot was approved or rejected by one-half of a percent or less of the votes cast on such measure, the board responsible for certifying the results of the vote on such race or measure shall order a recount of the votes cast with respect to such office or measure. A recount need not be ordered with respect to the returns for any office, however, if the candidate or candidates defeated or eliminated from contention for such office by one-half of a percent or less of the votes cast for such office request in writing that a recount not be made. Each canvassing board responsible for conducting a recount shall examine the counters on the machines or the tabulation of the ballots cast in each precinct in which the office or issue appeared on the ballot and determine whether the returns correctly reflect the votes cast. If there is a discrepancy between the returns and the counters of the machines or the tabulation of the ballots cast, the counters of such machines or the tabulation of the ballots cast shall be presumed correct and such votes shall be canvassed accordingly.” Fla. Stat. § 102. 141(4) (2000).
3. “Any candidate whose name appeared on the ballot, any political committee that supports or opposes an issue which appeared on the ballot, or any political party whose candidates’ names appeared on the ballot may file a written request with the county canvassing board for a manual recount. The written request shall contain a statement of the reason the manu
al recount is being requested.” Fla. Stat. §102. 166(4)(a) (2000). “Such request must be filed with the canvassing board prior to the time the canvassing board certifies the results for the office being protested or within 72 hours after midnight of the date the election was held, whichever occurs later.” Fla. Stat. §102. 166(4)(b) (2000).
4. Fla. Stat. § 102. 166(6) (2000).
5. Fla. Stat. § 102. 166(7)(a) (2000).
6. Fla. Stat. § 102. 166(4)(b) (2000).
7. Fla. Stat. § 102. 112(1) (2000).
8. 3 U.S.C. 5 (2000). The citizens of the United States do not directly choose their president and vice president (so much for the Democrats’ mantra that Gore won the majority of the votes cast). The president is chosen by the electoral college, which is comprised of electors (equal to the number of senators and representatives from each state) chosen by the state legislatures. U.S. Constitution, Article II, § 1, Cl. 1–4. If no candidate for president receives a majority of the electoral college (half plus one, or 270 votes), the U.S. House of Representatives then votes by state delegations from among the top three candidates for whom the electoral college voted. U.S. Constitution, Amendment XII. If no candidate for vice president receives a majority of the electoral college, the Senate chooses one (by a vote of the individual senators). Ibid. The electoral college is important because it makes candidates consider smaller states in order to achieve the necessary 270 electoral votes. For example, in 2000, smaller states such as Minnesota and Wisconsin received significant attention from Gore and Bush. If there wasn’t an electoral college, candidates would only focus on large population areas such as New York or Los Angeles. Less populated regions, such as the Midwest, could be ignored. Congress sets the date a presidential election will be held around the country (in 2000 that date was November 7) as well as the date the electoral college members will meet (in 2000 that date was December 18). See U.S. Constitution Article II., § 1. Cl. 1–4; 3 U.S.C 7 (2000); and U.S. Constitution Article II.
9. 3 U.S.C. 11, 12 (2004).
10. U.S. Constitution, Article II.
11. Tony Sutin, “Presidential Election Law,” Jurist Legal Intelligence. Available at jurist.law.pitt.edu/election/electiontime.htm.
12. Fla. Stat. § 102. 141(4) (2000).
13. Sutin, “Presidential Election Law.”
14. “How we got here: A timeline of the Florida recount,” CNN.com, December 13, 2000. Available at www.cnn.com/2000/ALLPOLITICS/stories/12/13/got.here/index.html. Complicating the issue of tabulating Florida’s ballots was the fact that several counties used paper punch card ballots. Voters used a stylus to punch out squares next to candidates’ names to cast their votes. Due to the age of some of the equipment used by several counties, as well as poorly conceived designs for some ballots and voter mistakes, a small percentage of ballots could not be read by tabulating machines. In addition, some voters chose not to vote for one or more offices (including president) on the ballot, while casting votes for other offices. The small percentage of votes that were thus “spoiled” in Florida in 2000 was not unusual when compared with past Florida elections or with elections in other states. The recount regulations required by Florida’s election laws enumerated specific procedures for both manual and machine recounts to minimize the number of uncounted ballots.
15. Fla. Stat. § 102. 166. (4)(a) (2000).
16. Fla. Stat. § 102. 166(5) (2000).
17. “How we got here: A timeline of the Florida recount.”
18. Ibid.
19. Touchston v. McDermott, 234 F.3d 1133 (11th Circuit, 2000); Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1220 (Fla. 2000); Siegel v. LePore, 120 F. Supp. 2d 1041 (D. Fla. 2000).
20. Fla. Stat. § 102. 111 (2000).
21. Fla. Stat. § 102. 112 (2000).
22. Jackie Hallifax, “Deadline Looms As Recount Continues,” Associated Press Online, November 13, 2000.
23. Fla. Stat. § 102. 111 (2000).
24. “How we got here: A timeline of the Florida recount.”
25. Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1220, 1227 (Fla. 2000).
26. “Judge finds Harris acted with discretion in rejecting manual recounts,” CNN.com, November 17, 2000. Available at www.archives.cnn.com/2000/LAW/11/17/harris.discretion.ruling.02. pol/. McDermott v. Harris, No. 00-2700, unpublished order at 2 (Fla. 2d Cir. Ct. Nov. 17, 2000).
27. Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1220, 1227 (Fla. 2000).
28. Touchston v. McDermott, 234 F.3d 1130 (11th Cir. 2000).
29. Ibid., 1132.
30. Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1220, 1240 (Fla. 2000).
31. Linda Greenhouse, “Counting the Vote: The Supreme Court; U.S. Supreme Court to Hear Florida Recount Case,” New York Times, November 25, 2000.
32. Rick Bragg and Lynette Holloway, “Counting the Vote: The Recount; Tempers Flaring Under Pressure,” New York Times, November 26, 2000.
33. Transcript, “Political Headlines,” Fox Special Report with Brit Hume, November 29, 2000; Bill Sammon, At Any Cost: How Al Gore Tried to Steal the Election (Washington, D.C.: Regnery, 2001), 164–65.
34. Sammon, 164–65.
35. Todd J. Gillman, “Palm Beach struggles to reconcile vote discrepancies; County delay raises concerns,” Dallas Morning News, November 29, 2000.
36. Jay Weaver, “Gore Readying New Venture in State Court Suit; Will Claim Recount Invalid Without Dade,” Miami Herald, November 25, 2000.
37. “Jeb Bush Certifies Florida Win,” Associated Press Online, November 27, 2000.
38. Scott Shepard, “Don’t count me out, Gore says: He insists Bush win not final,” Atlanta Journal-Constitution, November 28, 2000.
39. David Barstow, “Contesting the Vote: The Florida Legislature; Lawmakers Move Closer to Special Florida Session for Naming Bush Electors,” New York Times, December 1, 2000.
40. Steve Lash, “Election 2000; High drama lands in high court; In historic session on nation’s future, jurists break custom while grilling lawyers for Gore and Bush,” Houston Chronicle, December 2, 2000.
41. Mark Z. Barabak and Richard A. Serrano, “Decision 2000/America Waits; Rulings Narrow Gore’s Options,” Los Angeles Times, December 5, 2000.
42. Gore v. Harris, 772 So. 2d 1243, 1247 (S. Ct. Fla. 2000).
43. John Pacenti, Brian E. Crowley, and George Bennett, “Can Hand Counts Offset Bush’s 930-Vote Lead?” Palm Beach Post, November 19, 2000.
44. Gore v. Harris, 772 So. 2d 1243, 1247 (S. Ct. Fla. 2000).
45. Ibid., 1262.
46. Ibid., 1273.
47. Ibid., 1263–64.
48. Ibid., 1269.
49. Bush v. Gore, 531 U.S. 1046 (2000).
50. “How we got here: A timeline of the Florida recount.”
51. Bush v. Gore, 531 U.S. 98, 109 (2000). Federal law contains a “safe harbor” provision, which provides that a state’s selection of electors “shall be conclusive, and shall govern in the counting of electoral votes” provided the electors were chosen under laws that were “enacted prior to the day fixed for the appointment of the electors.” 3 U.S.C. § 5 (2000).
52. Bush v. Gore, 531 U.S. 98, 104-05 (2000), citing Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966).
53. Bush v. Gore, 531 U.S. 109.
54. Al Gore, “Campaign 2000: Vice President Gore Delivers Remarks,” December 13, 000. Available at www.cnn.com/ELECTION/2000/transcripts/121300/t651213.html.
55. U.S. Constitution, Article II, § 1, Clause 2.
56. Bush v. Gore, 531 U.S. 111.
57. Mark R. Levin, “What We have Wrought,” National Review Online, December 14, 2000. Available at www.nationalreview.com/comment/comment121400g.shtml.
58. Sandy McClure and Peter Eichenbaum, “Democrats Plan to Replace Him on Ballot, GOP objects to opponents’ maneuvering to retain control of U.S. Senate,” Asbury Park Press, October 1, 2002.
59. New Jersey Democratic Party v. Samson, 175 N.J. 178, 814 A.2
d 1028, 1036 (2002), cert. denied sub nom. Forrester v. N.J. Democratic Party, Inc., 537 U.S. 1083 (2002).
60. Southwest Voter Registration Education Project v. Shelly, 344 F.3d 914, 917 (9th Cir. 2003).
61. Ibid.
62. Scott Wyman, “Potential For Election Nightmare Still Looms; Concerns Mount on Whether All Eligible Voters Will Get Chance,” Sun-Sentinel, October 23, 2004; Anne Gearan, “Lawyers prepare for another deadlock, more recounts or a trip to the Supreme Court,” Associated Press, September 20, 2004; Kim Cobb and Patty Reinert, “An army of lawyers stands by for Nov. 2,” Houston Chronicle, October 17, 2004; George Bennett, “Judge Rules Against Voting Paper Trail,” Palm Beach Post, October 26, 2004; David B. Caruso, “Republicans Sue to Stop Prisoners from Voting,” Associated Press, November 1, 2004.
63. U.S. Constitution, Article II.
64. David Barstow, “Contesting the Vote: The Florida Legislature; Lawmakers Move Closer to Special Florida Session for Naming Bush Electors,” New York Times, December 1, 2000.
65. “Jeb Bush Certifies Florida Win,” Associated Press Online, November 27, 2000. An interesting question would have arisen if the legislature had intervened, selected the Democratic slate of electors, and then ordered Jeb Bush to rescind his earlier certification. Technically, he could ignore the direction of the legislature claiming that federal law gave him the sole authority to certify electors, regardless of how they were selected by the legislature. I suppose the legislature could then send its own certification to the federal government, and the ballot challenge procedures in Congress would kick in. The legislature could then impeach Jeb Bush, if it chose, to punish him for failing to follow their directions. The question this poses, though, is that, even though the legislature is the only body authorized by the Constitution to select presidential electors, could the executive of a state ignore the will of the legislature by certifying a slate of electors in contravention of the will of the legislature?
Men in Black Page 26
