Law

Mixed Results for Voting-Rights Referendums

Republicans have spent 2010 overhauling voter laws to design their ideal electorate. Last night, voters in Maine fought back, approving Question 1, which restores Election Day registration. It won easily by a margin of 60 percent to 40 percent. As I detailed in the November issue of the magazine, when Republicans gained control of Maine's legislative chambers and governor's office, they set their sights on building a permanent majority by passing restrictive voter laws. They failed to push a voter-ID bill through the legislature, but Republican Governor Paul LePage signed a repeal of Maine's Election Day registration this summer. Maine has allowed voters to register at the polls on Election Day for nearly four decades (with only two prosecuted cases of voter fraud in that time) and consistently placed near the top of the country in turnout as a result. Around 60,000 Mainers took advantage of the regulation for the 2008 election. Think tank Demos (full disclosure: Demos is the Prospect...

Is There a "Bradley Effect" for Abortion?

Amendment 26 supporter Sandy Comer puts out a campaign sign at the polls at the Chamber of Commerce in Oxford, Mississippi, on Tuesday, November 8, 2011. Mississippians go to the polls today for state and local elections, as well as referendums including the so-called personhood amendment, a referendum on whether to define life as beginning at conception. (AP Photo/Oxford Eagle, Bruce Newman)
Yesterday, Mississippi voters soundly defeated Amendment 26, an anti-abortion ballot initiative that would have altered the state's constitution to define personhood as beginning at fertilization. Going into the election, a survey from Public Policy Polling showed 45 percent of voters in favor, 44 percent opposed, and 11 percent undecided—much closer than the vote turned out to be. A personhood amendment like the one in Mississippi has never been enacted and would have had radical implications, even in a strongly pro-life state like Mississippi. Not only would it have banned all abortions without exception, but popular forms of contraception like the morning after pill, IUDs, and even the pill would have been outlawed as well. In addition, miscarriages could be prosecuted as murder or manslaughter. But Mississippians won't have to deal with any of that, because Amendment 26 lost 58 percent to 42 percent. The discrepancy between what the polls said going in and the results means that...

DC Appeals Court Upholds ACA—With a Republican Taking the Lead

The influential Court of Appeals for the District of Columbia has issued an opinion affirming the Affordable Care Act (ACA) constitutional. In itself, this is not surprising, as several other courts have done so. What is surprising is that the Court's opinion was written by Republican favorite Laurence Silberman. The conservative Reagan appointee notes that the "activity/inactivity" distinction hatched to argue that the individual mandate violates the Constitution has no basis in the Court's precedents, and under those precedents the ACA is clearly constitutional: Today, the only recognized limitations are that (1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible. Those limitations are quite inapposite to the constitutionality of the individual mandate, which certainly is focused on economic behavior–if...

Is Gay Marriage on the Line in Iowa?

It's Election Day, though most of the country won't notice. Beside a handful of referendums with wide-reaching consequences, there are few contested elections, and the two big-ticket contests—gubernatorial elections in Kentucky and Mississippi—aren't in question. But one small state Senate election in Iowa could have a significant impact on the LGBT community. Republican Cindy Golding is facing off against Democrat Liz Mathis in the state's 18th District. The special election was triggered when Republican Governor Terry Branstad appointed the incumbent (a Democrat) to a state board earlier this fall. What's so important about a single Iowa Senate seat? Democrats currently hold a 26-24 majority in the chamber, so the election will decide which party controls the legislative body. And if Golding wins, the Republicans will likely use their new majority to begin the process of repealing Iowa's same-sex marriage law. Since the Iowa Supreme Court legalized same-sex marriage rights in 2009,...

What's in a Name?

Urban Outfitters removes the word "Navajo" from its product line, but the cultural poaching is the same.

Urban Outfitters' formerly "Navajo" hipster panty. AP Photo/Matt York
U rban Outfitters, the retail mecca for once and future hipsters, recently scrubbed its website of all references to “Navajo.” What was once the “Navajo Print Fabric Wrapped Flask” is now the “Printed Fabric Wrapped Flask”; the “Navajo Hipster Panty” is now the “Printed Hipster Panty”; and so on. The items are still available for purchase, but they’ve all been renamed. AP Photo/Matt York Urban Outfitters' former "Navajo" hipster panty. The move comes on the heels of a Web-based campaign against the retailer’s marketing practices and official requests from the Navajo Nation Department of Justice. In June, the Navajo Nation sent a cease-and-desist letter to Urban Outfitters CEO Glen Senk, citing the company’s numerous registered trademarks for “Navajo” on clothing, footwear, household products, textiles, and online retail sales. This was followed by an open letter at the Racialicious blog by Sasha Houston Brown , a member of the Santee Sioux Nation, who assailed Urban Outfitters' “mass...

Anti-Abortion and Pro-Choice?

(Flickr/ClinicEscort)
Last week, I asked: So what if I hadn’t been born? In response, Rachael Larimore at Slate kindly took up my offer to discuss, as she puts it, “the lightest of topics”: abortion . You will not be surprised to learn that we differ on some core points. First, she believes that embryos are human beings. Here she writes: … this photo of a 10-week-old embryo clearly shows limbs and eyes and organs and a brain. It might look like an imagined Roswell-esque alien, but if it’s not human, I don’t know what is. Rachael, I disagree. I see an embryo, the size of a pinkie, that couldn’t survive even in the most intensive NICU. It doesn’t have a working brain, internal organs, or lungs that could function under any circumstances. It’s a mush of rapidly dividing cells with enormous potential to be a human, if nothing intervenes, like a miscarriage or a D&C. But to me, that uninhabited scrunch of cells is no more human than an acorn is an oak tree. And so I don’t agree that “it’s barbaric to kill 1...

Limit Leverage!

The astounding thing about the collapse of Jon Corzine’s gambling venture, MF Global, is the revelation that his bets were leveraged at about 40 to 1. This is like playing poker and borrowing 97 percent of your stake. If you guess wrong on a big bet (as Corzine did), you are wiped out (as he was). The same thing happened to Lehman Brothers. This also shows how utterly feeble Dodd-Frank is and how little the system has changed since the collapse of 2008. The so-called shadow banking system—outfits like Corzine’s—can still bet the house if they have a taste for risk. The only good news was that at $8 billion, Corzine’s MF wasn’t big enough to take down the system or require a government bailout. But it could have been. As a regulatory matter, it would not be difficult to limit all kinds of leverage for any financial institution to, say, 10 to 1. And the more risky the kind of institution and its strategy, the more leverage should be limited. You could require all financial institutions...

Will Rick Perry Execute Another Innocent Man?

Rick Perry's struggles with the GOP base can largely be traced back to the debate in late September in which he called opposition to tuition assistance for illegal immigrants "heartless." Given his subsequent drop in the polls, he is now contemplating skipping future debates. But for liberal audiences, the most chilling moment of Perry's brief debate history came when he defended Texas' status as the country's execution leader. Perry practically reveled with glee as he described dolling out the "ultimate justice" (at the time, I noted his sharp departure in tone from the last Texas governor who ran for president). It was a truly disturbing moment because evidence from one case in Texas indicates that at least one innocent man, Cameron Todd Willingham, was put to death during Perry's tenure as governor. And Perry may be on his way to executing another innocent man. Hank Skinner was convicted of killing three people—his girlfriend and her two children—and sentenced to death in 1995. His...

Moment of Conception

How a radical anti-abortion movement matured

O n April 17, 2007, the Supreme Court upheld a national ban on an abortion procedure known as intact dilation and extraction. Anti-abortion groups, which successfully branded it “partial-birth abortion,” had spent 15 years and more than a quarter-billion dollars getting Congress to pass the ban in 2003. The Court’s 2007 ruling was the movement’s greatest legal victory in decades, a significant step toward overturning Roe v. Wade . But not all abortion opponents were celebrating. Among the unenthused was Brian Rohrbough, president of Colorado Right to Life. Rohrbough belongs to an absolutist wing of the movement that believes in “personhood”—the idea that fetuses are people from the moment of conception. After losing his son in the Columbine High School shootings in 1999, Rohrbough concluded that the legalized “killing of innocent children in the womb” had set America on a path of moral decline that allowed such violence to occur. For Rohrbough, the ban on partial-birth abortion was...

So What if I Hadn't Been Born?

When I blogged over at Slate’s XX Factor (now Double X), I grew fond of Rachael Larimore, with whom I agreed to disagree with on almost everything. I am not being sarcastic. Recently, I heard a rabbi talk about the importance of discussing major issues not to convert others—not to win—but to “improve the quality of our disagreements.” I love this concept as a way to improve our public discourse on core political subjects, which are often religious wars in another guise. And so I am going to continue my tradition of disagreeing with Rachael, who recently posted an item titled Pro-Choicers Hate the "What if I Hadn't Been Born" Question. Here's Why. Rachael was responding to Amanda Marcotte’s post about precisely that question . Rachael says that pro-choice arguments rely on the idea that … women should be allowed to abort their unplanned pregnancies because unwanted children grow up poor, neglected, abused or some combination thereof. It can’t allow for the possibility that some “...

Here's to You, Mrs. Robinson!

In Vermont, the governor has nominated Beth Robinson to take a seat the state's Supreme Court. Robinson was the prime mover behind the state's Freedom to Marry movement, and one of three lawyers who brought the groundbreaking state case Baker v. Vermont back in the 1990s. That case led to the state's then-groundbreaking civil unions—and spurred a national uproar about the imminent descent of locusts, plague, and so forth. Robinson led the movement to hold that victory statewide, and then to upgrade it to full marriage rights a few years after Massachusetts became the first state in the nation to offer full equality. Like Mary Bonauto , the GLAD lawyer who's been the architect of New England's steady sweep of marriage wins (and whose carefully targeted lawsuits will be critical in dismantling DOMA), Beth Robinson has mostly ducked publicity. Here's a good profile of Robinson. She's one of the hardworking heroes around the country who've made full LGBT equality seem inevitable—and is...

A Jew of No Religion

Yoram Kaniuk has won: The prominent Israeli novelist is now very officially a Jew of no religion. Hundreds of other Israelis, inspired by his legal victory, want to follow his example and change their religious status to "none" in the country's Population Registry, while remaining Jews by nationality in the same government database. A new verb has entered Hebrew, lehitkaniuk , to Kaniuk oneself, to legally register an internal divorce of Jewish ethnicity from Jewish religion. Kaniuk is 81 years old, one of the surviving writers of Israel's founding generation. His latest and most lauded book is a memoir about fighting in the country's 1948 war of independence. He's also a veteran and sharp-penned critic of Jewish religion, which he has at times represented as an amalgam of the national religious extremism of the settlements, ultra-Orthodox fundamentalism, and the state's clerical bureaucracy. During the escalation of the secular-religious kulturkampf that followed the...

The Constitution: A Love Story

It's time for liberals to reclaim our founding document from fanatics who worship its name but not its meaning.

When the 112th House of Representatives opened this past January with a reading of the United States Constitution, the intended political message was clear—the Republican Party was back to rescue the Constitution. Less clear was what Constitution Republicans were vowing to save. The version they ordered read was, in fact, stripped of language the leadership considered “superseded by amendment,” even though those measures are still in the text. Some are embarrassing. The provisions protecting slavery, for example, call into question the infallibility of the Founding Fathers. Since one of the standard conservative talking points is that the “original intent” of the framers is an infallible guide to wisdom, the fallible parts were better left unmentioned. As a matter of fact, the new majority was more eager to amend the Constitution than to read it. The reading of the censored Constitution actually took place on the second day of the House session. The leadership found time on the first...

Marry Me

Yesterday the Washington Post published a nice summary of the various federal lawsuits underway in the court battles over same-sex marriage, a piece occasioned by a panel at the College of William and Mary Law School's Institute of Bill of Rights Law. The panel, according to reporter Robert Barnes, was debating whether the government's political or judicial branch should decide whether same-sex couples' bonds should be recognized as "marriage" by federal law. Given that LGBT folks now -- after years of organizing effort and personal travail -- have some (some!) political traction, shouldn't we be deciding the question in legislatures, not courts? Judge J. Harvie Wilkinson III, the well-regarded conservative on the U.S. Court of Appeals for the 4th Circuit, called the question "wrenchingly hard." He noted the contributions of gay Americans and said it was striking that the movement's aims in the courts is to "partake in the most traditional" of American rights: to serve in the military...

The Global Patriot Act

From the end of World War II to the start of the "global war on terror," international law provided crucial support for the promotion of human rights around the world. But the response to the September 11 attacks has had a profound and little-appreciated impact on international law with devastating global consequences for human rights, democracy, and constitutionalism. The Bush administration did not just persuade Congress to pass the USA Patriot Act, eliminating critical civil-liberties protections against excessive governmental powers. U.S. officials also mobilized the United Nations Security Council to require all U.N. member states to enact their own domestic versions of the Patriot Act, and many of those governments have used the new globally mandated security program to restrict rights, concentrate power, and suppress political dissent. George W. Bush was certainly no fan of international law. Whenever it became inconvenient, his administration lawyered around it. Officials...

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