The Legal Academy Strikes Back

Orin S. Kerr, “The Influence of Immanuel Kant on Evidentiary Approaches in Eighteenth Century Bulgaria” (March 28, 2015)

Abstract: 

In 2011, Chief Justice Roberts commented that if you “pick up a copy of any law review that you see,” “the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.” No such article exists, of course — until now. This short essay explains why, in all likelihood, Kant’s influence on evidentiary approaches in 18th-century Bulgaria was none. 

Number of Pages in PDF File: 3

In a wonderful act of straight man humor, Orin Kerr writes a real (if brief) law review article with the title that Justice Roberts made up, and decisively supports its conclusion on the topic with solid, footnoted evidence.

Via How Appealing.  The Legal Theory Blog also reports this preprint article like any other.

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#Coleg Notebook: Debating guns, schools and race

Private education tax credit launches a flurry of education amendments

For years, Senate Republicans have been trying to pass a tax credit for private K-12 education. Now that they’re in the majority, they have brought the tax credit to the floor. Democrats used the opportunity to discuss a slew of education issues, many of which had already died in committee this session.

The Democrats proposed to make student loans tax deductible, to create a state-run tuition plan, to make private schools subject to the same standardized tests and evaluations as public schools, and to postpone funding private education until public kindergarten and preschool have full funding.

In the end, one amendment did pass with unanimous support. Carried by President Bill Cadman, R-Colorado Springs, the amendment made the tax credit refundable. That means families too poor to pay income tax could still get a check from the state to fund their children’s private education.

Cadman said he supported the move because it would help kids who need it the most.

Sen. Jessie Ulibarri, D-Westminster, who sponsored the amendment earlier in the debate, rallied his caucus to support it for a different reason.

Gun debate: What we talk about when we talk about “success” 

On the surface, lawmakers were fighting over a repeal of universal criminal-background checks for all gun purchases. In practice, they were debating how to measure the success of the existing universal background-check law.

Democrats in favor of retaining universal background checks for all firearms purchases — including private, or peer-to-peer sales — said the policy’s success should be measured by how many people were prevented from legally buying guns because they couldn’t pass a criminal background check. That’s nearly 6,000 would-be gun buyers since the law went on the books in 2013.

Republicans advocating a repeal of universal background checks focused on the peer-to-peer sales the bill was intended to cover, pointing out that only three people have been caught and convicted for privately buying a gun without a background check.

This disagreement about how to measure or even talk about the law’s success was never settled. The ships-passing-in-the-night debate lasted several hours. In the end, everyone voted as expected: 18 Republicans shouted “yes” to repealing the background-check law, and 17 Democrats shouted “no”.

Salazar still mulling the mascot debate

Rep. Joe Salazar, D-Thornton spoke with us about his provocative bill to make American Indian school mascots subject to approval by a board of tribal members. The debate hasn’t left his mind, specifically the arguments of GOP lawmakers.

“That is the essence of institutionalized racism right there, that we don’t trust American Indians enough to allow them to make decisions about themselves,” said Salazar.  “Anything that you do, we still have to approve like you’re a bunch of children.’ That’s what really got to me, and I wish I had said so more clearly yesterday.”

As for his controversial introduction of the bill, which deployed other racial stereotypes and slurs to demonstrate how Indian students feel when confronted by names like “redskins,” Salazar said he has no regrets.

“This bill challenges social mores and norms, and we meant for that to happen,” he said. “We’re watching a sociology experiment take place with this bill … this is what our republic was set up for.”

“Debating Society” by Isaac Cruikshank, public domain.

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Some Pet Ideas For Bold Reforms Of Colorado and Federal Procedural Rules

There are some circumstances where a few bold but simple procedural rules could dramatically improve the law.  Here are some of my favorites:

Hearsay Evidence:

The following should be adopted for civil cases (where constitutional confrontation clause issues are absent) in addition to all other hearsay exceptions in case where a witness is available:

Evidence of a hearsay declaration is admissible if the judge finds that the declarant:
(a) is unavailable as a witness, or
(b) is present and subject to cross-examination.

This text with additional limitations that I would omit, was proposed as part of the Model Code of Evidence of the American Law Institute.

It would still preclude trial by affidavit in cases where witnesses are available, but allow in lots of reliable information that is now excluded from evidence.  It would also greatly simplify an unnecessarily complex area of law that has been abandoned by our fellow common law legal system jurisdictions by statute.

Appellate Law:

In any case that is reversed on appeal for an abuse of discretion by the trial judge, on remand, the case shall be heard before a different judge.

This is the law in civil law practice, but the opposite of this rule is the current general rule in American practice and it is grossly unfair.

Federal Court Jurisdiction:

Repeal Sections 1331 and 1332(a)(1) of Title 28 of the United States Code.

Section 1331 gives U.S. District Courts jurisdiction over cases where the Complaint in the action arises under federal law and no other specific statute confers jurisdiction over the federal question involved.  Historically, this section has had a minimum monetary threshold for amount in controversy, but the current version of the statute does not.  Note that civil rights cases and intellectual property cases have an additional statutory basis for U.S. District Court jurisdiction in addition to Section 1331.

Section 1332(a)(1) gives U.S. District Courts jurisdiction over cases arising under state law where there is diversity of citizenship involving citizens of two different U.S. states and the amount in controversy exceeds $75,000.  Existing law would remain in place for diversity suits involving non-U.S. persons, and for large class action cases.

This would substantially reduce the role of the federal courts in ordinary civil litigation between private parties, in circumstances where the state courts have completely overlapping jurisdiction with the federal courts.

Personal Jurisdiction in Federal Court:

Evaluate whether a U.S. District Court has personal jurisdiction over a defendant based upon his contacts with the United States of America.

The current law is that the personal jurisdiction of a U.S. District Court has personal jurisdiction over a defendant based solely upon his contacts with the U.S. state in which the U.S. District Court is located.  A corresponding new rule would have to be adopted similar to Colorado Rule of Civil Procedure 98 governing venue in federal court which is now deemed to be proper in any state where a U.S. District Court has personal jurisdiction over a defendant.

Simply put, federal courts should have personal jurisdiction that is as great as the U.S. Constitution permits it to have, and there is no serious doubt that the proposal I suggest would be constitutional.

Declarations In State Court:

Allow Declarations made under penalty of perjury that are not notarized to be used with the same effect as an affidavit in state courts in Colorado to the same extent as they are allowed in federal court under Section 1746 of Title 28 of the United States Code.

Requiring court filings regarding statements of fact in federal court to be notarized in archaic, creates a trap for the unwary, and is unnecessary as shown by the success of this reform in the federal courts (since 1976 when it was adopted) and in many state court systems, such as the state courts of Utah.

The ongoing active involvement of litigants and lawyers in lawsuits make the protections offered by affidavits largely superfluous in court proceedings (unlike real estate matters and wills where notarization is also used).  The requirement of notarization more often does injustice by excluding valuable evidence for logistical reasons, than it does justice by excluding unreliable testimony.  The threat of prosecution for perjury remains in both circumstances.

Motions to Dismiss For Failure To State A Claim in Civil Actions:

Repeal Federal Rule of Civil Procedure 12(b)(6) and Colorado Rule of Civil Procedure 12(b)(5).

These rules authorize motions to dismiss for failure to state a claim upon which relief can be granted on the case of a complaint or counterclaim or cross-claim in a civil lawsuit, without consideration of any evidence.

In layman’s terms, this is a “so what?” motion, that states that even if everything said in the complaint is true, you lose.

Historically, filing one of these motions would delay the time period in which a person would be required to file a substantive response in the form of an “Answer” or “Reply” to a claim, although Colorado is on the verge of eliminating that requirement, because it unnecessarily adds delay to a case.

In federal court, a motion to dismiss delays the deadline for filing an Answer or Reply, but does not delay the pre-trial discovery process absent exceptional circumstances that could also be invoked if an early Motion for Summary Judgment is filed (in Colorado’s federal practice these motions are call “String Cheese Motions” after the case that sets forth the relevant legal standard).

The legal doctrines involved in evaluating these motions is quite obscure and elaborate, and nothing in the existing rules of civil procedure prevent someone from instead filing a Motion for Summary Judgment, possibly supported by affidavits and documents, to dismiss a case at the same early stage of the proceeding, but without delaying the time frame for filing an Answer or participating in discovery regarding the evidence in a case.

The main reason that we have both Federal Rule of Civil Procedure 12(b)(6) (motions to dismiss for failure to state a claim) and Federal Rule of Civil Procedure 56 (motions for summary judgment), boils down to historical accident.  Federal Rule of Civil Procedure 12(b)(6) is a residual remnant of what was called “Code Pleading” which was in effect before the Federal Rules of Civil Procedure were adopted in 1938.  Apart from this residual feature and a couple of other minor anomalies, the Federal Rules of Civil Procedure operate on a different legal theory known as “Notice Pleading”.

There are some circumstances where a motion to dismiss would result in someone losing a case where a motion for summary judgment would not, primarily involving cases where incriminating evidence is in the sole possession of the person being sued or a third party, and can only be obtained via court ordered discovery.  But, those cases largely argue in favor of reform, rather than against it.

This would also alter a fee shifting rule in certain Colorado cases, but there are other ways to amend that shifting rule to accomplish the same purpose, and perhaps do a better job of screening frivolous lawsuits that should be sanctioned from potentially meritorious ones.

Simplified Procedure For Civil Actions:

Repeal Colorado Rule of Civil Procedure 16.1

One of the problems with existing civil procedure rules is that they do a poor job of meeting the needs of people with medium sized cases with amounts in controversy between about $15,000 and $100,000 or simply title disputes.

Colorado Rule of Civil Procedure 16.1 entitled “Simplified Procedure For Civil Actions” was adopted as a reform to address this need by replacing discovery with pre-trial disclosure of what amount to scripts of what witnesses are expected to say at trial that limits witness testimony to what is disclosed prior to trial.  It also allows certain kinds of testimony to be received in the form of preservation depositions rather than live trial testimony.

For a variety of reasons, Colorado Rule of Civil Procedure 16.1 has been a flop.  For example, it is very unfriendly to parties to lawsuits who don’t have lawyers (which parties in small cases in general jurisdiction district courts often don’t).  It is highly prone to manipulation by lawyers who want to play hardball.  And, judges have been reluctant to exclude testimony for non-disclosure because the rules are unclear regarding the amount of detail that must be contained in pretrial disclosures.

Colorado Rule of Civil Procedure also greatly complicates law office management because it creates a class of civil lawsuits that don’t follow the ordinary sets of deadlines used in other civil cases.

Overall, this deserves to be repealed.

Jury Trials In State Court Civil Actions:

Eliminate the right to a trial by jury in civil actions except in cases where (1) non-economic damages are available, (2) exemplary (i.e. punitive) damages are available, (3) money damages are sought by some party from or by a governmental entity or officer or agent, (4) there are allegations of intentional fraud, whether or not punitive damages are sought, or (5) a written contract expressly preserves a right to a trial by jury.

In Colorado, there is no right to a jury trial in a civil case under the United States Constitution, the Colorado Constitution, or any statute.  The right to a jury trial in civil cases in Colorado arises solely under the Colorado Rules of Civil Procedure which basically incorporate by reference the standard for entitlement to a civil jury trial under the 7th Amendment to the United States Constitution (which relies on a historical distinction between law and equity prior to the merger of the two court systems in the late 19th century and early 20th century) as a matter of court rule, for no really compelling reason.

Most written leases and contracts expressly waive the right to a jury trial.  About 75% of jury trials involve cases for personal injury or defamation, where non-economic damages are available, or some sort of intentional conduct or fraud and in eminent domain cases, all of which involve a right to a jury trial.

Basically, we have civil juries to ascertain damages in situations where a judge has little guidance or an appearance of a conflict of interest (because he is a governmental employee), or where the collective judgment of a jury is deemed a better way to determine credibility than a judge’s determination where credibility is always a core issue (in fraud cases).

Jury trial are generally slower and more costly than non-jury trials, which is why they are overwhelmingly opted out of in lawyer drafted contracts.  This makes the most commonly adopted provision the default rule, rather than the exception.

Certificates of Service:

Eliminate the requirement of a certificate of service on any pleading that is electronically filed and served where all parties who are entitled to service have an e-filing account.

There is no reason that pleadings should contain a certificate of service when there is a third party electronic record of the same thing.

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Under threat: Lawmakers work to end digital harassment

Lawmakers and their families face frequent threats; death and rape top the list. Former state lawmaker Amy Stephens, R-Monument, knows this well. In 2011, when Stephens ran an insurance exchange bill, she found herself in the crosshairs of opponents of the Affordable Care Act.

“I had death threats and was being followed when I ran the exchange bill,” Stephens told an audience at a recent Colorado Independent women-in-politics forum. “Did you know that we had to have people in front of my office every day at the Capitol? Did you know that people called my office to say, ‘We’re going to kill your boss,’ to my aides? Did you know that it was awful?”

Stephens is not alone in her experience of threats.

“Death threats? I think we’re up to one or two a day … we’re reporting about one a week to State Patrol,” said Rep. Joe Salazar, D-Thornton.

When contentious issues hit Salazar’s desk, threats pour in. “There are those who like to bring family into it, which is an absolute no-no,” said Salazar. “My family doesn’t take the votes. I do. People will mention my girls or mention my wife. I get very concerned about my family. For myself, it is what it is. I kind of accepted that as a legislator.

“I’m sure there’s a number of other Republicans and Democrats who get all kinds of nasty threats as they go about their legislative careers,” Salazar continued, “but it saddens me that people really think that physically threatening someone is supposed to influence legislation.”

To combat pervasive electronic harassment, Salazar co-sponsored HB-1072, an update to the harassment code. He supports the bill, both for its primary intention to curb cyberbullying among kids and because it would cover repeat harassment and threats made “indirectly” through social media.

Salazar distinguishes trolls from terrorists and appreciates that the bill acknowledges the difference.

“Here are the trolls,” he said, pointing to a printout of an online article. “This is Colorado Peak Politics. They call me ‘Jackass Joe.’ Apparently that’s the name they wanted to run with.”

Does he love the nickname? No. Does he think it should be reported to State Patrol or that HB 1072 will make it illegal? Also no.

“Yes, the First Amendment talks about civil discord,” said Salazar, “but the death threats? The physical threats? No. That’s the line.”

That line and which side of it the cyber-harassment bill falls on are less clear for Rep. Lori Saine, R-Firestone.

In 2013, Saine ate fried chicken in a legislative task force about poverty in response to a Republican colleague who had said racially insensitive things about foods black people eat.

Commenters criticized Saine for silently protesting in defense of the racially-charged comments.

“I was receiving tweets, phone calls, Facebook messages and they’d be in the nature of, ‘I hope you die,’ and ‘I hope you die this way,” remembers Saine. “It was a semantic workaround. They didn’t actually threaten to kill me, so that’s the difference.”

Saine voted against the electronic harassment bill because she thinks it’s overly broad and would limit free speech.

“If people want to call me names, I’ll defend their right to do so as long as it doesn’t cross that line to: ‘I’m coming over to your house right now, and I’m going to do this,’” said Saine. “If every politician was able to use this bill to say, ‘You’re harassing me,’ that’s really going to chill free speech.”

The Senate is scheduled to debate the bill on the floor today.

Photo by Jonas Seaman

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Footage from the Florida climate denial frontline

This is what political denial looks like in Florida, where Republican Gov. Rick Scott has allegedly banned state officials from uttering the term “climate change.”

Video from a Senate committee hearing finds Bryan Koon, head of Florida’s emergency division, dancing around the term as he responds to questions about the climate change disaster-mitigation plans the federal government has required Florida to prepare.

On one hand, it’s absurd and awkward and funny. On the other, it’s tragic and Orwellian. How long can Republican politicians keep this up?

Colorado U.S. Senator Cory Gardner last fall during his campaign for office was asked in a Denver Post debate to respond with a one-word answer on the matter of whether he believed that (a) climate change was happening and (b) was caused mostly by human activity. But Gardner didn’t want to say “yes” or “no.” Moderator Chuck Plunkett, politics editor at the paper, was forced to explain. “These questions are meant to be answered yes or no because they should come from a core belief that you hold.”

To no avail.

“These are important issues that should be addressed seriously,” Gardner said, before rapidly plunging on. The audience oohed and awed.

This dodging on climate change is the kind of thing that makes for great video — the kind of video that outlives the people it features. The one below from 1994 concerns a different matter and it features corporate CEOs, not the people they pay to run for office, but the effect is the same.

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Ask The Cannabist: Marijuana is still illegal in Iowa. When will that change?

Reader: When is Iowa expected to change its marijuana laws? The Cannabist: Some change happened last year when Iowa passed a CBD-only medical bill …

The post Ask The Cannabist: Marijuana is still illegal in Iowa. When will that change? appeared first on The Cannabist.

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Newsmaker Q&A: Rep. Dan Thurlow, voting his conscience and taking the heat

Freshman lawmaker Rep. Dan Thurlow, a Republican from Grand Junction, has been making a lot of headlines lately for voting with Democrats. He ran afoul of hard-charging, far-right-politics group Rocky Mountain Gun Owners for voting against a bill that would have made it easier for Coloradans to buy machine guns and hand grenades. He also became the subject of digital recall rumblings after he voted to ban psuedo-science “conversion therapy” for gay people and against so-called religious freedom measures that he thought were too broad and might lead to discrimination. Who is Dan Thurlow? We caught up with him last Friday.

 

So, there’s a “Recall Dan Thurlow” Facebook page? 

Here’s the whole background on me: I came [to the Capitol] with the idea that I’m a guy who’s at retirement age and I wanted to just do something different. One advantage I have is that I don’t have much worry about whether I’m reelected or not. What I think that does is free me up to vote the way I think I should vote.

As you know, the issues down here are not simple. There’s always a complication and usually a good argument on each side. So I try to read the bills before committee, to listen in committee and then I try to make a rational decision based on what I read and what I hear. That’s the only way I know how to do it. That’s what I promised my constituents when I ran for office. That’s what I’m doing. I absolutely understand they have the right to disagree with me and they have the right to vote against me if they want and to vote for me if they agree.

As far as the whole recall thing, I don’t know and I don’t care. I don’t think it’s a very big groundswell. It’s a free country. They have the right to do what they want to do.

Have you been hearing good things from constituents about your votes? 

Oh, absolutely. On the votes I’m taking, nine-to-one the response is positive. And what’s funny about it, it’s not just the positive of “I agree with you” … it’s positive as in “That’s how you should go about the process.”

As you know, constituents can’t read every bill — that’s not what a normal person with a life has time to do. If you go and look at the gun bills for instance, there were five of them and they were complicated. There was one I didn’t agree with and I’d be glad to sit down with anybody and explain that vote. So far, everybody that I talk to and explain it to goes, “Oh, I understand why that wasn’t a good bill,” even if you’re Second Amendment proponent, which I am.

This was the machine gun…

Machine guns and hand grenades. The bill wouldn’t have done anything to ban them, it was to make them easier to buy. Machine guns and hand grenades.

So that was the vote that put you afoul of Rocky Mountain Gun Owners, right? 

I really didn’t hear much right after that vote. The stuff started after the vote on conversion therapy and on [the religious freedom bills] 1161 and 1171. Those are bills that I’m glad to talk over with anybody. I understand the feelings people have. They were premised as being about religious freedom. Believe me, I support religious freedom, and think we have a lot of it. But the other side of the argument is that we have to allow people to live their lives the way they want to live them.

I believe the conservative position is for government to stay out of our life in a regulatory manner, in a tax manner, and for government to stay out of our bedrooms. That’s what I’ve supported. To me that’s the conservative position.

What’s the feedback you’re getting from your colleagues down at the Capitol? 

Literally every legislator that I’ve talked to that has any experience here has said, “Vote your convictions and, over time, that’s how you’ll be successful.”

So, last weekend state Republican Party Chairman Ryan Call was ousted i a tough election. He was seen as too establishment, too moderate. But he ushered in a big win for the party with Cory Gardner, who won his U.S. Senate seat by pitching himself as a ‘new kind of Republican’ who would lay off social issues. Is the pressure you’re drawing rising from the same fault-line in the party?

I guess I really don’t. I didn’t attend [the party] elections. I was in Grand Junction that weekend. I haven’t been tuned into the intricacies of those politics. I guess I don’t have a viewpoint on that.

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Littwin: Ted Cruz for president, because he seems just like a Republican primary voter

As Ted Cruz took the stage at Liberty University to announce that he’s running for president as the One True Conservative, it suddenly occurred to me that he actually has a chance to pull it off.

The smart money dismisses the idea, and with good reason. The party establishment can’t stand him. His fellow senators can’t abide him. If you look at the early polls weighing the crowded Republican field of would-be candidates, voters don’t seem particularly enthralled, either.

And then, of course, there’s the Cruz unlikeability quotient, which has to be the highest since Nixon. Meanwhile, according to fivethirtyeight.com, which has done the numbers, Cruz is the most conservative presidential candidate in recent memory, even if your memory bank includes Michele Bachmann. There’s conservative (see: Scott Walker) and there’s conservative (see: Ted Cruz). Candidates as far out of the mainstream as Cruz just don’t win. You could look it up.

He can talk the angry, liberty-deprived, Obamacare-oppressed, amnesty-obsessed, climate-change-denying wing of the Republican Party into the idea that he’s the candidate they’ve already talked themselves into voting for.

So, how could he do it? Let’s call it the mirror test. Cruz is betting that he can talk the angry, liberty-deprived, Obamacare-oppressed, amnesty-obsessed, climate-change-denying wing of the Republican Party into the idea that he’s the candidate they have already talked themselves into voting for.

You know his bonafides, and they have nothing to do with Harvard Law School. Running as a longshot outsider, he won a Senate seat in 2012, by which time Republicans had long since dedicated themselves to opposing all things Obama. And yet, somehow, inside of a year, he had become the ultimate anti-Obama figure, who proudly cites his role in the anti-Obamacare government shutdown. John McCain may have called him a wacko bird, but that’s just how you become an anti-establishment Tea Party favorite.

Every four years, Republicans threaten to nominate someone like Cruz. And Cruz, who has been running for president since he got to the Senate, thinks the time is now.

He has made the case often enough that compromise is the real danger for Republicans. Here’s what he told the New Yorker’s Jeffrey Toobin: “It is amazing that the wisdom of the chattering class to the Republicans is always, always, always ‘Surrender your principles and agree with the Democrats.’

“That’s been true for my entire lifetime. The chattering classes have consistently said, ‘You crazy Republicans have to give up on what you believe and become more like Democrats.’ And, I would note, every time Republicans do that we lose.”

In Cruz’s version of history, conservatives win — Reagan, the first Bush’s first run, George W. Bush — and moderates lose — the first Bush’s second run, Dole, McCain, Romney. You can guess where he puts the latest Bush. And despite the conventional wisdom – that he’d be destroyed in a general election – you can guess where he puts himself.

In Cruz’s announcement speech, which he delivered without notes, he called for Tea Partiers and Evangelicals to unite behind him. He told them how his father — a Cuban refugee who had moved to Canada, battled a drinking problem and left him and his mother — had found Jesus, reunited with his family and changed their world. Cruz called upon the Liberty students, who were, uh, mandated to be there, to imagine a world that sounds something like a right-wing fever dream. If you trust the applause, the students were dreaming along with him.

Cruz used “imagine” in the John Lennon sense — if you can imagine Lennon as a Tea Partier — maybe three dozen times. Fortunately Cruz didn’t sing, but you can pick up the tune, from which he imagined a world without Obamacare, without the IRS, with a flat tax, with every word of Common Core repealed, with a president who stands by Israel, with a president who respects the Second Amendment, with a president who respects marriage (not including the same-sex kind), with a president who protects the borders (presumably from child invaders), with a president who calls radical Islamic terrorism by its name. And on. And on.

My favorite part of the speech came when Cruz took a historical tour to show how Americans overcome all odds. He began with Patrick Henry in 1775 giving his “Give me liberty or give me death” speech, moved on to the signers of the Declaration of Independence in 1776, to George Washington in 1777 with his troops in the freezing cold, jumping to FDR (in a bipartisan turn) in 1933 telling frightened Americans the only thing to fear is fear itself, to, finally, Ronald Reagan himself.

Here’s the part on Reagan: “Imagine it’s 1979 and you and I were listening to Ronald Reagan and he was telling us that we would cut the top marginal tax rate from 70 percent all the way down to 28 percent. That we would go from crushing stagnation to booming economic growth to millions being lifted out of poverty and into prosperity and abundance. That the very day he was sworn in, our hostages who were languishing in Iran would be released and that within a decade we would win the Cold War and tear the Berlin Wall to the ground. That would have seemed unimaginable, and yet with the grace of God, that’s exactly what happened.”

It’s unimaginable to me that Cruz would have included cutting top marginal tax rates among the courageous moments that have marked American history. One day it’s a tax cut, the next it’s the end of the Cold War.

That may not be the way you were taught the story. But it’s the way that Ted Cruz, champion Princeton debater, can tell it. You know he sees himself in the Patrick Henry role. Now imagine if enough Republicans actually agreed.

[ Photo: Texas U.S. Sen. Ted Cruz at 2011 Values Voter Summit by Gage Skidmore.]

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The Balance of Power In Modern American History

As a prelude to future posts on the state of the American political system, I’d like to start with a history lesson on the partisan and ideological balance of power in American politics.

Divided Government

Americans have gotten used to divided political control in recent years.

Seventeen of the twenty-four elections held from 1968 to 2014 have produced divided governments.

We have had (or will have) divided government for 44 years since the end of World War II.

Six of eight years under President Obama (January 2011-January 2017)
Two of eight years under George W. Bush (January 2007-January 2009)
Six of eight years under President Clinton (January 1995-January 2001)
All four year under President George H.W. Bush (January 1989-January 1993)
All eight years under President Reagan (January 1981-January 1989)
All eight years under President’s Nixon and Ford (January 1969-January 1977)
All eight years under President Eisenhower (January 1953-January 1961)
Two years under President Truman (January 1947-January 1949)

Republican Control

Republicans controlled the Presidency and both houses of Congress for the first six years of George W. Bush’s eight year Presidency (from January 2001 to January 2007).  The Republicans didn’t have a filibuster-proof majority in the U.S. Senate in any of those six years.  But, the U.S. Supreme Court was moderately conservative during those six years as well.

Prior to George W. Bush, the last time that Republicans controlled the Presidency and both houses of Congress was in March of 1933 under Herbert Hoover.

Democratic Control

Democrats controlled the Presidency and both houses of Congress:
* For the first two years of President Obama’s eight year term (from January 2009 to January 2011), with 59 seats in the U.S. Senate, one vote shy of a filibuster-proof majority.
* For the first two years of President Clinton’s eight year term (from January 1993 to January 1995),
with 57 seats in the U.S. Senate, two votes shy of a filibuster-proof majority.
* During President Carter’s four year term (from January 1977 to January 1981), with 61 seats in the Senate for the first two years and 58 seats in the Senate for the second two years.
* During the administrations of Presidents Kennedy and Johnson (from January 1961 to January 1969) with 64 seats in the Senate for four of those years, with 66 seats in the Senate for two of those years, and with 68 seats in the Senate for two of those years.
* During the administration of President Truman from April 1945-January 1947 and from January 1949-January 1953).
* During FDR’s Presidency from March 1933 to April 1945.

Democrats held substantial and often filibuster-proof majorities during the administrations of Presidents Truman and FDR.

A Caveat on Realignment

This raw data, however, is somewhat misleading.  The Democratic party had deep internal divisions between conservative Southern Democrats and liberal Northern Democrats for most of the period from Truman’s administration through the Reagan administration.  The practical effect of this divide was that there were basically three political parties in Congress during this time period, none of which commanded a majority.

There were still significant numbers of conservative Democrats from the George H.W. Bush administration through the end of the Clinton Administration, although there are almost none today in Congress (although the Democratic party today still has a somewhat broader ideological spectrum than the Republican party does).

There were still many liberal leaning Republicans in the Eisenhower, Nixon and Ford administrations.  Liberal leaning Republicans had become politically irrelevant in the U.S. House by the Reagan administration, but a few moderate Republicans had lingered in the U.S. Senate until the 2014 election.

There are now basically no conservative Democrats and no liberal leaning or moderate Republicans in Congress, although there are some moderate Democrats in Congress.  The majority of Democrats in Congress are solidly liberal.  The majority of Republicans in Congress are very conservative.

The Supreme Court

The U.S. Supreme Court was a decidedly conservative force during the Lochner era from roughly 1897 (the case of Allgeyer v. Louisiana (1897)) to 1937, which is named after the case Lochner v. New York (1905), although Plessy v. Ferguson (1896), which provided a legal foundation for Jim Crow era apartheid laws, is arguably a better landmark.

From roughly 1937 to 1953 (the later part of the Hughes Court, and all of the Stone Court and the Vinson Court), the U.S. Supreme Court was deferential to Congress and the President, not striking down liberal legislation as the U.S. Supreme Court did during the Lochner era, but not protecting individual liberties in the way that the U.S. Supreme Court has since the Warren Court era even since its shift to a moderately conservative majority in 1991.  The Court’s in this era established the enemy combatant doctrines during World War II that George W. Bush would use to fight the War on Terrorism and legally authorized Japanese internment during World War II.  On balance, this too was a moderately conservative court.

The liberal Warren Court (1953-1969) produced Brown v. Board of Education, and most of the precedents that gave effect to federal constitutional protections for criminal defendants.  The Burger Court (1969-1986), most notably, producing Roe v. Wade, but gradually took a more moderately liberal position that continued into the first few years of the mostly moderately conservative Rehnquist Court (1986-2005).  The Roberts Court (2005-Present) has also been moderately conservative.

The U.S. Supreme Court has had a moderately conservative majority since 1991 when Justice Thomas was appointed.  This checked Democratic power during the periods when Democrats were in control of the political branches during the administrations of Presidents Clinton and Obama.

Also, the modern Supreme Court, while its median vote is moderately conservative, has gained several members who are extremely conservative relative to the legal profession and other judges (i.e. Justices Scalia, Thomas and Alito).  The current conservative-liberal balance of the U.S. Supreme Court is 5-4, which very moderately conservative Justice Kennedy as the swing vote.  So, a single liberal U.S. Supreme Court appointment could shift the U.S. Supreme Court to a liberal one, while a single conservative U.S. Supreme Court appointment could shift the U.S. Supreme Court from being moderately conservative to very conservative.

from Wash Park Prophet http://ift.tt/1y0tHQf
via Denver News

Wiretap: Rotten eggs, weed and Snoop Dogg on Reaganomics

Windfall

Wind turbine maker Vestas held a job fair last week in Windsor, Colorado, in the gas patch just north of Greeley. The Danish company was looking to hire 300 permanent positions — or roughly 10 times the amount of permanent jobs the Keystone XL pipeline promised to U.S. citizens.  Many of the job seekers had been laid off from drilling companies in the boom-bust Weld County oil fields. Job seeker Lindsay Gray via the Greeley Tribune: “The thing I’m really looking for is stability.”

This Stinks

Boulder’s Casey Middle School was rebuilt in 2010 for $33 million as a high-tech renewable-energy-powered facility. Students and faculty enjoy views of the Flat Iron mountains and the Sanitas Ridge – and they are also plagued by an “intermittent stink of rotten eggs.” The Daily Camera quotes Superintendent Bruce Messinger on the leaking hydrogen-sulfide problem: “Significant efforts have been made to identify the source.” A long-promised community meeting on the problem is scheduled for April 2.

Weed Read

The first of the Gazette’s four-part series Clearing the Haze explores various regulatory issues associated with legal pot. Check back over the coming days for “Marijuana and Crime,” “Youthful Addiction” and “Medical Marijuana.”

 

Gun Shy

 

After gun-wielders legally entered two Aurora City Council meetings, members got jittery and passed a ban on the open carry of guns at the municipal building, reports The Denver Post.

 

 

Poor Ratings

 

Colorado’s child poverty rate declined to 17 percent this year, the first drop in five years, reports The Gazette. In rural areas, 23 percent of children still face poverty.

 

Dogging Reagan

 

At SXSW, rap legend Snoop Dogg announced he is temporarily bow-wowing out of hip-hop for a foray into documentary filmmaking. He has formed a partnership with HBO to take a bite out of the impact of Reaganomics on an inner-city family in Los Angeles.

 

 

Making Up

 

Hillary Clinton tries to makes up with the press, but only after offering up a lecture. Via the National Journal.

 

Back-pedaling

 

Netanyahu apologizes for comments about Israeli Arabs. Obama does not seem to be impressed. Via The New York Times.

 

 

Biting the Hand

 

The Tea Party and Medicare: What do you do if you want to cut entitlements and much of your base is already over 65? Via The Hill.

 

Cuckoo’s Nest

 

Andy Borowitz on Ted Cruz: Disturbed man tries to get into the White House. Via The New Yorker.

Photo by Alexis Breaux

 

from The Colorado Independent http://ift.tt/1FzpPO9
via Colorado Marijuana news