The WSJ Against Al Franken: Boldy Going Bonkers
The lunatic fringe on the right just can't get any more worked up about Al Franken's win in MN, and the increasingly unhinged Wall Street Journal is leading the charge. Today's contribution--an op-ed by constitutional lawyer Michael Stokes Paulsen of St. Thomas University in Minneapolis, arguing that the recount was "unconstitutional."
Paulsen says that, like the "fiasco in Florida," the MN recount was "chaos," and like Florida, its lack of standards is "rightly regarded as controversial." OK, I guess at least you're consistent, right? Slamming Bush v. Gore and the MN recount equally.
Of course, it always helps your argument if you bear the weighty authority of an established legal scholar like Paulsen, whose stunning article, "Capt. James T. Kirk and the Enterprise of Constitutional Interpretation" in the seminal work Star Trek Visions of Law and Justice, begins with, "But as a 'trekkie' and a law professor, I can find stunning and prophetic constitutional insights in Star Trek reruns if I want."
Ah, the doughy pantload geeks of strict constitutionalism. Bless their hearts.
Hi DK (in DC?)
I am curious as to your thoughts on Mr. Paulsen's legal reasoning. When I began to reflect on the article, I began to wonder if with regards his appeal to "equal protection", I thought be might have hung himself by his own petards. Any thoughts.
January 15, 2009 3:13 PM | Reply | Permalink
Minnesota has instituted the finest electoral system in the country. Two hundred votes either way in a 3 million vote race causes problems.
I feel like Scotty telling the Captain--we've given it everything we got.
Two republican Supreme Court Justices, two independent district court judges and a Democratic Secretary of State decided this recount.
As I stated elsewhere, does anyone believe the Minnesota Supreme Court is going to tell two from their own court that they will not accept the results?
Maybe those states where they flip a coin as a right result would do us better.
The right would be speaking and writing in a totally different tone if it had turned out the other way.
All I can say is thank God there were not four democrats on that five person panel.
January 15, 2009 3:44 PM | Reply | Permalink
Biggest problem I see with Paulsen's Star Trek essay is his equation of majority popular opinion with Constitutionality. Particularly, his last proposal for jury superiority over judges would have the potential to legitimize situations like those in the deep south whereby a white man could never be convicted of the murder of a black man.
Paulsen makes the same mistake many people on both the left and right do, that the Will of the People is defined by the majority. This is exactly the factional majority warned of by the Framers, and the reason they instituted a representative republic instead of a direct democracy.
And he would enshrine the idea of the executive possessing a legitimate power of judicial review. Ack! Let's just have a king, then.
January 15, 2009 5:53 PM | Reply | Permalink
Or at least the next best thing, the divine right of Republicans never to lose a contested election, regardless of how many more votes the Democratic candidate received. Why should the person with the most votes get elected, anyway?
i did not read the Paulsen article but on one point you should try to be better informed. "jury superiority over judges" is a distorted way to describe the power of juries to judge law as well as fact. this power legitimately belongs to the jury.
You cite the history of southern juries absolving whites from crimes committed against blacks, but that is a red herring on this issue, because: #1, blacks were EXCLUDED from those old southern juries, and #2, had those cases been left to the judges rather than juries, the whites still would have been let off since most of the judges were racists, too, or at least politician enough to kow-tow to the racists, and #3, those Southern juries used to receive the same instructions about letting the judge rule on the law and to keep their own deliberations to issues of fact---they were NOT instructed as to their authority to also judge the laws.
Trial by jury would be our last safeguard against tyranny, if juries understood their own strength. Of course, if they did, then the denial of jury trials to accused "terrorists" today would be expanded to all "suspects", i.e., citizens, tomorrow. EVEN UNDER BARACK, the momentum towards a high-tech police state will keep increasing.
January 15, 2009 7:25 PM | Reply | Permalink
What Paulsen is arguing is that juries should have the power to override judges on issues of constitutionality. Juries make the determination of fact in our system, but judges are the deciders of questions of law. Juries may nullify judicial instructions based on the law, but they can't tell the judge what the constitution means.
I'm well aware that judges suffered from the same prejudices as southern all-white juries, but federal judges were the eventual chink in the armor of white immunity from law. What Paulsen argues would have crippled those federal judges who did finally have the cojones to apply the law somewhat more fairly than the dominant paradigm.
January 15, 2009 10:20 PM | Reply | Permalink
How young Michael Paulson first learned to love the law.
January 15, 2009 8:30 PM | Reply | Permalink
Miguelito, you are an asset to this site! I am constantly entertained by you! Where do you FIND all these things?
January 16, 2009 9:59 AM | Reply | Permalink
I think Murdoch on principle lies to people and is not too particular about the lies just so long as the lies are lies. The Sun a newpaper Murdoch owns will have a fluff piece about the musical group Satan's Sluts with pictures (revealing pictures) and interviews and have Bill O'Riley talk about the war against Christendom on Fox. Murdoch is apparently happy as long as minds are being filled with nonsense.
January 16, 2009 1:11 AM | Reply | Permalink