Wednesday, July 07, 2010

Tom Emmer: The Dog Whistler II

Emmer_CSA You would think if you were going to throw a really big — and in this case, really bad — idea out there, you’d try hard to put the idea’s best foot forward. Well, wouldn’t you?

Not Stonewall Emmer, apparently.

In an earlier post, I said that Emmer’s proposed amendment to the Minnesota Constitution, permitting the nullification of federal law, contained some language that was a shout out to the Patriot crowd. The words “sovereign individuals” in particular.

MNO has commented on the constitutionality of the basic idea behind the amendment, too.

But on top of these things, the proposed amendment is so poorly drafted that it’s a joke. Maybe that’s why Stonewall is laughing in the picture. Here is the amendment again:

Citizens of Minnesota are sovereign individuals, subject to Minnesota law and immune from any federal laws that exceed the federal government's enumerated constitutional powers. A federal law does not apply in Minnesota unless that law is approved by a two-thirds vote of the members of each house of the legislature and is signed by the governor. Before voting to approve a federal law, each legislator must individually affirm that the legislator has read the federal law and understands it. Citizens of Minnesota enjoy inherent, natural, God-given rights as reflected in the Bill of Rights of the United States Constitution and the Minnesota Constitution. Minnesota citizens have the right to seek redress for any alleged violation of these rights committed by the state of Minnesota exclusively through a jury trial in a Minnesota court and through enactment of a change in Minnesota law. [italics are mine]

Re-read the last sentence. An alleged violation? A person can sue for a “violation” of his rights, and when the lawsuit is started it’s just an allegation. But you can’t get redress for an “alleged violation;” you have to prove the violation first. There’s a difference between a “violation” and an “alleged violation,” and it isn’t trivial.

We know what Stonewall probably meant, but it’s sloppy: the product of an imprecise mind.

But this drafting slip up pales compared to the titanic, monumental stupidity of the entire last sentence. By the unambiguous terms of the amendment, Minnesotans would be deprived of resort to the federal courts for a violation of their civil rights by the state under the federal constitution’s Bill of Rights.

How do you like them apples?

Stonewall proposes to suspend the federal writ of habeas corpus all by himself.

Let’s say you’re convicted of a crime in a state court, but your conviction involved the violation of the Fourth Amendment, or the Fifth, or the Sixth, or all of them together — all of them are applicable to the states via the Fourteenth Amendment — and you have exhausted your appeals in state court.

According to Stonewall’s Emmer amendment, you couldn’t bring a habeas corpus action in federal court to test the legality of your confinement.

Prisoners in Guantánamo Bay can do that.

But that’s not all; far from it. What if Minnesota decided to just go ahead and fund all parochial schools just like they were public schools, and you wanted to bring an action for an injunction in federal court under the Establishment Clause? Not so fast, says Stonewall.

Or let’s say the state decided that segregated schools — de jure, not just the de facto ones we’ve already got — could anybody sue for a federal equal protection violation? A closer question, because the Equal Protection Clause is in the Fourteenth Amendment, not the Bill of Rights.

How about a case where the St. Paul Chamber of Commerce sought to find parts of the Minnesota Fair Campaign Practices Act unconstitutional? Heaven forfend! Not in Stonewall Emmer’s Minnesota.

We’ll look at one more example that should strike terror in the hearts of libertarians. Let’s say you’ve got the case that you think will overturn Kelo, the hated condemnation case. Can you appeal it to the U.S. Supreme Court? Nope.

No! Wait! One more. The state passes a law to confiscate all guns. Bring an action in federal court under the Second Amendment? Sadly, no. A case like McDonald v. City of Chicago could never have happened under Stonewall’s amendment.

Now luckily, Stonewall Emmer cannot conceive of an amendment to the Minnesota Constitution that would actually permit him to deprive the federal courts of jurisdiction. Neither could I, because it can’t be done.

But you can learn a lot about the quality of the intellect, and the depth of understanding of federalism and the U.S. Constitution that Stonewall Emmer brings to the table. Emmer’s constitutional rantings reveal him as a lightweight, a scrub, a panderer, and a delusional demagogue.

What the Republicans really need to do right now is to arrange a pool party for Tom Emmer.

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