Constitution

If Supreme Court Overturns Roe, Southern California Could Be Haven For Choice And Outrage

May 5, 2022 By Andre Mouchard, David Downey and Brian Whitehead 3 Comments

More abortions and more people casting votes in November.

Also, more outrage and frustration.

All of those disparate trends and emotions could come to Southern California if the Supreme Court overturns or severely limits Roe v. Wade, the 1973 decision that guaranteed a federal constitutional right to an abortion.

On the abortion front, the upturn is already underway.

Since September, when Texas enacted a controversial law that outlaws abortion after a doctor can detect a fetal heartbeat (typically around six weeks), the number of out-of-state women seeking to terminate their pregnancies at Planned Parenthood clinics in Southern California has roughly quadrupled, according to officials from local chapters of that organization.

But that trend could kick into overdrive if Roe is struck down as a leaked Supreme Court draft decision suggested. At least 26 states are poised to ban or severely restrict abortion if and when the Supreme Court takes action, states that include about 58% of American women of child-bearing age.

In a post-Roe world, many of those women will turn to California, where abortion rules are arguably the most lenient in the country.

“It could be a deluge,” said Nichole Ramirez, a spokeswoman for Planned Parenthood’s nine-office region in Orange and San Bernardino counties.

“The dismantling (of Roe) would impact about 36 million Americans, most of whom are women of color and women without money,” Ramirez added.

A spark?

On the political front, consultants of all political stripes believe the question isn’t if but how much a move to strike down Roe will animate voters. And many predict the biggest upturn will come from voters who previously weren’t expected to turn out in big numbers – younger women.

“This year’s mid-term was going to be one of the most boring, low-turnout elections we’ve had in a long time,” said Adam Probolsky, an Irvine-based political researcher and pollster.

“But now, with that draft by (Supreme Court Justice Samuel) Alito out there, you have every 18- to 25-year-old woman, every younger voter in general, with a keen interest in the outcome of this election, from federal offices on down,” Probolsky said.

“Nobody can say right now exactly how much this will change things, but every political consultant in this country is recalibrating what they expect for turnout in November.”

And on the outrage front, local pro-life advocates were thrilled that the Supreme Court might be poised to give their cause the win they’ve sought for two generations – but they saw an anti-Roe ruling as a starting point.

“We are cautiously optimistic. … The ruling would help make it clear to everyone who is paying attention that there is no right to abortion in this nation,” said Susan S. Arnall, vice president of legal affairs for the Right to Life League, a Pasadena-based group that pushes for tougher abortion laws.

And while Arnall said an anti-Roe ruling would “absolutely buoy pro-life forces,” she expressed frustration with several proposals in Sacramento to make abortion easier and more affordable in California.

Her group’s fight against California’s abortion stance, Arnall suggested Tuesday, would only intensify if the Supreme Court strikes down Roe.

“I’m flying to Sacramento tomorrow.”

Divide widens

If California has the most lenient abortion laws in the country, it might be because public opinion backs that.

While national polls show roughly two-thirds of Americans don’t want to see Roe overturned by the court, California voters are particularly supportive of a woman’s right to choose. A June 2021 poll from the California Public Policy Institute found 77% of state voters – including 59% of Republicans – don’t want to see Roe erased.

That context was clear in Sacramento late Monday and into Tuesday.

Minutes after news broke about the Supreme Court draft ruling, Gov. Gavin Newsom took to Twitter to say, “California will not sit back. We are going to fight like hell.” By Tuesday, lawmakers were pushing to codify the right to an abortion into the state Constitution.

But over the past year, in anticipation of an anti-Roe ruling by the Supreme Court, state lawmakers, health providers and others have been pushing for new legislation to widen abortion access statewide.

At least 10 bills are being discussed in Sacramento that would do everything from cover out-of-pocket expenses for women, protect health providers from civil suits filed against them in other states and expand the world of medical experts who can legally provide an abortion procedure or prescribe a medical abortion.

The Los Angeles County Board of Supervisors voted Tuesday encourage passage of a State Senate bill that would make L.A. County a safe haven for women seeking abortions and other reproductive care.

One proposal, from Assemblywoman Cottie Petrie Norris, D-Laguna Beach, would train health care workers to provide abortions in underserved parts of the state. Another would create a reproductive health pilot program in Los Angeles County.

Still, news that Roe might go away also sparked an instant response among activists – and from people who say they don’t consider themselves activists but said they’ll speak out against the government having control over a woman’s decision to have a child.

Late Tuesday, groups throughout Southern California were planning to demonstrate in support of women’s rights.

“It is part of a national response,” Riverside resident Chani Beeman, who for many years has been an advocate for women’s rights, said about plans Tuesday by several groups in Southern California to demonstrate in support of women’s rights.

“It will be a wave across the country.”

Connie Ransom, who helped lead the 2017 Riverside Women’s March, planned to attend a rally in Riverside.

“This is just astonishing that this has come to pass,” Ransom said

“It’s just going backwards. It’s like (the current national debate on) voting rights — it’s taking away the individual freedom of women.”

Click here to read the full article at the OC Register

Filed Under: Top Stories Tagged With: California Politics, Constitution, Roe V. Wade, U.S. Supreme Court

Gavin Newsom Embodies California Liberalism

June 23, 2018 By Jim Geraghty 15 Comments

Gavin Newsom — the former San Francisco mayor, current lieutenant governor, and likely next governor of California — embodies Golden State liberalism: the perfect appearance, the bear-hug embrace of identity politics, the celebration of Silicon Valley moguls tempered by hand-wringing about income inequality, the grandiose, fanciful plans for building the state into a modern utopia.

This is no accident. For better or for worse, Newsom has already done a lot to shape modern California. As San Francisco’s mayor from 2004 to 2011, he pushed the outer boundary of Democratic party politics leftward. His first gubernatorial-campaign ad reminded viewers that he issued same-sex marriage licenses way back in 2004, in calculated defiance of state law. As mayor, he banned plastic bags, the use of Styrofoam in restaurants’ takeout containers, and sales of cigarettes in convenience stores, pharmacies, grocery stories, and big-box stores. He signed laws mandating composting and requiring retailers to display the radiation levels of the cellphones they sold. He gave 400 city employees the authority to write citations for littering. He proposed, but never succeeded in passing, a surcharge on all drinks with high-fructose corn syrup.

Since taking over as lieutenant governor in 2011, Newsom hasn’t had a ton of governing responsibility. In 2012 and 2013, he found the time to host a weekly show on Al Gore’s old Current TV. The Los Angeles Times’ limp endorsement of Newsom in 2014 is unintentionally hilarious: “Being lieutenant governor mostly serves as a perch for gubernatorial candidates-in-waiting. Nevertheless, voters are asked every four years to choose among the aspirants, so here goes . . .”

With little to do in his day job, for the past few years Newsom put his energies into promoting state initiatives. In 2016, he supported and the state adopted Proposition 47, which made just about any crime involving less than $950 — shoplifting, grand theft, forgery, fraud, receiving stolen property or writing bad checks — a misdemeanor for sentencing instead of a felony. Also that year he proposed Proposition 63, prohibiting the possession of large-capacity gun magazines and requiring certain individuals to pass a background check in order to purchase ammunition. The measure passed, but in June 2017, a federal judge issued an injunction, saying that it probably violates the U.S. Constitution. (California’s attorney general is appealing the injunction.)

Yet as Newsom and his like-minded allies unleashed a cornucopia of bans and restrictions and mandates from San Francisco and Sacramento, quite a few Californians started falling out of love with the state. More Americans are leaving California than joining it, concluding that the cost of living, taxes, regulation, traffic, and other problems are just too unbearable, despite the gorgeous coastlines and weather and everything else that once made the Golden State so golden. The state has the highest poverty rate in the country after accounting for its stratospheric cost of living, and the second-highest housing costs, behind only Hawaii.

All of this is probably something of an abstraction to Newsom. His has been a life of privilege that would get a typical Republican office-seeker torn to shreds. His grandfather, William Newsom, was close friends with Pat Brown, the governor of California from 1959 to 1967 and the father of current governor Jerry Brown. His father, also named William, attended St. Ignatius prep school with oil heir Gordon Getty. In 1975, Jerry Brown picked the younger William Newsom to be a state judge. He remained a close, trusted friend to the Getty family, and when young Gavin Newsom had entrepreneurial dreams, the Gettys were happy to invest. In 2003, the San Francisco Chronicle found that “Getty, or trusts and firms he controls, is lead investor on 10 of Newsom’s 11 businesses.”

Newsom likes to describe himself as a small-business owner with “a strong bias for entrepreneurs, a strong bias for those putting themselves on the line and taking risks.” One wonders just how risky a business venture can be when the Getty family and their fortune is so consistently ready to help out. …

Click here to read the full article from the National Review

Filed Under: Top Stories Tagged With: Constitution, Gavin Newsom

Violating the Constitution that created it

December 21, 2016 By Gary M. Galles Leave a Comment

The political left’s responses to Donald Trump’s surprise Electoral College victory has led to many proposed “improvements” in that institution, ironically illustrating one of the main issues determining the outcome — what philosophy would guide judicial appointments.

Trump indicated that he would appoint justices that would honor the Constitution as the supreme law of the land. That would comport with our founders, expressed in Federalist 78, that “It will be the duty of the judicial tribunals … to guard the Constitution and the rights of individuals.” That was at odds with Hillary Clinton’s intent to appoint “living Constitution” jurists, who prefer subsequent judicial interpretations they like over the Constitution itself, whenever they conflict, effectively re-writing the Constitution.

So left-leaning legal scholars have illustrated their preferred means of Constitutional redefinition to produce their desired results via Electoral College “reform” proposals.

Kenneth Jost, author of the Supreme Court Yearbook, argues, “The electoral college is enshrined in the Constitution, but that doesn’t make it constitutional.” He arrives at that internally inconsistent conclusion because “The Supreme Court established the principle — ‘one person, one vote’ — in 1964.” But that is not in the Constitution. It is a much later court invention, now being used retroactively to define part of the Constitution unconstitutional. The fact that our founders did not find that so when they wrote and adopted the Constitution is simply ignored.

University of California, Irvine, Law School Dean Erwin Chemerinsky, a leading liberal Constitutional interpreter, takes the same theme further. He argues that “the text of the Constitution is modified by its amendments,” so the Electoral College allocation of votes should be declared unconstitutional as violating the constitutional amendments [citing the 5^th Amendment] that guarantee equal protection of the law.” This, despite the fact that adopters of the Bill of Rights in 1791 clearly found no unconstitutionality in the Electoral College from the 5^th Amendment. Neither were earlier examples of popular vote winners who lost in the Electoral College asserted to be unconstitutional. Chemerinsky, as Jost, builds his case not on the Constitution, but upon “The Supreme Court long has held,” followed by some ruling that twists the Constitution and can now be interpreted as at odds with the Electoral College, plus the claim that the redefined constitutional meaning should now trump the Constitution.

Neither of these prominent challenges to the Electoral College relies on the Constitution. Arguments are instead grounded in previous “The Supreme Court has held” rulings that deviated from consistency with the clearly understood original meaning of the Constitution. This is, in fact, such a common approach in “living Constitution” jurisprudence that scholars have even compiled “worst of” lists, such as Robert Levy and William Mellor’s The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.

Should America be faithful to the Constitution, and the sharply limited federal government of enumerated powers it created to protect our freedoms from abuse at its hands, as the earlier, controlling precedent, or should we accept precedents that have already warped it almost beyond recognition? If the Constitution’s meaning is to be so easily changed (but only when the left finds it amenable to their ends) that even “emanations from penumbras” around other rights can effectively rewrite it, why did our founders spell out such a difficult process for changing it? And why should we respect precedents from 1964 or others years long after America’s establishment, on the basis that the Constitution must be upheld, when those precedents distorted it rather than upheld it? Surely that Alice in Wonderland approach to constitutional meaning is too weak a reed to throw out the Electoral College as violating the Constitution that created it.

Gary M. Galles is a Professor of Economics at Pepperdine University, a Research Fellow at the Independent Institute, an Adjunct Scholar at the Ludwig von Mises Institute and a member of the Foundation for Economic Education Faculty Network. His books include Lines of Liberty (2016), Faulty Premises, Faulty Policies (2014) and Apostle of Peace (2013).

Filed Under: Blog Tagged With: Constitution, Donald Trump, Electoral College, Gary Galles, Supreme Court

Mainstream Misdirection in SCOTUS Search

February 17, 2016 By Gary Galles 3 Comments

Photo courtesy Envios, flickr

Antonin Scalia’s death has begun a new Supreme Court battle. And much of it will be expressed in terms of whether nominees are “mainstream” or not.

Senator Charles Schumer already demonstrated this pattern. In 2007, he said any Bush nominee “must prove … that they are in the mainstream rather than we have to prove that they are not,” but has now doubled down in the opposite direction, saying, “many of the mainstream Republicans, when the president nominates a mainstream nominee, will not want to follow Mitch McConnell over the cliff.”

Why so much mainstream rhetoric? To be in it sounds good; to be out of it sounds bad. But it rests on a distorting analogy.

The analogy equates mainstream to “normal,” or majority, views. They are then further equated to “correct” views. But while majorities choose representatives, our Constitution was far from majority rule (“mob rule,” to many founders). It put many choices off-limits to political determination, and subjected others to very stringent standards. In short, it defended liberty against government encroachment. This is especially critical in evaluating justices, whose primary role is preserving the Constitution against majority abuses.

The analogy presumes a speaker’s mainstream evaluation is accurate. But where the mainstream is and how far from its supposed center is acceptable are indefinable.

The core issue is not, then, about being in the current mainstream, but where that mainstream should be. Advocating respecting the Constitution as written, as Scalia was famous for, focused on that.

That is, the mainstream may be in the wrong place. It has clearly changed in our country, but only because some were out of the previous mainstream. Men being created equal, with inalienable rights against government abuse, is far from the once mainstream belief in the divine right of kings. And our Bill of Rights freedoms to speak, write and worship as we choose, and to have our property protected from government predation, were not always mainstream.

Federalist 78, America’s most famous statement of the judiciary’s role, reveals that the political mainstream has indeed jumped its constitutionally enumerated banks, arguing for re-routing it toward its original course: “A limited Constitution…can be preserved in practice no other way than through…courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” Further, “whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter…to guard the Constitution and the rights of individuals.”

If the mainstream has moved from its original American course, only those now out of it can shift it back. For example, the now-common view that using government to rob Peter to pay Paul is acceptable means anyone acting to undo such policies would be outside today’s mainstream, though not that of our founders. As Jefferson said, “The majority, oppressing an individual, is guilty of a crime, abuses its strength, and…breaks up the foundations of society.”

In fact, “out of the mainstream” nominees are the only ones who might resist further expanding government encroachment or even reclaim eviscerated freedoms once taken for granted. In contrast, those recently advocated as mainstream have enabled “new and improved” encroachments.

Expanding the divide between the Constitution and current interpretation increasingly threatens our founders’ mainstream belief in liberty and the Constitution they designed to defend it. Consequently, advocates for the modern mainstream are opposing the mainstream that made America great. That is why Antonin Scalia fought vigorously for our founders’ understanding. It is also why Americans don’t need more justices from the modern mainstream, but more from its original channel.

Gary M. Galles is a Research Fellow at the Independent Institute and a Professor of Economics at Pepperdine University. His books include Lines of Liberty (2015), Faulty Premises, Faulty Policies (2014) and Apostle of Peace (2013).

Filed Under: Blog Tagged With: Antonin Scalia, Constitution, Gary Galles, SCOTUS, Supreme Court

Palo Alto Demands $8 Million To Allow Business to CLOSE

December 10, 2015 By Joseph Vranich 2 Comments

Did several business-hostile politicians leave Sacramento to take over over the city of Palo Alto? Seems that way to me. After all, who else would demand that a family pay $8 million to close its business over issues that the family had nothing to do with?

“No one should be forced to carry on a business that they want to close,” said Larry Salzman, an attorney with the Pacific Legal Foundation, which has filed a federal lawsuit against the city because of its demand on the owners of a mobilehome park.

“The city is treating the Jisser [family] as an ATM to solve a problem they didn’t cause — the lack of affordable housing in Palo Alto. That’s not just wrong, it’s unconstitutional,” said Salzman.

“The way to make housing affordable in Palo Alto is to build more housing,” Salzman noted. “The city has for decades refused to permit enough housing to be built to meet the skyrocketing demand, and it is now shamefully scapegoating the Jissers for its own failure.”

Palo Alto is ground-zero for California’s affordable housing crisis, where the median home price is a blistering $2.46 million dollars (compared to $448,000 statewide and $180,000 in the U.S.). A May 2015, report by California’s Legislative Analyst Office blames the state’s high housing costs on overly restrictive land use policies, particularly in coastal cities like Palo Alto.

The PLF is representing the Jisser family (Tim, Eva, and their son, Joe) in the lawsuit challenging Palo Alto’s unconstitutional demand that the Jissers pay millions for the right to close their business. The PLF announcement reveals more about the situation:

The Jissers immigrated to Silicon Valley in the 1970s. They made their living running a small grocery store and saved their money to buy the Buena Vista mobilehome park in Palo Alto in 1986. Since then, the Jisser family’s mobilehome park has provided some of the most affordable housing in Palo Alto for more than 30 years.

At age 71, Tim Jisser would like to retire, but the family has been mired in a highly publicized and often acrimonious dispute for years over their right to withdraw the property from the rental market and close their business. Earlier this year, the city gave the Jissers permission to close their business, but only on the condition that they first pay approximately $8 million to their tenants. The payments include rent subsidies for alternative housing for the tenants and the outright purchase of all of the Jissers’ tenants’ mobilehomes at prices reflecting the acute housing shortage in Palo Alto.

In effect, the Jissers are being forced to remain landlords – and to accept the permanent occupation of their land by their tenants – unless they provide their tenants with enough money to ameliorate the city’s notoriously high cost of housing. But it is the city itself that has created the housing shortage that makes it all but impossible for young families and people of modest means to live there.

Palo Alto is ground zero for California’s affordable housing crisis. It is the city that has refused to allow enough homes to be built to meet the skyrocketing demand during the last several decades, which has resulted in high prices.

Represented by PLF pro bono, the Jissers’ case charges that Palo Alto’s staggering financial demand is an unconstitutional condition on the Jissers’ property rights and a violation of the U.S. Constitution’s Takings clause. The Supreme Court has repeatedly said that individual property owners should not be forced to pay for public benefits that, in fairness, should be borne by the public as a whole.

Earlier, the Jissers had put together a relocation package for the low-income tenants that the city through early 2015 deemed adequate.

“It was really shocking—and frustrating, to say the least—that it would cost in the several millions of dollars to get out of the rental business,” the owner’s son, Joe Jisser, said.

More details about the case can be read here.

Joseph Vranich is the Irvine-based Principal of Spectrum Location Solutions helps companies plan and select ideal sites for new facilities across the U.S. and internationally.

This piece was originally published by Fox and Hounds Daily

Filed Under: Top Stories Tagged With: affordable housing, Constitution, Pacific Legal Foundation, Palo Alto

Shocker: American College Students Don’t Know Squat About The Constitution

September 9, 2015 By Blake Neff 4 Comments

The American public continues to show a staggering level of ignorance about the basic principles of America’s Constitution and government, according to a new survey put out by the American Council of Trustees and Alumni (ACTA).

ACTA, which promotes high standards and a core curriculum for college students, commissioned a survey of 383 college graduates nationwide and quizzed them on basic American civics via a series of multiple-choice. The result were, for the most part, appalling.

When asked to choose among a list of four people which was on the U.S. Supreme Court, only 62 percent correctly chose Elena Kagan, while 10 percent chose Judith Sheindlin, better known to most of America as Judge Judy. One third of respondents couldn’t correctly identify the Bill of Rights as a series of amendments to the Constitution, only 54 percent could correctly state the term lengths for U.S. senators and representatives, and 32 percent thought John Boehner was president of the Senate rather than speaker of the House.

On some questions, an incorrect answer even drew more support than the correct one. Fifty-nine percent of respondents labeled Thomas Jefferson the “Father of the Constitution” (he in fact played no role is its creation), while only 28 percent correctly assigned that title to James Madison. Forty-three percent believed that a constitutional amendment requires presidential approval, slightly above the 42 percent who correctly said an amendment requires approval from three-fourths of the states.

There were a handful of bright spots, though. Eighty-four percent correctly said the right to an education is not a part of the First Amendment, and a solid 66 percent knew that habeas corpus protects against unlawful imprisonment.

The survey was released to coincide with Constitution Day, set to be commemorated Sept. 17. ACTA president Anne Neal argued in a statement that low constitutional literacy isn’t just embarrassing, but a threat to genuine democracy.

“The findings are deeply troubling and underscore how our educational institutions are utterly failing to prepare our next leaders for citizenship,” Neal said. “In a republic which depends on an educated citizenry, it’s crucial that all Americans — especially college graduates — are fully familiar with the rights and responsibilities set out in the Constitution.”

ACTA’s goal in releasing the survey is to encourage a strengthening of U.S. civics education at the college level. The organization claims in its press release that only 18 percent of U.S. colleges require students to take a class in U.S. history or government in order to graduate.

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Send tips to blake@dailycallernewsfoundation.org.

Filed Under: Top Stories Tagged With: College, Constitution, University

Strict SF Gun Laws Survive Challenge in Courts

June 12, 2015 By James Poulos 7 Comments

Continuing its reticence to reach beyond a landmark decision seven years ago, the Supreme Court handed a victory to tight regulations on gun use in San Francisco.

Twin ordinances

“The court on Monday let stand court rulings in favor of a city measure that requires handgun owners to secure weapons in their homes by storing them in a locker, keeping them on their bodies or applying trigger locks,” the Associated Press reported. “A second ordinance bans the sale of ammunition that expands on impact, has ‘no sporting purpose’ and is commonly referred to as hollow-point bullets.” The first ordinance passed in 2007; the second, in 1994.

The NRA and gun rights advocates had expected that the court’s 2008 decision in the District of Columbia v. Heller gave them a strong chance at overcoming the regulations. “Gun owners challenged both ordinances after the U.S. Supreme Court ruled in 2008 that the Constitution guarantees the right to possess guns at home for self-defense, then ruled in 2010 that state and local laws that substantially burdened that right were invalid,” observed the San Francisco Chronicle. “Gun groups are also relying on those rulings to challenge California’s licensing requirements for concealed weapons, and ordinances in San Francisco and Sunnyvale that ban the possession of high-capacity gun magazines.”

Failure on appeal

As Bloomberg reported, plaintiffs were convinced “that the San Francisco law was similar to the Washington, D.C., trigger-lock requirement invalidated in the high court’s 2008 decision.” But the 9th Circuit Court of Appeal ruled against them, teeing up a showdown at the Supreme Court. “The Ninth Circuit Court held that the city had a legitimate purpose in applying laws that reduce the danger of guns,” Al Jazeera America recounted, “and that while it did burden the rights of gun owners, it didn’t burden them so much they couldn’t exercise the rights to self-defense enshrined in the Second Amendment.”

“‘The record contains ample evidence that storing handguns in a locked container reduces the risk of both accidental and intentional handgun-related deaths, including suicide,’ Circuit Judge Sandra S. Ikuta wrote in the court’s opinion in March of last year.”

Among Supreme Court Justices, however, only Antonin Scalia and Clarence Thomas signaled their willingness to take the case.

“In a six-page dissent, Thomas, joined by Scalia wrote that the San Francisco gun laws are ‘in serious tension with Heller‘ and that the prior court rulings had ‘failed to protect’ the Second Amendment,” National Public Radio noted. “San Francisco’s law allows residents to use their handguns for the purpose of self-defense, but it prohibits them from keeping those handguns operable for the purpose of immediate self-defense when not carried on the person,” according to Justice Thomas.

Mixed messages

Although some legal experts immediately noted that the court’s decision raised questions about just how much protection the Second Amendment now could afford, others noted the court’s recent decision to side with the NRA in a different case.

Just last month, the court drew acclaim from the NRA for its unanimous ruling that convicted felons could sell firearms confiscated by law enforcement.

“The decision came in response to a case involving former U.S. Border Patrol agent Tony Henderson,” Western Journalism reported, “whose 19 guns were confiscated by the FBI upon his arrest on drug charges.”

“Following his guilty plea, Henderson was a felon prohibited from possessing firearms; however, he did not want to simply lose the roughly $3,500 his gun collection was worth. He petitioned a lower court in an effort to allow a third party to take possession of the guns and attempt to sell them on his behalf. That effort was unsuccessful at every stage of appeal up to the Supreme Court level.”

Originally published by CalWatchdog.com

Filed Under: Top Stories Tagged With: Antonin Scalia, Clarence Thomas, Constitution, Gun, san francisco, SCOTUS, Second Amendment, Supreme Court

Judge Rules CA Inmate Entitled to Sex-Change Operation — With Taxpayer Money

April 12, 2015 By Mark Pulliam 7 Comments

What looked at first like a belated April Fool’s Day joke may turn out to be a landmark ruling in Eighth Amendment jurisprudence. On April 2, a federal district court judge in San Francisco ruled that a convicted murderer serving a 17-years-to-life sentence is entitled to a sex-change operation at taxpayer expense. Judge Jon Tigar, a Barack Obama appointee, determined that Jeffrey Bryan Norsworthy should have the $100,000 procedure “as promptly as possible.”

Though no inmate in a California prison has ever received sex-reassignment surgery while in custody, Judge Tigar found that the Eighth Amendment of the U.S. Constitution requires that Norsworthy receive a vaginoplasty — a procedure that involves removing the patient’s male genitals and creating female genitals. In 38 pages of judicial reasoning, Tigar declared that forcing Norsworthy to keep his male parts while behind bars at the all-male Mule Creek State Prison in Ione amounts to “cruel and unusual punishment.” This is a decision bordering on lunacy.

In 2000, a prison psychiatrist diagnosed Norsworthy with “gender dysphoria,” meaning that he would like to be a woman instead of a man. According to experts, this condition can cause frustration and anxiety for “transsexual” men who are disgusted by their male genitalia. In extreme cases, untreated gender dysphoria can lead to suicide or self-castration. The American Psychiatric Association, which not so long ago treated homosexuality as a mental disorder, now has elaborate and presumably more enlightened views on the subject of gender-identity disorder, which Judge Tigar dutifully adopted. Though prison records list Norsworthy by his given name, Tigar’s opinion refers to him throughout as “Michelle-Lael Norsworthy” and describes him as a “pleasant looking woman.”

At only 16 words, the Eighth Amendment is the most succinct article of the Bill of Rights and has nothing to say about vaginoplasty. It states, in its entirety, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The ban on cruel and unusual punishments was meant to limit gruesome penal methods such as flogging, stoning, and burning at the stake. (Ironically, castration has been held to be cruel and unusual, but in the Norsworthy case, a judge is ruling that significantly more intrusive surgery is constitutionally required.)

To contend that “forcing” a prisoner to continue as a man violates the Constitution is absurd. Norsworthy was born male, and he was male when he committed a murder on April 15, 1987 and when he was sentenced to prison later that year. Though he is allowed to take female hormones, have a pony tail, wear a brassiere, and shower out of the sight of other inmates in prison, he has been a male for all of his 51 years. Manifestly, the state of California did not make Norsworthy a male. His punishment—which is what the relevant provisions of the Eighth Amendment address—did not include a specification of his sex or gender. Rather, prison authorities merely decided that Norsworthy is not eligible for an elective cosmetic procedure at government expense while incarcerated. In this regard, vaginoplasty is no different than a facelift, tummy tuck, liposuction, nose job, Botox injections, or lap band surgery. No federal appellate court has recognized a right to sex-reassignment surgery. In the only related case that Tigar cites in his decision, the First U.S. Circuit Court reversed a district court ruling that had ordered the procedure for an inmate in Massachusetts. What Norsworthy chooses to do with his body at his own expense, if and when he is released from prison, is up to him.

Judge Tigar is a Berkeley-educated activist judge and the son of noted radical lawyer Michael Tigar, who once represented Angela Davis. He displays what University of Colorado law school professor Paul Campos terms “jurismania”: the irrational conceit lawyers and judges frequently exhibit that presumes all of society’s problems—no matter how complex or intractable—can and should be solved through litigation, especially if the “solution” is characterized as an interpretation of “constitutional law.” In his 1998 book of the same title, Campos contends that the “obsessive pursuit” of litigation and “irrational worship” of legal rules in contemporary American culture “can come to resemble a form of mental illness.” Resorting excessively to legal procedures comes at the expense of common sense and leads to “tendentious jargon,” self-serving posturing, fraudulent rhetoric, undue deference to “experts,” and overreliance on decision-making by privileged elites such as lawyers and judges—all of which are on display in Judge Tigar’s ruling.

Punishing criminals is a basic state function, and deciding how (and at what expense) to run prisons is a quintessential legislative judgment. As long as prisoners are adequately fed and housed and are not arbitrarily abused, it should be of no concern to a judge—and especially a federal judge—whether prisoners have access to color TV, air-conditioning, recreational facilities, or elective medical procedures. Serving a prison sentence is a punishment; it is not supposed to be enjoyable.

It is nonsensical to grant imprisoned convicted felons health-care “entitlements” that many law-abiding, hardworking taxpayers don’t enjoy. One hopes that the state appeals Judge Tigar’s unprecedented ruling. Unless resisted, jurismania will destroy popular sovereignty. Campos reminds us that judges are “nothing more than an especially politicized subclass of lawyers.” And they rely on the docility of their subjects to impose their baseless edicts. Jeffrey Norsworthy is not Rosa Parks, vaginoplasty is not a civil right, and Tigar’s ridiculous decision is not a credible interpretation of the Constitution. It should not stand.

Mark Pulliam, writing from Austin, Texas, is a retired lawyer and former California resident.

Originally published by City Journal online

Filed Under: Top Stories Tagged With: Bill of Rights, Constitution, Court, Eighth Amendment, Jail, judge, Prison