December 1, 2004


Jesusland for thee, but not for me (Jonah Goldberg, December 1, 2004, Towmhall)

Federalism! It's not just for conservatives anymore!

That's right. All of a sudden, liberals have discovered federalism and states' rights. I discovered this while listening to a recent episode of NPR's "Talk of the Nation," in which host Neal Conan and various callers discussed the idea as if some lab had just invented it. In that respect, it was a pretty depressing conversation. A listener called in and explained that, as a liberal, she doesn't feel "welcome" in America any more. For her, this whole wacky "states' rights" thing was her last hope before moving to Canada.

It's not surprising that liberals would suddenly be interested in federalism, given that a sizable fraction of them think George Bush is an evangelical mullah, determined to convert America to his brand of Christianity. As conservatives have known for decades, federalism is the defense against an offensive federal government.

The diuscussion with regard to "medical marijuana" has been especially amusing, with the Left arguing that every state should get to decide what's a worthwhile medical treatment for itself. We eagerly await the Kennedy-Pelosi bill to shut down the FDA, since Washington should have no say.

Posted by Orrin Judd at December 1, 2004 8:53 AM

The Democrats were, after all, the original party of states' rights. 1840s-1850s period, I believe.

Posted by: Mike Morley at December 1, 2004 10:40 AM

The FDA should be transformed into a private, Underwriters Laboratory, sort of organization.

Posted by: Bret at December 1, 2004 11:33 AM

Nullification late 1820s Calhoun and Jackson.

Posted by: Robert Schwartz at December 1, 2004 1:01 PM

Ain't it great how the Dems keep recycling the policies they supported in their past—segregation, nullification and secession? Makes one wonder what they'd do if it weren't for the 13th Amendment. They definitely put the "revolve" into revolutionary.

Posted by: Raoul Ortega at December 1, 2004 1:12 PM

While medical marijuana may be the preliminary round battle here, the abortion is looms in the background as the main event in the left's rediscovery of federalism, just in case they need a fallback position if Roe is overturned.

Posted by: John at December 1, 2004 1:45 PM

Overturning Roe is federalism. A Court decision recognizing the fetus as human and therefore making abortion illegal would be their real worry.

Posted by: oj at December 1, 2004 1:56 PM

Leaving the USA? Promises promises. Heard much of the NPR broadcast and most of the callers had the intellect of a 15 year old. They're running on pure emotion like a frightened school of shiners (hat tip to David Warren). If only they would.

Posted by: genecis at December 1, 2004 2:02 PM

I just returned from a week in Reno with my liberal family. My sister teaches Early Childhood Education at the university and my brother-in-law works for the county. We had many long discussions about politics, and they fit the "intellect of a 15 year old" description. They agree with almost all conservative positions when they are presented, but counter with "Halliburton", "We don't trust Bush", and "The people who voted for him are ignorant". No facts, no basis for belief other than feelings, and no alternative actions for fixing education, fighting terrorism, Social Security reform etc. They still love me, but they don't want to discuss politics anymore. Cognitive disonnance is too painfull. I had a great time and left a link to Brothers Judd in their Favorites folder.

Posted by: Pat H at December 1, 2004 2:33 PM

How cruel. :)

Posted by: oj at December 1, 2004 2:41 PM

Well, they call themselves "brights", don't they?

Posted by: Ken at December 1, 2004 2:59 PM

Pat: So is the recent appearance of "Social Scientist" your doing?

Posted by: Mike Morley at December 1, 2004 3:25 PM

A clause in the 5th Amendment states: "...nor be deprived of LIFE, liberty, or property, without due process of law..."

Unless the fetus committed a capital crime, was charged, convicted and sentenced to death--aborting it would be unconstitutional.

Posted by: Vince at December 1, 2004 5:42 PM


Not much more unconstitutional than my shooting the burglar who breaks into my house in the middle of the night. (And I say that as an ardent opponent of abortion and an ardent supporter of capital punishment, the 2nd Amendment and the right to shoot people who break into my house in the middle of the night.)

Posted by: Random Lawyer at December 1, 2004 6:11 PM


You have no right to shoot a burglar.

Posted by: oj at December 1, 2004 6:15 PM


Under the laws where I live, I do if I believe deadly force is necessary to protect myself or someone else from death, rape, kidnapping or serious physical injury, or if I believe that using less than deadly force to protect myself or another against the burglar would expose me or another person in my presence to the reasonable likelihood of serious physical injury. If I find a burglar in my house in the middle of the night, God forbid, the laws allow me to shoot him.

It's a statutory right rather than strictly a natural right, if that's what you mean.

Posted by: Random Lawyer at December 1, 2004 6:52 PM

A statutory right with a rather long list of qualifiers you just ran through. You'd not have a right to just shoot him because you find him, as you've previously demonstrated.

Posted by: oj at December 1, 2004 6:56 PM

Fair enough, and as it should be. Although it's difficult to imagine finding a burglar in my house in the middle of the night without being in fear of death or serious bodily injury. And there's also Exodus 22:2-3.

Posted by: Random Lawyer at December 1, 2004 7:16 PM

In Colorado, if we find a burglar in our homes in the middle of the night, (or anytime), we have the right to kill him in any way that suits our fancy, no questions asked.
Shooting, stabbing, beating, garroting...

There was a woman in Denver a while back who shot a guy through her front door, because he wouldn't stop knocking and yelling... Some drunk who got the wrong house.
Well, she was put on trial for killing him, but the jury acquitted, feeling that because he'd kicked through her screen door, he was "in" the house.

None of that sissified, French-style, "first, run away" East Coast nonsense.

Posted by: Michael Herdegen at December 1, 2004 8:45 PM

She went to trial, demonstrating that she had no right.

Posted by: oj at December 1, 2004 8:49 PM

She went to trial to answer the question of whether or not she was guilty of a crime.Since exercising one's rights is not yet considered criminal behavior (give the Left time, though), she was acquitted.

Posted by: Raoul Ortega at December 1, 2004 9:35 PM

Those things for which you have rights you don't go to trial to defend.

Posted by: oj at December 1, 2004 10:17 PM

When I lived in Kansas they used to say: "If you shoot someone on your lawn drag him into the house, then call the police."

If a burglar wants a car I leave my keys in our old one so he doesn't have to come into the house. If he comes in for money, I always leave my wallet on the kitchen counter for the taking. If he starts up the stairs to the bedrooms he faces a prison guard carbine, a short, .401 caliber weapon with close range punch which I hope I'll never have to use, but don't ever test me.

Posted by: genecis at December 1, 2004 11:36 PM

In Ohio, as I have previously demontstrated, self-defense is a common-law right, but under both statutory and common law procedure it is affirmative defense that the defendant must plead and prove.

OJ's argument: "Those things for which you have rights you don't go to trial to defend." cannot be correct in this context.

Posted by: Robert Schwartz at December 2, 2004 2:03 AM


No, the anecdote was meant to illustrate the mindset of Coloradans towards home intrusion.
In any rational state, that would not have been a righteous shooting, and she would have been convicted.

If the man had kicked down her front door, staggered in, and passed out face down on her floor, clearly no danger to anyone, she could have emptied her handgun into his back with no fear of criminal prosecution.
I don't know about civil liability.

In Colorado, we have the absolute right to kill home intruders.
We don't need to prove that we were in any danger.
If someone videotapes you through a window laughing while you kill a burglar on his knees, it's still OK.

Posted by: Michael Herdegen at December 2, 2004 6:28 AM


There is no obligation to retreat when you are in your dwelling. The statute in my froggish blue east coast state is very clear about that. And I can completely understand a woman home alone being afraid of being killed, beaten up badly, or raped by a drunk who had kicked in her screen door and wouldn't go away. I probably would have voted to acquit her, too, on the broken windows theory if no other.

Posted by: Random Lawyer at December 2, 2004 6:52 AM


Affirmative defenses aren't constitutional rights.

Posted by: oj at December 2, 2004 7:28 AM

"A court decision recognizing the fetus as human..." Wouldn't it be as inappropriate for a court to recognize fetus' as human and grant them the rights of a baby as it is inappropriate for a court to recognize same sex unions as marriages and to grant them the rights of a hetrosexual married couple?

Posted by: Dave W. at December 2, 2004 9:40 AM


No. There's a right to life, not to marriage.

Posted by: oj at December 2, 2004 10:17 AM