constitutional law

Not too long ago, I received an email from someone demanding to know why I constantly referred to David Barton of WallBuilders as a "pseudo-historian" instead of a "historian," given that he has copious original documents to back of his assertions. 

I wrote back to explain that I call Barton a "pseudo-historian" not because he gets his history factually wrong (though he does that, too) but because he uses his history selectively to present a warped and biased view designed specifically to bolster his right-wing political agenda.

Whereas historians examine past events in order to present a coherent and comprehensive explanation of those event, Barton filters history through his own narrow ideology and highlights only those things that support his overall conservative political agenda.

I actually wrote a report about this tactic several years back that examined Barton's "Setting the Record Straight: American History in Black and White" DVD, in which he recounted the Democratic Party's historical hostility to African Americans and insinuated throughout that similarly racist views are still held by the party today. Barton ran through a litany of Democratic sins - ranging from slavery to Jim Crow to segregation to the Ku Klux Klan - while praising the Republican Party as the party of abolition and civil rights ... until his history lesson suddenly ended after the Civil Rights Act of 1965.

Barton made absolutely no mention of the political transformation that overtook the country following the passage of this legislation or the rise of the Republican Party’s “Southern Strategy.” Instead, it simply concluded with Barton telling his audience that African Americans cannot be bound blindly to one party or the other, but must cast their votes based on the “standard of biblical righteousness … the principles of Christianity … and an awareness that voters will answer to God for their vote."

I also posted a video containing excerpts from the DVD to demonstrate exactly how Barton misleadingly uses this history to support the Republican Party:

So imagine my surprise when I saw this quote from Barton praising the new textbook standards in Texas (which, not insignificantly, he helped to draft):

Defenders of the new social studies standards just passed by the Texas SBOE say it will encourage students to go back to the Constitution and First Amendment to learn about religious freedom. WallBuilders founder and president David Barton was among the six advisers the Board brought in to help rewrite the standards.

"You should present history has it happened -- the good, the bad, the ugly; the right, the left, the center; the anything else that is out there," argues the Christian historian. "And I think that's the final product that we got, despite all the media clamor to the otherwise. When you just read the standards, they're extremely balanced, extremely fair, and extremely thorough."

Presenting a balanced, fair, and thorough look at history is exactly the opposite of what Barton does, which is precisely why he has recently become Glenn Beck's go-to historian.  Incidentially, Chris Rodda has a great new piece up debunking Barton's favorite shtick of pulling out a rare Bible printed in 1782 by Philadelphia printer Robert Aitken and claiming that it was printed by Congress for the use of schools.  Among all the other useful information the piece contains is evidence Barton's ties to Beck are really starting to pay off, at least in terms of book sales:

Needless to say, Beck and his audience are just eating this stuff up. Barton's appearances on Beck's show have propelled his fifteen-year-old book of historical hogwash, Original Intent, to bestseller status, reaching as high as #6 on Amazon. Right now, as I sit here writing this post, this masterpiece of historical revisionism is ludicrously, and alarmingly, holding the #1 spot in the category of "Constitutional Law."

Earlier this week, in an attempt to rebut all the lies and misinformation being spread about health care reform, the White House asked people to send them examples of the sorts of things they are seeing so that the administration could help set the record straight:

There is a lot of disinformation about health insurance reform out there, spanning from control of personal finances to end of life care. These rumors often travel just below the surface via chain emails or through casual conversation. Since we can’t keep track of all of them here at the White House, we’re asking for your help. If you get an email or see something on the web about health insurance reform that seems fishy, send it to flag@whitehouse.gov.

Now, that seems pretty simple and self-explanatory, but as Steve Benen noted, nothing is simple when dealing with the Right because it is impossible "to anticipate just how paranoid some people will choose to be":

This hardly seemed controversial. There's an aggressive campaign underway to mislead Americans, and the White House wants to help set the record straight. If some especially pernicious lies are making the rounds, folks can let the White House know directly, so officials can get the truth out.

Except, that's not how the right sees it. RedState interpreted this to mean "the White House wants you to report ... anybody publicly opposing" health care reform. Soon after, Rush Limbaugh had embraced the same line, and Malkin wasn't far behind. Naturally, Drudge joined the fun.

By late yesterday, House Minority Whip Eric Cantor (R-Va.) was asserting that the White House wants Americans to report on each other. Today, Sen. John Cornyn (R-Tex.) appears to have completely lost his mind.

Cornyn says this practice would let the White House collect personal information about people who oppose the President.

"By requesting citizens send 'fishy' emails to the White House, it is inevitable that the names, email, addresses, IP addresses and private speech of U.S. citizens will be reported to the White House," Cornyn wrote in a letter to Obama. "You should not be surprised that these actions taken by your White House staff raise the specter of a data collection program."

Cornyn asked Obama to cease the program immediately, or at the very least explain what the White House would do with the information it collects.

This is what politics in America in the 21st century has come to

Today, Tony Perkins released a video statement about this White House effort, suggesting that it was part of a plot "to intimidate and if possible silence their opponents":

The White House apparently subscribes to Vince Lombardi’s idea that the best defense is a good offense. The widespread opposition to the Presidents proposed takeover of health care has apparently blind sided the administration and is causing panic over the prospects the whole plan could be sacked by the American public.

As a result the White House is striking back. Macon Phillips on the White House blog wrote, “Scary chain emails and videos are starting to percolate on the internet.” he goes on to say that “since we cant keep track of all of them here at the White House, we’re asking for your help.” Phillips goes on to ask individuals to send the White House any email or health care message on the web that seems fishy.

Fishy? If there is anything fishy it is the White House wanting people to help them keep track of those who oppose the government takeover of health care. Is the White House is simply wanting to keep a scrapbook of the emails that primarily quote the President and the legislation that he is pushing, or is it possible they are simply looking to use this information to intimidate and if possible silence their opponents?

In essence, a White House effort to try and clarify right-wing misinformation and lies about health care reform has now itself become the subject of a right-wing misinformation campaign.

UPDATE: The ACLJ has now issued its own statement demanding that President Obama repudiate this "attempt to stifle the free speech of Americans" and "intimidate" conservatives:

The American Center for Law and Justice (ACLJ), focusing on constitutional law, today called on President Obama to repudiate comments made by his Director of New Media – comments that call on Americans to report those who make “fishy” statements about health care. The ACLJ asserts that the official White House release is an attack on free speech and designed to stifle public debate about the health care issue – including growing concerns from Americans opposed to making abortion services mandatory health benefits.

“This is a very troubling attempt to stifle the free speech of Americans who have the constitutional right to express their opinion and concerns about health care,” said Jay Sekulow, Chief Counsel of the ACLJ. “This move is an attempt to intimidate those who have legitimate concerns about the health care plan. And, worse, it turns the White House into some sort of self-appointed ‘speech police’ – urging Americans to monitor and report those who engage in ‘fishy’ speech. What will the Obama Administration do with those names? Who will be ‘flagged’ next? President Obama must reject this assault on free speech. It’s not only wrong, it directly contradicts his repeated promise to conduct a more open and transparent government.”

...

“In a nutshell, the White House is asking Americans to report on their neighbors, family, and friends who disagree with the President’s policy choices on health care,” said Sekulow. “The White House is also implying that you should think twice before sending an email disagreeing with the President, since it might end up being forwarded to them. The White House email address says it all – let’s ‘flag’ those who disagree with us. This new White House reporting program strikes at the heart of the First Amendment and has no place in this important debate about health care.”

It is no secret that right-wing activists are up in arms over the recent Iowa Supreme Court ruling in favor of marriage equality and are trying to come up with ways to overturn the decision. 

They unveiled a couple of their ideas at a rally today outside the capitol:

A Republican candidate for governor vowed today to stop gay marriage if he’s elected, but several Statehouse officials say his proposed method would be illegal.

“If I have the opportunity to serve as your next governor,” Bob Vander Plaats told a crowd of about 350 people at a rally, “and if no leadership has been taken to that point, on my first day of office I will issue an executive order that puts a stay on same-sex marriages until the people of Iowa vote, and when we vote we can affirm and amend the Constitution.”

Unfortunately, it doesn’t look like that would actually work since obviously governors can’t just set aside rulings they don’t like:

Several lawmakers and Phil Roeder, a spokesman for Gov. Chet Culver, said the governor doesn’t have that power.

“Governors in Iowa do not have the ability to prevent or overturn a decision of the Supreme Court through an executive order,” Roeder said. “It’s disappointing that some people, especially politicians, would try to mislead the public into thinking that governors do have such power.”

But never fear, they do have other alternatives:

Co-founder of Everyday America, Bill Salier, told the crowd that state lawmakers need to thank the Supreme Court justices for their opinion but say it’s merely opinion and the law is still on the books.

Salier said: “(Lawmakers) can face down the court and say, ‘We passed DOMA, the Defense of Marriage Act. You claim that it is stricken. And yet unless some magic eraser came down from the sky, it’s still in code.’”

Of course, that won’t work either:

Drake University professor Mark Kende, an expert in constitutional law, said in a telephone interview: “Technically, they’re right, it’s still on the books, but it’s illegal.”

The wording in the Iowa Code may linger, but it doesn’t invalidate the court ruling, he said.

“The ruling trumps state law,” Kende said. “Court rulings are meant to be obeyed even if you don’t like them.”

So that pretty much leaves them with only a few options: to try and amend the state constitution, which is a difficult and time-consuming process, or to try and replace everyone in the state legislature that doesn’t share their views, which seems unlikely, though some are threatening to do just that:

Salier said Iowans should try to oust certain lawmakers by backing in the next primary election candidates who support traditional marriage.

“If you’re sitting out here today and your legislator is squishy on these things, and they’re not upholding the law and the Republic, then you need to primary ‘em,” said Salier, who was Tom Tancredo’s Iowa presidential campaign chairman. “That goes for the Republican party, that goes for the Democrat party. If you’re sitting out here registered in one or the other, cross over. … And take another swing in the general.”

Though none of their early proposals for overturning the ruling will actually work and the others seem improbable, that doesn’t mean right-wing activists are going to accept the ruling, as Chuck Hurley of the Iowa Family Policy Center made clear when he declared to the crowd that “we have only begun to fight.”

Ever since the election of President Bush, Republicans and their allies on the Right have frequently dealt with opposition to his controversial judicial nominations by ignoring the arguments raised by those with legitimate concerns about a nominee’s record in favor of knocking down strawmen of their own creation.  

For instance, when People For the American Way and others voiced opposition to the confirmation of Miguel Estrada, right-wing groups like The Committee for Justice responded by claiming that such opposition was rooted in the fact that Estrada was Latino and claiming that it was an affront to Hispanic-Americans, ignoring the fact that the opposition was actually due to Estrada’s own refusal to reveal anything about his own jurisprudential views and the administration’s refusal to make his full legal record available to the Senate to review.  

Then, when progressive groups opposed the nominations of Priscilla Owen and Janice Rogers Brown, the Right claimed that criticism of the nominees was both sexist and, in the case of Rogers Brown, racist – again, preferring to disregard the substantive concerns about their respective legal records.  

The Right did the exact same thing when it came to the nomination of William Pryor, ignoring serious concerns about his record that displayed a blatant hostility to reproductive choice [among other things, he called Roe vs. Wade the “worst abomination of constitutional law in our history”] and accusing those who opposed his nomination of being anti-Catholic – a tactic they trotted out again when John Roberts was nominated to the Supreme Court.   

In situations where the Right couldn’t accuse a nominee’s opponents of being specifically anti-Latino, anti-Catholic, anti-woman, or straight out racist, they attempted to conflate criticism of a nominee’s legal record with false accusations that the nominee was being accused of being racist – a tactic they deployed during the fight over the nomination of Charles Pickering.  As we explained [PDF] back in 2002:

Some Pickering supporters are arguing in effect that it is impossible to criticize Judge Pickering’s public record on the principles that govern civil rights law without accusing him of being a racist.

Thus, it should come as no surprise that with a battle brewing over the nomination of Leslie Southwick to a seat on the US Court of Appeals for the Fifth Circuit – not incidentally, the very same seat for which Charles Pickering and Michael Wallace were nominated, both of whom faced significant opposition due to their disturbing records on civil rights - the Right has reverted to form and begun using both of these tactics: claiming either that opponents of Southwick’s confirmation are racist or are accusing him of being a racist.