BuckeyeBlog

Britain’s famed Winston Churchill once quipped that “men occasionally stumble over the truth, but most of them pick themselves up and hurry off as if nothing ever happened.” The Enquirer editorial board once again stumbled blindly over the truth and hurried on in its Monday criticism of proposed changes to the Ohio Smoking ban:

Worried about its effect on bars, private clubs and other businesses, Sen. Bob Schuler has introduced legislation he says will spell out exemptions for family-owned businesses, patios and private clubs…
But while the proposed legislation might broaden private-club language in a sensible way, it would blast a hole through language restricting smoking in family-owned businesses. The broad proposed language would allow smoking in any free-standing, family-owned business - adding thousands of public smoking spots across the state.
Besides giving family-owned businesses a loophole not available to their competitors, the revised language would blatantly undercut Ohioans’ expectations for the legislation - that smoking would be widely banned in public places, including restaurants, bars and other businesses.

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It’s their own little kitty, isn’t it? Kudos to the Vindicator.

A former township trustee can’t serve in a position he voted to create. . . .

He said that he and Brashen had no idea when they voted to create the position that Moracco would resign from his trustee job.

Brashen also could not be reached to comment.

Mahoning County Prosecutor Paul Gains said trustees contacted his office Monday and “I have given them the law.”

He declined to discuss what he told trustees, citing attorney-client privilege.

According to Ohio Revised Code, during a public official’s term of office or within one year thereafter, the official is “prohibited from occupying any position of profit in the prosecution of a public contract authorized by the public official or by a legislative body, commission, or board of which the public official was a member at the time of authorization … .”

Finamore said that a former public official can be hired after resigning if certain criteria are met. The official can’t solicit the job, the official must resign before the job is created, the position must be advertised, an interview process followed, and the appointment must be based on who is the best and most qualified, he said.

Moracco, however, hadn’t resigned when the job was created, Finamore said.

C’mon, guys. Get your timing right. Line up the votes, then resign.

Today’s Columbus Dispatch ran E.J. Dionne’s screed about the conservative justices on the U.S. Supreme Court engaging in activism to reach the decision in the Heller case, striking down Washington D.C.’s handgun ban as unconstitutional. While he throws the term “activism” around, Dionne does not define the term in any meaningful way. Fortunately, the Federalist Society’s blog regarding the recent Supreme Court term includes an interesting discussion about “activism.” Ed Whelan, president of the Ethics and Public Policy Center, provides a useful definition: “the term ‘judicial activism’ succinctly captures the Court’s wrongful invasion of the realm of representative government and the injury that invasion inflicts on the powers of American citizens.”

Under this definition, the U.S. Supreme Court has engaged in liberal judicial activism on numerous occasions, including perhaps most prominently in Roe v. Wade. Regardless of how you feel about abortion as a policy matter, the Roe v. Wade majority went out of its way to invent a right to abortion that is nowhere to be found in the text of the Constitution and effectively struck down state laws regulating abortion across the country. Even liberal scholars agree that the reasoning of Roe is indefensible. (more…)

On June 19^th, interim Ohio Attorney General Nancy H. Rogers praised the Supreme Court’s opinion in Indiana v. Edwards in a press release titled “U.S. Supreme Court Rules Mentally Incompetent Defendants Have No Right To Represent Themselves.”

Rogers’ tone is such that she believes denying constitutional rights to defendants is a good thing. The case establishes two different tiers of competency; a lower threshold that requires the defendant to be competent to stand trial, which generally means to be able to understand the charges against him and to assist his counsel, while the upper threshold requires a greater degree of competency, a level sufficient, in the eyes of the state, for the defendant to represent himself.

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Glenn Reynolds thinks the collective rights view is dead .

Sorry, professor, but you’re too credulous. While it might be true that no one put forth an explicit statement saying “collective rights is the wave of the future,” that’s precisely what this case is about. Even in a collective rights society, lip service will be paid to your individual dignity. Probably even more so than in an individual rights society; the need will be greater, since there won’t be any actual individual rights.

Indeed.

“Doctors have complained for years that Medicare payments have failed to cover rising costs.”

Apparently some fool built fiscal responsibility into the Medicare program. Formulas require a cut in payments whenever the budget is blown, which is, let’s see, every period it’s measured. Or so this article implies, anyway.

Then Congress rushes in, ever the hero, and takes firm action. It waives the fiscal responsibility requirement, so everyone can pretend there’s no problem.

As Father PJ says, if you think health care is expensive now, wait ’til it’s free.

Mike Maurer is right about the fact that follow-up litigation will be necessary to define the scope of the Second Amendment’s individual right to keep and bear arms. While Heller is a landmark case in that it recognizes the Second Amendment as protecting an individual right, it also is fairly limited, at least on its face, in its application. In the majority opinion, Justice Antonin Scalia writes that “since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field.” In discussing regulations of the right to keep and bear arms that might be permissible, Scalia avoids speculating about them, writing “there will be time enough to expound upon the historical justifications” for such regulations “if and when those exceptions come before us.”

The ban struck down in Heller was a District of Columbia law. Another issue left undecided by Heller is whether the Second Amendment protects an individual’s right to keep and bear arms against state or local regulations similar to the DC law.

We may get answers to some of these questions sooner, rather than later, as lawsuits are planned challenging gun restrictions in Chicago and San Fransisco.

Blogger-extrordinaire-and-pretty-good-law-professor-to-boot Glenn Reynolds tells Heller celebrants, “Don’t get cocky.”

Reynolds argued that the Heller litigation was a mistake, on the grounds that there would not be five votes to protect the Constitution on the Supreme Court. (I agreed, and was scared to death Heller would be an outright loss.) He was wrong on that point (as was I), but not by much. (The problem is Justice Kennedy. The NRA, in a stunt, filed suit to overturn the Chicago gun ban the day Heller came down. Can Kennedy be counted upon? Hardly. Moreover, who knows what the court will look like one to 10 years hence? All of these cases can be, indeed must be, litigated over a long time period to get a ruling out of the high court. But the state of individual rights is precarious, and remains as likely to be lost as affirmed in the years to come.)

But here’s an interesting point in his column: Limiting the Commerce Clause is another fundamentally important legal action to take, one that will take years to implement. The Rehnquist Court threw the door to this wide open. What’s missing, Reynolds argues, is the hordes of public interest lawyers to make sure the judiciary follows through:

In the 1990s the Supreme Court decided a series of cases narrowing Congress’ powers to regulate all sorts of things under the rubric of “interstate commerce.” But there were no hordes of public-interest lawyers to pick up on those decisions and bring new cases in the lower courts.

Without that pressure, the lower courts were free to ignore the Supreme Court’s efforts to cut back on federal meddling - and that’s what they did, to the point that some called it a “constitutional revolution where no one showed up.”

One of the first things to do in looking at questions of revenue or expense is to forget the loose change and focus on the guts. (Of course there are also powerful arguments for looking at the margin, too, but one thing at a time.) When it comes to state of Ohio taxes, state revenue is basically half sales tax and half income tax.

So when legislators propose to eliminate the income tax, are they proposing to eliminate half of the state’s revenue? Some Ohio legislators seem to think so.

“Certainly there is going to have to be some replacement revenue for us to be able to move forward,” [said Rep. Jay Hottinger, R-Newark] . . .

Asked if it was really possible to eliminate the income tax, [Rep. Matt Dolan, R-Novelty] said, “Given the conditions today, no. But I think it’s very possible we could get Ohio competitive into a 3 to 3.5 percent range.”

This isn’t really the question. It’s all a matter of timing. Are proponents of eliminating the income tax proposing to cut 50 percent of state revenue tomorrow? Not very likely. While it’s true that they could double the sales tax and keep overall revenue the same immediately, a more likely approach would be to simply tighten up the growth belt.

Assume actual state spending grows 3 percent a year, not a bad estimate, given that the last two budget cycles have been historically low at something approaching 2 percent per year, not including about half of the state’s overall budget, which tends to grow faster. Assume that revenues grow at the same rate. The rule of 72 says that state expenditures will double in 24 years. All that would be required is to shift the growth in sales tax every year to a reduction in the income tax. Voila - the income tax is eliminated in 24 years, and sales tax rates haven’t changed.

The only thing that’s changed is that government shrank as a share of the overall economy. That’s a good thing, not a bad one. But even if one chooses the path of those who believe in government over individuals, the income tax could be eliminated by raising the sales tax rate gradually while reducing the income tax rate gradually. In that unhappy circumstance, government would hold the same share of economic activity, but at least that share wouldn’t grow, and again the income tax would be gone.

Whew. That was a close one.

Four justices of the United States Supreme Court are prepared to rule that there is such a thing as a collective right.

Good lord.

So proponents of individual freedom won out, by the thinnest of margins. Good on Justice Kennedy, the unreliable justice.

Good on the strategists who rolled the dice under tough circumstances and won (let’s forget how easily it could have gone the other way, and what a disaster that would have been, for gun rights and all rights).

An amusing footnote on reporter editorializing: These two paragraphs just don’t belong in the story.

The ruling came the day after a worker at a plastics plant in Henderson, Kentucky, used a handgun to shoot and kill five people inside the factory before killing himself, the latest in a series of deadly shooting sprees across the country.

The United States is estimated to have the world’s highest civilian gun ownership rate. Gun deaths average 80 a day in the United States, 34 of them homicides, according to Centers for Disease Control data.

Really, they ought to know better. If they want to argue for liberal concealed carry laws, so that victims such as these could protect themselves from assaults, they should write a column saying so. Sheesh.