Thursday, March 21, 2019

If Wisconsin GOP Tries To Appeal 'Extraordinary Session' Ruling, They Expose Themselves As Hypocrites

The ruling is a "strict constructionist" look at the Constitution — a doctrine Republicans typically adhere to (except when it goes against what they want, apparently)

Dane County Circuit Judge Richard Niess ruled on Thursday that the lame-duck power grab "extraordinary" session, used by Republicans at the tail-end of 2018, violated provisions of the state Constitution when it stripped away powers of the executive branch after Democrats, including current Gov. Tony Evers, had won in the midterm elections.

The power grab was blatantly political, a maneuver that only took place because former Gov. Scott Walker had lost his re-election bid. Had he won instead, it's unlikely Republicans would have sought to remove these powers from executive leaders.

The political motivations, however, did not compel Judge Niess to render lawmakers' actions unconstitutional. Rather, the way in which the legislature convened itself did.

But before we get into that, let's talk about Constitutional theory, because it's important to understand how some people — namely conservatives — think.

The Wisconsin Constitution
(Public Domain Image)
There are two schools of thought when it comes to how a Constitution works. The "living document" idea posits that a Constitutional document evolves over time. As judicial rulings and changes to society come about, judges should interpret the document based on the belief that the Constitution itself has to change as time goes by, too. Liberal judges tend to follow this line of thinking.

This is our common law tradition of jurisprudence, and it is how the founders intended our government (and judicial branch) to work. But there's a separate, more restrictive view of how a Constitution ought to be considered in court cases, and that's the "strict constructionist" model.

This belief holds that what a Constitution says should be only how a judge should rule. Other judges' rulings, the adherence to stare decisis, or the changing attitudes and technologies of society, shouldn't matter when rendering a decision. Only the strict wording of the document matters, no ifs, ands, or buts. Typically, conservatives are the ones who espouse this view.

Why do I go into this Constitutional lesson before I discuss Thursday's ruling? Judge Niess can be considered a liberal judge. He was appointed by a Democratic governor in 2004 when a vacancy opened on the court he serves, and has won re-election to that post in liberal-leaning Dane County ever since. But the ruling he rendered on Thursday is anything but a "living document" look at the issues at hand — Niess's ruling instead takes a "strict constructionist" point of view, which could cause headaches for Republicans seeking to have it overturned.

Niess was asked to consider whether the Republican-led legislature, which convened itself in an "extraordinary session" last fall, had done so in a Constitutional way. The state Constitution lays out very plainly the ways in which a legislature can be convened beyond their regular schedule — and it does not, Niess pointed out in his ruling (PDF), include a means for the legislature to do so on its own.

The state Constitution allows for special sessions to occur when the governor calls for them. In no part of the Constitution does it state that the legislature has the right to convene a session on its own, unless it has planned for one at the beginning of the legislative session.

Walker didn't convene the session — the legislature did. Therefore, the entirety of the extraordinary session is deemed unconstitutional, because it met in an illegal manner.

The ruling by Niess, of course, goes into greater detail than a blog post can allow, but the essential argument one that Republicans, if they try to go against it, will have a hard time defending.

On the one hand, they don't want their legislation from the extraordinary session to be null and void. On the other hand, if they try to fight this ruling, they'll expose themselves as hypocritical, as going against a "strict constructionist" reading of the state Constitution.

The bottom line is this: there's no provision in the Constitution to allow for the legislature to call itself into extraordinary session. That rule serves as a check-and-balance type measure, requiring the governor to call into session the legislature in order to do so.

The legislature called itself into session, violating the Constitutional provision for how sessions can be convened. If you read the document in a strict way, that's the only way it can be interpreted.

Featured image credit: Public Domain/Wikimedia Commons

Thursday, March 14, 2019

ADF Lawyer, In Defending Hagedorn's Bigotry, Makes Disingenuous Claim About The Constitution

The Constitution bars religious restrictions for office-holders to seek office — but restrictions for voters' considerations do not exist

The Brian Hagedorn saga continues, this time with a questionable line of defense coming from an organization he's been paid to speak for in the past.

Lawyer Timothy Chandler works for the Alliance Defending Freedom, an organization that takes up causes on behalf of Christians who often have extremist and bigoted viewpoints. Chandler recently wrote an op-ed for the Capital Times in Madison, where he argued on behalf of Hagedorn and defended his past comments as nothing more than a mere promotion of his Christian beliefs.

Those who took issue with Hagedorn's comments were "guilty of applying a religious test that’s discriminatory and at odds with Article VI of the U.S. Constitution," Chandler wrote. "These words might first have been penned with quill and ink, but the message is timeless: No public office-holder should be screened, tested, or maligned for his or her personal religious convictions."

Wisconsin Supreme Court/Wikimedia
As a lawyer, Chandler should know better: his comments are playing very loose with the facts. For starters, Hagedorn's comments went beyond what most people might find acceptable. He maligned altering laws that would allow for gay individuals to have consensual relationships, for example, suggesting that undermining those laws would allow people to have sex with animals.

If you can't understand the difference between a man and a man having a consensual relationship, versus a person (male or female) having sexual relations with a different species, I'm sorry — you don't deserve to be a state Supreme Court justice. Hagedorn did just that, and hasn't suggested his views on this topic have changed. He has only defended his previous statements (once they were brought forth publicly this year) as his "religious" viewpoints that didn't deserve condemnation.

Hagedorn also attacked those making criticisms of his viewpoints as being anti-religious.

"Some of the arguments made against me are a blatant attempt not just against me but against people of faith more generally," Hagedorn has said.

It's a defense that makes sense, at least from a strategic lens: don't defend your problems, but create a straw man argument that you can successfully defend against. However, no one is attacking Hagedorn for his religious rights, and his commentary (when he originally wrote it) was under the guise of a legal view, not a faith-based one.

Chandler's defense of Hagedorn is, much like Hagedorn's own defense of his past comments, misleading. But so too is Chandler's interpretation of Article VI of the Constitution.

Chandler wrote in his op-ed that the Constitution protects candidates against being "screened, tested, or maligned for his or her personal religious convictions." Were he to actually read the Constitution (not the one he imagines was published, but the real document), he'd realize that he is wrong on this point as well.

The part of Article VI that deals with religious tests simply states that office-holders won't be barred from serving on the basis of their beliefs. It doesn't prevent voters from considering them when casting their votes.

Here's the partial text of that article:
...no religious test shall ever be required as a qualification to any office or public trust under the United States.
In other words, if you or I have a qualm with a candidate for their beliefs, we're free to exercise our respective rights to vote based on those issues we have.

In this specific state Supreme Court election, if Hagedorn's bigoted beliefs cause voters to think he may not be an impartial judge, even if his beliefs are based on religious convictions, it's fine for us to bring them up and discuss them, and urge others not to support his candidacy based on those beliefs. It's not an attack on Hagedorn's right to hold those beliefs, but rather a recognition of our own rights to not view them as positive traits for a justice to have.

Chandler's op-ed is disingenuous, to say the least. It's not surprising — his organization presently promotes and defends the same bigoted lines of thought that Hagedorn seems to have put forward in the past. His comments in the Cap Times should be largely ignored.


Monday, March 11, 2019

There's A Big Hole In Brian Hagedorn's 'My Faith Is Being Attacked!' Line Of Defense

Hagedorn doesn't want you to "attack" his faith, but he did the same thing to Mormons in his past writings

Judge Brian Hagedorn, a conservative candidate for this spring election's state Supreme Court race, has taken a lot of heat for the many writings he's made over the past decade that display a bigoted attitude toward entire groups of people.

Notably, Hagedorn's attacks have centered on the LGBTQ* community. In one example of his hateful writings, the candidate said that a ruling by the Supreme Court in 2005, which deemed laws restricting people from engaging in "homosexual acts" as unconstitutional, would lead to other laws banning bestiality being deemed acceptable as well.

(It should go without saying that comparisons to bestiality and homosexuality are not just nonsensical, but offensive as well.)

Other comments like these abound, and put doubts in voters' minds that Hagedorn can be an impartial member of the state's highest court if he's allowed to serve there. Hagedorn, for his own part, has had an interesting strategy for countering these and other contentions against his questionable background: he's tried to say these are attacks on his faith. And he's trying to connect so-called "attacks" against himself toward a broader attack on Christians in general.

"Some of the arguments made against me are a blatant attempt not just against me but against people of faith more generally," Hagedorn has said during this campaign.

I know plenty of Christians, being raised one myself, and in my experience most have not condemned homosexuality to being equivalent to bestiality. The Christians in my social circle have, in fact, embraced their gay and lesbian brothers and sisters, choosing love instead of hate in attempts to emulate the message of Christ from the Bible.

Hagedorn's use of his set of beliefs as a shield to criticisms demonstrates that he still doesn't get it: this isn't about his faith, but rather whether Hagedorn will allow his beliefs to direct his views on the law when he hears cases before him on the Supreme Court (if he gets elected). So far, he's done nothing to convince anyone his viewpoints could be neutral.

There's another problem Hagedorn faces: his comments from the past don't just include attacks against the gay community, but also against other faiths themselves.

As WisPolitics reported on last week, Hagedorn has also made callous comments toward those who are part of the Church of Jesus Christ of Latter Day Saints. "Here’s the bottom line: Mormon theology is blatant heresy," Hagedorn wrote, adding, "Mormons are polytheists who believe we can become gods and who believe that both Jesus and Satan are sons of God the Father."

Hagedorn here was clearly making attacks against people for holding a different faith than his own. He's free to hold those views, but it puts a huge hole in his line of defense this election season — he has a history of attacking others for their beliefs, but now wants the media and others who criticize his past statements to stop talking about his religious views.

Again, no one is suggesting a Christian cannot serve on the state's highest court — certainly members of the state Supreme Court already include Christians, and that's perfectly fine. What's at issue is whether Hagedorn's radical interpretation of Christian theology, and the blatant ways in which those beliefs have been used by him to attack others on a legal basis in the past, render him incapable of being an impartial member of the bench should he be selected to serve.

It should be clear to most that Hagedorn's bias, and the insincere way he has attempted to defend his bigotry so far, disqualify him from the role.

Featured image credit: Royalbroil/Wikimedia