Today (Thursday) in the Akron Legal News

For the handful of folks who read both this blog and my column in Akron Legal News, an announcement: This week's column appears in today's paper, not the usual Wednesday. There were some absences at the paper due to, yes, the flu again and things got moved around as a result. "Cases and Controversies" will return to its usual Wednesday spot in two weeks.

This week's column takes on Issue 2. Issue 2 would set up an Ohio Livestock Standards Board, has been endorsed by pretty much everyone who matters on either side of the aisle and for the most part 2 has slipped under the radar. It's not the worst idea ever, but it's not a good idea. The board is set up in a way that goofs around with the usual constitutional system of separation of powers for no good reason.

What's more, the particular not-good reason at work here is fear of direct democracy. The backers of Issue 2 explicitly say that they have put it together because of the possibility that animal rights activists (of the relatively sane Humane Society variety, not the PETA crazies) might introduce a ballot issue establishing a few minimum standards for livestock care. Reflect on that. Voters might have to opportunity to consider livestock standards, so we need amend the constitution to establish a new bureaucracy.

Further reading:

Here is the official Issue 2 website. You can also find lots of pro talk at Ohio Farm Bureau. The anti- forces have styled themselves Ohioans Against Constitutional Takeover. The particular potential ballot issue that has given people the fantods is California Proposition 2. Here's some background from Wiki and thumb-sucking reaction from a Wisconsin ag paper. And here, for grins, is a piece in The Hill by Ohio's own Jean Schmidt about the issue.

Mostly Non-Viral Return Post

As you may have noted from my Twitter feed, I've been battling the flu for nigh on two weeks now. Don't know if it was swine or regular, but it certainly felt like the usual My head is finally clear enough for me to think about writing for public consumption again.

While I was sick I kept myself going in part by visualizing the anti-vaccine right wing yappers getting this thing. Because anyone engaging in that level of irresponsible asshattery deserves to suffer at least as much as I did. Of course I didn't pry the time out of my schedule to get the flu shot myself, but I won't parade that misstep as some great poltical statement.

To get things moving again, a quick random ten:

1. Yo La Tengo, "You Can Have It All"
2. Clint Black, "Muddy Water"
3. Elvis Costello, "Jump Up"
4. Duke Ellington, "I Got It Bad (And That Ain't Good)
5. The Decemberists, "The Sporting Life"
6. Billie Holiday, "Can't Help Lovin' Dat Man"
7. Traveling Wilburys, "Dirty World"
8. Mountain Goats, "Lion's Teeth"
9. Akron/Family, "Creatures"
10. Mates of State, "My Only Offer"

McDonald v. Chicago; Another Attempt to Explain 2nd Amendment Incorporation

Yesterday was the First Monday in October, meaning that the season has begun for Supreme Court watchers. One of the more interesting cases to watch will be McDonald v. Chicago -- another go-round for the new improved Second Amendment.

Recall that in Heller v. DC, the Supreme Court found for the first time in constitutional history that the Second Amendment includes a personal right to have weapons and that an outright ban on handguns violates that right. But the District of Columbia is Federal territory. We still don't know if this freshly invigorated right applies to the states.

I've referenced this before when Sotomayor was getting NRA hateburgers thrown her way by a certain failed gubernatorial candidate, and again referencing my Akron Legal News column about nunchucks. The feedback was my drive by treatment of the issue left some of my non-lawyer readers confused. But that they really liked seeing Bruce Lee play ping pong with nunchucks.

So here again is an attempt to explain the background of the case. I'll have more specific thoughts on the case and some of the strange bedfellowships it has inspired.

In the beginning, there was the Bill of Rights. And it was good. But it was only good against the Federal Government. Recall that the first words in the First Amendment are "Congress shall make no law." The Constitution wasn't about creating rights, it was about creating a newly powerful national government after the disaster that was the Articles of Confederation. Not everyone was comfortable with a national government with real power. The original purpose of the Bill of Rights was to secure individual rights against this new government.

Not to say that states could do whatever they wanted. Each state had a constitution with some version of the freedoms in the Bill of Rights. But for the first several decades of the nation, states were not under Federal Constitutional constraints.

That changed after the Civil War. In light of all that had just happened, the Northern states thought that just maybe states had a wee bit too much freedom under the Constitution. And so the Restoration Amendments were passed -- the 13th, 14th and 15th. The purpose of these amendments was to codify certain results of the war (the 13th abolished slavery; the 15th guarnateed voting rights to freed slaves), and more generally to guarantee freedoms against state intrusion.

Nestled in the 14th amendment is the Due Process clause, which says that no state shall "deprive any person of life, liberty, or property, without due process of law." Starting in the early 20th Century, the Supreme Court began reading the clause as incorporating Bill of Rights guarantees against the states. What does due process mean? Look to the process guarantees in the Bill. What "liberty" cannot be denied? Look to the substantive rights in the first ten amendments.

The Court rejected calls to simply incorporate the whole Bill in one fell swoop. Instead it adopted an approach called selective incorporation. Selective incorporation says that only fundamental rights are incorporated. Fundamental rights are those that are "essential" for "ordered liberty" or are rights out of which all other rights flow. Not a rigorous standard, to be sure.

For a number of reasons to be saved for later posts, I (along with most anyone paying attention) expect the Supremes to incorporate the Second Amendment in McDonald. But how they go about it will be interesting, and will have implications for future decisions about the metes and bounds of the right to bear arms.

In the meantime, you can read up on McDonald on SCOTUSwiki and Wikipedia if you wish.

Charter Schools and Unlikely Ally for Strickland

Interesting post last week on Flypaper, the blog of the Fordham Foundation, a free-market oriented, pro-charters think tank with roots in Dayton. They propose some logrolling regarding Gov. Strickland's proposal to freeze the tax cut for a year. As FP correctly notes, a ten percent cut in ed. funding would devastate Ohio charters.

The proposal is to get charter backing for the tax plan in exchange for passing/signing a Husted bill poking holes in the current charter moratorium. FB says it would allow sponsors of "high-performing" charter schools to set up new schools.

To the extent this is a real trial balloon it's something worth considering. Recall that the charter industry ran attack ads against certain legislators deemed unfriendly during the budget battle. Having the charter industry as an ally, however temporary, would be a help at a time when friends are hard to come by.

I'd be all for a little legislative logrolling, but the Husted bill has serious flaws. First off, in addition to allowing new brick-and-mortar charters the bill would also lift the lid on more e-schools. Just because. Of course the fact that eschools make tons of money despite poor performance might have something to do with it.

As for the brick-and-mortar provisions, they need to be tightened up. The current language would set the threshold at having schools in continuous improvement. That's hardly high performing. And a sponsor can open new schools for each schoolin continuious improvement, regardless of the shape of its overall portfolio. 100 school in Academic Watch and 2 in continuous improvement? No problem, open two more. Much better would be to allow only those sponsors with a generally clean bill to open new schools.

But the thought by Fordham is a nice one. The post as a whole has predictable snark coming from a Republican-leaning outfit -- it's not a tax hike if taxes don't go up and saying the fiscal crisis is Strickland's fault is laughable. But all that said, Strickland will need all the help he can get to make this work. If the charter honks are willing to reach across the aisle, it's at least worth a listen.