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The memo is here, H/T Balkinzation. In part, it reads:

As we explained in 2000, see Senate Report at 16-18, we believe Congress has authority under section 2 of the Thirteenth Amendment to punish racially motivated violence as part of a reasonable legislative effort to extinguish the relics, badges and incidents of slavery. Congress may rationally determine, as it would do in S. 909, that “eliminating racially motivated violence is an important means of eliminating, to the extent possible, the badges, incidents, and relics of slavery and involuntary servitude,” and that “slavery and involuntary servitude were enforced . . . through widespread public and private violence directed at persons because of their race.” S. 909 § 2(7); see also H.R. 1585, 110th Cong., § 1023(b)(7) (2007) (same).

Like the current 18 U.S.C. § 245, proposed section 249(a)(1) of title 18 would not be limited by its terms to violence involving racial discrimination: It would criminalize violence committed “because of the actual or perceived race, color, religion, or national origin of any person.” S. 909 explains (§ 2(8)) that “in order to eliminate, to the extent possible, the badges, incidents, and relics of slavery, it is necessary to prohibit assaults on the basis of real or perceived religions or national origins, at least to the extent such religions or national origins were regarded as races at the time of the adoption of the 13th, 14th, and 15th amendments.”

Given our conclusion that Congress possesses authority to enact this provision under the Thirteenth Amendment, we do not address whether Congress might also possess sufficient authority under the Commerce Clause and/or the Fourteenth Amendment. See United Slates v. Nelson, 277 F.3d 164, 174-75 & n.10 (2d Cir. 2002).

Very interesting that they justify this based on the Thirteenth Amendment, which reads:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

Congress may prohibit the second category of hate crime acts that would be proscribed — certain instances of actual or attempted violence directed at persons “because of the[ir] actual or perceived religion, national origin, gender, sexual orientation, or disability,” § 249(a)(1)(A) — pursuant to its power under the Commerce Clause of the Constitution, art. I., § 8, cl. 3.

Another possibility is that either Kagan or one of her superiors in the Obama Administration secretly disagrees with the Supreme Court’s most expansive Commerce Clause precedents, such as Gonzales v. Raich, and does not want to see them extended. I hope this is true, but it seems unlikely for any number of reasons. I highly doubt that either Kagan or other high-ranking members of the Obama Justice Department disagree with the near-universal consensus among liberal jurists and legal scholars in favor of virtually unlimited congressional Commerce Clause authority.

Although my license plate is pretty cool, my car is not. I drive a 1997 Chrysler Town & Country Minivan with 140,000 miles on it.

This past Summer, when the government launched the Cash for Clunkers program, I was intrigued. My car qualified for a $3200 credit, and dealers were adding incentives on top of that. My car worked just fine, and I didn’t really need a new car. But if I could get $6,000 off the price of a new car, and junk my Soccer-Mom car, I considered it.

After much moral vacillation, I reluctantly decided to participate. I was planning on going to a dealer to look at a snazzy new Ford Escape on Saturday morning. On Friday night, the Obama Administration, unexpectedly announced that they were suspending the Program late Friday night. They were running out of money to fund the program.

At first, I was enraged. Why should those who quickly utilized the rebate get it, while I don’t?

But then I realized something. I was no different from a Soviet who had to wake up at the crack of down in order to be the first on the bread line before they ran out of rations. I was instantly repulsed. I am not a serf. President Obama will not dictate to me the terms of when, where, and what kind of car I should buy. I would not participate in this travesty.

Ultimately, Congress jumped into action and added some funding for the program. I did not care. I was resolute.

People tried to coax me into accepting it. They would tell me, “you pay taxes, get some of your money back.” No. This is not my money. This is the money from taxpayers from across the Country. Their hard earnings were taxed, like the yoke on a donkeys back. I would not partake. While I will concede there are some public goods that justify taxing (roads, national defense, schools, etc-though that etc is not unlimited), subsidizing the destruction of perfectly good cars to replace them with marginally better cars aint a public good I can support.

Now, I realize I was right. CNN reports, Clunkers: Taxpayers paid $24,000 per car:

A total of 690,000 new vehicles were sold under the Cash for Clunkers program last summer, but only 125,000 of those were vehicles that would not have been sold anyway, according to an analysis released Wednesday by the automotive Web site Edmunds.com.

The Cash for Clunkers program gave car buyers rebates of up to $4,500 if they traded in less fuel-efficient vehicles for new vehicles that met certain fuel economy requirements. A total of $3 billion was allotted for those rebates.

The average rebate was $4,000. But the overwhelming majority of sales would have taken place anyway at some time in the last half of 2009, according to Edmunds.com. That means the government ended up spending about $24,000 each for those 125,000 additional vehicle sales.

I won’t even get into the insanity and economic stupidity of this program. The program paid car owners to junk their older cars in order to purchase marginally more environmentally friendly cars. See the Broken Window Fallacy for more details.

My opposition was largely centered on the fact that I did not want to encumber my fellow citizen with any additional tax burden. And the numbers bear out. Each vehicle sale cost America $24,000. Spread out among hundreds of millions of taxpayers, this is negligible, but quantifiable.

Who is John Galt?

Veronique de Rugy has a fantastic post on Big Government, titled, We Are Living in an Ayn Rand Novel (H/T Instapundit)

A year or two ago, only the most radical leftists would have dreamed that we’d be living in a country where the government owns a majority share in GM, bailed out private insurers, took over Fannie Mae and Freddie Mac, and handed over billions of dollars to the financial sector.

It continues to bailout homeowners doing more of the same policies that put us in this mess in the first place. The government now plans to bailout seniors and small businesses and it won’t be long before Obama proposes to bailout children. Also,  as the debate over health care reform continues, we are left to wonder: how much is this going to cost us? One trillion dollars or two?

But as I am listening to the hearing on executive compensation and TARP special master (how crippy is this title?), I realize we are now officially living in a world that resembles an Ayn Rand novel. One man, one unelected government official, not even a Cabinet member confirmed by the Senate, has the power cut the pay of executives in private businesses by 50 percent or 90 percent in the banks the government now “owns.” A single individual is given too much power without accountability. But more importantly, this charade  masks the fact that the world we live in has nothing to do with capitalism. It’s nothing more than crony capitalism. The government went around bailing out out automobile companies that were producing cars that people didn’t want to buy, bailing out banks that were careless with their capital and assets, and bailing out homeowners that couldn’t afford the houses they were buying.

Amen. Every day I see more and more stories about element of society sliding towards statism, and more closely resembling the world of Atlas Shrugged. When will man reach the tipping point? Who is John Galt.

From SSRN, When and How (If at All) Does Law Constrain Official Action? (H/T Legal Theory Blog):

Debates about the obligation to obey the law have been around for literally thousands of years, but the empirical side has received much less attention. Moreover, most of the existing empirical work has focused on citizens and not officials, and consequently we know little about the extent to which law qua law motivates official action. This paper, presented as the John A. Sibley Lecture at the University of Georgia School of Law, draws on the jurisprudential and philosophical literature to frame the question of obedience to law, and then seeks to encourage empirical inquiry into the particular question of whether officials obey the law as law, independent of the content of the law and independent of the possibility of sanctions for non-compliance. It offers the hypothesis that although there is much talk about official obligation to the law, in fact officials rarely obey the law just because it is the law, and are rarely politically punished for engaging in sanction-free illegal actions when their constituents approve their first-order substantive decisions. For official behavior, therefore, there may be considerably less internalization of law than is commonly supposed. And if this hypothesis turns out to be true, the implications for public law may be considerable. Moreover, if sanction-free internalization of law is less common than many commentators believe, it would be appropriate to give renewed attention to the role of sanctions and coercion not only in securing compliance with law, but also in understanding the nature of law itself.

Why do people follow laws? Why do people follow some laws and not others? Why do I have no problem routinely breaking the speed limit and jaywalking (maybe because I’m from NY) but am morally repulsed by hurting another or infringing on someone elses property rights. Take a look at this article. Professor Solum gave it a Highly recommended. Download it while its hot!

Professor Balkin makes a fantastic point. If Scalia were truly an originalist, he would not be able to adhere to Bolling v. Sharpe and Loving v. Virginia.

I’m sure if someone ever cornered Nino, he would say something about stare decisis, and following these precedents. I once asked him a similar question about how he affirms all of the Criminal Procedure cases from the Warren Court which are patently unoriginal, and he muttered something like “Nah, its water under the bridge.”

But when is it water under the bridge? And shouldn’t stare decisis be weak for Constitutional Law. Scalia has called himself a “faint hearted” Originalist. What exactly does that mean?

The normative appeal (to me at least) of originalism is an an attempt at objectivism. That is, making the judicial resolution as much as possible about objective facts (history) and as little as possible about a judge’s personal predilections. Deciding when to be an originalist seems to give a judge a lot of discretion. This is similar to finding when a statute is ambiguous, or if a previous opinion is holding or dicta, a topic I have written about here.

This is a topic I’ve been thinking about for some time.  I call it Selective Originalism. It is similar to Selective Amnesia. Originalists pick and choose when to forget about the history behind the Constitution with respect to certain issue and cling to stare decisis (e.g., Brown, Bolling, and Loving) but are dogmatically clingy to it with respect to other areas and ignore stare decisis (e.g., Scalia on Roe/Casey)

Further, why do originalists seek to be originalists in some areas (guns, federalism, confrontation clause), but not in others (criminal procedure). Is this Hypocrisy? Water under the bridge?

Further, if Bolling v. Sharpe was wrong, Aderand would be wrong.

Perhaps one way to reconcile this comports with a Presumption of Liberty. When an unoriginalist opinion promotes liberty (the exclusionary rule, the right to keep and bear arms, confrontation clause rights), it is OK to ignore the history, and just say stare decisis. But what happens when an unoriginalist opinion infringes on liberty? More to come.