My Own Pie

Libertarian Thoughts from Renaissance Guy

The ACORN Case Revisited

with 3 comments

     A reader called Spherical Time pointed me to this article by Glenn Greenwald about the recent ACORN defunding case.   The article explains the case and the ruling better than the article I had read previously.  However, I have not changed my mind.

     There are several flaws in Greenwald’s (and Judge Gershon’s) thinking.  The most obvious one is that in order for the Congress to have violated the ban on bills of attainder, the Congress would have had to actually enact a bill of attainder.  No such bill was passed.  When the case is appealed, I predict that several judges and justices will point to the fact that no such bill of attainder can be produced as evidence.

     As always there are two sides to a court case, and the government’s side is that Congress was simply defunding an organization that it had previously chosen to fund.  It was not “punishing” them in the legal and judicial sense of the term.  That claim makes perfect sense.  They did not arrest anyone involved in ACORN or put anyone in jail.  Neither they did not fine them or confiscate their property.  They simply exercised their right, with the President’s approval, to discontinue giving them money.  (I predict that at least one judge or justice will point out that you cannot on the one hand grant that the Congress has the power to give away money but does not have the power to stop giving away money.)

     To take the view that the Congress found ACORN guilty of a crime and punished them by not continuing to disburse funds to them, you would have to first presume that any money that ACORN hoped to receive from the government was already their property and could not legally be taken away from them without due process.  To believe that it was already their property, one would have to assume that either Congress was naturally or constitutionally obligated to give it to them or that ACORN was naturally or constitutionally entitled to have it.  (Which is why I wrote in the earlier post that the ruling presumes a constitutional right for a private organization to receive government funds.)

     If they have no inherent or legal right to the money, then it is not a punishment to stop giving it to them.  (Would I be punishing my children if I stop giving them an allowance after they graduate from high school?  They would say yes.  I would say no, since I am not obligated to give them an allowance then, or now, for that matter.)

—–

     As for Greenwald’s comments at the bottom, they certainly do not apply to me.  I am against judicail activism–left, right, or middle.  It doesn’t matter.  Judges are not supposed to write laws.  They are supposed to settle legal disputes based on the text of the Constitution and on duly enacted laws.

     I for one would not care if a right-wing organization were defunded by Congress.  Congress has the power to give money or not to give money to whomever they choose for whatever reasons they choose.  My preference would be that no private organization get any money from the government, anyway.

     Besides, Greenwald’s argument cuts both ways.  Judge Nina Gershon was appointed by President Clinton.  It’s just as easy to say that her ruling was politically motivated as it is to say that opposition to her ruling is politically motivated.

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Written by ambrosianideas

December 13, 2009 at 11:59 am

3 Responses

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  1. RG: When the case is appealed, I predict that several judges and justices will point to the fact that no such bill of attainder can be produced as evidence.

    You do realize that a piece of paper doesn’t have to say “bill of attainder” across the top to be forbidden by the constitutional ban on them, right? The “bill” in this case was the piece of paper defunding them, as voted by Congress.

    RG: It was not “punishing” them in the legal and judicial sense of the term.

    . . . I’d ask how you describe why their funding was cut without implying that they did something wrong. Because, if they did do something wrong and that’s the reason their funding was cut, it fits the definition of punishment.

    RG: As for Greenwald’s comments at the bottom, they certainly do not apply to me.

    Except for completely and exactly fitting you, you’re right.

    Spherical Time

    March 20, 2010 at 3:21 pm

  2. Scott, I realize that the Supreme Court could rule that my shopping list is a bill of attainder if they see fit to.

    Taking away money that you were going to give somebody is not a legal punishemnt. The Congress was not enforcing a law by sending anyone to prison or fining them.

    Are you saying that I lied in my last section? I think that when we read blogs we need to take what people write at face value. As I said, I am against all judicial activism, even if it goes along with my wishes.

    renaissanceguy

    March 20, 2010 at 11:18 pm


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