Tag Archives: Jim McCarthy

Who’s “Legislating from the Bench” Now?

by Jim McCarthy

“It’s not the court’s place to legislate,” the judge stated in local media after dismissing a case seeking to have two books declared obscene upon her ruling that such ban violated Virginia and federal law.

“Look, the General Assembly is a citizen legislature. We’re not lawmakers. Things like this happen and a law got written in a confusing way,” noted the plaintiff’s lawyer, who is an elected delegate.

The two statements reflect a continuing point of conflict and criticism of court decisions deemed to be legislating from the bench. The “we’re not lawmakers” and “citizen legislature” comments ignore the fact that members of the General Assembly are served by a Division of Legislative Services staffed by more than fifty professionals to assist in drafting legislation. The term legislating from the bench tends to be employed by critics of judicial decisions, too often with little substantive explanation. Sometimes, the phrase “judicial activism” is used as shorthand. Generally, it is fair to say that the critique relates to the results of adjudication that either invalidate or modify legislation or appear to imbue legislation with meaning beyond the terms of the statute. Continue reading

Pixilated Public Policy

by Jim McCarthy

The citizenry relies upon its government agencies to deliver cogent services and determinations consistent with the welfare of the commonwealth. It’s not always an easy task and, sometimes, the outcomes of those representative institutions are, well, confusing, or pixilated.

On August 3, 2022, the State Corporation Commission (SCC) issued a Final Order denying the Virginia Credit Union (VACU) authority to expand its field-of-membership (FOM) to include members of the Medical Society of Virginia (MSV). The denial followed an initial approval three years earlier by the SCC’s Bureau of Financial Institutions. That action was challenged for formal agency review by a group of seven independent community banks represented by the Virginia Bankers Association (VBA).

The petition for review was a proxy battle in a larger national political effort to curtail the growth of credit unions. The national campaign alleged that credit unions were “overreaching” in expanding into new FOM areas, leveraging their income-tax-free status as not-for-profits to conduct business in geographical areas the community banks believed to be unique to their charters and purposes under state and federal laws. Continue reading

Zombie Legislation

by Jim McCarthy

Zombies, having become popular in filmdom and TV, are finding resonance in the nation’s legislative sausage making. Generally, the term zombie legislation applies to statutes negated or consigned to death, often by federal or state court decisions, that remain on the books due to legislative lethargy. Currently, the phenomenon has become more apparent and pertinent following the U.S. Supreme Court (SCOTUS) decision in Dobbs v Jackson, reviving concern about related privacy precedents.

As a matter of fact, however, zombie statutes have an even older presence than 2022.

The post-Civil War amendments intended to emancipate slaves and affirm the principle that all are created equal. The Thirteenth (in precatory language) declared that “Neither slavery nor involuntary servitude … shall exist within the United States,” and the Fifteenth guaranteed that the right to vote shall not be denied. Declaring slavery shall not exist as a precatory statement is not the equivalent of outlawing the practice. Just over three decades later, at the opening of the 1900s, Virginia convened a constitutional convention. One of its prominent leaders, Carter Glass (later U.S. Senator), in responding to questions about some provisions in the document as discriminatory, proclaimed:

Discrimination! What that is exactly what we propose. To remove every negro voter who can be gotten rid of, legally, without materially impairing the numerical strength of the white electorate.

Continue reading

Blue Crabs Smiling

by Jim McCarthy

The image of Nero fiddling while Rome was ablaze may be apocryphal, but the moral is clear: pay attention to your surroundings. It’s been nearly four weeks since the announcement that the sperm capacity of Chesapeake blue crabs has been found to be in decline, threatening the viability (motility?) of the crustacean’s population. However, not a word has been reported in the interim on BR while its diverse contributors and commenters bloviate about favored topics and clever names to call those who dare to offer their versions of bloggery wisdom. Lesser such crises have been sufficient to call a special session of the General Assembly.

Fourteen years ago, JAB wistfully mourned childhood memories about blue crab fishing as two state governors – Tim Kaine and Martin O’Malley – announced that the Chesapeake crab population had sustained a significant decline. The BR appeal drew not a single comment from readers although the platform was already six years old at the time.

Thirty years ago, Maryland officially adopted Callinectes sapidus (Greek for beautiful swimmer) as the state crustacean and honors that nomination by providing license plates with a crab image. Over time, Virginia’s neighbor has developed a well-orchestrated campaign to ensure its imprimatur upon the blue crab, at times relegating the Old Dominion to the status of a lesser attractive jurisdiction. Continue reading

Zombie Senates


by Jim McCarthy

Zombies have been depicted in ancient cultures such as that of Norse mythology (draugar) very similar to those in contemporary culture. The Roman senate with the iconic SPQR dates to 753 B.C. as an advisory body to the king composed of elders (senes, Latin root for senescent or deteriorating in age) of the society.

The nation’s current politisphere has witnessed a resurrection of zombie allusions that could be applied to the country’s senates. In this regard, progress may not be our most important product, as General Electric spokes master Ronald Reagan intoned Sundays each week (1954-1962). There are probably as many measures of political progress as there are stars and constellations viewed by the Hubble telescope.  Yet, we cling to a concept of legislative governance by a senate with little question or consideration of the contemporary merits of the idea. Continue reading

Twofers, Threefers

If this clump of cells has achieved “personhood” the legal implications are endless.

by Jim McCarthy

As time passes, it seems a safe bet to conclude that the U.S. Supreme Court decision in Dobbs v Jackson will be deemed an upheaval to American culture and politics greater than that of Brown v Board of Education. 

Dobbs may have unleashed a kraken-worthy pandemic of civic monsters to rival that of Greek mythology. The decision is drawing embryonic and heated demands for a national absolute ban on abortions based upon a theory of “life at conception,” or fetal personhood, that augurs to redefine and upend well-settled related public policy and laws. The tumult emerging from Dobbs will make the half-century precedent of Roe seem peaceful.

Thirteen states have already adopted laws to ban all or most abortions, with eight protecting the fetus from the moment of conception without conferring personhood. However, Louisiana is presently considering legislation requiring the state to “fully recognize the human personhood of an unborn child at all stages of development prior to birth from the moment of fertilization.” Life at conception is sufficiently close – theologically and legally – to fetal personhood as to be only finely distinguishable.

The Commonwealth’s political leadership, for the moment, appears not to be poised to mimic Louisiana, but Old Dominion advocates are not hiding their aspirations for a “no compromise” ban on abortion as the state’s rule. Continue reading

Disin-Cline-Nation

Representative Ben Cline

by Jim McCarthy

Representative Ben Cline secured more than 80% of the votes cast in the primary in the Virginia’s 6th Congressional District. Fewer than 5% of registered voters participated, and the margin was less than 10% of the votes that elected him in 2020. Since then, the January 6 Committee has commenced its hearings. One might ask what the implication are for Cline, who voted to reject the electoral slates and popular votes of Arizona and Pennsylvania certified to the Congress.

Consider his response to an interview question from The Winchester Star shortly before the primary election.

Reporter: Do you think former President Donald Trump tried to steal the 2020 election, and what should be done about what happened on Jan. 6?

Cline: The Constitution provides that each state shall appoint its electors for president, “in such a Manner as the Legislature thereof may direct.” In the months preceding the 2020 election, those rules and procedures established by the state Legislatures were deliberately changed by a number of individuals, including governors, secretaries of state, elections officials, judges, and private parties. These changes were a direct violation of Article II, Section 1, Clause 2 of the Constitution. For this reason, I objected to the electors from those states and I stand by my objection. Continue reading

They Shoot Horses, Don’t They?

by Jim McCarthy

A month ago, a Bacon’s Rebellion column (“Commonwealth Attorney Nullification“) took issue with a national newspaper op-ed in which a Commonwealth’s Attorney pledged he would never prosecute a woman for having an abortion, no matter what Virginia law might say. The BR author suggested that such thinking would lead to anarchy.

The CA’s words are certainly provocative, to be understood as political bombast in his re-election campaign. The words are not a threat of violence and, at the same time, not abstract. Some may choose to characterize them as anarchical. Without more, their dangerous portent will be measured at the polls.

In 1919 the U.S. Supreme Court found in Schenck v US a clear and present danger in the language of protestors against the military draft as a violation of the Espionage Act of 1917. The ruling is best known for Justice Oliver Wendall Holmes’s phrase about “shouting fire in a crowded theatre” was not permitted free speech. The prosecutor’s vow might better be understood as shouting fire in a deserted theatre. Continue reading

For Want of a Plaintiff

by Jim McCarthy

On June 6, 2022, one hundred or more Virginians breathed a sigh of relief that they would not be required to campaign for the House of Delegates in November 2022. A panel of federal judges dismissed a lawsuit challenging the 2021 delegate elections because the voting districts were malapportioned, i.e., the results of the 2010 census were still in play defining the populations of the 100 seats.

Since the 14th century, we have been instructed on the crucial nature of the kingdom that was lost due to the want of a nail. A more contemporary moral is related to the significance of “one person, one vote.” The panel found that the plaintiff failed to demonstrate standing to sue because he had not suffered an injury in fact within the district where he voted as required by the Constitution for a case or controversy.

Reviewing the commonwealth’s population data from the 2010 and 2020 censuses, the panel’s analysis concluded that the plaintiff’s vote in the 2021 election was cast in a district that, in fact, had fewer residents than the “ideal district.” Census figures from 2010 indicated the “ideal district” was 80,000. When the new maps were drawn by the Virginia Supreme Court subsequent to the election, the ideal district was pegged at 86,314. The plaintiff’s district prior to the redistricting was numbered at 79,611 and at 85,344 post redistricting. The chart below outlines the analysis:


Continue reading

Ideas Suffer the Casualty of Casualness

Fairfax County Commonwealth’s Attorney Steve Descano

by Jim McCarthy

Skilled polemicists and rhetoricians (perhaps even unskilled) can present material in a seemingly unbiased way even while intentionally distorting it. A recent Bacon’s Rebellion article bemoaned the assertion of Fairfax County Commonwealth Attorney Steve Descano in a New York Times op-ed piece that he would “never prosecute a woman for having an abortion.” The blog item further placed in quotation marks, “no matter what the law in Virginia says.” Both quoted selections are, in fact, words from the op-ed.

We owe it to the iconic Paul Harvey to be on guard to hear the rest of the story.

The title of the original ep-ed column is, in itself, political pander, pure campaign bombast: “My Governor Can Pass Bad Abortion Laws, But I Won’t Enforce Them.” Any who accept that Virginia’s governor can pass an abortion law – good or bad – failed grade school civics. Don’t judge the content of an article by a headline that was likely written by the newspaper editor. As for the argument made by Descano, follow the Bacon’s Rebellion post’s hyperlink to the op-ed. There you will see the complete context of the statement:

…in Virginia today women who are suspected of terminating a pregnancy without the assistance of a certified medical professional can face felony charges if they miscarry.

So when the court’s draft decision overturning Roe v. Wade was leaked earlier this month, I committed to never prosecute a woman for making her own health care decisions. That means that no matter what the law in Virginia says, I will not prosecute a woman for having an abortion, or for being suspected of inducing one.

In context, the full and complete CA statement presents a different import of the matter than that communicated to Bacon’s Rebellion readers. Continue reading

Faithless Electors, Faithless Congresspersons

by Jim McCarthy

“With what shall I fix it, dear Liza, dear Liza, with what shall I fix it, dear Liza, with what?” May 30th is National Hole in the Bucket Day offering the states and Congress the opportunity to fix the hole in the bucket of Presidential electoral processes and procedures.

At present, members of Congress are unrestrained from voting to accept or reject the certified state electoral votes and slates of electors for the Electoral College. This hole in the bucket has largely been deflected by emphasis upon election integrity, a meme for voter fraud by the voters themselves (or, occasionally groups).

The names of presidential electors may or may not appear on the ballot in most states; voters by and large believe they are casting a vote directly for the president and vice president. The U.S. Supreme Court (Chiafalo v Washington, 2020) unanimously ruled that states have the constitutional authority to force electors to vote in accordance with their state’s popular vote. The opinion, while recognizing state power in this regard, does not require states to prevent faithless electors. At the time of the decision, 33 states, including Virginia, had adopted legislation binding electors. Continue reading

Who Will Replace Us?

by Jim McCarthy

Who is the “who” doing the replacing? Who is the “us” to be replaced? There is no discernable record that indigenous Americans asked themselves this question. In the early 1600s, the Powhattan people of Virginia observed as the English immigrants built a fort and spread their settlement across formerly Powhattan hunting grounds. In 1622, the natives attacked as a measure, according to some historians, to teach the English a lesson.

From the circumstances, indigenous peoples were clear that the newcomers were not of their tribe nor sharing of their sensibilities; they were others with pale skins determined to clear and dominate forested lands for agriculture unburdened by who went before them. The existential evidence was reasonably graphic to conclude that the Powhattan were being replaced, their properties being converted without concern for their interests.

Although the later governing document authored by the immigrant colonialists appeared to accord native Americans the high diplomatic privilege of reserving to the Congress explicit authority to regulate commerce and negotiate treaties with them, the document also excluded untaxed natives from the census. That Constitution ironically contained a provision limiting the taking of property without due process or just compensation. In 1800, Congress adopted an act for the preservation of peace with the natives limiting First Amendment speech and press freedoms as a means to proscribe criticism of national policies and discourage foreign nations from stirring them to protest. Continue reading

Silence of the Trumpets

by Jim McCarthy

Criminal justice at the local level in Virginia is the province of the 120 Commonwealth’s attorney offices funded primarily by the state, with some also receiving local supplement. Indigent defendants may avail themselves of the Sixth Amendment right to counsel through 28 public defender offices. Many other indigent defendants will be represented by court appointed counsel from lists and attorneys overseen by the Virginia Indigent Defense Commission (VIDC) which is the statutory organization for public defenders.

The genesis of the existence of public defenders arose in 1963, ten years before Roe v Wade, with the SCOTUS opinion in Gideon v Wainwright. The defendant, Clarence Earl Gideon, was sentenced to five years in prison after trial at which he requested the appointment of counsel to defend him. At the time, states were mandated to consider appointed counsel only in capital offense proceedings, not for lesser offences which might involve imprisonment. The unanimous court in Gideon concluded that the Sixth Amendment did not distinguish between capital and non-capital cases, finding that a defendant faces the danger of criminal conviction “because he does not know how to establish his innocence.”

This hallmark decision and its progeny later gave rise to the familiar Miranda warning (Miranda v Arizona, 1966), a required notification by police in a custodial setting: Continue reading

Intregripedia

by Jim McCarthy

Surely, at some point, an accomplished polymath will create Integripedia to provide info-hungry internet users with a comprehensive source on political integrity. Specifically, the compendium should cover the promises and pledges of political leaders as well their foibles and accomplishments and perhaps most memorable statements. For the present, however, we must rely upon Safari, Google, Bing and others to identify such topical information. Worse, we may be relying upon cable news pundits who are no longer characterizing their spiels as journalism.

At the end of April, Virginia’s youngish governor conducted a press conference to discuss his first 100 days in office and parse his administration’s accomplishments. Only a few outlets, rather unenthusiastically, reported upon the signature event. For the most part, the Governor offered that great progress has been made.

A reading of the media coverage confirms that the Governor made no mention of efforts to enhance the Commonwealth’s election integrity, as he promised during his campaign. No mention was made of his legislative amendment to restore integrity to the Loudoun County School Board which, during the campaign, he declared to be guilty of “gross negligence” and “violating the Virginia Constitution.”

Lay folk would likely agree that electoral procedures and processes should be annually administered to ensure the validity and credibility of each and every vote for each and every election. To this end, the proportions or numbers of electoral malfeasance discovered or prosecuted are vital mile posts in identifying soft spots and creating remedial measures. Continue reading

School Daze

by Jim McCarthy

Governor Glenn Youngkin had an opportunity to withdraw his big-footed amendment to a bill that would have moved the election date of the Loudoun County School Board from 2022 to 2023 and vacate the nine board seats for a new election. The original bill sought only to stagger the terms of five of the seats. Now, rejected by vote of Democrats in the senate, the Governor has the choice of vetoing the original bill or signing it.

Whichever choice is made, it is not likely to diminish the feral fever that has enveloped school board meetings nor will it appease the bloodlust outrage stoked during the campaign.

Passage of the proposed amendment rested, in part, upon the Dillon Rule, a judicial doctrine from the 1800s which provides that a local jurisdiction may exercise only what authority is conferred by the parent state. This principle, in turn, is mirrored by another dominant value that has guided educational policy for centuries called in loco parentis (ILP) or in place of the parent. Historically, as population grew and shifted from agrarian settings to urban and suburban ones with enhanced employment opportunities, the education of youth was entrusted to a public school system with professional personnel. Continue reading