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2151  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Immigration issues on: June 16, 2010, 05:29:39 PM
DougMacG... thank you!  I will try not to wail on you.  I think your interpretation is erroneous, and here is why: by your account, the citizenship rights are dependent on residency.  However, a citizen doesn't lose his or her citizenship rights if they don't live in the US.  If I reside in France, or Indonesia, or... I retain my rights as a US citizen.  I doesn't depend on state(side) residence. 
2152  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Immigration issues on: June 16, 2010, 05:25:19 PM
If your interpretation of the constitution was correct, which it isn't, then there would not have been a need for the Indian Citizenship Act of 1924 .

Well, golly, there would be no need for any kind of Voting Rights Act either... but it isn't my interpretation that is faulty, it is the ability or willingness of the states to follow the law.  I would think that any conservative would like my interpretation.  It is the heart of the 2nd Amendment debate going on.  If you are right, then states CAN prohibit the right to bare arms!
2153  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Immigration issues on: June 16, 2010, 08:53:23 AM
Nope, the purpose was to ensure that individual states couldn't restrict citizenship rights.  Citizenship rights are given to all those born on our soil. 
2154  DBMA Martial Arts Forum / Martial Arts Topics / Re: Criminal Justice system on: June 14, 2010, 06:34:56 AM
This is a great thread!  I do hope that all the budget cuts won't impact giving the members of the juries top dollar!!!
2155  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Immigration issues - anchor babies on: June 14, 2010, 06:22:12 AM

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

A baby born to a foreign family touring the U.S. on vacation does not reside here.  You would have to read only part of that sentence above to conclude a baby of a foreign family becomes a citizen.

If the language of the amendment and its intent are not one and the same we should be actively going through the amendment process to clarify and get it right.

DougMacG... I am sorry to be "targeting" you, but the above statement isn't true.  The 14th amendment was written that way in an effort to directly address the Dred Scott opinion.  It was meant to give citizenship rights at both the national and state level, and not to allow the states to strip citizens of their rights.  Read the rest of section 1 of the amendment.  However, that can also be seen as good news for conservatives (see, for example, the right to bear arms). 
2156  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Unions on: June 10, 2010, 04:59:25 PM
Here is data on union political spending.

While labor spends freely, it is very compared to or or heaven forbid!
2157  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: We the Well-armed People on: June 10, 2010, 04:53:10 PM
I like John Lott... a lot.  It seems like this might deserve a mention though.
2158  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Hmmmmmmm.... on: June 10, 2010, 07:46:37 AM
2159  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: June 05, 2010, 06:12:07 AM
Thanks Crafty for followup on Bush v. Gore.  Thanks and welcome to bigdog!

"My comment was meant to be tongue in cheek...  Kelo was wrongly decided..."

Whew!   I'm usually on the other side of that with people not getting my humor.  5 Justices and plenty of other people think the Kelo decision is okay, so that view would be interesting to debate as well.  I hope my strong reaction came across as civil. Kelo is personal for me.  I have my life savings invested in property and have had property taken under the same circumstances by the City of Minneapolis.  My current home of 24 years is extremely vulnerable to the Kelo rule as well.  Don't be fooled by the 5th amendment: "...nor shall private property be taken for public use, without just compensation".  If they were willing to pay market price where buyers and sellers come together voluntarily, they wouldn't have to 'take' it. 

Thank you for the welcome, DogMacG.  (And thank you, Guro Crafty, for the nice introduction.)  I find Kelo interesting on many levels, not the least of which is the takings clause was the section of the BoR incorporated to the states.  Talk about stepping away from history!
2160  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: June 04, 2010, 07:24:28 PM
"Justice Stevens has fundamentally changed – and strengthened – the Court’s jurisprudence regarding personal freedom."

What part of LIVE IN ONE'S OWN HOME is not a personal freedom?

Justice Stevens wrote the opinion Kelo v. New London that takes a situation where the constitution explicitly prohibits the government from entry, search or seizure and gives them the right to bulldoze it and gift the property title to a new, more affluent owner.  

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause..."  - 4th amendment to the U.S. constitution.

In the war on terror example Stevens sought to tie the hands of the Commander in Chief in a time of war and national emergency and in a situation where no prisoners were injured and culturally sensitive meals were ordered by inmates off of a menu.

In Bush v. Gore, the majority correctly noted that the U.S. Constitution gave the authority in question specifically to the "State Legislature" of Florida, not to the state in general and not to the Florida court to strike down or make new law where they may have a better idea or believe the Legislature to have erred.  Stevens dissented.

"His 2005 decision in Massachusetts v. EPA, ruling that the EPA could regulate greenhouse gases and that Massachusetts could sue the EPA for failing to do so, is the most important environmental decision in a generation"

Yes, the federal government gained a new means to stop manufacturing, limit unnecessary drives to visit Grandma and keep a watchful government eye over exhaling.

For Justice Stevens, I agree with the two word title of the following piece: Good Riddance!

     My comment was meant to be tongue in cheek.  My apologies for not making that clear.  I do not think, however, the JPS is due as much ire as Sowell sends his way.  Kelo was wrongly decided, in my opinion, but the matter was largely addressed at the state level.  Moreover, the issue at hand was the Fifth Amendment's taking clause, not the Fourth Amendment as you suggest.  ( 

     The Bill of Rights exists, as you and Sowell correctly note, as a check on the government.  A speedy trial is among those rights, and since the Framers had just come out of a war, I feel prety confident they knew what they were doing by taking steps to ensure that right. 

     The thing that always struck me as odd with Bush v. Gore is that the justices seemed to switch arguments.  The liberals became state rights advocates and the conservatives were concerned about the individual right to vote.  Of course, the Constitution also sends the outcome of the election, in the event that no one wins a majority of the electoral votes, to the House. 

Thank you for your reply.  I liked your discussion. 
2161  Politics, Religion, Science, Culture and Humanities / Science, Culture, & Humanities / Re: Issues in the American Creed (Constitutional Law and related matters) on: June 04, 2010, 10:43:45 AM
Finally, a definitive answer to the question of who the best Supreme Court Associate Justice in history is...

The Greatest Justice

Posted By Erin Miller On June 1, 2010 @ 2:03 pm In 30 Days of Stevens | Comments Disabled

The following essay, one of the final ones for our John Paul Stevens series, was written by Cliff Sloan [1].  Sloan clerked for Justice Stevens during the 1985 Supreme Court Term, and is now a partner at Skadden, Arps, Slate, Meagher, & Flom.

Justice John Paul Stevens is the greatest Justice in Supreme Court history.

I say this, not as hyperbole, but as a reflection of the record he has compiled in his thirty-four and one-half years on the Court.  It is a description warranted by his vast influence over wide swathes of the law, especially those that go to the heart of our constitutional democracy.  His contributions to our jurisprudence are profound, and will endure.  And I say “greatest,” not just “great,” because even our most storied Justices have not compiled a record that rivals or surpasses Justice Stevens’ record.

At the outset, one clarifying point about the frame of reference.  I am excluding Chief Justices from the comparison, for they have powers unavailable to Associate Justices.  This principle, of course, takes John Marshall, Earl Warren, and the other Chiefs out of consideration.

Justice Stevens is the greatest Justice for at least four reasons.  First, his record of protecting and maintaining the rule of law during the “war on terror” stands unique in Supreme Court annals.  He wrote two of the three seminal decisions squarely rejecting the government’s deprivation of legal rights at Guantanamo (Rasul v. Bush and Hamdan v. Rumsfeld), and he was a key member of the five-Justice majority in the third decision of this extraordinary trilogy (Boumediene v. Bush).  His galvanizing role in these cases, reaching back to his experience as a law clerk in the 1947 Term, has been well-chronicled [2].  At other times in our nation’s history, when confronted with claims of wartime authority, the Supreme Court has flinched (as in Korematsu).  Under Justice Stevens’ leadership and opinions, the Court did not flinch.  Instead, it stood powerfully for legal protections, even in a time of great national fear and anxiety. That achievement alone may establish Justice Stevens’ role as the greatest Justice.  But it is far from his only accomplishment.

Second, Justice Stevens has fundamentally changed – and strengthened – the Court’s jurisprudence regarding personal freedom.  As Jamal Greene has detailed in these pages [3], Justice Stevens has successfully re-framed the Court’s conceptual framework for personal freedom from a general “privacy” right, which is not mentioned explicitly in the Constitution, to a “liberty” right, which is prominently and explicitly protected in the Constitution.   This re-orientation is more than a matter of nomenclature or constitutional tidiness.  It has shifted the protection of personal freedom to a more secure and durable foundation.  Not coincidentally, Justice Stevens’ corresponding impact on the protection of liberty has been enormous.  To use a well-known example, Justice Stevens’ dissent in Bowers v. Hardwick, in which he disagreed with the Court’s acceptance of a criminal ban on homosexual conduct and emphasized “the abiding interest in individual liberty,” became the law of the land in Lawrence v. Texas.   Justice Kennedy’s opinion for the Court in Lawrence explicitly adopted Justice Stevens’ dissent as the basis for overruling Bowers: “Justice Stevens’ analysis  . . .  should have been controlling in Bowers and should control here.”  The remarkable seventeen-year arc of that dissent, and the more general re-fashioning of the Court’s framework from a privacy foundation to a liberty foundation, are historic triumphs.  (Full disclosure: as a law clerk, I worked with Justice Stevens on his Bowers v. Hardwick dissent.)

Third, Justice Stevens has steadfastly sought to enforce the rule of law even when the Presidency hangs in the balance.  His memorable dissent in Bush v. Gore excoriated the Court for failing to respect the orderly process of the Florida courts.  In exactly the same vein, just a few years earlier, his often-maligned and misunderstood opinion in Clinton v. Jones stressed the orderly process of the federal courts, and rejected President Clinton’s claim that the Paula Jones lawsuit should be deferred until the expiration of his term.  No other Justice has a comparable record of leadership in vigorously enforcing the rule of law against Presidents in both parties.

Fourth, Justice Stevens has powerfully re-shaped the law in an astonishing range of areas.   Several examples tell the tale.  His decision in Chevron v. NRDC is, quite simply, the foundation of modern administrative law.  His landmark opinion on free speech and the internet, Reno v. ACLU, is justly known as “the magna carta of cyberspace.”  His 1984 decision in Sony v. Universal City Studios, holding that sale of the videocassette recorder did not constitute copyright infringement, unleashed an era of technological innovation.  His 2005 decision in Massachusetts v. EPA, ruling that the EPA could regulate greenhouse gases and that Massachusetts could sue the EPA for failing to do so, is the most important environmental decision in a generation.  His opinion in Gonzales v. Raich, upholding Congress’s power to ban state authorization for the medicinal use of marijuana, is a seminal explication of Congress’s powers under the Commerce Clause.  Justice Stevens’ opinions often have been a beacon for state courts, as Rory Little has explained [4] in the context of prosecutorial misconduct. On virtually every legal issue, Justice Stevens’ contribution has been enormous and far-reaching.

The case for Justice Stevens as a great Justice thus seems to me overwhelming.  But the very greatest?  Recognizing inevitable subjectivity in the evaluation, I think that a comparison of Justice Stevens’ record with the record of other contenders for the honor establishes Justice Stevens’ pre-eminence.

To my mind, five other Justices plausibly could be considered for the “greatest” laurel:  Brandeis, Holmes, Brennan, Story, and the first Justice Harlan.  Although all five are great Justices, they fall short of Justice Stevens in their accomplishments and their impact on the Court.

Without a doubt, Louis Brandeis was a giant in the law.  For the purpose of this comparison, it is necessary to consider only his record as a Justice, and not to include his substantial additional contributions as the “People’s Lawyer” before he joined the Court.  Brandeis’ record on the Court is dazzling and impressive.  He was a powerful voice for vigorous First Amendment protections in the years following World War I; he stood strongly for deference to federal and state legislation at the height of the Court’s Lochner era (as in his famous deference to states as laboratories of experimentation in his New State Ice Co. v. Liebmann dissent); and he laid the groundwork for modern Fourth Amendment jurisprudence (in his Olmstead v. United States dissent, later embraced by the Court in Katz v. United States). This is unquestionably a formidable legacy.  But, even giving Brandeis’ record its due, it does not match Justice Stevens’.  Brandeis, for example, has no success comparable to Justice Stevens’ in leading the Court to enforce the rule of law in time of war.  Nor do his opinions dominate in as many areas of the law as Justice Stevens’ opinions.

With his pithy aphorisms and confident turn of mind, the iconic Oliver Wendell Holmes is the most quotable Justice.  But that does not make him the greatest.  His record in opposing the Court’s Lochner jurisprudence, including his famous dissent in Lochner itself (“the Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics”) is significant and enduring.  So too are his contributions to modern First Amendment doctrine (even while recognizing that  they seem to have resulted, at least to some degree, from Brandeis’ influence after he joined the Court).  But, again, Holmes’ role in leaving an actual body of law and doctrine does not rival or exceed Justice Stevens’.  Moreover, it must be recognized that Justice Holmes, in upholding forced sterilization in Buck v. Bell, wrote one of the most noxious opinions in the Court’s history.  (Holmes: “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. . . .Three generations of imbeciles are enough.”).  It cannot be excused by saying that he was a product of his time.  Greatness in a Justice lies in transcending the mistaken pressures of presumed exigencies, as Justice Holmes did on other occasions. Holmes’ Buck v. Bell opinion is an indelible blot on his record.

The jovial architect of the Warren Court, William J. Brennan, certainly left a far-reaching legacy.  His opinions for the Court in areas such as the First Amendment (New York Times v. Sullivan), the right to vote (Baker v. Carr), congressional power (Katzenbach v. Morgan), and due process protections for recipients of government benefits (Goldberg v. Kelly) comprise an exceptional contribution.  But, impressive as his opinions are in these and other areas, Justice Brennan’s glittering record also has its limits. After the Warren Court, and particularly in his last decade on the Court, he sometimes was marginalized (even while managing occasionally to cobble together majorities). Indeed, according to Joan Biskupic’s biography of Justice Sandra Day O’Connor, Brennan quickly alienated Justice O’Connor with intemperate attacks and a differing style and approach.  Additionally, Brennan’s dominant judicial philosophy perhaps can be viewed as “five-ism” (in light of his famous statement that “you can do anything around here with five votes”).  It is a philosophy less durable than Justice Stevens’ record as the embodiment of the “rule of law” Justice — enforcing the rule of law even-handedly in time of war, against Presidents of both parties, and in a wide variety of contexts.

Joseph Story was one of our most brilliant Justices.  His three-volume Commentaries on the Constitution was the premier constitutional treatise of the nineteenth century.  Story’s output for the Court, however, was relatively sparse, although it did include his opinions in Martin v. Hunter’s Lessee and the Amistad case.  This relative paucity of major opinions was due in large part to the fact that Story served on the Marshall Court for most of his career, and John Marshall wrote almost all of the momentous opinions himself.  Some observers have concluded that Story had a significant impact on Marshall’s opinions.  But Story’s own opinions do not establish a compelling claim to the “greatest Justice” mantle.

Finally, the first Justice Harlan leaves an impressive record, if for no other reason than that he was the lone dissenter in Plessy v. Ferguson.  Harlan had other powerful dissents as well, such as in The Civil Rights Cases and in Lochner.  But he does not leave a body of work that compares to Justice Stevens’ record.

John Paul Stevens will leave the Court as the second oldest Justice to serve and as either the second or third longest-serving Justice (depending on when the Court rises this Term).  Far more important than either of these distinctions, however, is that he will leave the Court as its greatest Associate Justice.

2162  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Politics on: June 03, 2010, 11:42:42 AM

This is an interesting view of President Obama's "handling" of BP. 
2163  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Reports of his demise have been greatly exaggerated on: June 03, 2010, 06:44:19 AM

The Justice Department so far has rebuffed calls for an investigation and even some Republicans, including former Attorney General Michael B. Mukasey and President George W. Bush’s top ethics lawyer, have said it would be a stretch to call the White House action regarding Mr. Sestak a crime. But the focus on such tactics undercuts the image Mr. Obama has tried to cultivate as a reformer above the usual politics.

2164  Politics, Religion, Science, Culture and Humanities / Politics & Religion / Re: Politics on: June 02, 2010, 12:12:10 PM
I lived throught the LBJ-McCarthy era.  My mom was an organizer within the local Dem party for McCarthy and long with future Congresswoman Bella Abzug  shocked co-chaired many meetings held at our house.  In this context as a 15 or 16 year old I met:

Allard Lowenstein (McCarthy's campaign manager);Ted Sorenson; Betty Fridan; David Halberstam; then Congressman Ed Koch; and many others.

Unlike LBJ and the liberals, BO and the Progressives (nee "liberals") are one and that same.  His failure will be their failure.  In '68 the struggle within the Dem party was between the mainstream Dems and the liberals.  The struggle was won in '72 by the lilberals with the ascencion of McGovern and the rules changes his people instituted that have lasting effect to this days.  The Democratic Party is now run by Soros's money and the Progressives.  To turn on BO would be suicidal.

Meeting Ted Sorenson would have been awesome.  He is the author of one of my favorite political books. 

On the larger point, I must confess to agree with you on this point.  I think the Democrats have learned from history (as it relates to in-party fighting over the presidential nomination), and will stand united behind President Obama.  This is not just the lesson learned in 1968, but also 1980 with the Carter/Kennedy divide. 

As for the Evan Bayh theory... doubtful.  He managed to upset a great number of Democrats in Indiana and elsewhere with the timing of his retirement from the Senate.  I am not sure the party insiders would support his run, pubically or monetarily.   
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