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Crafty_Dog
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« Reply #1250 on: June 22, 2015, 02:54:48 PM »

http://www.theday.com/local/20150621/for-lead-plaintiff-what-they-did-was-wrong-then-and-its-still-wrong-today
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DougMacG
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« Reply #1251 on: June 23, 2015, 09:24:01 AM »


Yes, still wrong.  Another good article on the same topic below.  Worst Supreme Court decision since Dred Scott or Roe v. Wade?  It is salt in the ironic wounds that the liberals sided with Big Pharma and then the company left the city when the preferential tax subsidies ran out.  What have we learned?  For most, NOTHING.  Along with no respect for the sanctity of life or right of privacy (see healthcare), we don't respect property rights anymore.  The Court upheld the action of a City with acted with openly preferential treatment in favor of the largest company in town and took the pink house by the water from a woman who did nothing wrong for no reason other than financial gain, and it is symbolic of nearly all that is wrong with our country and government today.  A woman's house was not her castle.  I would ask, where are the women's rights advocates when you take their income, take their home or take their right to be left alone and not have to hire lawyers to oppose the government on its every power grabbing whim?  Nowhere to be seen.



Kelo v. City of New London Ten Years... by RICHARD EPSTEIN  There has been some progress, but much is left to do. Ten years ago, on June 23, 2005, the United States Supreme Court dropped a judicial thunderbolt in Kelo v. City of New London. By a narrow five-to-four margin it rejected a spirited challenge that Susette Kelo and her neighboring landowners had raised against the ambitious land-use development plan put forward by the City of New London, Ct. The formulaic account of the holding is that a local government does not violate the “public use” component of the Constitution’s takings clause — “nor shall private property be taken for public use, without just compensation” — when it condemns property that will be turned over to a private developer for private development. Under the logic of Justice John Paul Stevens, so long as there is an indirect promised public benefit from the development process, the public-use inquiry is at an end, and Ms. Kelo can be driven out of her pink house by the water.

Ten years later, my reaction is the same as it was at the time: truly horrible. Justice Stevens and the Supreme Court were tone-deaf as to what moves people in dealing with property. Of all the cases decided since the year 2000, Kelo may not be the most important; ironically, it certainly was not the most controversial. But hands down, it was the decision that got more people indignant than any other. The bipartisan coalition in opposition was, and is, easy to identify. On the right, there are folks who think that a person’s home is his castle, and thus resent any forced displacement of individuals for the benefit of some supposed social good. And that anger doubles because of the crackpot and visionary nature of the particular plan at issue in Kelo. The communitarians on the left were upset that Pfizer, the company that was going to use the seized land for a research facility, should flex its muscles in ways that prey on individual people.

Anyone who wants to get a sense of the process would be well-advised to real Ilya Somin’s new book, The Grasping Hand, which offers a painful blow-by-blow account of how good intentions for redevelopment were so badly misdirected that ten years later the seized property remains empty. Perhaps the only nice feature about the case is that Ms. Kelo’s pink house was whisked away to another site, so that the newly vacant land can be used to collect debris that washes up on the shore. Yes, the grandiose development plans for the Fort Trumbull neighborhood never got to first base. As it turned out, New London was too slow off the mark, other communities built the ancillary facilities that Pfizer wanted, and the company pulled out of New London once the tax subsidies ran out.

 Truth be told, however, this bipartisan form of indignation cut too broadly for its own good. The same fierce objections could also be used to attack the destruction of homes to make way for a public hospital or public road. The public-use clause looks only at the purpose for which property is taken, but ordinary people also look at the other side of the equation and ask about the purpose that is deprived. Indeed, the fierce reaction to Kelo prompted lots of people to reexamine the use of eminent domain even in cases where the government’s public use, narrowly conceived, was incontrovertible. And they are right. The Constitution should not be the only restriction on the use of the takings power. It is one thing to knock someone out of a home, and quite another to tell a landlord that he is duty-bound to transfer his interest to his tenant in possession in an exchange that the state will enforce only after the tenant ponies up the cash to the state to work the condemnation. Yet this blatant violation of the public-use clause received its judicial blessing in Hawaiian Housing Authority v. Midkiff, a muddy 1984 decision in which Justice Sandra Day O’Connor concocted an indirect benefit that justified the coerced transfer — the need to eliminate supposed “oligarchy” in the Hawaiian housing market, which could have been done quite easily by opening up more restricted agricultural land to urban development. Doctrinally Midkiff was no better or no worse than Kelo, and to her credit, Justice O’Connor backed away from Midkiff in her Kelo dissent.

Yet back in 1984 the public yawned. Taking land from the Bishop Estate, a charitable trust, was, for many populists at least, a delicious prospect. The Left/Right coalition that formed in Kelo could not coalesce around the earlier case, which did not resonate with the public at large. So what should have been done in Kelo? Here the deep irony is that Justice Stevens did not have to tempt the devil. In general, my own view is that master plans are often too ambitious for their own good, much like those vaunted Soviet-style five-year plans. But often the ingredients are there. Such was evident in Kelo, where the introduction of a major $73 million subsidy from the state to the city had to be spent lest it be lost. So the impulse is to move first and think later, which is what the city did when it condemned the entire 90-acre Fort Trumbull development site before any concrete plans were in place. Remove the subsidy and perhaps New London would have been content to plan today and condemn tomorrow, when matters got closer to realization.

On the facts of that case, a possible halfway house would have been to condemn the land at the center of the development site immediately and leave the peripheral takings until later. Judicially, that is what the Connecticut trial judge decided when he spared Ms. Kelo’s plot because it was not in the path of any planned development. But hubris is in far greater supply as one moves through the court system, so that the Connecticut Supreme Court had such confidence in the city’s planners that it thought maximum flexibility was needed for effective planning. Had that court simply affirmed the decision below, Kelo would never have reached the U.S. Supreme Court and the entire incident would have faded away. Some state courts, and some state legislatures, have tried to clip the wings of the decision, but even that has been a hard battle. Yet, once it was decided, the outrage did not subside. Since that time, the Supreme Court has ducked the issue, even though some local governments have done things just as foolish and unnecessary as what the city of New London did. Some state courts, and some state legislatures, have tried to clip the wings of the decision, but even that has been a hard battle. It is difficult to get anyone to attack general planning for economic development, because sometimes in blighted communities it actually works. But “blight” can easily become a term of art, so that weeds in the garden may trigger a government takeover.

All this is not to deny that Kelo has had its effect, for surely it has, but chiefly through the medium of public opinion, which has tended to make it politically more costly for governments to condemn the property of their own citizens. It is so much easier politically to get local governments to rally support to zone out people they don’t want in their communities. Kelo was a big deal, and it will remain in the consciousness of the American public for years to come. Zoning is a bigger deal, and the same misguided progressive impulses that led to the rise of central planning on steroids are still dominant in an area that needs its own Kelo-like fiasco to get the public attention that it so richly deserves.

 — Richard Epstein is the Laurence A. Tisch Professor of Law at New York University School of Law, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, and the James Parker Hall Distinguished Service Professor of Law Emeritus and Senior Lecturer at the University of Chicago.

http://www.nationalreview.com/article/420144/kelo-eminent-domain-richard-epstein


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DougMacG
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« Reply #1252 on: June 23, 2015, 09:30:18 AM »

Big Supreme Court decisions coming very shortly, King v Burwell and the right of states to define marriage.  Predictions anyone?

I am hopeful on Burwell that the Court goes beyond merely reading the statute and strikes down all subsidies that aren't available equally to all Americans.  Is that too much to ask?

Roberts will write the Obamacare subsidy decision.  Kennedy will write the gay marriage decision.

http://www.realclearpolitics.com/articles/2015/06/22/supreme_court_bingo_how_it_might_rule.html
« Last Edit: June 23, 2015, 09:57:48 AM by DougMacG » Logged
DougMacG
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« Reply #1253 on: June 25, 2015, 01:50:29 PM »

I am sickened by Chief Justice John Roberts hypocrisy on his Obamacare rulings and by my own inability to recognize poor character before it becomes so blatantly obvious.

In the previous case, Sebelius vs America, he wrote essentially that the defects of the law could be corrected by the legislative process and therefore didn't need interference from the judicial branch.  In King v. Burwell he saw specific writing that could easily be changed by the legislative branch if they were so inclined and instead he 'fixed' it for them - making the law pretend to say what it in fact doesn't.

Roberts' drivel from his confirmation that impressed me so much at the time:

"If the Constitution says that the little guy should win, the little guy's going to win in court before me," Roberts said. "But if the Constitution says that the big guy should win, well, then the big guy's going to win, because my obligation is to the Constitution. That's the oath."

What a weasel.

Justice Scala isn't impressed either:

"We should start calling this law SCOTUScare.

The Court interprets §36B to award tax credits on both federal and state Exchanges. It accepts that the “most natural sense” of the phrase “Exchange established by the State” is an Exchange established by a State. Ante, at 11. (Understatement, thy name is an opinion on the Affordable Care Act!).

Yet the opinion continues, with no semblance of shame, that “it is also possible that the phrase refers to all Exchanges—both State and Federal.” Ante, at 13. (Impossible possibility, thy name is an opinion on the Affordable Care Act!).

I wholeheartedly agree with the Court that sound interpretation requires paying attention to the whole law, not homing in on isolated words or even isolated sections. Context always matters. Let us not forget, however, why context matters: It is a tool for understanding the terms of the law, not an excuse for rewriting them.

One begins to get the sense that the Court’s insistence on reading things in context applies to “established by the State,” but to nothing else.

On the other side of the ledger, the Court has come up with nothing more than a general provision that turns out to be controlled by a specific one, a handful of clauses that are consistent with either understanding of establishment by the State, and a resemblance between the tax-credit provision and the rest of the Tax Code. If that is all it takes to make something ambiguous, everything is ambiguous.

Perhaps sensing the dismal failure of its efforts to show that “established by the State” means “established by the State or the Federal Government,” the Court tries to palm off the pertinent statutory phrase as “inartful drafting.” Ante, at 14. This Court, however, has no free-floating power “to rescue Congress from its drafting errors.” Lamie v. United States Trustee, 540 U. S. 526, 542 (2004).

Only when it is patently obvious to a reasonable reader that a drafting mistake has occurred may a court correct the mistake. The occurrence of a misprint may be apparent from the face of the law, as it is where the Affordable Care Act “creates three separate Section 1563s.” Ante, at 14. But the Court does not pretend that there is any such indication of a drafting error on the face of §36B.

The occurrence of a misprint may also be apparent because a provision decrees an absurd result—a consequence “so monstrous, that all mankind would, without hesitation, unite in rejecting the application.” Sturges, 4 Wheat., at 203. But §36B does not come remotely close to satisfying that demanding standard. It is entirely plausible that tax credits were restricted to state Exchanges deliberately—for example, in order to encourage States to establish their own Exchanges. We therefore have no authority to dismiss the terms of the law as a drafting fumble.

Let us not forget that the term “Exchange established by the State” appears twice in §36B and five more times in other parts of the Act that mention tax credits. What are the odds, do you think, that the same slip of the pen occurred in seven separate places?

If there was a mistake here, context suggests it was a substantive mistake in designing this part of the law, not a technical mistake in transcribing it.

The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people’s decision to give Congress “[a]ll legislative Powers” enumerated in the Constitution. Art. I, §1. They made Congress, not this Court, responsible for both making laws and mending them.

This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. We must always remember, therefore, that “
  • ur task is to apply the text, not to improve upon it.” Pavelic & LeFlore v. Marvel Entertainment Group, Div. of Cadence Industries Corp., 493 U. S. 120, 126 (1989).

Even less defensible, if possible, is the Court’s claim that its interpretive approach is justified because this Act “does not reflect the type of care and deliberation that one might expect of such significant legislation.” [Citation omitted] It is not our place to judge the quality of the care and deliberation that went into this or any other law. A laenacted by voice vote with no deliberation whatever is fully as binding upon us as one enacted after years of study, months of committee hearings, and weeks of debate.

Much less is it our place to make everything come out right when Congress does not do its job properly. It is up to Congress to design its laws with care, and it is up to the people to hold them to account if they fail to carry out that responsibility.

[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.” Lynch v. Alworth-Stephens Co., 267 U. S. 364, 370 (1925).

Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.

Words no longer have meaning if an Exchange that is not established by a State is “established by the State.”

Today’s interpretation is not merely unnatural; it is unheard of.

[T]his Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence.

And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites."
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ccp
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« Reply #1254 on: June 26, 2015, 09:59:34 AM »

I do believe they should start putting affordable housing in the Hamptons, LI, Santa Monica, Ca, Lenox Hill, NYC, Palm Springs, Ca. and Palm Beach, Fl. and across the street from the White House, DC, and Georgetown, DC .

http://www.wsj.com/video/opinion-journal-is-housing-ruling-constitutional/B176E1A5-FEEF-4487-B735-6578DF528036.html
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Crafty_Dog
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« Reply #1255 on: June 28, 2015, 02:44:10 PM »

y Ian Hanchett27 Jun 2015506

CNN Senior Legal Analyst Jeffrey Toobin said that it wasn’t legal “to talk about gay people the way Justice Scalia used to talk about gay people” while recounting Scalia’s prior dissent in Lawrence v. Texas on Friday’s “CNN Newsroom.”

Toobin said Scalia’s dissent was “very different. And I think, if you want illustrations of how much the country has changed in the past decade or so, you need only look at Justice Scalia. Because in 2003, in the case of Lawrence v. Texas, he also dissented, another Anthony Kennedy opinion. And that was the case that said gay people could not be criminally prosecuted for having sex. And listen to this, what Justice Scalia wrote in 2003. He said,

‘Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.’
(MARC: What about this point?)

 I mean, really, just outward bigotry against gay people. Now, today Justice Scalia begins his dissenting opinion by saying this issue is of no particular importance to me, and the only real issue here is the democratic process, who makes the decisions, should it be the courts? Or should it be the people? Even Justice Scalia, who is the biggest social conservative on the court, he cannot talk the way he used to talk about gay people because culturally, politically, even legally, it’s simply not appropriate, and even legal in many — in ways to talk about gay people the way Justice Scalia used to talk about gay people.”

Later, during the afternoon broadcast, he stated of Scalia, “Well, you know, he has become the ‘get off my lawn’ justice. He is so angry all the time, you would think he lost every case when, in fact, the conservatives on the court, of whom he is a senior member, usually win most cases. But the healthcare case yesterday and the marriage case today have really set him off, and today, it was not so much the rhetoric about the issue, but it was the attacks on Justice Kennedy personally…was really a kind of breach of decorum that, even in the spirited dissenting opinions that the justices are known to write, was really kind of over the top.


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Crafty_Dog
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« Reply #1256 on: June 30, 2015, 11:17:14 AM »

e 29, 2015 6:49 p.m. ET
159 COMMENTS

A miserable Supreme Court term got worse on Monday when another 5-4 majority decided to rewrite the Constitution’s Elections Clause to limit legislative redistricting. We’ve deplored legislative gerrymanders as much as anyone, but that doesn’t mean our policy preference should trump the Constitution.

In 2000 Arizona voters approved a ballot measure to amend the state constitution and give a five-member commission the power to draw the map for Congressional districts. The idea was to take redistricting away from politicians who invariably use it for partisan advantage.

Good intention, but the Elections Clause says the “times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” And the legislature didn’t sanction the referendum.

Justice Ruth Bader Ginsburg nonetheless writes for the liberals and Anthony Kennedy that when the Framers wrote the word “legislature” they didn’t mean “legislature.” They meant it loosely because “the people themselves are the originating source of all the powers of government.”

The Founders weren’t perfect but they were more precise wordsmiths than the average Supreme Court Justice. For example, when they meant “the people,” they wrote “the people.” So when they wrote “the legislature,” confidence is high that they meant “the legislature.”

The majority’s ruling has “no basis in the text, structure, or history of the Constitution, and it contradicts precedents from both Congress and this Court,” Chief Justice John Roberts writes in withering dissent. The Constitution, he notes, uses the word legislature in 17 instances where it cannot possibly be interpreted to mean “the people,” and Supreme Court precedents have specified that in the Elections Clause the word legislature means “the representative body which ma[kes] the laws of the people.”

When the Constitution was written, state legislatures were given the power to choose the Senators the states sent to Washington, D.C. It took decades, and the Seventeenth Amendment, to give that power directly to voters. “What chumps!” Chief Justice Roberts writes, “Didn’t they realize that all they had to do was interpret the constitutional term ‘the Legislature’ to mean ‘the people’?”

The position of the four liberal Justices isn’t all that surprising because taking redistricting away from legislatures has become fashionable on the left now that Republicans hold the House. But Justice Kennedy’s vote rankles in particular because he has shown good judgment on election law in previous cases including 2008’s Crawford v. Marion County (upholding Indiana’s voter ID requirement), 2013’s Shelby County v. Holder (striking down the Voting Rights Act’s preclearance requirement) and 2010’s Citizens United v. FEC (invalidating a ban on corporate and union independent expenditures).

Partisan gerrymanders deserve criticism, but Justice Ginsburg’s opinion is an act of judicial invention. Like so many other rulings this term, it subordinates the Constitution’s plain language and the Court’s own precedents to a policy agenda. That does more damage to constitutional democracy than any redistricting can.
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DougMacG
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« Reply #1257 on: July 01, 2015, 08:26:59 AM »

"Chumps" is putting it nicely.
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ccp
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« Reply #1258 on: July 18, 2015, 10:30:50 AM »

http://www.jewishworldreview.com/cols/will071115.php3
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ccp
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« Reply #1259 on: July 20, 2015, 08:23:12 AM »


Justice Alito: Judicial Restraint Amidst The Court's 'Postmodern' Activism


8:04 AM, Jul 20, 2015 • By ADAM J. WHITE




 

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The liberals on the Supreme Court could not be any more obviously political than this.  Just like the DNC they share talking points and come out in synchrony:

****Justice Ruth Bader Ginsburg made news recently, when she said—bragged, it seemed—that she and her fellow liberals on the Court were going out of their way to stifle their individual voices in high-profile cases. When the liberals find themselves on the losing side of a case, she explained, they strive to sign a single dissenting opinion instead of each justice writing his or her own.

"If you want to make sure you're read, you do it together, and you do it short," she told NPR's Nina Totenberg, a longtime friend. When Totenberg asked Ginsburg why the Court's conservatives don't take a single approach, Ginsburg quipped, "next term I think you'll see some of my colleagues will be more disciplined."

Maybe the conservative justices would score more political points with such an approach. But our country would be all the worse off for it. For as things currently stand, the Court's conservative or libertarian justices are writing in such distinct voices—with such distinct principles, presumptions, and prudential judgments—that our nation's constitutional debates hardly suffer from hearing each of the conservative and libertarian justices speaking for themselves as much as possible. We all benefit from them. ****
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DougMacG
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« Reply #1260 on: August 25, 2015, 01:08:59 PM »

I posted this on immigration issues also as it is a very important question right now.  Please read and comment.  Does the constitution require amending, or was the Supreme Court wrong, or do we want non-citizens dropping babies in to anchor the new citizenship rights away from our otherwise legal, immigration process.

I don't like to hear that the WSJ Editorialists got this wrong.  Or is John Eastman wrong here?  I don't think so.  This is the interpretation that makes sense to me.

http://www.nationalreview.com/article/422960/birthright-citizenship-reform-it-without-repealing-14th-amendment

We Can Apply the 14th Amendment While Also Reforming Birthright Citizenship
 by JOHN C. EASTMAN   August 24, 2015 4:00 AM

Birthright citizenship has exploded into the national discourse. The issue is generating a lot of heat on the Republican side of the aisle in particular, because it threatens to expose the long-standing rift between the party’s base and its pro-crony-capitalism establishment.

Unfortunately, in arguing that the 14th Amendment requires citizenship for the children of illegal immigrants, some of the more prominent interlocutors are promoting an incorrect understanding of history. The Wall Street Journal’s recent editorial on the matter is a case in point, and my good friend John Yoo’s NR essay repeats one of the same basic flaws.

The first clause of the 14th Amendment provides that “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.” The Journal thinks the meaning is “straightforward”: “Subject to the jurisdiction” covers everyone born on U.S. soil (except the children of diplomats and invading armies), because “‘jurisdiction’ defines the territory where the force of law applies and to whom — and this principle is well settled to include almost everyone within U.S. borders, regardless of their home country or the circumstances of their birth.” It then states: “By the circular restrictionist logic, illegal immigrants could not be prosecuted for committing crimes because they are not U.S. citizens.”

Professor Yoo makes the same claim (absent the ad hominem word “restrictionist”): “Almost all aliens in the United States, even citizens of other nations, still fall within our jurisdiction while they are in our territory: Otherwise they could commit crimes of all sorts without fear of punishment.”

This claim plays off a widespread ignorance about the meaning of the word “jurisdiction.” It fails to recognize that the same word covers two distinctly different ideas: 1) complete, political jurisdiction; and 2) partial, territorial jurisdiction.

Think of it this way. When a British tourist visits the United States, he subjects himself to our laws as long as he remains within our borders. He must drive on the right side of the road, for example. He is subject to our partial, territorial jurisdiction, but he does not thereby subject himself to our complete, political jurisdiction. He does not get to vote, or serve on a jury; he cannot be drafted into our armed forces; and he cannot be prosecuted for treason if he takes up arms against us, because he owes us no allegiance. He is merely a “temporary sojourner,” to use the language employed by those who wrote the 14th Amendment, and not “subject to the jurisdiction” of the United States in the full and complete sense intended by that language in the 14th Amendment.

The same is true for those who are in this country illegally. They are subject to our laws by their presence within our borders, but they are not subject to the more complete jurisdiction envisioned by the 14th Amendment as a precondition for automatic citizenship. It is just silliness to contend, as the Journal does, that this is “circular restrictionist logic” that would prevent illegal immigrants from being “prosecuted for committing crimes because they are not U.S. citizens.”

Moreover, contrary to Professor Yoo’s contention, the text elsewhere in the 14th Amendment supports this distinction. Unlike the Citizenship Clause, which uses the phrase “subject to the jurisdiction,” the Equal Protection Clause bars a state from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” (Emphasis added.) The phrase “within its jurisdiction” is territorial, whereas the phrase “subject to the jurisdiction” is political.

There were no restrictions on immigration in 1868 when the 14th Amendment was being drafted and ratified, so there was no debate on whether the Citizenship Clause confers automatic citizenship on the children of illegal immigrants. But we do have debate on the analogous circumstance of Native Americans who continued to owe allegiance to their tribes. One senator — exhibiting the same confusion today exhibited by the Journal — asked Senator Lyman Trumbull, a key figure in the drafting and adoption of the 14th Amendment, whether Indians living on reservations would be covered by the clause, since they were “most clearly subject to our jurisdiction, both civil and military.”

Trumbull responded that “subject to the jurisdiction” of the United States meant subject to its “complete” jurisdiction, “not owing allegiance to anybody else.” And Senator Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean “a full and complete jurisdiction,” “the same jurisdiction in extent and quality as applies to every citizen of the United States now” — that is, under the 1866 Civil Rights Act, which the 14th Amendment was intended to codify. That act made the point even more clearly: “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” (Emphasis added.) As the debate over the 14th Amendment makes clear, the shift in language from the 1866 Civil Rights Act to what became the Citizenship Clause of the 14th Amendment was not intended to provide citizenship to the children of illegal immigrants, but rather to shift away from the “not subject to any foreign power” language out of recognition that the Indian tribes were not foreign powers but domestic (albeit dependent) powers. As Senator Howard explained, the Citizenship Clause excludes not only Indians but “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”

The leading treatise writer of the day, Thomas Cooley, confirmed this was the understanding of the 14th Amendment. As he wrote in his treatise, The General Principles of Constitutional Law in America, “subject to the jurisdiction” of the United States “meant full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.”

When the Supreme Court first addressed the Citizenship Clause in the 1873 Slaughterhouse Cases, both the majority and dissenting opinions recognized this same understanding. The majority in that case correctly noted that the “main purpose” of the clause “was to establish the citizenship of the negro” and that “the phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” (Emphasis added).

That language in Slaughterhouse was dicta (a comment not strictly relevant to the decision), but it became holding a decade later in the 1884 case of Elk v. Wilkins. The Supreme Court held in that case that the claimant — a Native American born on a tribal reservation — was not a citizen because he was not “subject to the jurisdiction” of the United States at birth, which required that he be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” Elk did not meet the jurisdictional test because, as a member of an Indian tribe at his birth, he “owed immediate allegiance to” his tribe and not to the United States. Although “Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states,” “they were alien nations, distinct political communities,” according to the Court, thereby making clear that its holding was about allegiance and not the reservation’s geographic territory. Then, drawing explicitly on the language of the 1866 Civil Rights Act from which the 14th Amendment was drawn, the Court continued: “Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more ‘born in the United States and subject to the jurisdiction thereof,’ within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.”

Professor Yoo is therefore simply mistaken in his claim that “the Supreme Court has consistently read Section One as granting birthright citizenship to the children of aliens on U.S. territory.” In fact, it has never held that the children born on U.S. soil to parents who are in this country illegally are citizens. In the 1898 case of Wong Kim Ark, the Court simply held that a child born of Chinese immigrants who were lawfully and permanently in the United States — “domiciled” here, to use the Court’s phrase — was a citizen. Language in the opinion that can be read as suggesting that birth on U.S. soil alone, no matter what the circumstances, confers automatic citizenship is pure dicta, because no claim was at issue in the case other than whether the child of lawful, permanent residents was a citizen.

Professor Yoo’s contention to the contrary overlooks the Court’s use of the word “domiciled” in describing the nature of Wong Kim Ark’s relationship to the United States. “Domicile” is a legal term of art; it means “a person’s legal home,” according to Black’s law dictionary, and is often used synonymously with “citizenship.” Wong Kim Ark’s parents were not allowed to become citizens because the U.S. had entered into a nefarious treaty with the Emperor of China that refused to recognize their natural right to emigrate, but they were “domiciled” in the United States, which is to say, lawfully present in the United States. The holding of the case, as opposed to its broader dicta, does not mandate citizenship for children born to those who are unlawfully present in the United States, and it does not even mandate citizenship for those who are visiting the United States temporarily but lawfully. In both cases, the children, through their parents, retain allegiance to their parents’ home country — to a “foreign power,” to return to the language of the 1866 Civil Rights Act. They are therefore not “subject to the jurisdiction” of the United States in the way intended by the 14th Amendment, and therefore not automatic citizens.

As I said, no Supreme Court case has held otherwise. Wong Kim Ark did not so hold. Neither did Plyler v. Doe in 1982, contrary to the Journal’s assertion; the relevant language in that case is simply a footnote for comparison with the Equal Protection Clause, and pure dicta.

Professor Yoo’s description of the debate between Senators Cowan and Conness likewise misses the point. Cowan asked whether the Citizenship Clause would confer citizenship upon the children of Chinese parents who were living in California, or the children of Gypsies living in Pennsylvania. “Have they any more rights than a sojourner in the United States?” he asked. He was attempting to draw a distinction based on race or ethnic background, not on lawful versus unlawful presence in the United States, or even on permanent versus temporary presence. It was for that reason that Conness began his reply by stating that he failed to see what relation Cowan’s question had to do with the Citizenship Clause. The 14th Amendment did not do away with sovereignty.

Conness then responded that automatic citizenship would be available to the “children begotten of Chinese parents in California” just as existed under existing law — that is, the 1866 Civil Rights Act, which extended citizenship to “all persons born in the United States, and not subject to any foreign power.” That guarantee was available no matter the ethnic background of the parents — we were not extending citizenship only to the descendants of white Europeans — but his response did not suggest that the children of those who were not lawfully present in the United States, or who were mere temporary visitors, would be automatic citizens. Indeed, Cowan’s own question — “Have [the children of Chinese or Gypsies domiciled in the United States] any more rights than a sojourner?” — demonstrates that he was also aware of the distinction between territorial and political jurisdiction. For the debate to support Professor Yoo’s position, Conness would have had to respond that even the children of sojourners would be entitled to automatic citizenship. There is not a hint in his response to suggest such an answer, nor in any other part of the entire debate.

So, truth be told, the 14th Amendment does not need to be repealed in order to fix the problem of birthright citizenship for the children of illegal immigrants. It just needs to be understood and applied correctly. The Journal’s contention that conservatives who insist upon this understanding of the law “are promising a GOP version of President Obama’s ‘illegal amnesty order’” could therefore not be further from the truth. Constitutional originalism requires that we give effect to the public meaning of the words actually used, even if the Wall Street Journal would wish the meaning were otherwise. And the Journal’s further contention that anyone who wishes to see the 14th Amendment faithfully applied is claiming “that some people are not real Americans and have no right to be,” is simply another ad hominem attack and mischaracterization not worthy of an otherwise great newspaper.

Finally, let me close with some agreement with Professor Yoo’s soaring rhetoric at the end of his piece, much of which is entirely true. Yes, “rather than being a misguided act of generosity, the 14th Amendment marks one of the great achievements of the Republican party.” And yes, “It was the Republican party that opposed Dred Scott.” And yes, “It was the Republican Party that fought and won the Civil War.” And definitely yes, “it was the Republican party that drafted and ratified the 13th, 14th, and 15th Amendments, which did away with slavery and any distinction between Americans based on race.”

But the 14th Amendment did not do away with sovereignty. It did not do away with the importance of citizenship, or with the idea, rooted in the Declaration of Independence, that legitimate governments are grounded on the consent of the governed. Birthright citizenship, as currently practiced, allows those who continue to owe allegiance to a foreign power to demand American citizenship for their children, unilaterally and as a result of their illegal conduct. Those who oppose such an abuse do not support Dred Scott. They are drawing distinctions based not on race, but on the rule of law. Professor Yoo need not worry, therefore, that applying the 14th Amendment faithfully would “discard one of the greatest attributes of American exceptionalism.” The welcome mat to American citizenship is open to anyone in the world regardless of race or ethnic background, as long as they adhere to the legal rules set out by Congress for immigration to this country.

 — John C. Eastman is the Henry Salvatori Professor of Law & Community Service and former dean at Chapman University School of Law. He also serves as the director of the Claremont Institute’s Center for Constitutional Jurisprudence.
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« Reply #1261 on: August 27, 2015, 01:26:41 PM »

A very good discussion.

I am quite busy with the sort of things that go with having been on the road for seven days, but this thread is the right place for the discussion of this issue.  May I ask that some one paste here my post of this morning on this matter (on the Immigration thread?)?
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« Reply #1262 on: August 27, 2015, 02:24:57 PM »

A very good discussion.

I am quite busy with the sort of things that go with having been on the road for seven days, but this thread is the right place for the discussion of this issue.  May I ask that some one paste here my post of this morning on this matter (on the Immigration thread?)?

   
Trump's critics are wrong about birthright citizenship
« Reply #929 on: Today at 11:54:53 AM »
Reply with quote
http://www.nationalreview.com/birthright-citizenship-not-mandated-by-constitution?utm_source=Sailthru&utm_medium=email&utm_campaign=Saturday%20Best%20of%208/22&utm_term=VDHM%20Reader

by Edward J. Erler August 19, 2015 4:00 AM Donald Trump continues to bewilder political experts. He unabashedly wades into politically dangerous territory and yet continues to be rewarded by favorable poll results. He has clearly tapped into a reserve of public resentment for inside-the-Beltway politics. How far this resentment will carry him is anyone’s guess, but the Republican establishment is worried. His latest proposal to end birthright citizenship has set off alarm bells in the Republican party. The leadership worries that Trump will derail the party’s plans to appeal to the Latino vote. Establishment Republicans believe that the future of the party depends on being able to capture a larger share of this rapidly expanding electorate. Trump’s plan, however, may appeal to the most rapidly expanding electorate, senior citizens, and may have an even greater appeal to the millions of Republicans who stayed away from the polls in 2012 as well as the ethnic and blue-collar Democrats who crossed party lines to vote Republican in the congressional elections of 2014. All of these voters outnumber any increase in the Latino vote that Republicans could possibly hope to gain from a population that has consistently voted Democratic by a two-thirds majority and shows little inclination to change. RELATED: Not Hard to Read the 14th Amendment As Not Requiring Birthright Citizenship — And Nothing Odd About Supporting Such a Reading Critics say that Trump’s plan is unrealistic, that it would require a constitutional amendment because the 14th Amendment mandates birthright citizenship and that the Supreme Court has upheld this requirement ever since its passage in 1868. The critics are wrong. A correct understanding of the intent of the framers of the 14th Amendment and legislation passed by Congress in the late 19th century and in 1923 extending citizenship to American Indians provide ample proof that Congress has constitutional power to define who is within the “jurisdiction of the United States” and therefore eligible for citizenship. Simple legislation passed by Congress and signed by the president would be constitutional under the 14th Amendment. Birthright citizenship is the policy whereby the children of illegal aliens born within the geographical limits of the U.S. are entitled to American citizenship — and, as Trump says, it is a great magnet for illegal immigration. Many of Trump’s critics believe that this policy is an explicit command of the Constitution, consistent with the British common-law system. This is simply not true. Congress has constitutional power to define who is within the “jurisdiction of the United States” and therefore eligible for citizenship. Although the Constitution of 1787 mentioned citizens, it did not define citizenship. It was in 1868 that a definition of citizenship entered the Constitution with the ratification of the 14th Amendment. Here is the familiar language: “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.” Thus there are two components to American citizenship: birth or naturalization in the U.S. and being subject to the jurisdiction of the U.S. Today, we somehow have come to believe that anyone born within the geographical limits of the U.S. is automatically subject to its jurisdiction; but this renders the jurisdiction clause utterly superfluous. If this had been the intention of the framers of the 14th Amendment, presumably they would have said simply that all persons born or naturalized in the U.S. are thereby citizens. Indeed, during debate over the amendment, Senator Jacob Howard, the author of the citizenship clause, attempted to assure skeptical colleagues that the language was not intended to make Indians citizens of the United States. Indians, Howard conceded, were born within the nation’s geographical limits, but he steadfastly maintained that they were not subject to its jurisdiction because they owed allegiance to their tribes and not to the U.S. Senator Lyman Trumbull, chairman of the Senate Judiciary Committee, supported this view, arguing that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States.” RELATED: End Birthright Citizenship Now: Barack Obama Makes the Case Jurisdiction understood as allegiance, Senator Howard explained, excludes not only Indians but “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.” Thus, “subject to the jurisdiction” does not simply mean, as is commonly thought today, subject to American laws or courts. It means owing exclusive political allegiance to the U.S. Furthermore, there has never been an explicit holding by the Supreme Court that the children of illegal aliens are automatically accorded birthright citizenship. In the case of Wong Kim Ark (1898) the Court ruled that a child born in the U.S. of legal aliens was entitled to “birthright citizenship” under the 14th Amendment. This was a 5–4 opinion which provoked the dissent of Chief Justice Melville Fuller, who argued that, contrary to the reasoning of the majority’s holding, the 14th Amendment did not in fact adopt the common-law understanding of birthright citizenship. Get Free Exclusive NR Content

Read more at: http://www.nationalreview.com/birthright-citizenship-not-mandated-by-constitution?utm_source=Sailthru&utm_medium=email&utm_campaign=Saturday%20Best%20of%208/22&utm_term=VDHM%20Reader
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« Reply #1263 on: September 09, 2015, 02:33:18 PM »

https://www.facebook.com/mikehuckabee/videos/10153243237022869/
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« Reply #1264 on: September 09, 2015, 02:43:43 PM »

second post

http://www.theblaze.com/stories/2015/09/08/princeton-prof-common-misunderstanding-of-constitution-has-led-to-serious-erosion-of-freedom/?utm_source=Sailthru&utm_medium=email&utm_campaign=Firewire%20-%20HORIZON%209-9-15%20Build-WED&utm_term=Firewire
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« Reply #1265 on: September 10, 2015, 10:24:54 AM »

 in a separation of powers case.
US President Barack Obama speaks at Macomb Community College in Warren, Michigan on September 9, 2015. ENLARGE
US President Barack Obama speaks at Macomb Community College in Warren, Michigan on September 9, 2015. Photo: mandel ngan/Agence France-Presse/Getty Images
Sept. 9, 2015 7:02 p.m. ET
142 COMMENTS

Remember all the mockery, from the media and White House, when House Republicans sued President Obama for rewriting ObamaCare without proper legislative authority? Well, what do you know, a federal judge ruled Wednesday that the House has legal standing to sue and pursue the case on the merits.

The Administration had sought to dismiss the lawsuit on grounds that this was a classic political debate between the elected branches. But Judge Rosemary Collyer ruled that the House claim that Mr. Obama had spent subsidy dollars without a clear appropriation may have created an injury that deserves a hearing. “When the appropriations process is itself circumvented, Congress finds itself deprived of its constitutional role,” the judge wrote.

This has implications well beyond ObamaCare. More than any President in decades or longer, Mr. Obama has sought to rewrite legislation that guts Congress’s Article I spending power under the Constitution. If Judge Collyer rules for the House on the merits, expect the case to go all the way to the Supreme Court in what could be a historic ruling on the separation of powers.

Congratulations to our contributor David Rivkin, who came up with the legal argument, and to Speaker John Boehner for resisting sneers from the talk-radio judiciary for going ahead. A working Constitution requires that the branches defend their own powers, and that is especially true with this lawless President.
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JOHN CASSIDY
JOHN CASSIDY 26 minutes ago

We need a political party that loves the country more than it hates the opposition.
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Daryl Reece
Daryl Reece 40 minutes ago

This is a joke.  Obama will be gone when this matter is finally adjudicated.  The ruling will become a note in a law textbook that has and will do nothing to actually help.  More pretending to do something.
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Kevin Generous
Kevin Generous 27 minutes ago

@Daryl Reece Not so ... if not overturned, this establishes a legal precedent for future scenarios where presidents will try to unilaterally re-write legislation passed by Congress.

Leaving aside the way the original Obamacare bill was passed (another travesty of procedural democracy), once a statute is passed, presidents are supposed to make sure it is "faithfully executed."  This president has taken great liberties in execution, liberties for which Congress had grounds to sue him. Successfully.


The judge's decision upholds the rule of law, the foundation of our government system.  So this is a big deal, and yet another legal smack-down of a lawless president.

One lawsuit does not turn around all the damage this man has caused.  But it is a small, important step to reestablish political equilibrium between the branches on the spending power, which is the most powerful tool Congress has.
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Kendall W. Sterling
Kendall W. Sterling 27 minutes ago

@Daryl Reece Not a joke. Even if Obama is gone, it will serve to limit future presidents in their quest for ever-more power.
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JOHN CASSIDY
JOHN CASSIDY 25 minutes ago

@Daryl Reece

Can you accept the fact that Obama does not care about you or the law?
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Phil Katauskas
Phil Katauskas 8 minutes ago

@Daryl Reece It's clearly not a joke, and I'm not so sure Obama leaving office will render it moot.  There is an exception to the mootness doctrine for issues that may be replicated and would otherwise escape judicial review.  This sounds like just such an issue.
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WILLIAM VANLEAR
WILLIAM VANLEAR 47 minutes ago

If the democrats were open to impeaching this tyrant, these problems would all be solved. Just like the law-breaking Clintons, Obama can be sure that democrats will NEVER impeach one of their own, hence court action is all that is possible.
Just be glad that there are still a few judges left that support the Constitution.
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James J Mensching
James J Mensching 35 minutes ago

@WILLIAM VANLEAR The question remains - are there any on the Supreme Court other than Alito, Thomas and Scalia?
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JOHN CASSIDY
JOHN CASSIDY 21 minutes ago

@WILLIAM VANLEAR

We have immigration laws that Obama refuses to enforce.

Instead, he goes after anyone who tries to enforce them.

He then blames republicans and calls them "haters" like he is some Justin Beiber wanna-be.

And his flock eats this stuff up.
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« Reply #1266 on: September 16, 2015, 10:02:37 AM »

THE Civil War began over a simple question: Did the Constitution of the United States recognize slavery — property in humans — in national law? Southern slaveholders, inspired by Senator John C. Calhoun of South Carolina, charged that it did and that the Constitution was proslavery; Northern Republicans, led by Abraham Lincoln, and joined by abolitionists including Frederick Douglass, resolutely denied it. After Lincoln’s election to the presidency, 11 Southern states seceded to protect what the South Carolina secessionists called their constitutional “right of property in slaves.”

The war settled this central question on the side of Lincoln and Douglass. Yet the myth that the United States was founded on racial slavery persists, notably among scholars and activists on the left who are rightly angry at America’s racist past. The myth, ironically, has led advocates for social justice to reject Lincoln’s and Douglass’s view of the Constitution in favor of Calhoun’s. And now the myth threatens to poison the current presidential campaign. The United States, Bernie Sanders has charged, “in many ways was created, and I’m sorry to have to say this, from way back, on racist principles, that’s a fact.”

Every weekday, get thought-provoking commentary from Op-Ed columnists, The Times editorial board and contributing writers from around the world.

But as far as the nation’s founding is concerned, it is not a fact, as Lincoln and Douglass explained. It is one of the most destructive falsehoods in all of American history.

Yes, slavery was a powerful institution in 1787. Yes, most white Americans presumed African inferiority. And in 1787, proslavery delegates to the Constitutional Convention in Philadelphia fought to inscribe the principle of property in humans in the Constitution. But on this matter the slaveholders were crushed.

James Madison (himself a slaveholder) opposed the ardent proslavery delegates and stated that it would be “wrong to admit in the Constitution the idea that there could be property in men.” The Constitutional Convention not only deliberately excluded the word “slavery,” but it also quashed the proslavery effort to make slavery a national institution, and so prevented enshrining the racism that justified slavery.

The property question was the key controversy. The delegates could never have created a federal union if they had given power to the national government to meddle in the property laws of the slave states. Slavery would have to be tolerated as a local institution. This hard fact, though, did not sanction slavery in national law, as a national institution, as so many critics presume. This sanction was precisely what the proslavery delegates sought with their failed machinations to ensure, as Madison wrote, that “some provision should be included in favor of property in slaves.” Most of the framers expected slavery to gradually wither away. They would do nothing to obstruct slavery’s demise.

The South did win some concessions at the convention, but they were largely consolation prizes. The notorious three-fifths clause tied slaveholding to political power, but proslavery delegates, led by South Carolinians, repeatedly pressed for slaves to be counted as full persons, which Charles Pinckney professed was “nothing more than justice.” They finally conceded to the three-fifths compromise. Over time, the congressional bulwark of the slave power became the Senate, where the three-fifths rule did not apply.

The proslavery delegates desperately wanted the Constitution to bar the national government from regulating the Atlantic slave trade, believing it would be an enormous blow against slavery. The first draft of the Constitution acceded to their bluster. But antislavery Northerners erupted in protest and proposed that the new government have the power not only to regulate the trade but also to abolish it after 1800. The proslavery men, over Madison’s furious objection, got the date extended to 1808, but it was a salvage operation.




In the convention’s waning days, proslavery delegates won a clause for the return of runaway slaves from free states. Yet the clause was a measure of slavery’s defensiveness, prompted by then landmark Northern gradual emancipation laws, and was so passively worded that enforcement was left to nobody, certainly not the federal government. Antislavery Northerners further refined the wording to ensure it did not recognize slaves as property.

As slavery was abolished throughout the North and as Southern slavery became an internal empire, proslavery advocates tried to reverse the framers’ work, claiming that, with the fugitive servant clause, the Constitution actually established slaves as property in national law. “[H]ave we not a right, under the Constitution, to our property in our slaves?” Senator Calhoun declared in 1840. This became the foundation for proslavery arguments about the expansion of slavery into the national territories that divided the nation in the 1850s.

Antislavery leaders answered with chapter and verse that the framers had refused to extend a constitutional right to property in slaves, and that therefore Congress was empowered to halt slavery’s expansion, putting slavery, in Lincoln’s phrase, on “the course of ultimate extinction.” Douglass broke with those abolitionists who, he said, “hold the Constitution to be a slaveholding instrument.” Running for president in 1860, Lincoln asserted that the framers had operated “on purpose to exclude from the Constitution the idea that there could be property in man.” He added that “[t]o show all this is easy and certain.” It was so well understood in 1860 that it provoked the Civil War.

Far from a proslavery compact of “racist principles,” the Constitution was based on a repudiation of the idea of a nation dedicated to the proposition of property in humans. Without that antislavery outcome in 1787, slavery would not have reached “ultimate extinction” in 1865.
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« Reply #1267 on: December 15, 2015, 09:02:38 AM »

Ah, but despite the image they attempt to cultivate, they do not defend the constitutional rights of everyone, just those that fit their leftist agenda.

Lefties like Limbaugh and Nazis.  

The Nationalsozialistische Deutsche Arbeiterpartei aka National Socialist German Workers' Party aka the Nazi party was pretty darn socialist and was praised by the American Communists that the ACLU sprang from until the Soviet-Nazi alliance fell apart.

The ACLU defending Limbaugh was a pretty clever gambit, was it not? Or do you think it was motivated by something other than a desire to cultivate the facade that the ACLU is a non-partisan defender of civil rights?

http://hotair.com/archives/2015/12/09/aclu-hey-sure-lets-strip-constitutional-rights-without-due-process/

ACLU: Hey, sure, let’s strip constitutional rights without due process!
POSTED AT 2:01 PM ON DECEMBER 9, 2015 BY ED MORRISSEY

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Defenders of the ACLU argue that all Americans should support the group’s efforts to defend civil liberties and protect the Constitution. Critics respond that the ACLU spends its time defending the parts of the Constitution it likes, but otherwise it’s not terribly interested and sometimes outright hostile. That’s especially true for the right to bear arms — and perhaps for the 6th and 7th Amendments, too:

The American Civil Liberties Union sees no constitutional problem with preventing people on the watch list from buying guns, for example. But the means by which they are placed on the list, and their options for clearing their names, must be more transparent.

Congress recently voted down legislation to prohibit those on terrorism watch lists from buying firearms. President Barack Obama backed the effort in an Oval Office speech on Sunday night.

The legislative fight prompted contretemps from some leading voices of the intellectual left that had, until recently, warned of terrorism watch lists’ fundamental constitutional problems.

“There is no constitutional bar to reasonable regulation of guns, and the No Fly List could serve as one tool for it, but only with major reform,” said Hina Shamsi, director of ACLU’s National Security Project, in an emailed statement.
Er, what? The issue here isn’t whether government can legislate “reasonable regulation of guns,” but whether the government can suspend constitutional rights without abiding by the Bill of Rights.

The no-fly list is by its nature merely a collection of people whom the government suspects of criminal activity. The only major reform possible would be to actually charge these suspects and prove their case in court, which would make any “list” irrelevant. When it comes to suspending a right explicitly provided in the Constitution — not just access to airlines — the government should have to comply with the due-process restrictions in the Constitution as well. That includes the 6th and 7th Amendments protections of a trial by jury and the right to see all of the evidence and confront all of the witnesses the government uses to propose denying those rights.

Let’s put this in a different context. The ACLU likes to point out that it defends unpopular positions by reminding people of their defense of the National Socialist Party of America’s (NSPA, a neo-Nazi group) right to peaceably assemble in Skokie, Illinois and march with swastikas in an attempt to humiliate the significant Jewish community there. Would the ACLU have switched sides if the government had argued that their secret list of potential domestic-terrorism threats included the NSPA’s leadership and/or several members who would be expected to participate (certainly a possibility), and therefore they had to be restrained from peaceable assemblies as guaranteed by the First Amendment? If not, how is this position any different? Part of the city’s argument in that case was that violence would be likely to occur, so it was also a question of public safety — and yet the ACLU correctly  stood on the side of the Constitution.

Or, let’s use an example closer to today. France shut down three mosques last week (Jazz will have more on this later today), based on “a pattern of radicalization.” Will the ACLU cheer that action in the US if the government claims that the leaders and/or the followers in a mosque are on the no-fly list but never charge anyone in relation to that? What kind of “major reform” of the no-fly list would make them support its use in closing down mosques … or synagogues … or churches? For “public safety” and/or “national security”? If none short of a public trial that again would make a “list” irrelevant anyway, then why would they support its use for denying other constitutional rights?

When it comes to the Second Amendment, not only can’t the ACLU be bothered to defend it (and due process guarantees of the 6th and 7th Amendments), they’re willing to torpedo the right to bear arms. It’s that kind of hypocrisy that generates animosity toward the ACLU, and reveals them to be not civil-liberties champions but an activist group for progressive causes.

Basically, the ACLU is endorsing a Precrime Division in federal law enforcement, for those who saw the film Minority Report. In my column today for The Week, I reference the film in arguing that not only is this approach an affront to the Constitution and due process, it’s also a complete non-sequitur when it comes to public safety:

Nothing requires the federal government to actually charge people on this list. Nor are there requirements to remove people even if they have been acquitted of charges relating to terrorism, as The Intercept discovered when they acquired the procedure manual for the no-fly list. “The rulebook justifies this by noting that conviction in U.S. courts requires evidence beyond a reasonable doubt, whereas watchlisting requires only a reasonable suspicion,” Jeremy Scahill and Ryan Devereaux reported. “Once suspicion is raised, even a jury’s verdict cannot erase it.”

The courts have stepped in to stop this process. In June 2014, a federal judge ruled the process unconstitutional, a violation of the Fifth Amendment rights. Now Obama and his fellow Democrats want to use this unconstitutional process to deny Second Amendment rights too, and apply it to people who have never been charged or even perhaps questioned about the risk they supposedly represent.

And for what purpose? Which of the terrorist attacks cited by Obama in his speech — which included two he had never before acknowledged as such, the Fort Hood shooting and the Chattanooga attack on a military recruiting office — would a no-fly gun ban have prevented? None of them. None of the suspects were on the no-fly list. Farook and Malik flew last year with no problems, and Fort Hood terrorist Nidal Hasan was still in the Army. In fact, even after Russia warned the FBI about Boston Marathon bomber Tamerlan Tsarnaev in 2011, the U.S. allowed him to fly to Russia and back in 2012.

In other words, the no-fly list is not just unconstitutional, it’s also a red herring. Democrats want to change the subject from the failure of this administration to prevent these attacks. When government feels the need to strip Americans of their constitutional rights — including the right to bear arms — they should prove their case in court while allowing for full due process. That is precisely why our founders wrote the Constitution in the first place: to protect a free people against the whimsy of tyrants. And it doesn’t take a soggy precog to predict that the threat won’t stop with the Second Amendment, either.
It doesn’t take a soggy precog to predict the ACLU’s position on this, either.

Update: My good friend and guest blogger Gabriel Malor asks a fair question:


The ACLU argued that they want due process protections added too, but that gets things backward. A no-fly list, even with opportunities to challenge one’s status and gain removal, still operates as a guilty-until-proven innocent mechanism. Furthermore, even assuming one gets to challenge this and cross-examine witnesses (which doesn’t seem likely), it would still be a citizen suing to regain his constitutional right that was taken from him without a government conviction. And what would be the evidentiary level needed to restore one’s rights? Preponderance? Reasonable doubt? In which direction?

The only legitimate method for denying an explicit and foundational constitutional right is for the government to go to court and establish the facts beyond a reasonable doubt first, allowing the accused all of the protections that the Bill of Rights and precedent allow in prosecutions. And once you have that, what purpose does a no-fly list serve at that point? The no-fly list wouldn’t be the basis on which to deny any rights at all; a court decision would be that basis. And that should be the only basis on which to deny those rights.
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« Reply #1268 on: December 29, 2015, 09:17:45 AM »

Not a Constitutional case here, but it is about civil forfeiture, a subject of proper interest to this thread:

WSJ


Dec. 28, 2015 6:41 p.m. ET
37 COMMENTS

There’s plenty not to like in Washington’s recent budget bill, but there’s also encouraging news on property rights and the rule of law. Thanks to a reallocation of funds in the federal budget, the Department of Justice has been forced to stop rewarding state and local cops for seizing the assets of private citizens. In a December 21 letter to law enforcement agencies, Kendall Day of the Criminal Division wrote that the Department is going to defer all “equitable sharing payments.”

This isn’t about seizing ill-gotten gains. The disturbing trend among law enforcers has been to seize assets from people who have never been found guilty. We’ve written about the Institute for Justice’s campaign to help people caught in the net of federal “structuring” laws. Small deposits are taken as proof by the IRS that a business owner is keeping each one under $10,000 to avoid bank reporting requirements. But often the depositors aren’t criminals; they simply don’t want to hold cash. So the government seizes it until they can hire attorneys to prove their innocence.

The feds have also been sharing the seized assets with state and local law enforcers for helping to separate citizens from their property. Even if an activity wasn’t illegal under local law, the locals could still get a cut under the federal “equitable sharing” program. Yes, this is bad for seizure victims. But also for setting enforcement priorities. Local police are supposed to serve their communities, not chase federal payouts to pad their budgets.

Mr. Day also noted that the government “remains committed to the Program” and will look to restart it. Congress should make sure that never happens.
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Crafty_Dog
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« Reply #1269 on: December 29, 2015, 05:26:47 PM »

second post:

https://www.washingtonpost.com/news/the-watch/wp/2014/07/25/rand-paul-introduces-bill-to-reform-civil-asset-forfeiture/
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Crafty_Dog
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« Reply #1270 on: January 25, 2016, 11:31:23 AM »

Hat tip to BBG

http://reason.com/archives/2016/01/24/revisiting-the-us-constitution
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ccp
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« Reply #1271 on: January 26, 2016, 07:40:45 AM »

http://www.jewishworldreview.com/cols/will012316.php3
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Crafty_Dog
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« Reply #1272 on: January 26, 2016, 12:16:24 PM »

Excellent find, a serious article well worth the time.
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« Reply #1273 on: February 11, 2016, 02:54:51 PM »

Taking the Profit Out of Police Work
Abolishing civil-asset forfeiture strengthens the authority of prosecutors and protects innocent property owners.
WSJ
By Brad Cates
Feb. 10, 2016 6:50 p.m. ET
48 COMMENTS

New Mexico has become a leader in criminal-justice reform by passing a state law that abolishes civil-asset forfeiture and strengthens the authority of prosecutors to seize assets from convicted criminals. Now Virginia, Oklahoma, New Hampshire and other states are considering similar legislation to protect private citizens from the pitfalls of “policing for profit.”

Signed by Gov. Susana Martinez in April 2015, New Mexico’s law also requires that all assets seized from convicted criminals be deposited into the state treasury rather than kept by the state or local law-enforcement agency that seized the assets. Ms. Martinez, an attorney and former prosecutor, explained that the law would “improve the transparency and accountability of the forfeiture process and provide further protections to innocent property owners.” Such reforms are important because they remove the profit motive for law enforcement. Many agencies are able to spend the funds they seize directly or in conjunction with federal officials.

During the Reagan administration I helped establish these programs because I believed they would quickly channel seized criminals’ profits into the fight against organized crime and drug cartels. Yet over time we have created a new bad incentive: policing for profit, out of the reach of the proper legislative budget process.

The amount of money at stake has exploded. In 1986 the Justice Department’s Assets Forfeiture Fund took in $93.7 million. By 2014 it was $4.5 billion, according to an extensive study published by the Institute for Justice. Moreover, the study concluded that most jurisdictions “force innocent property owners to prove their innocence in order to recover property.”

In the early 1980s, the Justice Department exacerbated the problem of policing for profit when it launched its “equitable sharing” program directing portions of its seized assets back to state and local law enforcement, giving them an incentive to assist with seizures and bypassing many state-level efforts to rein in these direct funding streams.

In January 2015, the Justice Department temporarily suspended the “sharing” program. But nationwide these seizures continue. In Oklahoma, for example, the average amount of cash seized by police is $1,200, while the average cost of hiring an attorney to reclaim that money is $5,000, according to an investigative report by Oklahoma Watch.

Defenders of civil-asset forfeiture programs argue that it’s an effective crime-fighting technique, especially when dealing with drug trafficking. But that doesn’t make up for the fact that, according to the Institute for Justice study, just 13% of Justice Department forfeitures from 1997-2013 were criminal forfeitures, while 87% were civil forfeitures.

Federal civil-forfeiture law has a 200-year history of use to seize vessels and assets owned by foreign or unknown entities located outside of the U.S. In this age of international terrorism and drug trafficking, such federal use is still justified. But states taking assets from untried individuals who are easily summoned before the courts is unconscionable.

Considering the intertwined financial incentives, reform must happen at both the state and federal level. States and the federal government can look to what New Mexico had done as a template for broad-based action. Three decades ago I helped create our civil-asset forfeiture system; now it is time to end it.

Mr. Cates, an attorney in New Mexico, was the director of the Justice Department’s Asset Forfeiture Office (1985-89).
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