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Issues in the American Creed (Constitutional Law and related matters)
Topic: Issues in the American Creed (Constitutional Law and related matters) (Read 150413 times)
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #100 on:
December 03, 2009, 10:13:58 PM »
"I shouldn't need to shred everything when I pay a private company to dispose of it."
But you do.
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #101 on:
December 04, 2009, 12:37:58 AM »
Tweakers and other vermin love people that don't shred using a crosscut shredder. Buy a good one and USE it before you get a harsh lesson in identity theft.
WSJ: Separation of powers case
Reply #102 on:
December 04, 2009, 07:11:46 AM »
Congress wants to wallop business with even more regulation in the wake of the financial panic, but perhaps the Members should pause on Monday and visit the Supreme Court. The Justices will hear arguments on whether major portions of the last great Congressional overreaction, the 2002 Sarbanes-Oxley Act, are constitutional.
Free Enterprise Fund v. Public Company Accounting Oversight Board was brought in 2006 by Brad Beckstead, whose small Nevada accounting firm endured a costly examination under Sarbox rules. At issue is whether the Public Company Accounting Oversight Board, or PCAOB, which supervises compliance with the law, violates the Constitution's separation of powers. Under the Appointments Clause, all "officers" of the United States must be appointed by the President and accountable to him—a condition PCAOB members do not meet.
The board's five members are instead hired by the commissioners of the Securities and Exchange Commission, who are appointed by the President. This arrangement passed muster in a 2-1 decision by the D.C. Circuit Court of Appeals, on the dubious grounds that the members were "inferior officers" and accountable to the President through the SEC. Never mind that they are not "directed and supervised" by the SEC, the traditional requirement for inferior officers.
The dissenter on the D.C. Circuit panel, Judge Brett Kavanaugh, called the case the most important separation of powers case in 20 years and said the appeals court had created a constitutional hash. Though the PCAOB "performs numerous regulatory and law enforcement functions at the core of the executive power," he wrote, for the first time in U.S. history we have "an independent agency whose heads are appointed by and removable only for cause by another independent agency."
The PCAOB has indeed grown as a politically unaccountable entity with vast power to regulate business. Texas Senator Phil Gramm warned at its creation that Congress was setting up a board with "massive unchecked power" to "make decisions that affect all accountants and everybody they work for, which directly or indirectly is every breathing person in the country."
Massive is the right word. The accounting board's wide-open mandate—to make whatever rules "may be necessary or appropriate in the public interest or for the protection of investors"—has cost the economy nearly $1 trillion, according to a study by AEI and the Brookings Institution. The benefit is supposed to be investor protection. But despite these costs, the law did nothing to warn about the meltdown of mortgage-backed securities, much less expose Bernie Madoff or other fraudsters.
These realities contributed to the welcome 37-32 November vote in the House Financial Services Committee to exempt small businesses from section 404b of Sarbox, which governs audit requirements. Sponsored by Democrat John Adler and Republican Scott Garrett, both of New Jersey, the provision was supported by the Obama Administration and 10 Democrats joined Republicans in support.
As the Supremes now take their turn, the case has implications the regulation-loving press corps hasn't noticed. A decision to uphold the PCAOB would open the door for Congress to create any number of equally unaccountable regulators across the economy. However, a ruling against the PCAOB could bring down the whole law because Sarbox does not have a "severability clause," which means that if one part goes down the entire law may be invalidated.
Debates over the Appointments Clause haven't typically divided the Supreme Court along liberal and conservative lines, so the outcome is hard to handicap. As Hans Bader and John Berlau of the Competitive Enterprise Institute point out, in the 1995 case Ryder v. United States, the High Court ruled unanimously that "an individual or firm disciplined by a government agency can challenge that discipline if agency officials were improperly appointed."
At stake here isn't merely a poorly written law that has done great economic harm. The issue is whether Congress, in its haste, can ignore the Constitutional order that has ensured accountable government for 230 years.
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #103 on:
December 04, 2009, 08:59:11 AM »
GM you are right about shredding. My volume of paperwork is overwhelming; I think I will go back to separating personalized paperwork, including a lot of junk mail, from the trash and burning it in the occasional home campfire. Unfortunately all that extra effort doesn't save me from the larger identity risks out there. Almost every bank in North America already knows my mother's maiden name. If I ever forget it, I can probably buy a used hard drive on eBay and just look it up.
The bank gets my info because I want/need their service and thus agree to their terms. What about car insurance companies? I prefer self insurance but do business with them by government mandate. But I choose to drive on a public street and need to pay by automatic means to be punctual so that makes it consensual. Then comes health care. Rhetorical, but why do they get to know everything? Now comes the mandate. Even if I refuse to be treated I need to 'buy' the policy and disclose all info including health, financial, credit and behaviors. If you have taken a kid in for a checkup lately you have been asked if there are guns in the house, among other things.
We need a resurgence in privacy. Not from law enforcement when a crime was committed, but for just living and going about your business when you are not harming someone else.
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #104 on:
December 04, 2009, 09:15:41 AM »
I really don't know the legislative remedy for that.
The used hard drive line was funny, btw.
Useful or Anonymous, Not Both
Reply #105 on:
December 04, 2009, 09:22:51 PM »
Some context where data harvesting is concerned. It doesn't take much to put innocuous looking stuff together:
Where Everybody Knows Your Name
What do AOL customers, Netflix subscribers, and abortion seekers in Oklahoma have in common? Hacking their identities is a cinch.
Katherine Mangu-Ward | December 4, 2009
We're all part of a huge, ongoing statistics project. Mostly, we become a part of various data sets anonymously, without even knowing it—as sales figures for Guitar Hero, traffic patterns on I-95, or levels of cocaine in an urban sewer system.
But there's another kind of data that gets released into the wild with increasing frequency: researcher bait. Netflix made its user-generated rating database publicly available as part of a prize competition designed to improve the site's movie recommendations. Three years ago, America Online released several months of search query information, just as a nice gesture to researchers. In both cases, the names and other obvious identifying information were removed before the data was set free.
Last month, Oklahoma set out to contribute a new mass of data to the world. New reporting requirements on abortion would have dumped a massive amount of information into a public database, available on the state government's website. The new laws require doctors to collect and report information about every abortion in the state, including the mother's age, marital status, race, number of children, education level, the mother’s relationship to the father, the reason for the abortion, the cost, and method of payment. The form contains 37 questions, most with several subsections. The names and addresses of the women would have been omitted, though her zip code was part of the information to be disclosed.
But as it turns out, taking your name off of something doesn't mean your fingerprints aren't all over it. Even when obvious identifying information is stripped from a large data set, personal identities can often be cracked by a geek with time on his hands.
Geeks like Arvind Narayanan and Vitaly Shmatikov, to be specific, who broke the anonymity of the Netflix set by comparing the dates of specific rankings with similar rankings on the popular Internet Movie Database, where users reveal personal information in public profiles. The vulnerability of the AOL database so horrified researchers that they have mostly left the set alone, tempting though that juicy data is. For a taste of the kind of revelations from that "anonymized" set, check out what this guy was up to:
17556639 how to kill your wife
17556639 how to kill your wife
17556639 wife killer
17556639 how to kill a wife
17556639 dead people
17556639 pictures of dead people
17556639 killed people
17556639 dead pictures
17556639 dead pictures
17556639 dead pictures
17556639 murder photo
17556639 steak and cheese
17556639 photo of death
17556639 photo of death
17556639 dead people photos
17556639 photo of dead people
17556639 decapatated photos
17556639 decapatated photos
17556639 car crashes3
17556639 car crashes3
17556639 car crash photo
Searches for just a couple of addresses or phone numbers along with that astonishingly evocative list of murder-related searches and user 17556639 is in the bag. In 2000 then-graduate student Latanya Sweeney sliced and diced U.S. Census data and found that 87 percent of the population can be identified using only their date of birth, zip code, and gender.
This fall, Paul Ohm of the University of Colorado Law School published a study on the "surprising failure of anonymization." He writes that we have "labored beneath a fundamental misunderstanding, which has assured us much less privacy than we have assumed. This mistake pervades nearly every information privacy law, regulation, and debate, yet regulators and legal scholars have paid it scant attention."
As Ohm notes, while the tech community has become very aware of the privacy issues surrounding large data sets over the last several years—Google has fought off broad government subpoenas demanding search queries, even though the feds weren't asking for personal information about users—Oklahoma state legislators don't seem to have gotten the memo. And it's safe to assume that federal legislators will suffer from the same problem. For now, the Oklahoma rules are on hold while a court considers a challenge to the law. The hearing was postponed this week, after a second judge recused herself from the case. But this won't be the last time courts have to consider the viability of laws like Oklahoma's. And as the federal government gets more involved with health care, the feds will be looking for ways to get more bang for their regualtory buck. One of the likely results: More disclosure mandates, so that we can all be part of the great, ongoing statistics project whether we like it or not.
There's an old(ish) adage that the Internet treats censorship as a malfunction, and routes around it. There's a corollary for online data, voiced by Sweeney, now of Harvard’s Center for Research on Computation and Society, who has said that “data tend to flow around and get linked to other data.” Stripping out information about names and addresses isn't enough to keep data secure. Digital data sets don't stay isolated. And as Ohm notes, this illustrates a central reality of data collection: "Data can either be useful or perfectly anonymous but never both."
Katherine Mangu-Ward is a senior editor at Reason magazine.
Forfeiture's Tenfold Increase
Reply #106 on:
December 04, 2009, 09:30:30 PM »
Cash-Strapped Police Departments Find New Source of Revenue: Stealing!
Radley Balko | December 4, 2009
But under the color of law, of course. All thanks to the wonderful world of asset forfeiture.
The way Krista Vaughn sees it, Wayne County fined her $1,400 even though police and prosecutors admit she broke no laws.
Vaughn, who has no criminal record, was required to pay for the return of her car, which was seized by police after they mistook Vaughn's co-worker for a prostitute. Even though prosecutors later dropped the case, Vaughn still had to pay.
Her story is not unusual. In Wayne County, law enforcement officials regularly seize vehicles without levying charges -- even in cases in which they later concede no law was broken. The agency provides perhaps the most prolific and egregious example of what critics contend is the wrongful use of laws allowing the seizure of private property.
It's a practice that's paying off. The Wayne County Sheriff's Office, which helps run the prosecutor's forfeiture unit, took in $8.69 million from civil seizures in 2007, more than four times the amount collected in 2001. The Wayne County Prosecutor's Office gets up to 27 percent of that money.
The article is part of a Detroit News series on an explosion in forfeiture cases in and around the crumbling city. From an earlier article in the series:
"We're trying to fight crime," said Police Chief Mike Pachla of Roseville, where the money raised from forfeitures jumped more than tenfold, from $33,890 to $393,014.
"We would be just as aggressive even if there wasn't any money involved."
Roseville had among the most dramatic increases over the five-year period examined by The News. But several other agencies also more than doubled their takes, including Novi, Trenton, Farmington Hills, Southfield, the Michigan State Police, Shelby Township, Livonia, Warren and Romulus.
The increase in money coming in leads to a higher percentage of the police budget being covered by seizures. In Roseville, the share of the police budget raised from forfeitures went from 0.3 percent to 4.2 percent. In Romulus, it jumped from 4.5 percent to 11.2 percent from 2003-2007, the most recent years for which comparable records were available.
I have a feature on asset forfeiture coming in the February 2010 issue of Reason. Forfeiture critics I interviewed for the article say there's good reason to think laws that send forfeiture proceeds back to prosecutor offices may be unconstitutional. Whereas police only make the initial seizure, prosecutors actually make the policy decision of determining which cases to take. Dicta in prior U.S. Supreme Court cases indicates the Court may find due process problems with those same offices then materially benefiting from those decisions.
The Civil Asset Forfeiture Reform Act of 2000 quelled a lot of the debate on this issue. But that law only applies to federal police agencies. Most of the more egregious forfeiture cases now happen at the state and local level.
In September I wrote a column on Alvarez v. Smith, the forfeiture case that will be decided early next year by the Supreme Court. That case is a challenge to a provision in the Illinois forfeiture laws that allow police to keep seized property a year or more before a claimant can have his day in court to get it back. This is particularly harsh on low-income people who may rely a seized car to get to work, or to shuttle kids around.
It's worth noting that Obama's Justice Department filed an amicus brief on behalf of the state in that case. They weren't obligated to. Though the solicitor general's office is charged with defending all federal laws, the law at issue in Alvarez is a state law, not a federal one. In fact, federal civil forfeiture laws are much friendlier to property owners. So you could make a decent case that the administration could have argued against the Illinois law. At the very least, it could have kept quiet. Instead, it argued that the state should retain the power to take property from people without ever charging a crime (and not necessarily kingpins—the Illinois law in question applies only to property valued at under $20,000), and keep that property for a year or more before affording the owner a chance to get it back.
Taking property from poor people without due process of law in order to enrich local police departments. Seems like the sort of thing Barack Obama might have fought to change in his days as a community organizer.
Time for a 28th Amendment:
Reply #107 on:
December 07, 2009, 10:26:35 AM »
I'm down with this. Tired of these pompous fools exempting themselves from all they foist:
Poll: Is it time to pass a 28th Amendment to the U. S. Constitution?
December 7, 2:40 AM
Fort Worth Christianity & Culture Examiner
"I do not believe that the Constitution was the offspring of inspiration, but I am satisfied that it is as much the work of a Divine Providence as any of the miracles recorded in the Old and New Testament." ~ Benjamin Rush *
What is the Constitution?
The Constitution of the United States is the most important document in United States history following the Declaration of Independence. It was signed September 17, 1787 by George Washington, James Madison, Alexander Hamilton, Benjamin Franklin and thirty-five (35) others with "the Unanimous Consent of the States" in order to "establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty" for "We the People of the United States."
The Constitution establishes the legislative powers that govern our nation via Congress "which shall consist of a Senate and House of Representatives." It also establishes the power of the President, Vice-President, all civil officers, the Supreme Court, and how each State and it's citizens shall be governed by those powers.
Just two years later in 1789 the Bill of Rights was established "in order to prevent misconstruction or abuse of its powers" by adding ten (10) Amendments to the Constitution. Over the next 200+ years, seventeen (17) more Amendments have been added for a grand total of twenty-seven (27) Amendments. These include such notable favorites as the 22nd Amendment which limits a President to no more than two (2) terms, and the 26th Amendment (Passed by Congress March 23, 1971; Ratified July 1, 1971) which allows citizens the right to vote at age eighteen (18).
Time for a New Amendment?
Now there is a new idea circulating amongst U.S. citizens on the internet: A 28th Amendment to the Constitution. It has sprung out of a very real need for the politicians in Washington D.C. to have the same rights and privileges as the people they represent. No more and no less.
It only makes sense that those men and women, who are a mere sampling of the people they represent, be United States citizens who are subject to all of the same laws and rules under which United States citizens live.
Therefore the 28th Amendment could read as such:
"Congress shall make no law that applies to the citizens of the United States that does not apply
equally to United States Senators and those of the House of Representatives; likewise, Congress
shall make no law that applies to the Senators or Representatives that does not apply equally to
the citizens of the United States."
How This Concept could be Applied
In relation to such controversial topics as Government-run health care, we need not fear that our elected officials will pass into law that which they themselves have not approved out of due diligence for themselves and their loved ones. And if by law our elected officials are entitled to health care for the rest of their lives, we their fellow citizens can be assured that we will too shall receive the same health care for the rest of our lives.
Sticking to our Principals
If we still operate under the principals of our Declaration of Independence and believe "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed", then whatever power these Government officials have, that power is derived from us, those who are governed, and we acknowledge that these officials are equal, not inferior or superior to us.
So for those who ascribe to the concept that some people are more equal than others, this 28th Amendment to the Constitution will help to ensure it simply is not so - at least, not here in America.
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #108 on:
December 07, 2009, 11:00:03 AM »
Makes sense to me.
Reply #109 on:
December 14, 2009, 09:19:15 AM »
An exhibit in the legal reasoning of liberal fascism from todays Pravda on the Hudson-- the New York Times:
Eminent Domain in New York Sign in to Recommend
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A New York State appellate court has misguidedly put a roadblock in the way of Columbia University’s expansion plans, ruling that the state misused eminent domain to help Columbia assemble the land it needs. This decision conflicts with the relevant law and will make it much harder for the university to move ahead with a project that would benefit the surrounding neighborhood and the entire city.
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Times Topics: Columbia University | Eminent DomainColumbia is outgrowing its Morningside Heights campus and is planning a major expansion north into West Harlem that would include school buildings, laboratories and publicly accessible open space. It would allow the school to better pursue its important missions of education and research. It would also provide the community with jobs and amenities, including widened, pedestrian-friendly streets and space for local artists.
To secure enough land, the university is relying in part on the Empire State Development Corporation’s eminent domain power, compelling holdout commercial property owners to sell. Several of the holdouts sued, arguing that the use of eminent domain was illegal.
In a weakly reasoned decision, the Appellate Division of the State Supreme Court agreed, by a 3-to-2 vote. The majority took the peculiar position that there is no civic purpose behind Columbia’s decision to expand.
The decision is completely out of step with eminent domain law, including a recent 6-to-1 decision from the New York State Court of Appeals, the state’s highest court. That court ruled that Brooklyn’s Atlantic Yards, a commercial development, can use eminent domain to secure land to build new housing and a basketball arena for the Nets. That was the right decision, and the case for Columbia is even stronger.
The civic purpose in the Columbia expansion is clear, given the contributions it would make to education, the job market and community life. The Empire State Development Corporation also made a thoroughly defensible decision that eminent domain was appropriate given the blighted condition of the land at issue, between 125th and 133rd Streets near the Hudson River.
The university says it intends to move forward on a center for interdisciplinary neuroscience, which would be built on land it already owns. But it is regrettable that much of the project is now stalled. The Court of Appeals should hear the case on an expedited schedule and reverse the Appellate Division’s ruling.
Did Obama exempt Interpol from same legal constraints as American law-enforcemen
Reply #110 on:
December 23, 2009, 02:13:39 PM »
Did Obama exempt Interpol from same legal constraints as American law-enforcement?
posted at 2:55 pm on December 23, 2009 by Ed Morrissey
During his presidency, Ronald Reagan granted the global police agency Interpol the status of diplomatic personnel in order to engage more constructively on international law enforcement. In Executive Order 12425, Reagan made two exceptions to that status. The first had to do with taxation, but the second was to make sure that Interpol had the same accountability for its actions as American law enforcement — namely, they had to produce records when demanded by courts and could not have immunity for their actions.
Barack Obama unexpectedly revoked those exceptions in a change to EO 12425 last month, as Threats Watch reports:
Last Thursday, December 17, 2009, The White House released an Executive Order “Amending Executive Order 12425.” It grants INTERPOL (International Criminal Police Organization) a new level of full diplomatic immunity afforded to foreign embassies and select other “International Organizations” as set forth in the United States International Organizations Immunities Act of 1945.
By removing language from President Reagan’s 1983 Executive Order 12425, this international law enforcement body now operates – now operates – on American soil beyond the reach of our own top law enforcement arm, the FBI, and is immune from Freedom Of Information Act (FOIA) requests. …
After initial review and discussions between the writers of this analysis, the context was spelled out plainly.
Through EO 12425, President Reagan extended to INTERPOL recognition as an “International Organization.” In short, the privileges and immunities afforded foreign diplomats was extended to INTERPOL. Two sets of important privileges and immunities were withheld: Section 2© and the remaining sections cited (all of which deal with differing taxes).
And then comes December 17, 2009, and President Obama. The exemptions in EO 12425 were removed.
Section 2c of the United States International Organizations Immunities Act is the crucial piece.
Property and assets of international organizations, wherever located and by whomsoever held, shall be immune from search, unless such immunity be expressly waived, and from confiscation. The archives of international organizations shall be inviolable. (Emphasis added.)
Inviolable archives means INTERPOL records are beyond US citizens’ Freedom of Information Act requests and from American legal or investigative discovery (“unless such immunity be expressly waived.”)
Property and assets being immune from search and confiscation means precisely that. Wherever they may be in the United States. This could conceivably include human assets – Americans arrested on our soil by INTERPOL officers.
Actually, that last argument overreaches. American law does not consider people as “assets.” It does mean, though, that Interpol officers would have diplomatic immunity for any lawbreaking conducted in the US at a time when Interpol nations (like Italy) have attempted to try American intelligence agents for their work in the war on terror, a rather interesting double standard.
It also appears to mean that Americans who get arrested on the basis of Interpol work cannot get the type of documentation one normally would get in the discovery process, which is a remarkable reversal from Obama’s declared efforts to gain “due process” for terrorists detained at Gitmo. Does the White House intend to treat Americans worse than the terrorists we’ve captured during wartime?
Andy McCarthy wonders the same thing:
Interpol’s property and assets are no longer subject to search and confiscation, and its archives are now considered inviolable. This international police force (whose U.S. headquarters is in the Justice Department in Washington) will be unrestrained by the U.S. Constitution and American law while it operates in the United States and affects both Americans and American interests outside the United States.
Interpol works closely with international tribunals (such as the International Criminal Court — which the United States has refused to join because of its sovereignty surrendering provisions, though top Obama officials want us in it). It also works closely with foreign courts and law-enforcement authorities (such as those in Europe that are investigating former Bush administration officials for purported war crimes — i.e., for actions taken in America’s defense).
Why would we elevate an international police force above American law? Why would we immunize an international police force from the limitations that constrain the FBI and other American law-enforcement agencies? Why is it suddenly necessary to have, within the Justice Department, a repository for stashing government files which, therefore, will be beyond the ability of Congress, American law-enforcement, the media, and the American people to scrutinize?
I seem to recall the Left getting hysterical over the Patriot Act extensions that Obama finally backed. This gives Interpol a much wider operational latitude than anything contemplated in the Patriot Act, and with no accountability at all.
Reply #111 on:
December 30, 2009, 12:15:03 PM »
Newt Gingrich in fine form:
Re: Newt Gingrich
Reply #112 on:
January 01, 2010, 11:47:43 AM »
Quote from: Crafty_Dog on December 30, 2009, 12:15:03 PM
Newt Gingrich in fine form:
THAT is awesome.
***Look at a man in the midst of doubt and danger, and you will determine in his hour of adversity what he really is***
WSJ: Health Care bill is Unconstitutional
Reply #113 on:
January 02, 2010, 10:01:58 AM »
By ORRIN G. HATCH, J. KENNETH BLACKWELL AND KENNETH A. KLUKOWSKI
President Obama's health-care bill is now moving toward final passage. The policy issues may be coming to an end, but the legal issues are certain to continue because key provisions of this dangerous legislation are unconstitutional. Legally speaking, this legislation creates a target-rich environment. We will focus on three of its more glaring constitutional defects.
First, the Constitution does not give Congress the power to require that Americans purchase health insurance. Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes. None of those powers justifies the individual insurance mandate. Congress's powers to tax and spend do not apply because the mandate neither taxes nor spends. The only other option is Congress's power to regulate interstate commerce.
Congress has many times stretched this power to the breaking point, exceeding even the expanded version of the commerce power established by the Supreme Court since the Great Depression. It is one thing, however, for Congress to regulate economic activity in which individuals choose to engage; it is another to require that individuals engage in such activity. That is not a difference in degree, but instead a difference in kind. It is a line that Congress has never crossed and the courts have never sanctioned.
In fact, the Supreme Court in United States v. Lopez (1995) rejected a version of the commerce power so expansive that it would leave virtually no activities by individuals that Congress could not regulate. By requiring Americans to use their own money to purchase a particular good or service, Congress would be doing exactly what the court said it could not do.
Some have argued that Congress may pass any legislation that it believes will serve the "general welfare." Those words appear in Article I of the Constitution, but they do not create a free-floating power for Congress simply to go forth and legislate well. Rather, the general welfare clause identifies the purpose for which Congress may spend money. The individual mandate tells Americans how they must spend the money Congress has not taken from them and has nothing to do with congressional spending.
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.A second constitutional defect of the Reid bill passed in the Senate involves the deals he cut to secure the votes of individual senators. Some of those deals do involve spending programs because they waive certain states' obligation to contribute to the Medicaid program. This selective spending targeted at certain states runs afoul of the general welfare clause. The welfare it serves is instead very specific and has been dubbed "cash for cloture" because it secured the 60 votes the majority needed to end debate and pass this legislation.
A third constitutional defect in this ObamaCare legislation is its command that states establish such things as benefit exchanges, which will require state legislation and regulations. This is not a condition for receiving federal funds, which would still leave some kind of choice to the states. No, this legislation requires states to establish these exchanges or says that the Secretary of Health and Human Services will step in and do it for them. It renders states little more than subdivisions of the federal government.
This violates the letter, the spirit, and the interpretation of our federal-state form of government. Some may have come to consider federalism an archaic annoyance, perhaps an amusing topic for law-school seminars but certainly not a substantive rule for structuring government. But in New York v. United States (1992) and Printz v. United States (1997), the Supreme Court struck down two laws on the grounds that the Constitution forbids the federal government from commandeering any branch of state government to administer a federal program. That is, by drafting and by deliberate design, exactly what this legislation would do.
The federal government may exercise only the powers granted to it or denied to the states. The states may do everything else. This is why, for example, states may have authority to require individuals to purchase health insurance but the federal government does not. It is also the reason states may require that individuals purchase car insurance before choosing to drive a car, but the federal government may not require all individuals to purchase health insurance.
This hardly exhausts the list of constitutional problems with this legislation, which would take the federal government into uncharted political and legal territory. Analysts, scholars and litigators are just beginning to examine the issues we have raised and other issues that may well lead to future litigation.
America's founders intended the federal government to have limited powers and that the states have an independent sovereign place in our system of government. The Obama/Reid/Pelosi legislation to take control of the American health-care system is the most sweeping and intrusive federal program ever devised. If the federal government can do this, then it can do anything, and the limits on government power that our liberty requires will be more myth than reality.
Mr. Hatch, a Republican senator from Utah, is a former chairman of the Senate Judiciary Committee. Mr. Blackwell is a senior fellow with the Family Research Council and a professor at Liberty University School of Law. Mr. Klukowski is a fellow and senior legal analyst with the American Civil Rights Union.
WSJ: NY, Columbia, Eminent Domain
Reply #114 on:
January 02, 2010, 10:10:47 AM »
By JULIA VITULLO-MARTIN
Columbia University is one of New York's largest landowners, and perhaps the one with the most to gain from the state's power to seize private property. But in a surprise ruling in early December, a state court struck down the city's attempt to take private land in West Harlem and give it to the university. Now that case is becoming an important beachhead in the fight over eminent domain.
Columbia wants the land as part of its 17-acre plan to build a research and academic facility. A decade ago it started acquiring as much of the land as it could. In recent years, however, a few holdouts were impossible to dislodge. The university turned to the Empire State Development Corporation (ESDC), a public company that has the power to compel landowners to sell through eminent domain.
Columbia contends that its academic center will upgrade the neighborhood, create 6,900 jobs, and make immense contributions in biotechnology and health research. There is little reason to doubt any of these assertions. Columbia is one of the nation's leading research institutions and New York City's seventh-largest private employer.
.But should its importance entitle the university to take property owned by others?
Nick Sprayregen, a 47-year-old businessman, says no. He owns Tuck-It-Away Self-Storage, which is located in a brick building inside the footprint of Columbia's project. The business was started by his father in 1980, and he intends to pass it along to his children. So he joined a lawsuit to keep his land. He claims that taking his property would violate the state's constitution. The state can seize land that is considered blighted, but he argues that his neighborhood is sound and had been steadily improving before Columbia launched its expansion plans. He notes that there are excellent new restaurants that have sprung up in the neighborhood, and there are also nice artist studios and lofts, rehabilitated, city-owned apartment buildings, and successful manufacturers.
He acknowledges there is some blight but blames Columbia for it. As recently as August 2002, data prepared by the accounting firm of Ernst & Young for New York City's Economic Development Corporation showed that 54 of the 67 lots in question were in good, very good or fair condition. In November 2007, a study by AKRF Consultants reached a dramatically different conclusion—that the area was "substantially unsafe, unsanitary, substandard, and deteriorated."
What happened, argues Mr. Sprayregen, was that Columbia had increased its ownership or control from a handful of properties in 2001 to 51% in 2007 and 91% of the area today. Along the way it let the properties decay by erecting ugly scaffolding, pushing out commercial tenants, and allowing trash to pile up.
In all, Mr. Sprayregen put 10,000 pages of documents into the court record to show that West Harlem was not blighted before Columbia began its plans. "Is it fair to reward a private entity for its own bad conduct, its own role in producing neighborhood deterioration?" he asks.
State Supreme Court Justice James Catterson seems to agree with Mr. Sprayregen that it isn't. In ruling against Columbia on Dec. 3, he wrote that the use of eminent domain "to benefit a private elite education institution is violative of the Takings Clause of the U.S. Constitution, of the New York Constitution, and the 'first principles of the social contract.'"
Judge Catterson also wrote that "the blight designation in the instant case is mere sophistry. It was utilized by ESDC years after the scheme was hatched to justify the employment of eminent domain but this project has always primarily concerned a massive capital project for Columbia."
Judge Catterson's decision sets up a conflict that will likely shape how eminent domain is used in the future. Just a week before he issued his ruling, New York's highest court, the Court of Appeals, decided in Goldstein et al. v. Urban Development Corporation that ESDC could seize private property in Brooklyn and hand it over to Forest City Ratner, a private developer.
That case was a big setback for private property advocates, who had spent years trying to curtail the use of eminent domain and who got a bump in public support after the U.S. Supreme Court ruled in Kelo v. the City of New London (2005) that states could seize private land as part of private development projects.
Now, in the wake of Judge Catterson's ruling, the state's Court of Appeals will likely have to take the issue up again if the case is appealed. Perhaps this time it will impose strict limits on when the power of eminent domain can be used.
State Sen. Bill Perkins, a Harlem Democrat and chairman of the committee on corporations, authorities and commissions, doesn't want to leave it to the courts. He held one public meeting on Judge Catterson's ruling before Christmas and is planning a second this coming week. He also fired off a letter to Democratic Gov. David A. Paterson asking him not to appeal Judge Catterson's ruling, and to impose a "statewide moratorium on the use of eminent domain" until the state legislature can pass legislation that specifies how the power can be used.
The governor hasn't decided what to do, but he doesn't have the luxury of sitting on the sidelines forever. With two conflicting court decisions and a brewing controversy, the legislature will almost certainly pass something that will force him to choose sides.
If Judge Catterson's ruling stands, Mr. Sprayregen he says he will keep running his business. He once told me, "I can coexist with Columbia. Why can't Columbia coexist with me?"
Ms. Vitullo-Martin is director of the Center for Urban Innovation at the Regional Plan Association.
POTH: Election Law vs. First Amendment
Reply #115 on:
January 09, 2010, 08:50:48 AM »
Courts Roll Back Limits on Spending in Election Law
By DAVID D. KIRKPATRICK
Published: January 8, 2010
WASHINGTON — Even before a landmark Supreme Court ruling on campaign finance law expected within days, a series of other court decisions is reshaping the political battlefield by freeing corporations, unions and other interest groups from many of the restrictions on their advertising about issues and candidates.
Legal experts and political operatives say the cases roll back campaign spending rules to the years before Watergate. The end of decades-old restrictions could unleash a torrent of negative advertisements, help cash-poor Republicans in a pivotal year and push President Obama to bring in more money for his party.
If the Supreme Court, as widely expected, rules against core elements of the existing limits, Democrats say they will try to enact new laws to reinstate the restrictions in time for the midterm elections in November. And advocates of stricter campaign finance laws say they hope the developments will prod the president to fulfill a campaign promise to update the presidential campaign financing system, even though it would diminish his edge as incumbent.
Many legal experts say they expect the court to use its imminent ruling, in the case of Citizens United v. Federal Election Commission, to eliminate the remaining restrictions on advertisements for or against candidates paid for by corporations, unions and advocacy organizations. (The case centers on whether spending restrictions apply to a conservative group’s documentary, “Hillary: The Movie.”)
Even if the court rules more narrowly, legal experts and political advocates say that the 2010 elections will bring the first large-scale application of previous court decisions that have all but stripped away those restrictions. Though the rulings have not challenged the bans on direct corporate contributions to parties and candidates, political operatives say that as a practical matter the rulings and a deadlock at the Federal Election Commission have already opened wide latitude for independent groups to advocate for and against candidates.
“It will be no holds barred when it comes to independent expenditures,” said Kenneth A. Gross, a veteran political law expert at the firm of Skadden Arps in Washington.
The United States Chamber of Commerce, the goliath of the lobbying world, is expected to outline its battle plan next week for the midterms. It spent $25 million on advertisements and get-out-the-vote efforts in the 2006 elections and $36 million in 2008, and will spend far more this year, chamber officials say. And in the last election it was already probing the limits of the court’s rulings with commercials like one in New Hampshire denouncing Senator Jeanne Shaheen, a Democrat, as “a taxing machine.”
Labor unions, stalwart outside allies to the Democrats, plan to take advantage of the changing rules with their own record-setting spending, said Karen Ackerman, political director of the A.F.L.-C.I.O. But business, she argued, had more to gain.
“The corporate side will always have more to spend than the union side,” she said.
Even before the Supreme Court issues its Citizens United ruling, Democrats in the House and the Senate have begun lamenting its expected result. “Clearly, the Republican Party overwhelmingly would benefit,” said Senator Robert Menendez of New Jersey.
Representative Chris Van Hollen of Maryland vowed a “prompt legislative response” if the Supreme Court rules broadly. In the meantime, he said, the Democratic campaign committee planned to counterattack big donors to outside groups to show “they are not just disinterested citizens.”
Conservatives accused the Democrats of using the specter of corruption as an excuse to silence their opponents. “What this is about is prohibiting information from reaching the American people if it is critical of them, those poor little dears who can’t stand criticism,” said Wayne LaPierre, chief executive of the National Rifle Association.
Senator John Cornyn of Texas, chairman of the Republican Senate campaign committee, said: “It is about a nonprofit group’s ability to speak about the public issue. I can’t think of a more fundamental First Amendment issue.”
Still, Mr. Cornyn acknowledged that the expected ruling could “open up resources that have not previously been available” for the Republicans.
Democratic candidates and party committees have raised a total of $396.5 million for the midterms, with $50 million on hand and $10 million debts in public filings released this week. Republicans had raised just $204.7 million, with about $30 million on hand and about $6 million in debts, according to the nonpartisan Center for Responsive Politics.
The campaign finance system imposed after the Watergate scandal began to spring leaks in the 1990s with the large-scale exploitation of unlimited “soft money” contributions to political parties from wealthy individuals, corporations, unions and others. Congress fortified those rules by eliminating soft money with the 2002 campaign finance law known as McCain-Feingold, and since then activists and operatives have played cat-and-mouse with regulators in the search for other loopholes.
The Supreme Court began to poke new holes in the system in a 2007 ruling that outside groups could pay for critical commercials attacking individual candidates on specific issues up to the day of the election, as long as the ad did not explicitly urge a “vote for” or “vote against.”
The 2010 midterms will be the first big test of the changing rules in part because in 2008 both major party candidates — Mr. Obama and Senator John McCain — explicitly discouraged independent spending by their supporters. The Federal Election Commission had also punished previous efforts to evade the McCain-Feingold rules severely enough to discourage new attempts.
No such restraints apply this year, in part because the changing composition of the Federal Election Commission has created a deadlock blocking vigorous enforcement. “The cop is gone from the beat,” said Trevor Potter, a lawyer for the nonpartisan Campaign Legal Center who has also worked for Mr. McCain.
Campaign finance laws block outside groups from coordinating with candidates, but it is easy enough for outside allies to read in news reports where a campaign wants to spend money and what message it wants to send. Such groups also tend to favor negative commercials because they are more potent.
So if the court strikes down the restrictions on outside spending, some legal experts say, the remaining restrictions on direct contributions to campaigns would mean much less because it would be easy to support a campaign through an outside group.
“The campaign finance system would certainly be less regulated than any time since Watergate,” said Richard L. Hasen, a campaign law expert at the Loyola Law School in Los Angeles.
Meese: Prop 8
Reply #116 on:
January 11, 2010, 07:41:10 AM »
Stacking the Deck Against Proposition 8 Recommend
by EDWIN MEESE III
January 10, 2010
THE much-anticipated trial to determine the constitutionality of California’s Proposition 8 is scheduled to begin this morning in the case of Perry v. Schwarzenegger. What’s at stake in this case, filed in federal district court in San Francisco on behalf of two gay couples, is not just the right of California voters to reaffirm the definition of marriage as only between a man and a woman, but also whether marriage may be otherwise defined in any state.
The entire premise of this litigation is disquieting — that traditional marriage is nothing but “the residue of centuries of figurative and literal gay bashing,” as David Boies, a lawyer for the plaintiffs, has written. According to the plaintiffs, there is just no rational basis for government to privilege marriage between a man and a woman. Thus, in their minds, Proposition 8, which was supported by more than seven million California voters, could have been adopted only as a result of “animus,” as the complaint puts it, toward gays and lesbians.
It’s disquieting that the trial is taking place in San Francisco, probably the venue most likely to support gay marriage. More than 75 percent of San Francisco voters opposed Proposition 8. That’s quite a home-court advantage for same-sex marriage advocates.
But most disquieting for supporters of traditional marriage is a series of pretrial rulings issued by Judge Vaughn R. Walker that have the effect of putting the sponsors of Proposition 8, and the people who voted for it, on trial.
Judge Walker’s decisions have been surprising because they differ from those of other judges who have previously scrutinized marriage laws — in Iowa, Hawaii, Massachusetts, New Jersey and elsewhere in California, for example. In those instances, the courts have decided legal challenges to state marriage laws based on legislative history, scholarly articles and testimony by social scientists and other experts. They have, in some cases, looked for evidence of legislative intent in the statements published in official voter information pamphlets.
But in this case, Judge Walker has ruled that things like TV advertisements, press releases and campaign workers’ statements are also relevant evidence of what the voters intended. The judge went so far as to order the Proposition 8 campaign to disclose private internal communications about messages that were considered for public use but never actually used. He has even ordered the campaign to turn over copies of all internal records and e-mail messages relating to campaign strategy.
Most troubling, Judge Walker has also ruled that the trial will investigate the Proposition 8 sponsors’ personal beliefs regarding marriage and sexuality. No doubt, the plaintiffs will aggressively exploit this opportunity to assert that the sponsors exhibited bigotry toward homosexuals, or that religious views motivated the adoption of Proposition 8. They’ll argue that prohibiting gay marriage is akin to racial discrimination.
To top it all off, Judge Walker has determined that this case will be the first in the Ninth Circuit to allow cameras in the courtroom, with the proceedings posted on YouTube. This will expose supporters of Proposition 8 who appear in the courtroom to the type of vandalism, harassment and bullying attacks already used by some of those who oppose the proposition.
Thankfully, some of Judge Walker’s rulings have been overturned. For example, the Ninth Circuit Court of Appeals blocked the disclosure of internal communications among the core Proposition 8 organizers. But there is no question that virtually every ruling by Judge Walker so far has put advocates of traditional marriage at an increasing disadvantage.
Despite this, during the trial, the supporters of Proposition 8 will work hard to demonstrate that it was rational for voters to conclude that marriage is a unique institution that promotes the interests of child-rearing, and that those interests are broader than the personal special interests of the adults involved. And they’ll make the case that voters were very much within their rights, when casting their ballots, to consider their own moral and religious views about marriage — or any other subject.
It remains to be seen whether traditional marriage, and the rights of the voters who approved Proposition 8, will prevail in Judge Walker’s courtroom. Most likely, no matter how the judge rules, the Perry case is destined for appeals and a final decision in the United States Supreme Court. But it is during the present trial that the facts in the case will be determined, and it is there that the two sides should be able to present their cases on a level playing field.
Edwin Meese III, a fellow at the Heritage Foundation, was attorney general of the United States during the Reagan administration.
1st Amendment Applies to Political Speech, Go Figure
Reply #117 on:
January 21, 2010, 11:10:23 AM »
Supreme Court rejects limits on corporate spending in electoral campaigns
By Robert Barnes
Washington Post Staff Writer
Thursday, January 21, 2010; 11:57 AM
A divided Supreme Court on Thursday swept away decades of legislative efforts to restrict the role of corporations in election campaigns, ruling that severe restrictions on corporate spending are inconsistent with the First Amendment's protection of political speech.
The court split 5 to 4 over the ruling, with its conservative members in the majority.
"When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought," the court said in a decision written by Justice Anthony M. Kennedy. "This is unlawful. The First Amendment confirms the freedom to think for ourselves."
The decision upends the court's precedent that corporations may not use their profits to support or oppose candidates, and it rejects a large portion of the so-called McCain-Feingold campaign finance reform act that the justices had declared constitutional just six years ago. It seems likely to apply to the political role of labor unions as well.
The decision does not address the restriction on direct contributions to candidates, and it upholds disclosure requirements for groups that mount advertising campaigns for and against candidates.
The far-reaching ruling marks a triumph for groups that have fought the McCain-Feingold provisions, formally known as the Bipartisan Campaign Finance Reform Act of 2002.
It also is a telling reminder of how quickly a court can change. Justice Sandra Day O'Connor supported the constitutionality of the act in 2003. But Chief Justice John G. Roberts Jr. and O'Connor's replacement, Justice Samuel A. Alito Jr., have supported each challenge to the law since they have joined the court. They supported Kennedy's opinion, along with Justices Antonin Scalia and Clarence Thomas.
The court's liberal bloc, which included new Justice Sonia Sotomayor in the case, dissented. Justice John Paul Stevens took more than 20 minutes to read a dissent from the bench, a move justices reserve for emphasizing their disagreement.
"A radical change in the law," Stevens called the decision. He said Thursday's majority rejects the decisions of Congress dating from 1907 and "the overwhelming majority of justices who have served on this court."
He said the five-member majority are the only ones who believe corporate money in electoral politics should be increased, rather than controlled. Sotomayor and Justices Ruth Bader Ginsburg and Stephen G. Breyer joined his 90-page dissent.
Reply #118 on:
January 21, 2010, 06:30:43 PM »
Antonin Scalia vs. John Paul Stevens
Damon W. Root | January 21, 2010
Counting the majority opinion and the various partial concurrences and dissents, today’s landmark First Amendment decision in Citizens United v. Federal Election Commission clocks in a hefty 183-pages. But one thing that jumped right out while reading the dissent (it’s also a concurrence, in parts) written by Justice John Paul Stevens and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, is Stevens' angry tone. He calls the idea that the First Amendment forbids distinctions between individuals and individuals organized as a corporation “a glittering generality” with no foundation in the law, and later declares, “Under the majority's view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.” Well!
But most significantly, Stevens accuses the majority of making “only a perfunctory attempt to ground its analysis in the principles or understandings of those who drafted and ratified the Amendment.” Stevens even cites the influential legal conservative Judge Robert Bork to impugn the majority’s originalist credentials. That's not something you see everyday.
Justice Antonin Scalia, however, isn’t having it:
I write separately to address JUSTICE STEVENS’ discussion of “Original Understandings”... This section of [Stevens'] dissent purports to show that today’s decision is not supported by the original understanding of the First Amendment. The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment. It never shows why “the freedom of speech” that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form. To be sure, in 1791 (as now) corporations could pursue only the objectives set forth in their charters; but the dissent provides no evidence that their speech in the pursuit of those objectives could be censored....
The [First] Amendment is written in terms of "speech," not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals--and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is "speech" covered by the First Amendment. No one says otherwise.
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #119 on:
January 21, 2010, 10:21:20 PM »
It's been a few good days!
McD v. Chi Town Brief
Reply #120 on:
January 29, 2010, 07:18:27 PM »
Alan Gura has filed his final brief in
McDonald v. Chicago
. My quick assessment is that he pulled few punches. Devastating stuff. Full text here:
Unable to articulate the correct standard for substantive due process incorporation, or interpret the Privileges or Immunities Clause, Respondents offer irrelevant political arguments against applica- tion of the right to keep and bear arms against the States, failing to accept that the decision to secure the right in our Constitution has already been made.
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #121 on:
January 30, 2010, 07:44:33 AM »
Gah! legallese, what I do understand of it, he is throwing with boths fist and foot, knee and elbow as opportunity permits.
First Amendment 451
Reply #122 on:
February 02, 2010, 11:41:00 AM »
JANUARY 29, 2010 4:00 A.M.
First Amendment 451
How one man irked Obama and won a historic victory for free speech.
David Bossie irritates President Obama. Bossie did not get the usual upturned chin or expletive-riddled call from Rahm Emanuel this week after the Supreme Court ruled in favor of Citizens United, his non-profit corporation, in a landmark free-speech decision. Rather, Obama decided to take a potshot through a sharp-edged rant tucked into the State of the Union.
“With all due deference to separation of powers, last week the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections,” Obama said. “Well, I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.”
Bossie’s take on Obama’s finger-wagging was similar to what Justice Samuel Alito mouthed, and similar to the analysis Bradley A. Smith and Shannen Coffin have presented on the Corner: “Not true.” Foreign corporations, Bossie says, are prohibited from making contributions in connection with American elections, and that wasn’t even at issue in the case. The president’s anger over the Court’s 5–4 decision, he adds, actually reveals something more troubling: Obama doesn’t like it when someone tries to snatch power from the federal government and put it back in the hands of the American people.
“Our argument in the case wasn’t complicated,” says Bossie. “It was about freedom, and it ended up hinging on a very simple question: If the FEC is comfortable banning political films, like Citizens United’s Hillary: The Movie, around election time, would it also be fine with banning political books financed by corporations? The Justice Department’s attorney answered yes, the government did have the power to prohibit the publication of a book. When they admitted that, everything changed.”
“I think that answer sent a chill through the Court,” says Bossie. “It was that moment that was a catalyst for us, and gave us the opportunity to win on much bigger constitutional grounds than we anticipated. It became apparent that the government believed that they could ban anything: movies, books, pamphlets, the Kindle, you name it. It was a shocking revelation.”
Ted Olson, the former solicitor general who represented Citizens United before the Court, says that he’s not surprised at what Bossie has been able to accomplish. “I’ve known Dave for a decade,” he says. “I’ve always admired what he does. When we got together to discuss this case, I knew we could win. He had other attorneys before me, but for this last step, he brought me on. We spent a lot of time looking at the arguments from the court below, and realized after our oral argument in March 2009 that we could argue that precedents could be overturned. That’s when we knew we had traction.”
“President Obama and his party are worried that this decision means that big corporations will dominate politics. They’re wrong,” says Olson. “The Court’s decision was about opening up the political process to individual corporations and small corporations, to create a more favorable balance and open up free speech to everyone.”
So how did Bossie, an unknown outside the Beltway, become the new hero for political speech? It all starts with Bill and Hillary. Before becoming a producer of political films at Citizens United, Bossie was what the Clintons would call a card-carrying member of the vast right-wing conspiracy. He was the chief Whitewater investigator for the House GOP in the 1990s. He also investigated the foreign-fundraising problems in Bill Clinton’s 1996 reelection campaign.
Those experiences, says Ed Gillespie, Bossie’s old friend and former chairman of the Republican National Committee, helped to prepare him for a historic Supreme Court battle.. “Dave pushed this free-speech issue and saw opportunity when very few others did,” says Gillespie. “He understood its significance from the outset, and now he’s changed the political environment.”
Since the big win, Bossie has been assailed by the Left. Not that he cares. He doesn’t apologize for his past investigations into the Clintons, and shrugs off criticism that his motives for suing the FEC were purely political. “This case wasn’t just about me or Citizens United,” he says. “It was about standing up for the principles of our Founding Fathers.” He points to the support he garnered from the American Civil Liberties Union as an example of how this wasn’t about “conservative demagoguery.”
“When I heard the ACLU was supporting us, I had to question myself for a moment,” Bossie laughs. “I mean, wow, I’ve never had their support, ever. Think about this: One of our films was called ACLU: At War With America. To have them agreeing with us, plus the AFL-CIO and the Reporters Committee for the Freedom of the Press — both not exactly bastions of conservatism — was a sign of how powerful our position was. I’m eternally grateful to all them for bringing forward a view of how important this was to groups across the political spectrum.”
“The FEC believed that they have a mandate to tell the American people what they can and cannot do when it comes to an election,” says Bossie. “We’ve always been under the impression that the FEC believes that it’s not necessarily an inherent right for the American people to speak during an election; it’s only by the grace of the FEC. The oral arguments in this case proved that all to be true. As they’ve taken more and more power, which Congress, via John McCain and Russ Feingold, has happily given them, they’ve encroached on the First Amendment..” Writing for the majority, Justice Anthony Kennedy agreed, quoting a previous case that called political speech “indispensible to decision-making in a democracy and this is no less true because the speech comes from a corporation.”
“It’s a huge, huge symbolic win,” says Andrew Breitbart, the founder of BigGovernment.com. “The Left wants to scare people into thinking that more free speech will be harmful for democracy, but just watch, in five years we’ll laugh with contempt at such arguments. Thanks, in part, to Dave’s great work, Americans are becoming hip to how they’ve been muzzled by our politically correct Sharia system. Conservative opinions may be deemed toxic by the mainstream media, but this new ruling stops their ability to curb speech in this country.”
“Dave’s legal work,” adds Breitbart, “is like what I do with my websites: We’re trying to wrest control of media back from the Left, who have brilliantly taken control over the years and dominated our political and cultural narrative.”
With all due deference to President Obama, the floodgates are now open, not for special interests, but for free speech.
— Robert Costa is the William F. Buckley Jr. Fellow at the National Review Institute.
Buchanan v. Warley
Reply #123 on:
February 10, 2010, 07:23:50 PM »
The Neglected Case of Buchanan v. Warley
Residential segregation as an infringement of liberty and property rights
Erin Miller | Wednesday, February 10th, 2010 12:05 pm
The following is an essay for our Race and the Supreme Court program by David E. Bernstein, professor at George Mason University School of Law and frequent blogger at the Volokh Conspiracy. This post is an excerpt from his book, Rehabilitating Lochner, forthcoming in 2011 from University of Chicago Press.
Buchanan v. Warley is one of the most significant civil rights cases decided before the modern civil rights era. Starting in 1910, many cities in the South, border states, and lower Midwest, responded to a wave of African-American in-migration from rural areas by passing laws mandating residential segregation in housing. More cities were ready to follow suit if the laws survived constitutional challenges. Several southern state supreme courts upheld the laws against constitutional challenges. In 1917, however, the Buchanan Court unanimously invalidated a Louisville residential segregation law as a deprivation of liberty and property without due process of law.
Although some scholars have portrayed Buchanan as only vindicating white people’s right to alienate property, the opinion’s text belies that understanding. The right at issue, according to the Court, was “the civil right of a white man to dispose of his property if he saw fit to do so to a person of color and of a colored person to make such disposition to a white person.” “Colored persons,” Justice Day wrote for the Court, “are citizens of the United States and have the right to purchase property and enjoy and use the same without laws discriminating against them solely on account of color.”
The Court rejected each of Kentucky’s asserted police power rationales for upholding the law. Day dismissed the argument that existing “race hostility” was an appropriate rationale for narrowing the scope of citizens’ constitutional rights. Justice Day added that the legitimate goal of promoting the public peace could not be accomplished “by laws or ordinances which deny rights created or protected by the Federal Constitution.” Nor could the law be justified as promoting the “maintenance of the purity of the races.” The Court noted that the law did not even prohibit African Americans from working in white households, showing that the law’s target was not race-mixing, per se.
Finally, the Court spurned the claim that the law was necessary to prevent the depreciation in the value of property owned by white people when African Americans became their neighbors. Day noted that property owned by “undesirable white neighbors” or “put to disagreeable though lawful uses” could cause similar depreciation.
While Buchanan clearly did not lead to a general rollback of de jure segregation, the decision inhibited state and local governments from passing more pervasive and brutal segregation laws, akin to those enacted in South Africa. Buchanan also did not lead to integration of residential neighborhoods, but it did impede the efforts of urban whites to prevent African Americans from migrating to white neighborhoods and ultimately replacing the white residents. The African-American urban population in the United States almost doubled between 1910 and 1929, and continued to grow in later years. Individual cities had far more dramatic growth in their African-American population. For example, the number of African Americans living in Detroit increased from roughly six thousand in 1910 to approximately one hundred and twenty thousand in 1930.
Whites tried to use restrictive covenants to prevent the in-migration of African Americans, but these covenants generally failed to prevent such in-migration. In some cities, whites lobbied for segregation laws precisely because restrictive covenants had proved ineffective in restricting black settlement. Not only did cities provide African Americans with more economic opportunity, but the migration of blacks to cities, North and South, was a crucial element in the civil rights movement’s ultimate victory. Among other advantages, it enabled African Americans to increase their political power by moving to areas where they could vote.
Buchanan was also important as a matter of legal doctrine, but it has been unjustly neglected by historians and legal scholars because it doesn’t fit the standard narrative of constitutional development in which equalitarian civil rights jurisprudence is said to have developed entirely apart from, and indeed, in opposition to, liberty of contract and property rights. Generations of legal scholars and historians have treated Buchanan as a “property rights case” that rested on “laissez-faire” ideology, of little if any relevance to the later civil rights revolution. Undoubtedly, the fact that Buchanan involved property rights and liberty of contract played an important role in the decision, as it allowed the Court to distinguish Buchanan from Plessy, which involved “mere social rights.”
But focusing myopically on the economic rights element of Buchanan misses the fact that even property rights and liberty of contract were subject to the police power. Plessy had suggested that any “reasonable” segregation law would come within the police power, and the Plessy Court applied a lax–and racism-infused—standard of reasonableness.
In contrast, after noting that property rights are subject to the police power, the Buchanan opinion cited anti-discrimination statutes and court precedents dating back to Reconstruction. The Court for the first time held that discriminatory animus, even when supported by popular opinion and expert opinion backed by contemporary social science evidence, and justified by fear of miscegenation and racial violence, was not a proper police power justification for laws violating recognized individual rights. This was hardly a foregone conclusion.
Pre-Buchanan legal commentary universally argued that residential segregation laws were constitutional, and the Buchanan opinion changed few if any minds. With the exception of a student comment in the Columbia Law Review, all law review commentary was hostile. A Columbia professor even accused the Court of destroying whites’ right to live in a segregated neighborhood.
Despite this outpouring of criticism, Buchanan marked a favorable turning point in the Court’s attitude toward the rights of African Americans. According to one tally, the Supreme Court heard twenty-eight cases involving African Americans and the Fourteenth Amendment between 1868 and 1910. Of these, African Americans lost twenty-two. However, between 1920 and 1943, African Americans won twenty-five of twenty-seven Fourteenth Amendment cases before the Supreme Court.
After the Supreme Court confirmed the constitutionality of general residential zoning in 1926 in Euclid v. Ambler Realty, various southern and border-state jurisdictions once again passed residential segregation ordinances, hoping that Euclid signaled a more sympathetic Court attitude to all types of regulation of property. The Court, however, summarily invalidated these laws in 1927 and 1930. If the NAACP had had the resources and inclination to pursue the matter, Buchanan could have been used to broader effect to combat de jure segregation in the private sector.
Arguably, Buchanan also shows the potential for a racially egalitarian jurisprudence to have emerged in a political environment far closer to America’s libertarian tradition than what had emerged by the 1950s, when the Supreme Court began to protect the rights of African Americans in earnest. Indeed, Buchanan, by rejecting the standard police power arguments used to justify segregation, had the potential to be used as a weapon in school desegregation litigation. This required only that the Court shift its view from segregation in public education as involving a “social right” not implicating the Equal Protection or Due Process Clause, to it infringing an important liberty or property right. And, in fact, the Court issued a Buchanan-like due process opinion in 1954 in Bolling v. Sharpe, invalidating racial segregation in District of Columbia public schools. But that is the subject for another blog post.
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #124 on:
February 11, 2010, 12:10:33 AM »
That was very interesting.
McDonald-- issues presented
Reply #125 on:
March 01, 2010, 07:39:15 PM »
Pasting here BBG's post today in the Legal Issues thread-- see there also his second post on the Justice who wrote the Miller decision.
Using Guns to Protect Liberty
Posted by Ilya Shapiro
Tomorrow the Supreme Court will hear oral argument in McDonald v. Chicago — the Second Amendment case with implications far beyond gun rights. The Court is quite likely to extend the right to keep and bear arms to the states and thereby invalidate the Chicago handgun ban at issue, but the way in which it does so could revolutionize constitutional law.
In response to the oppression of freed slaves and abolitionists in southern and border states after the Civil War, the Fourteenth Amendment’s drafters sought to protect individual rights from infringement by state and local governments. The amendment’s Due Process Clause and Privileges or Immunities Clause provided overlapping but distinct protections for these rights. The Court decided in the 1873 Slaughter-House Cases, however, that the Privileges or Immunities Clause only protected Americans’ rights as national, not state, citizens. This reactionary holding eviscerated the clause, rendering it powerless to protect individual rights from state interference.
McDonald provides the Court an opportunity to overturn the Slaughter-House Cases and finally restore the Privileges or Immunities Clause to its proper role as a check against government intrusion on individual rights. Doing so would secure Americans’ natural rights, such as the freedom of contract and the right to earn an honest living, without enabling judges to invent constitutional rights to health care or welfare payments. For a more detailed discussion of McDonald’s potential implications, and how the Court should rule, see my recent op-ed here.
I will also be participating in several public events this week on McDonald, the Fourteenth Amendment, and firearm regulation. Today at 4:00 p.m., I will be speaking at a Cato policy forum, which will be broadcast live on C-SPAN and which you may watch online here. Tomorrow at 3:30 p.m., I will participate in a post-argument discussion of McDonald at the Georgetown University Law Center, which event is cosponsored by the Federalist Society and the Georgetown Journal of Law and Public Policy (where Josh Blackman and I recently published a lengthy article on the subject). And on Wednesday at noon, I will be participating in a Cato Capitol Hill briefing on McDonald and the future of gun rights at the Rayburn House Office Building, room B-340 (more information here).
Guns and Privileges & Immunities in the context of McDonald
Reply #126 on:
March 04, 2010, 06:07:35 PM »
Bringing this rather deep discussion over from BBG's post in the legal issues thread:
Guns for All, Privileges or Immunities for None
The hearings in McDonald v. Chicago promise an unrevolutionary victory—but still an important one
Brian Doherty | March 4, 2010
Justice Antonin Scalia delivered the big laugh line of the hour at Tuesday’s Supreme Court hearings in McDonald v. Chicago. That case’s outcome will decide whether the Second Amendment rights vindicated in 2008’s D.C. v. Heller apply to states and localities. Scalia amused the crowd by asking a question that has perplexed some legal scholars and gun activists both for and against McDonald lawyer Alan Gura’s general goal of applying Second Amendment protections to all levels of American government.
To get the joke, such as it was, you first need the background about what was at stake. The Bill of Rights was originally interpreted to bind only the federal government. The framers of the 14th Amendment intended to change that, and bind the states as well in respecting Americans’ rights. This was in 1868, when recently freed slaves had their rights to work, own property, and bear arms widely abused and unprotected by state and local governments.
The history of the 14th Amendment's passage indicates that a certain part of the amendment was meant to bear the interpretive burden of applying—“incorporating” in the legal lingo—the Bill of Rights (and other restrictions on government power) to the states. That was the Privileges or Immunities Clause: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
Since a controversial 1873 Supreme Court decision in a set of cases regarding a slaughterhouse monopoly in Louisiana, known as the Slaughterhouse Cases, the Privileges or Immunities Clause has been pretty much interpreted out of existence. The Supreme Court has instead used the vaguer and less textually sensible “due process of law" provision of the same amendment to incorporate certain rights against the states. Using that tool, the Court over the past century has already incorporated most of the Bill of Rights on the states, and some unenumerated rights as well. Gura elected to reverse this trend by arguing for incorporation of the Second Amendment on privileges or immunities grounds.
So Scalia asked Gura early in his 20 minutes of argument time on Tuesday: “Mr. Gura, do you think it is at all easier to bring the Second Amendment under the Privileges and Immunities Clause than it is to bring it under our established law of substantive due…process?... Why are you asking us to overrule 150, 140 years of prior law, when—when you can reach your result under substantive due—I mean, you know, unless you are bucking for a—a place on some law school faculty…?”
Scalia, reputedly a constitutional originalist, flashed some ugly colors with that laugh-provoking comment: He’d rather go with the easy precedential flow—even given a substantive due process argument that he openly admits he thinks is wrong but which he’s “acquiesced” to—then vindicate the actual intentions of the framers of a very important constitutional amendment.
Gura undoubtedly went for a daring gambit on privileges or immunities (in addition to, not at the expense of, the more traditionally successful due process argument). He did so, first, because he thought it was the correct argument based on constitutional language and history. But he, and many other legal scholars, was also excited because a revival of privileges or immunities could give courts new power to restrict states and localities from violating other rights much on the minds of the 14th Amendment’s framers.
Gura quoted some of them, from the 1866 Civil Rights Act: “To make and enforce contracts…to inherit, purchase, lease, sell, hold and convey real and personal property.” A properly grounded application of the privileges or immunities clause could help vindicate the sort of economic liberties considered out of fashion and meaningless in the higher courts since the early 20th century days of the Lochner case.
While nothing is certain until the decision (or decisions) come down later in the year, the general consensus is that Gura has at least the same five justices who revived the Second Amendment in Heller prepared to apply it to the states via the Due Process Clause. This includes Scalia, despite his expressed doubts about the validity of due process incorporation in general. Thus, Gura and the McDonald team win.
Gura cast his mission so ambitiously, though, that he may have created an unfortunate public relations problem for his team. His impending victory might be spun as a defeat. There were elements in the gun-rights community, including the National Rifle Association (NRA) (who won argument time for their advocate Paul Clement at the hearings even though McDonald was not their case), who thought Gura reached for too risky a victory for economic and other liberties when he should have kept his eye on the Second Amendment ball. The NRA’s Clement kept it simple, insisting before the court that “Under this court's existing jurisprudence, the case for incorporating the Second Amendment through the Due Process Clause is remarkably straightforward. The Second Amendment, like the First and the Fourth, protects a fundamental preexisting right that is guaranteed to the people” and thus should be incorporated against the states just as those other amendments were.
In his half hour before the justices, Chicago’s counsel James Feldman maintained that, since guns can hurt people, localities’ power to protect public safety should allow them to regulate guns as much as they want. Not wanting to re-argue Heller (unlike Justice Steven Breyer, who is still obsessed with the militia clause as presumptively dominating the purpose of the Second Amendment, contra Heller), Feldman asserted that a fundamental right to self-defense might exist, but that right was not infringed fundamentally by the banning of any specific variety of weapon, as Chicago did with handguns. Scalia wondered why Feldman seemed to think an unwritten right to self-defense existed that states should honor when he didn’t think that the written right to keep and bear arms had to be thusly honored.
The confused and random jumble of issues and concerns that flowed out in the hour at the Court shows that, while using due process may be the easiest way out for lazy justices who don’t want to think freshly or step outside a middle-of-the-road consensus, the inherent vagueness of due process makes actual legal reasoning hard—unnecessarily so, given the clearer set of historical concerns about privileges or immunities that were on the minds of the Republicans who pushed the 14th Amendment in the late 1860s.
The absurdity of legal reasoning unmoored from the historical understanding of liberty rights was apotheosized in Breyer’s reference to a "Madison Chart,” in which we decide on how much judicial respect various rights would be granted by imagining James Madison ranking their importance on a chart. Breyer avers, apparently consulting Madison’s shade, that guns for the militia would be listed high on the chart, high above guns to shoot burglars. (Jokes about the “Madison Chart” ought to be law school staples down the line.)
The various justice's particular and often eccentric concerns further muddied any discernible lines of logic at the hearing. Justice Ruth Bader Ginsburg took a poorly conceived swipe at any originalist understanding of what rights the Privileges or Immunities Clause might guarantee by stressing the claim that women didn’t have the right to own property or have occupations separate from their husbands in 1868. (Meaning they wouldn’t now either if Gura won on privileges or immunities grounds?) Both she and Justice Anthony Kennedy tried to dredge a precise answer from Gura as to exactly what rights were protected by his conception of the clause, which he wouldn’t and couldn’t do. That the Constitution was designed to protect the people’s liberties through limiting government’s power and not listing citizens’ rights is not an idea much at the front of the justices’ minds.
Justice John Paul Stevens made it clear again and again that even if incorporated against the states, a Second Amendment right could and even ought to be restricted to the narrowest version of Heller: commonly used weapons for self-defense in the home. Even Scalia made it clear that he doesn’t think state level restrictions on concealed carry would necessarily be in danger under an incorporated Second Amendment, and both Chief Justice John Roberts and Justice Kennedy made it clear that an incorporated Second Amendment does not mean a Second Amendment whose reach was as wide as the gun rights community might like. Roberts spelled it out like this: The Second Amendment “is still going to be subject to the political process if the Court determines that it is incorporated in the Due Process Clause. All the arguments [Chicago’s lawyer Feldman made] against incorporation it seems to me are arguments you should make in favor of regulation under the Second Amendment. We haven't said anything about what the content of the Second Amendment is beyond what was said in Heller.”
That’s worth remembering as we wait for the decision and its aftermath. In the usual media scrum outside the courtroom as the hearings let out, the Brady Center’s Paul Helmke was OK with losing complete bans on commonly used weapons such as Chicago’s, but insisted most (though he denied many even existed) local gun regulations are sensible public safety measures and would certainly survive future legal challenges even if Gura wins. The NRA’s Paul Clement cagily refused to say what sort of lawsuits the NRA might file challenging other state gun regulations in the event of a McDonald victory.
The future of gun rights, then, is brighter than before, though not as bright as the most tenacious defenders of self-defense rights might like. But what of the future of the Privileges or Immunities Clause? It seems as if the clause arose, goosed by Gura, from a grave that Slaughterhouse had sealed it in, only to promptly have a stake driven through its heart and its head chopped off and then shoved back in to the grave by the decidedly unfriendly approach of the justices. In the pre-hearing debate over whether privileges or immunities had a chance in McDonald, the very fact the court took up Gura’s case as opposed to a simpler due process case from the NRA also up for consideration led some to assume the Court must have wanted a chance to seriously rethink the issue. The evidence from Tuesday morning showed no sign of such interest in privileges or immunities.
However, at a Hill briefing by three privileges or immunities scholars and advocates on Wednesday—Clark Neily of the Institute for Justice, Ilya Shapiro of the Cato Institute, and Timothy Sandefur of the Pacific Legal Foundation—the mood was still defiant, not defeated.
To roughly summarize a set of arguments I heard this week in interviews and at that briefing on the future of privileges or immunities, just as Progressive-era legal doctrinal victories such as “rational review” evolved over generations to overtake the profession, a rising group of younger litigators and legal scholars are united in agreeing that Slaughterhouse was an embarrassment and must go. And scholars and advocates from different sides of the political spectrum, for different reasons, are eager to see privileges or immunities arguments become an active part of the arsenal for courts and lawyers. (Some progressives see in it a stronger chance to cram various welfare rights into the Constitution, though more libertarian fans of the clause think the clearer historical record makes the clause a weaker, not stronger, tool than due process by which to work such legal mischief.)
But no matter what the consensus is, a privileges or immunities victory will eventually have to be won in the Supreme Court, and in my read there is at best one person on the current Court who would vote for it. Justice Clarence Thomas, silent as always in this week’s hearings, has in the past expressed an interest in rethinking privileges or immunities. There’s a strong expectation on the part of some privileges or immunities fans that Thomas will write a concurring opinion uniting in the holding that the Second Amendment is incorporated, but with a separate set of privileges or immunities-based reasoning that could become a rallying flag for future arguments about the clause’s continued value. However, what sort of case might be on the horizon to bring it back before the court is unclear. What seems clear is that at least four justices have to go and be replaced by jurists friendly to the abandoned clause for it to become a meaningful part of American jurisprudence. We will have the privileges or immunities fight with us for a long time to come.
On the night of the hearings, I stepped outside the constitutional debate, and glimpsed the heart of why such high-level abstractions matter—the reason why the Supreme Court was even listening to these arguments. Cases have plaintiffs, and plaintiffs are people. At a reception sponsored by one of the case’s institutional plaintiffs, the Second Amendment Foundation, I met the lead plaintiff, Otis McDonald.
Otis McDonald will be the man—as a plaintiff—who vindicated the rights of every American who doesn’t live in a federal enclave to, at the very least, have adequate means to try to protect their lives, families, and property from violent danger. He’ll go down in the history books, to be sure, this 76-year-old man with a wife and eight kids.
He’s black, which is appropriate for both public relations and for history. It ties the arguments Gura made on McDonald's behalf to why the 14th Amendment exists: to guarantee that people of his color would have the liberties and protections white Americans of the time were supposed to have enjoyed. As Gura declared right at the start of his presentation to the Court, “In 1868, our nation made a promise to the McDonald family that they and their descendants would henceforth be American citizens, and with American citizenship came the guarantee enshrined in our Constitution that no State could make or enforce any law which shall abridge the privileges or immunities of American citizenship.”
Let me tell you something else about Otis McDonald: If you are lucky enough to meet the guy, you’re going to love him. Really. In about a half hour of conversation, both one-on-one and in a small group, the guy was devastatingly charming, in a completely unstudied way. He’s compelling and convincing and real, telling quotidian stories about being late for planes and late-night fishing; and equally so when getting historical and cosmic about the arc of his life and the role he knows he’s playing in his country’s history. One minute laughing and light, the other giving a sincerely tear-jerking account of the pride and gratitude he feels toward everyone else, especially the younger generation, advancing the scholarship and advocacy of his and his fellow Americans’ rights. After that half hour, I was on this guy’s side, just as a fellow human being. And a dream client for a civil rights case like this to boot, as the lawyers present agreed enthusiastically.
That the city of Chicago prevents this man from making the best choice available to him to protect himself and his family from the very real threats that surround him is, simply and with no constitutional history or theory required, wrong. It is a wrong that Gura's arguments on Tuesday will likely right. And while libertarian legal scholars (and some leftist ones) may feel dejected that Gura failed to win the Court over to the wisdom of overturning Slaughterhouse, McDonald, his fellow plaintiffs, and the rest of Chicago will because of his efforts be able to exercise a core human right unmolested. That is great news, news whose importance should not be clouded by the specifics of how it was won.
Senior Editor Brian Doherty is author of This is Burning Man (BenBella), Radicals for Capitalism (PublicAffairs) and Gun Control on Trial (Cato Institute).
The gun rights vs. tyranny issue
Reply #127 on:
March 09, 2010, 06:54:27 AM »
Behind Supreme Court case: Do gun rights protect against tyranny?
The US Supreme Court is considering what could be a landmark decision on individual gun rights. An unspoken argument is that armed citizens would make any usurper think twice before subverting the Constitution.
An anti-gun control flag during the 'Tea Party' at the Arizona State Capitol in Phoenix April 15, 2009. Nearly 10,000 people attended the rally, which was supposed to be in opposition to the Obama economic plan but turned into a general anti-Obama rally.
By Warren Richey Staff writer
posted March 4, 2010 at 7:44 pm EST
More than 10,000 words were spoken during this week’s historic oral argument over gun rights at the US Supreme Court. But one potentially significant word was never uttered during the hour-long session: tyranny.
Long a focus of debates between gun control advocates and gun rights supporters, the issue was not discussed by lawyers attacking Chicago’s ban on handguns or the lawyer for the city defending local gun regulations. No member of the court mentioned it either. (Monitor analysis of the Chicago case here.)
But the idea is there, just below the surface of what analysts expect to become the high court’s second gun rights landmark decision in as many years.
The basic contention of many gun rights advocates is that the Second Amendment was designed to preserve a large, well-armed, and highly proficient community of gun owners that would make any usurping politician or military commander think twice before attempting to subvert the nation’s constitutional framework.
Founders' intent with Second Amendment
“The Second Amendment … stands as the Founding Fathers’ clear and unmistakable legal statement that an armed citizenry is the bulwark of liberty and provides the fundamental basis for law-abiding Americans to defend themselves, their families, their communities, and their nation against all aggressors, including, ultimately, a tyrannical government,” wrote Daniel Schmutter in a friend of the court brief on behalf Jews for the Preservation of Firearms Ownership.
Mr. Schmutter said the Second Amendment is “the very last line in the defense of American liberty.”
To gun control specialists this argument is deeply troubling. They worry that any armed person with a beef against the government will look to the Second Amendment for encouragement to lock and load and then rain down armed force in the face of what he or she perceives as “tyranny.”
How to define 'tyranny'
“In a world in which ‘tyranny’ means many different things to many different people, it is of paramount importance that the court choose its words carefully when discussing just what is, and what is not, protected by the Second Amendment,” wrote John Schreiber in a friend of the court brief on behalf of the Educational Fund to Stop Gun Violence.
“The Framers plainly did not envision ad hoc groups of armed individuals beyond state control (i.e. a ‘citizens’ militia’) as a constitutional check on tyranny,” Mr. Schreiber wrote. “They saw them as unruly mobs that must be quelled.”
Although it was not discussed during oral argument in the Chicago case, Justice Antonin Scalia addressed the issue briefly in his majority decision in the high court’s 2008 ruling striking down Washington, D.C.’s handgun ban.
“If … the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia [and] the organized militia is the sole institutional beneficiary of the Second Amendment’s guarantee – it does not assure the existence of a ‘citizens’ militia’ as a safeguard against tyranny,” Justice Scalia wrote.
Scalia drew a distinction between government-sanctioned militiamen and a broader “people’s militia,” which he said was the concern of the founding generation.
These sentences have attracted significant interest and speculation from both sides of the gun rights debate.
Schreiber denounces what he calls “insurrectionist” arguments. “At no time has the Second Amendment been understood to protect a personal or private right of insurrection,” he wrote.
Schmutter cited history to support his contention that individual possession of arms is essential to preventing usurpation by the state.
Lessons from history
“During the 20th Century, more than 70 million people, after first being disarmed, were slaughtered by their own governments,” he wrote. “This pattern appeared in Ottoman Turkey (1915-1917), the Soviet Union (1929-1945), Nazi Germany and occupied Europe (1933-1945), Nationalist China (1927-1949), Communist China (1949-1952, 1957-1960, and 1966-1970, Guatemala (1960-1981), Uganda (1971-1979), Cambodia (1975-1979), and Rwanda (1994) just to name a few.”
He added: “The Second Amendment was created as the final barricade against the unthinkable – the day when the rest of our Constitutional safeguards have failed us and we stand exposed to the brutal reality that so many in history have understood only too late.”
The Anti-Defamation League approached the issue from a different perspective. In a friend of the court brief the organization worried that expansive gun rights might feed into what it said was a pervasive culture of guns and violence among extremists in the US.
What role for government control?
“It is imperative that nothing said in the decision of this case threaten the ability of federal, state, and local governments to address the daunting ‘on the ground’ challenges posed by trying to keep guns out of the hands of extremists, terrorists, and hate criminals,” wrote Leonard Niehoff in the Anti-Defamation League’s brief.
In a dissent in a 2003 gun case, Appeals Court Judge Alex Kosinski laid out his views on the Second Amendment and tyranny. “The simple truth – born of experience – is that tyranny thrives best where government need not fear the wrath of an armed people,” he wrote.
“If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars,” Judge Kosinski said.
“The Second Amendment is a doomsday provision,” he added. “One designed for those exceptionally rare circumstances where all other rights have failed – where government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.”
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #128 on:
March 09, 2010, 07:56:29 AM »
A 6 part answer:
POTH Op Ed on Filibusters
Reply #129 on:
March 10, 2010, 11:53:50 AM »
I have no opinion on this, but post it in search of Truth:
A One-Track Senate Recommend
By BARRY FRIEDMAN and ANDREW D. MARTIN
Published: March 9, 2010
THE Senate is badly gummed up. Major policy initiatives — health care reform and financial regulation, to name but two — are stalled in endless negotiations. There’s a big reason for this torpor: the filibuster. But there’s a solution: the filibuster. Don’t be confused. The two aren’t the same.
During the 1960s, the Senate was frozen by lengthy filibusters over civil rights legislation. When, in the mid-’70s, that tactic once again threatened to bring the Senate to a standstill, Robert Byrd, the West Virginia Democrat who was the majority whip, invented a dual-track system. This change in practice allowed the majority leader — with the unanimous consent of the Senate or the approval of the minority leader — to set aside whatever was being debated on the Senate floor and move immediately to another item on the agenda.
The result of tracking? No more marathon debate sessions that shut down the Senate. While one bill is being “filibustered,” business can continue on others.
Today a “filibuster” consists of merely telling the leadership that 41 senators won’t vote for a bill. Worse, any single senator can put a “hold” on anything, indefinitely, for any reason. Not only has it become easier to “filibuster,” but tracking means there are far fewer consequences when the minority party or even one willful member of Congress does so, because the Senate can carry on with other things.
Tracking allowed Republican Senator Richard Shelby of Alabama to stop 70 administration nominees while pursuing earmarks for his home state. It permitted the Senate to conduct other business, like confirming a circuit-court judge, during the recent hold by Jim Bunning, Republican of Kentucky, on the unemployment benefit extension. During the “filibuster” of the Senate health care bill, it cleared the way for months of other votes.
Because dual-tracking is a Senate practice, not a formal rule, the majority leader, Harry Reid, could end tracking at any time. By doing so, the Democrats would transform the filibuster and recover their opportunity to govern effectively.
To pull this off, the Democrats need to take three steps: First, they should announce the order in which they will take up their legislative agenda. Next, they should declare that they will no longer be using dual tracking, so that the Senate will hear just one issue at a time. Finally, Democrats should require those who want to filibuster legislation or appointments to actually do so, by holding the floor, talking the issue to death and bringing everything to a halt.
The new-school filibuster would preserve minority rights in the Senate, while imposing significant costs on obstructionist members, changing the calculus that causes today’s logjam. Stuck on the Senate floor, filibustering senators couldn’t meet with lobbyists or attend campaign fund-raising events; they couldn’t do much of anything, really, until their filibuster ended.
Getting rid of dual-tracking would require the minority to make careful choices about what to obstruct, and when to obstruct it. As Senator Bunning’s unsuccessful solo stand against jobless benefits showed, even Republicans have limited tolerance when it comes to stalling legislation for reasons that lack popular support.
After all, filibusters historically broke when public opinion went against the Senate minority. If the Democratic leadership eliminated the dual-track system, serial, single-issue filibusters would give us an opportunity to see where the country actually stands on issues like health care reform and financial regulation — and where the Senate should stand.
By consistently blocking legislation, Republican have made great political gains over the last year. But in a Senate without dual-tracking, Democrats would be able to simply and repeatedly remind the American people that after endless debate there always comes time for a vote. Win or lose, that is how things work in a democracy.
Barry Friedman, a vice dean at New York University School of Law, is the author of the “The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.” Andrew D. Martin is the chairman of the political science department and a professor of law at Washington University in St. Louis.
5th State asserts gun rights from Feds
Reply #130 on:
March 17, 2010, 08:14:03 AM »
Forwarded to me. The source "worldnetdaily" is not necessarily a reliable one IMHO, but the subject matter is interesting:
REBELLION IN AMERICA
5th state exempts guns. Is Washington noticing?
'I think they're going to let it ride, hoping some judge throws out case'
Posted: March 15, 2010
9:11 pm Eastern
By Bob Unruh
© 2010 WorldNetDaily
A fifth state – South Dakota – has decided that guns made, sold and used within its borders no longer are subject to the whims of the federal government through its rule-making arm in the Bureau of Alcohol, Tobacco and Firearms, and two supporters of the growing groundswell say they hope Washington soon will be taking note.
South Dakota Gov. Mike Rounds has signed into law his state's version of a Firearms Freedom Act that first was launched in Montana. It already is law there, in Tennessee, Utah and Wyoming, which took the unusual step of specifying criminal penalties – including both fines and jail time – for federal agents attempting to enforce a federal law on a "personal firearm" in the Cowboy State.
According to a report in the Dakota Voice, the new South Dakota law addresses the "rights of states which have been carelessly trampled by the federal government for decades."
"As the federal government has radically overstepped is constitutional limitations in the past year or so, an explosion of states have begun re-asserting their rights not only with regard to firearms, but also in shielding themselves against government health care, cap and trade global warming taxes, and more," the report said.
(Story continues below)
South Dakota's law specifically notes "any firearm, firearm accessory, or ammunition that is manufactured commercially or privately in South Dakota and that remains within the borders of South Dakota is not subject to federal law or federal regulation, including registration, under the authority of Congress to regulate interstate commerce."
The provisions are nearly a mirror of the original law penned in Montana as well as those adopted in subsequent decisions by Tennessee, Utah and Wyoming.
Gary Marbut of the Montana Shooting Sports Association spearheaded the Montana law and now describes himself as a sort of "godfather" to the national campaign.
He told WND the issue is not only about guns but about states' rights and the constant overreaching by federal agencies and Washington to impose their requirements on in-state activities.
Here are answers to all your questions about guns, ammunition and accessories.
He said he's pleased South Dakota has become No. 5, and noted Alaska, Idaho and Oklahoma all have legislation that is approaching the stage of being presented to a governor to be made into law.
The Firearms Freedom Act website also reveals that other states either with pending legislation or pending plans include Alabama, Arizona, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Missouri, New Hampshire, North Carolina, Ohio, Pennsylvania, South Carolina, Texas, Virginia, Washington and West Virginia.
Map showing 5 states adopting gun exemptions (in green)
Marbut said Washington appears to be reacting the same way it did when states legalized marijuana or rejected the REAL ID national plan: by ignoring it.
"Ultimately we hope there will be lawsuits in other federal circuits, because there are two things that predispose the U.S. Supreme Court to take a case: the national scope of the issue and differing appellate decisions," he told WND.
Michael Boldin of the Tenth Amendment Center said Washington likely is not anxious for a confrontation.
"I think they're going to let it ride, hoping some judge throws out the case," he said today.
"When they really start paying attention is when people actually start following the [state] firearms laws," he said.
WND reported earlier when Wyoming joined the states with self-declared exemptions from federal gun regulation.
But when Democratic Gov. Dave Freudenthal signed his state's bill into law, it included penalties for any agent of the U.S. who "enforces or attempts to enforce" federal gun rules on a "personal firearm" in Wyoming including up to two years in prison and up to $2,000 in fines.
The bellwether likely is to be a lawsuit pending over the Montana law, which was the first to go into effect.
As WND reported, the action was filed by the Second Amendment Foundation and the Montana Shooting Sports Association in U.S. District Court in Missoula, Mont., to validate the principles and terms of the Montana Firearms Freedom Act, which took effect Oct. 3, 2009.
Marbut argues that the federal government was created by the states to serve the states and the people, and it is time for the states to begin drawing boundaries for the federal government and its agencies.
The government's filing in the case demands its dismissal, citing a lacking of "standing" for the plaintiffs and the court's lack of "jurisdiction," as well as the Constitution's Commerce clause. The government filing argues, "The Supreme Court and Ninth Circuit have repeatedly held that even purely intrastate activities, such as those the MFFA purports to exempt from federal law, do affect interstate commerce and thus are within Congress' power to regulate. As a result, even if plaintiffs had standing and jurisdiction existed, plaintiffs' amended complaint fails to state a claim and must be dismissed."
The Commerce Clause, however, can be interpreted to have been amended by the 10th Amendment, which is part of the Bill of Rights, adopted subsequent to the U.S. Constitution, Marbut explains.
His organization said, "The Commerce Clause was amended – by the 10th Amendment. It is a bedrock principle of jurisprudence that for any conflict between provisions of a co-equal body of law, the most recently enacted must be given deference as the most recent expression of the enacting authority. This principle is ancient. Without this principle, laws could not be amended or repealed."
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For example, U.S. courts repeatedly affirmed slavery before it ultimately was rejected.
There's no question that the components of the Bill of Rights have authority: Just look at the First Amendment, Marbut explained.
In an analysis by the Tenth Amendment Center, the gun laws were described as a nullification.
"Laws of the federal government are to be supreme in all matters pursuant to the delegated powers of U.S. Constitution. When D.C. enacts laws outside those powers, state laws trump. And, as Thomas Jefferson would say, when the federal government assumes powers not delegated to it, those acts are 'unauthoritative, void, and of no force' from the outset," Boldin wrote.
"When a state 'nullifies' a federal law, it is proclaiming that the law in question is void and inoperative, or 'non-effective,' within the boundaries of that state; or, in other words, not a law as far as the state is concerned. Implied in such legislation is that the state apparatus will enforce the act against all violations – in order to protect the liberty of the state's citizens," he continued.
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #131 on:
March 18, 2010, 04:56:17 AM »
I have been watching this for a while. I think this is one way that government is going more local and the citizenry is trying to make its wishes known outside of the special interest lobby power brokering that is going on inside the beltway. Basically it is saying, "there are parts of the constitution that we will not tolerate you playing fast and lose with".
One of the key parts is where the citizenry holds accountability capabilities.
This is kind of like the talk radio movement during the 80's when the MSM effectively blocked a lot of "conservative" shows/ subject matter from being presented.
There is a certain pressure building due to a sense of a government being out of control, and trying to control access to public forums. That paradigm was recently used by scientists with global warming, and has been getting used for years by an allegedly "free press" pursuing an agenda as well.
Constitutional Law: Individual Mandate
Reply #132 on:
March 22, 2010, 12:12:45 PM »
The politics will continue but for now the two branches have spoken on health care, largely forgetting there is a third branch overseeing their work. For certain there will be a challenge to various aspects, but the big one seems to be the individual mandate.
I have no faith in the chances of 5 justices getting this right, considering Kelo etc., but offer my view of how they should rule.
The Tenth Amendment states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
This power is not delegated elsewhere by the framers so it is therefore a) reserved to the states, as in RomneyCare, and b) requires a new amendment to the constitution in order to delegate this authority.
The reason the proponents did not seek a new amendment is because they do not have 2/3 of the house, 2/3 of the senate and 3/4 of the legislatures on their side. Not because they didn't think it was necessary; they even said it was a right, which is something you would want enumerated in the constitution if you could. Same goes for McCain Feingold campaign finance limits. They knew people weren't going to support, at super-majority levels, a bunch of fine print bullsh*t exceptions inserted into the first amendment that otherwise prohibits congress from limiting political speech.
There is no question in my mind that 4 justices will support the political aspect of the legislation and will pretend to find this power as some unenumerated power into their imaginative readinig of a living and breathing document where it does not exist. Roberts, Scalia, Thomas and Alito will see this as it is - a violation of the limits on federal powers(MHO). So the whole bleepin' shooting match regarding the future of our constitutional republic sadly comes down to one spineless 'centrist', Justice Anthony Kennedy, who just 5 years ago concurred on Kelo, taking private homes for other private enterprises in the 'public interest' of allowing a city to collect more property tax on the improvements (that never happened).
Two things have changed since then. 1) two new very sharp and persuasive conservative justices were added to the court in Roberts and Alito, and Kennedy has leaned more conservative since, and 2) Kennedy wrote the corporate campaign finance decision, Citizens United v. Federal Election Commission, that was specifically the target of Obama's public bitch-slap of the court at the State of the Union to a thundering applause on national television.
Wouldn't it be ironic if that one blatant act of arrogance costs this one term President his only signature accomplishment. We will see.
Last Edit: March 22, 2010, 12:56:09 PM by DougMacG
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #133 on:
March 22, 2010, 05:15:37 PM »
Good to see you back on the board.
Great synopsis of what lies ahead from the Judicial side.
POTH article on legal challenges to Health measure
Reply #134 on:
March 23, 2010, 08:03:12 AM »
Health Measure’s Opponents Plan Legal Challenges
By JOHN SCHWARTZ
Published: March 22, 2010
Officials in a dozen states who oppose the health care bill say they hope to block it in court by arguing that requiring people to buy health insurance is an unprecedented intrusion by the federal government into people’s lives — the equivalent of going a step beyond simply regulating automobiles to requiring people to buy a car. They add that the bill would rewrite the relationship between federal and state government, and they plan to make their argument in court as soon as the legislation becomes law.
“We plan to file the moment Obama signs the bill,” Greg Abbott, the Texas attorney general, wrote on his Facebook page.
But constitutional scholars suggest that such cases would likely amount to no more than a speed bump for health care legislation. The reason, they say, is that Congress has framed the mandate as a tax, which it has well-established powers to create. And Congress’s sweeping authority to regulate the nation’s economy, they add, has been clear since the 1930s.
“The attack on this bill,” said Jack M. Balkin, a professor of constitutional law at Yale University, “is not merely an attack on the substance of this particular measure. It’s also a challenge to understandings that come with the New Deal.”
Florida’s attorney general, Bill McCollum, is leading the effort to block the new bill, saying that it “violates the U.S. Constitution and infringes on each state’s sovereignty.”
Mr. McCollum pledged to fight alongside attorneys general from Alabama, Nebraska, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington. Louisiana announced it would join the suit as well, and Virginia, which has passed a law barring government mandates to buy health insurance, has said it will also file suit.
Their arguments in court are likely to focus on the scope of the mandate and the intrusion of the federal government into state affairs, said David B. Rivkin Jr., a lawyer advising Florida who served in the Justice Department under President Ronald Reagan and the first President George Bush.
“This really goes to the heart of the constitutional architecture that the framers have devised” between the government and its citizens, Mr. Rivkin said. He also said that it would represent “a qualitatively unprecedented expansion of federal authority at the expense of the states.”
Whatever people feel about the worthiness of the bill’s goals, “the Constitution does matter,” he added.
Prof. Randy E. Barnett, who teaches constitutional law at Georgetown University Law Center and has been critical of the bill, said a constitutional challenge to the individual requirement to purchase insurance is a “a serious argument that might have success.”
Still, Professor Barnett was careful not to predict that the opponents of the bill would block the legislation completely. He said that even if a court were to strike down the requirement to buy insurance, such a ruling would still be likely to leave other elements of the law in place. Professor Balkin of Yale said the mandate did not run afoul of the Constitution because Congress had carefully structured it as a tax — and taxes are fully within its power.
“People have to pay taxes all the time,” he said. “This is not new.”
Courts generally defer to Congress’s taxation decisions and definitions so long as they constitute a “genuine revenue-raising device,” Professor Balkin said, and so the health insurance mandate is likely to pass muster.
The broad extent of the government’s power to regulate interstate commerce has been recognized since the Roosevelt administration. In fact, courts have backed Congress’s ability to regulate under the Commerce Clause of the Constitution, even when the issues might not seem, at first blush, to even involve interstate commerce at all. That is why Roscoe Filburn, a small farmer in Ohio, had to destroy wheat that exceeded production quotas in a 1942 case, even though he was growing the wheat for his own use and had no intention to sell it. And in 2005, the Supreme Court ruled that Congress could prohibit medical marijuana, despite some state laws that allow it. The people who had filed suit argued that they had not bought the marijuana, but the Supreme Court said the Commerce Clause still applied.
“In both cases, the Supreme Court said the cumulative effect of your attempt not to participate in the market has an effect on markets — and we can regulate it,” Professor Balkin said.
Erwin Chemerinsky, a constitutional scholar and dean of the University of California, Irvine School of Law, said the argument that people should have the right not to buy health care was “rhetorically appealing” because of its paean to personal freedom. But “individual freedom not to purchase health care, I think, has no basis in Constitutional law.”
In fact, Professor Chemerinsky added, “there is no case law, post 1937, that would support an individual’s right not to buy health care if the government wants to mandate it.”
Congress has often taken actions that impinge on personal freedom for a national purpose, he noted, including the Civil Rights Act of 1964, which required hotels and restaurants to serve minorities.
“If the court stays true to its Commerce Clause jurisprudence of the last 15 years,” Professor Chemerinsky said, “I think this will be upheld.”
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #135 on:
March 23, 2010, 10:38:18 AM »
CCP, Very much appreciate the kind words. I've kept up reading in my posting absence and always enjoy your insights as well. Crafty's post certainly warns us not to have false optimism, even with the Pravda disclaimer and knowing that there are plenty of 'experts' like the Yale Professor to argue for the other side. Yet in justification he points to rulings where feds stopped a farmer from growing wheat (or pot) on his own land for his own consumption, while I pointed to where they found the constitution could prohibit the city from entering a private home, but not from bulldozing it!
Like referees in the NFL or in hockey, maybe they sometimes know when the have gone too far in one direction and the next call goes the other way, as with campaign finance restrictions versus freedom of speech.
I really hate the idea and actually going in to read this garbage that these lawmakers never read, but it seems to me these mandates are backed with fines or penalties rather than a tax and the language they used is all about mandate, not choice or taxpayer option.
Either way, the NY Times got one part right. They won't strike down the whole deal, only certain provisions, which can be tweaked to conform with the guidelines set by the court, if they still have the votes.
In the meantime I pray for the health of all the justices, 5 in particular.
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #136 on:
March 23, 2010, 11:20:43 AM »
Interesting stuff, Doug. I'm hoping that all this fun leads to a revival of a State's Rights effort. Currently there is a lot going on at the state level where both healthcare and second amendment issues are concerned. I'm kinda hoping a lot of this wends its way up through sundry federal courts, finds some measure of unity and common voice, and then either passes SCOTUS muster or so clearly defines just how far we strayed from the framer's intent that folks are motivated to use methods said framers made sure citizens had access to to impose changes on our congressional overlords.
Reply #137 on:
March 30, 2010, 08:10:12 AM »
Who’s Supreme? The Supremacy Clause Smackdown
by Brion McClanahan
When Idaho Governor C.L. “Butch” Otter signed HO391 into law on 17 March 2010, the “national” news media circled the wagons and began another assault on State sovereignty. The bill required the Idaho attorney general to sue the federal government over insurance mandates in the event national healthcare legislation passed. The lead AP reporter on the story, John Miller, quoted constitutional “scholar” David Freeman Engstrom of Stanford Law School as stating that the Idaho law would be irrelevant because of the “supremacy clause” of the United States Constitution.
In his words, “That language is clear that federal law is supreme over state law, so it really doesn’t matter what a state legislature says on this.” Now that Barack Obama has signed healthcare legislation into law, almost a dozen States have filed suit against the federal government, with Idaho in the lead. Battle lines have been drawn. Unfortunately, the question of State sovereignty and the true meaning of the “supremacy clause” may be swallowed up in the ensuing debate.
Engstrom’s opinion is held by a majority of constitutional law “scholars,” but he is far from correct, and Idaho and the thirty seven other States considering similar legislation have a strong case based on the original intent of the powers of the federal government vis-à-vis the States.
The so-called “supremacy clause” of the Constitution, found in Article 6, states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding [emphasis added].”
The key, of course, is the italicized phrase. All laws made in pursuance of the Constitution, or those clearly enumerated in the document, were supreme, State laws notwithstanding. In other words, the federal government was supreme in all items clearly listed in the document.
A quick reading of the Constitution illustrates that national healthcare is not one of the enumerated powers of the federal government, so obviously Engstrom’s blanket and simplistic statement is blatantly incorrect, but his distortion of the supremacy clause goes further.
The inclusion of such a clause in the Constitution was first debated at the Constitutional Convention on 31 May 1787. In Edmund Randolph’s initial proposal, called the Virginia Plan, the “national” legislature had the ability to “legislate in all cases to which the separate states are incompetent…” and “to negative all laws passed by the several states contravening, in the opinion of the national legislature, the Articles of Union….” John Rutledge, Pierce Butler, and Charles Pinckney of South Carolina challenged the word “incompetent” and demanded that Randolph define the term. Butler thought that the delegates “were running into an extreme, in taking away the powers of the states…” through such language.
Randolph replied that he “disclaimed any intention to give indefinite powers to the national legislature, declaring that he was entirely opposed to such an inroad on the state jurisdictions, and that he did not think any considerations whatever could ever change his determination [emphasis added].” James Madison, the author of the Virginia Plan, was not as forthcoming as to his sentiment. Ultimately, Madison preferred a negative over State law and wished the national legislature to be supreme in call cases. But he was not in the majority.
The Convention again broached a federal negative on State law on 8 June 1787. Charles Pinckney, who presented a draft of a constitution shortly after Randolph offered the Virginia Plan, believed a national negative necessary to the security of the Union, and Madison, using imagery from the solar system and equating the sun to the national government, argued that without a national negative, the States “will continually fly out of their proper orbits, and destroy the order and harmony of the political system.” Such symbolism made for a beautiful picture, but it belied reality.
To most of the assembled delegates, the national government was not the center of the political universe and the States retained their sovereignty. Hugh Williamson of North Carolina emphatically stated he “was against giving a power that might restrain the states from regulating their internal police.”
Elbridge Gerry of Massachusetts was against an unlimited negative, and Gunning Bedford of Delaware believed a national negative was simply intended “to strip the small states of their equal right of suffrage.” He asked, “Will not these large states crush the small ones, whenever they stand in the way of their ambitious or interested views?”
When the negative power was put to a vote, seven States voted against it and three for it, with Delaware divided (and Virginia only in the affirmative by one vote). Roger Sherman of Connecticut summarized the sentiment of the majority when he stated he “thought the cases in which the negative ought to be exercised might be defined.” Since the negative did not pass, such a definition was unnecessary.
Thus, the federal government was supreme only in its enumerated powers and it did not have a negative over State law. Supremacy had limits.
By the time the Constitution was debated in the several State ratifying conventions in 1787 and 1788, the “supremacy clause” galvanized opponents of the document. The Constitution, they said, would destroy the States and render them impotent in their internal affairs. The response from proponents of ratification illuminates the true intent of the clause. William Davie, a delegate to the Constitutional Convention from North Carolina and proponent of the Constitution, responded to attacks levied on the “supremacy clause” by stating that:
This Constitution, as to the powers therein granted, is constantly to be the supreme law of the land. Every power ceded by it must be executed without being counteracted by the laws or constitutions of the individual states. Gentlemen should distinguish that it is not the supreme law in the exercise of power not granted. It can be supreme only in cases consistent with the powers specially granted, and not in usurpations [emphasis added].
Davie wasn’t alone in this opinion. Future Supreme Court justice James Iredell of North Carolina argued that, “This clause [the supremacy clause] is supposed to give too much power, when, in fact, it only provides for the execution of those powers which are already given in the foregoing articles….If Congress, under pretence of executing one power, should, in fact, usurp another, they will violate the Constitution [emphasis added].”
Furthermore, in a foreshadowing of nullification, Iredell argued that, “It appears to me merely a general clause, the amount of which is that, when they [Congress] pass an act, if it be in the execution of a power given by the Constitution, it shall be binding on the people, otherwise not [emphasis added]. Other ratifying conventions had similar debates, and proponents of the Constitution continually reassured wavering supporters that the Constitution would only be supreme within its delegated authority.
Most bought their assurances, though to staunch opponents, the Constitution still vested too much power in the central authority. The States would lose their sovereignty, they argued, and as a result, these men demanded an amendment to the Constitution that expressly maintained the sovereignty of the States and placed limits on federal power. Even several moderate supporters of the Constitution embraced this idea.
Ultimately, the three most powerful States in the Union, New York, Massachusetts, and Virginia, demanded that a bill of rights be immediately added to the Constitution; near the top of those recommended amendments on every list, a State sovereignty resolution. These ultimately became the Tenth Amendment to the Constitution, which reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Clearly the intent of this amendment was to mitigate any design the federal government had on enlarging its powers through the “supremacy clause.” If the power was not enumerated in the Constitution and the States were not prohibited by the Constitution from exercising said power, then that power was reserved to the States.
Several other constitutional “scholars” have weighed in on the debate in the last week, and each has invoked the “supremacy clause” to defend their opposition to State action against healthcare. Duke Law Professor Neil Siegel went so far as to suggest that the States are not reading the Tenth Amendment correctly. In perhaps the most outlandish statement of the debate, he also said, “Any talk of nullification bothers me because it’s talk of lawlessness.”
I guess Mr. Siegel has failed to consider that Idaho bill HO391 was passed by a legitimate legislative body elected by the people of the State. That would make it lawful.
mcclanahan-founding-fathersOf course, this debate ultimately boils down to loose interpretation verses strict construction. Thomas Jefferson had the best line on this issue. When asked to read between the lines to “find” implied powers, Jefferson responded that he had done that, and he “found only blank space.”
The original intent of both the “supremacy clause” and the Tenth Amendment indicate that Idaho and the other States challenging Obamacare are justified and correct and that the legal profession is either in the tank for the federal government or has not read either the debates of the Constitutional Convention and/or the State ratifying debates. This should make people like Engstrom and Siegel, rather than legitimate State law directed at unconstitutional authority, irrelevant.
Brion McClanahan holds a Ph.D in American history from the University of South Carolina and is the author of The Politically Incorrect Guide to the Founding Fathers (Regnery, 2009).
Good Riddance Justice Stevens!
Reply #138 on:
April 14, 2010, 10:14:44 AM »
This piece by Thomas Sowell covers my view very nicely. Win or lose it should be good for the Republic to watch new confirmation hearings this summer and have a review of the system we once called limited government.
By Thomas Sowell
When Supreme Court Justices retire, there is usually some pious talk about their "service," especially when it has been a long "service." But the careers of all too many of these retiring jurists, including currently retiring Justice John Paul Stevens, have been an enormous disservice to this country.
Justice Stevens was on the High Court for 35 years-- more's the pity, or the disgrace. Justice Stevens voted to sustain racial quotas, created "rights" out of thin air for terrorists, and took away American citizens' rights to their own homes in the infamous "Kelo" decision of 2005.
The Constitution of the United States says that the government must pay "just compensation" for seizing a citizen's private property for "public use." In other words, if the government has to build a reservoir or bridge, and your property is in the way, they can take that property, provided that they pay you its value.
What has happened over the years, however, is that judges have eroded this protection and expanded the government's power-- as they have in other issues. This trend reached its logical extreme in the Supreme Court case of Kelo v. City of New London. This case involved local government officials seizing homes and businesses-- not for "public use" as the Constitution specified, but to turn this private property over to other private parties, to build more upscale facilities that would bring in more tax revenues.
Justice John Paul Stevens wrote the Supreme Court opinion that expanded the Constitution's authorization of seizing private property for "public use" to seizing private property for a "public purpose." And who would define what a "public purpose" is? Basically, those who were doing the seizing. As Justice Stevens put it, the government authorities' assessment of a proper "public purpose" was entitled to "great respect" by the courts.
Let's go back to square one. Just who was this provision of the Constitution supposed to restrict? Answer: government officials. And to whom would Justice Stevens defer: government officials. Why would those who wrote the Constitution waste good ink putting that protection in there, if not to protect citizens from the very government officials to whom Justice Stevens deferred?
John Paul Stevens is a classic example of what has been wrong with too many Republicans' appointments to the Supreme Court. The biggest argument in favor of nominating him was that he could be confirmed by the Senate without a fight.
Democratic presidents appoint judges who will push their political agenda from the federal bench, even if that requires stretching and twisting the Constitution to reach their goals.
Republicans too often appoint judges whose confirmation will not require a big fight with the Democrats. You can always avoid a fight by surrendering, and a whole wing of the Republican party has long ago mastered the art of preemptive surrender.
The net result has been a whole string of Republican Justices of the Supreme Court carrying out the Democrats' agenda, in disregard of the Constitution. John Paul Stevens has been just one.
There may have been some excuse for President Ford's picking such a man, in order to avoid a fight, at a time when he was an unelected President who came into office in the wake of Richard Nixon's resignation in disgrace after Watergate, creating lasting damage to the public's support of the Republicans.
But there was no such excuse for the elder President Bush to appoint David Souter, much less for President Eisenhower, with back-to-back landslide victories at the polls, to inflict William J. Brennan on the country.
In light of these justices' records, and in view of how long justices remain on the court, nominating such people was close to criminal negligence.
If and when the Republicans return to power in Washington, we can only hope that they remember what got them suddenly and unceremoniously dumped out of power the last time. Basically, it was running as Republicans and then governing as if they were Democrats, running up big deficits, with lots of earmarks and interfering with the market.
But their most lasting damage to the country has been putting people like John Paul Stevens on the Supreme Court.
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #139 on:
April 14, 2010, 11:08:35 AM »
Doug, or other Court followers,
Couldn't it be worse with the replacement?
Obviously the One wants activist judges who interpret the constitution in a way then benefits transfer of power to the "oppressed".
I mean phone one is in office less than two years and he already is appointing two justices. Ginsberg may die soon so there is likely a third. Thank God they were all liberal to start with!
Reply #140 on:
April 20, 2010, 09:15:32 PM »
The Latest ‘Intelligence Gap’
Posted by Julian Sanchez
Stop me if you think you’ve heard this one before. The Washington Post reports that the National Security Agency has halted domestic collection of some type of communications metadata—the details are predictably fuzzy, though I’ve got a guess—in order to allay the concerns of the secret FISA Court that the NSA’s activity might not be technically permissible under the Foreign Intelligence Surveillance Act. Naturally, there’s the requisite quote from the anonymous concerned intel official:
“This is a basic tool we used to have, and it’s now gone,” said one intelligence official familiar with the impasse. “Every day, every week that goes by, there’s just one more week of information that we’re not collecting. You sit there and say, ‘This is unbelievable that we have this gap.’”
I want to take claims like these with due gravity, but I can’t anymore. Because we’ve heard them again and again over the past decade, and they’ve proven to be bogus every time. We were told that the civil liberties restrictions built into pre-9/11 surveillance law kept the FBI from searching “20th hijacker” Zacarias Moussaoui’s laptop—but a bipartisan Senate panel found it wasn’t true. We were told limits on National Security Letters were FBI delaying agents seeking vital records in their investigations—but the delay turned out to have been manufactured by the FBI itself. Most recently, we were warned that the FISA Court had somehow imposed a requirement that a warrant be obtained in order to intercept purely foreign telephone calls that were traveling through U.S. wires. Anyone who understood the FISA law realized that this couldn’t possibly be right—and as Justice Department officials finally admitted under pressure, that wasn’t true either. But this time there’s a really real for serious “intelligence gap” and we’ll all be blown up by scary terrorists any minute if it’s not fixed? Pull the other one.
That said, Republicans are claiming the problem requires a mere “technical fix” to FISA, so we should at least be able to get a rough sense of what the issue is, if Congress actually decides to act. Democrats, by contrast, appear to think NSA can “address the court’s concerns without resorting to legislation.” The word “resort” here seems depressingly apt: They’ll ask for a legislative tweak if there’s absolutely no way to shoehorn what they want to do into the statute through clever lawyering in an ex parte proceeding in front of a highly deferential court, but it’s a last resort.
As for what the problem might be, I can think of a couple of possibilities off the top of my head. A few years back, the FISA pen register provision was amended to effectively build into the legal order for a standard pen register, which records data about calls or e-mails made and received, language mirroring a legal demand for subscriber records known as a 2703(d) order in the criminal context. Law enforcement routinely uses that combination of a 2703(d) plus a pen register to get location tracking information for cell phones. But the evidentiary standard for getting a 2703(d) order is (very) slightly higher than the standard for a pen register alone, and federal law prohibits the use of a pen register alone to gather location data. So there might be a question about whether FISA pen registers alone can be used for cell phone location tracking purposes.
Alternatively, given that Internet communications aren’t just “metadata” and “content” but rather a whole series of layers containing different types of information, there could be a question about just how far down “metadata” goes. This might be especially tricky for protocols where quite a lot of information about the content of the communication—which is supposed to require a full probable cause warrant—can be gleaned from sophisticated analysis of the size and timing of packets in the stream.
These are, of course, blind guesses. What’s disturbing is how much blind guessing the FISA court itself may be doing. The new hiatus, the Post tells us via an anonymous source, came about when the FISA Court “got a little bit more of an understanding”of what the NSA was up to. Their enhanced understanding concerns data that NSA has been getting with the court’s approval for “several years,” according to the Post. And there you have the real “intelligence gap” in modern surveillance: We have a Court going through a pantomime of oversight over thousands of highly technologically sophisticated interception programs, but it may take a few years for them to really understand what they’ve been signing off on.
We’ll understand still less about the rationale for any “technical fix” to FISA that Congress might approve, if they deign to go that route. But we’ll be reassured that it’s very important, necessary to keep us safe from the terrorist hordes, and nothing worth bothering our pretty heads about.
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #141 on:
April 21, 2010, 04:51:09 AM »
The only intelligence gap is the usuall one. A bureaucrat more interested in the rumor by the water cooler than checking his full in box. The FBI had an agent that put the pieces together- the agent was junior and female so it did not go anywhere......... 4 broken buildings later and a retired FBI agent with a couple million taxpayer dolars in the bank and they still haven't solved the real issue.
someone mentioned that agents in the field could have a pretty good idea where their info should go, why not let them directly send it? You need at least 1 more layer there for cut outs, and deniability, but that layer would still have a much better idea than the guy in the comfy office, and get it where it needs to go way faster. I wonder how many inside under the roof jobs that would cut? also it would clear up the accountability issues regarding a government spying on its own citizens "just in Case".
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #142 on:
April 21, 2010, 07:50:31 AM »
In the article CCP posted it said:
"Most recently, we were warned that the FISA Court had somehow imposed a requirement that a warrant be obtained in order to intercept purely foreign telephone calls that were traveling through U.S. wires. Anyone who understood the FISA law realized that this couldn’t possibly be right—and as Justice Department officials finally admitted under pressure, that wasn’t true either."
This "traveling through US wires" thing is something I have read and believed for several years. Its been a lie?!?
Does anyone have anything more on this?!?
On the subject of the Constitution being "a living document", this seems pertinent to me:
"Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction." --Thomas Jefferson, letter to Wilson Nicholas, 1803
Last Edit: April 21, 2010, 07:58:36 AM by Crafty_Dog
Insurance mandate in peril
Reply #143 on:
April 29, 2010, 06:11:45 PM »
Hat tip to BBG
The Insurance Mandate in Peril
First Congress said it was a regulation of commerce. Now it's supposed to be a tax. Neither claim will survive Supreme Court scrutiny.
By RANDY E. BARNETT
A"tell" in poker is a subtle but detectable change in a player's behavior or demeanor that reveals clues about the player's assessment of his hand. Something similar has happened with regard to the insurance mandate at the core of last month's health reform legislation. Congress justified its authority to enact the mandate on the grounds that it is a regulation of commerce. But as this justification came under heavy constitutional fire, the mandate's defenders changed the argument—now claiming constitutional authority under Congress's power to tax.
This switch in constitutional theories is a tell: Defenders of the bill lack confidence in their commerce power theory. The switch also comes too late. When the mandate's constitutionality comes up for review as part of the state attorneys general lawsuit, the Supreme Court will not consider the penalty enforcing the mandate to be a tax because, in the provision that actually defines and imposes the mandate and penalty, Congress did not call it a tax and did not treat it as a tax.
The Patient Protection and Affordable Care Act (aka ObamaCare) includes what it calls an "individual responsibility requirement" that all persons buy health insurance from a private company. Congress justified this mandate under its power to regulate commerce among the several states: "The individual responsibility requirement provided for in this section," the law says, ". . . is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2)." Paragraph (2) then begins: "The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased."
In this way, the statute speciously tries to convert inactivity into the "activity" of making a "decision." By this reasoning, your "decision" not to take a job, not to sell your house, or not to buy a Chevrolet is an "activity that is commercial and economic in nature" that can be mandated by Congress.
It is true that the Supreme Court has interpreted the Commerce Clause broadly enough to reach wholly intrastate economic "activity" that substantially affects interstate commerce. But the Court has never upheld a requirement that individuals who are doing nothing must engage in economic activity by entering into a contractual relationship with a private company. Such a claim of power is literally unprecedented.
Since this Commerce Clause language was first proposed in the Senate last December, Democratic legislators and law professors alike breezily dismissed any constitutional objections as preposterous. After the bill was enacted, critics branded lawsuits by state attorneys general challenging the insurance mandate as frivolous. Yet, unable to produce a single example of Congress using its commerce power this way, the defenders of the personal mandate began to shift grounds.
On March 21, the same day the House approved the Senate version of the legislation, the staff of the Joint Committee on Taxation released a 157-page "technical explanation" of the bill. The word "commerce" appeared nowhere. Instead, the personal mandate is dubbed an "Excise Tax on Individuals Without Essential Health Benefits Coverage." But while the enacted bill does impose excise taxes on "high cost," employer-sponsored insurance plans and "indoor tanning services," the statute never describes the regulatory "penalty" it imposes for violating the mandate as an "excise tax." It is expressly called a "penalty."
This shift won't work. The Supreme Court will not allow staffers and lawyers to change the statutory cards that Congress already dealt when it adopted the Senate language.
In the 1920s, when Congress wanted to prohibit activity that was then deemed to be solely within the police power of states, it tried to penalize the activity using its tax power. In Bailey v. Drexel Furniture (1922) the Supreme Court struck down such a penalty saying, "there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment."
Although the Court has never repudiated this principle, the Court now interprets the commerce power far more broadly. Thus Congress may regulate or prohibit intrastate economic activity directly without invoking its taxation power. Yet precisely because a mandate to engage in economic activity has never been upheld by the Court, the tax power is once again being used to escape constitutional limits on Congress's regulatory power.
Supporters of the mandate cite U.S. v. Kahriger (1953), where the Court upheld a punitive tax on gambling by saying that "nless there are provisions extraneous to any tax need, courts are without authority to limit the exercise of the taxing power." Yet the Court in Kahriger also cited Bailey with approval. The key to understanding Kahriger is the proposition the Court there rejected: "it is said that Congress, under the pretense of exercising its power to tax has attempted to penalize illegal intrastate gambling through the regulatory features of the Act" (emphasis added).
In other words, the Court in Kahriger declined to look behind Congress's assertion that it was exercising its tax power to see whether a measure was really a regulatory penalty. As the Court said in Sonzinsky v. U.S. (1937), "nquiry into the hidden motives which may move Congress to exercise a power constitutionally conferred upon it is beyond the competency of courts." But this principle cuts both ways. Neither will the Court look behind Congress's inadequate assertion of its commerce power to speculate as to whether a measure was "really" a tax. The Court will read the cards as Congress dealt them.
Congress simply did not enact the personal insurance mandate pursuant to its tax powers. To the contrary, the statute expressly says the mandate "regulates activity that is commercial and economic in nature." It never mentions the tax power and none of its eight findings mention raising any revenue with the penalty.
Moreover, while inserting the mandate into the Internal Revenue Code, Congress then expressly severed the penalty from the normal enforcement mechanisms of the tax code. The failure to pay the penalty "shall not be subject to any criminal prosecution or penalty with respect to such failure." Nor shall the IRS "file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section," or "levy on any such property with respect to such failure."
In short, the "penalty" is explicitly justified as a penalty to enforce a regulation of economic activity and not as a tax. There is no authority for the Court to recharacterize a regulation as a tax when doing so is contrary to the express and actual regulatory purpose of Congress.
So defenders of the mandate are making yet another unprecedented claim. Never before has the Court looked behind Congress's unconstitutional assertion of its commerce power to see if a measure could have been justified as a tax. For that matter, never before has a "tax" penalty been used to mandate, rather than discourage or prohibit, economic activity.
Are there now five justices willing to expand the commerce and tax powers of Congress where they have never gone before? Will the Court empower Congress to mandate any activity on the theory that a "decision" not to act somehow affects interstate commerce? Will the Court accept that Congress has the power to mandate any activity so long as it is included in the Internal Revenue Code and the IRS does the enforcing?
Yes, the smart money is always on the Court upholding an act of Congress. But given the hand Congress is now holding, I would not bet the farm.
Mr. Barnett is a professor of constitutional law at Georgetown and the author of "Restoring the Lost Constitution: The Presumption of Liberty" (Princeton, 2005).
Reply #144 on:
May 03, 2010, 08:32:00 AM »
"They are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please which may be good for the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.... Certainly no such universal power was meant to be given them. It was intended to lace them up straightly within the enumerated powers and those without which, as means, these powers could not be carried into effect." --Thomas Jefferson, Opinion on National Bank, 1791
"The Constitution on which our Union rests, shall be administered by me [as President] according to the safe and honest meaning contemplated by the plain understanding of the people of the United States at the time of its adoption -- a meaning to be found in the explanations of those who advocated, not those who opposed it, and who opposed it merely lest the construction should be applied which they denounced as possible." --Thomas Jefferson, letter to Mesrs. Eddy, Russel, Thurber, Wheaton and Smith, 1801
Last Edit: May 03, 2010, 08:33:43 AM by Crafty_Dog
Reply #145 on:
May 04, 2010, 05:46:36 AM »
"I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution." --James Madison, letter to Henry Lee, 1824
Volokh on Kagan
Reply #146 on:
May 11, 2010, 08:30:00 PM »
Elena Kagan as Scholar
Eugene Volokh • May 10, 2010 3:47 pm
As scholar, Elena Kagan worked in two main fields, First Amendment law and (more or less) administrative law. Since the first of those fields is one in which I also work, I decided to reread those articles, and — since some people have raised questions about Kagan’s qualities as a scholar — look more broadly at her scholarship.
1. Let me begin with some objective factors, rather than my own evaluation of Kagan’s scholarship. As this excellent SCOTUSblog post chronicles, Kagan was a working scholar from 1991–95, and then 1999–2003. Between those years, she worked in the Clinton Administration; after those years, she was dean at Harvard Law School, a position that these days leaves its holder with very little time to do serious scholarship. In those eight years, she wrote or cowrote four major articles (linked to here), Presidential Administration (Harv. L. Rev. 2001), Chevron’s Nondelegation Doctrine (Harv. L. Rev. 2001, cowritten with David Barron), Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine (U. Chi. L. Rev. 1996), The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion (Sup. Ct. Rev. 1993). She also wrote three shorter but still substantial pieces, When a Speech Code Is a Speech Code: The Stanford Policy and the Theory of Incidental Restraints (U.C. Davis. L. Rev. 1996), Confirmation Messes, Old and New (U. Chi. L. Rev. 1995), and Regulation of Hate Speech and Pornography After R.A.V. (U. Chi. L. Rev. 1993).
Quantitatively, this is quite good output for eight years as a working scholar. It looks a lot smaller if one looks at her career from 1991 to 2009, when she was appointed Solicitor General — but for the reasons I mentioned above, that’s not the right way to look at it.
Moreover, two of her articles have been judged to be quite important by her colleagues. Presidential Administration has been cited 305 times in law journal articles (according to a search of Westlaw’s JLR database) — an extraordinarily high number of citations for any article, especially one that is less than 10 years old. In fact, a HeinOnline list of all articles with more than 100 citations, run in August 2009, reports that her article was at the time the 6th most-cited law review article of all the articles published since 2000. Many legal scholars, even ones working in the relatively high-citation fields of constitutional law and administrative law, have never and will never write an article that is so much cited.
Chevron’s Nondelegation Doctrine has been cited 75 times, a very high number for an article’s first 10 years; I suspect that only a tiny fraction of one percent of all law review articles are cited at such a pace. Private Speech, Public Purpose has been cited 129 times, likewise a very high number. The Changing Faces of First Amendment Neutrality has been cited only 36 times, but that probably stems in large part from the fact that Supreme Court Review articles from that era are not on Westlaw or Lexis (ridiculous, especially for a faculty-edited journal with the Supreme Court Review’s excellent reputation, and likely stemming from a short-sighted non-licensing decision by the University of Chicago Press).
And while some articles might be heavily cited because they fit with academic ideological fashions, I don’t think these would qualify. As I understand it, Kagan’s administrative law work is consistent with a strong executive model, and the modern intellectual fashion (especially during the Bush era) has been to criticize this model (though the balance of the legal academy on this has not been as lopsided as on some other issues). Likewise, Kagan’s First Amendment scholarship, especially Private Speech, Public Purpose, doesn’t fit with any current fashion among First Amendment scholars; it is not, for instance, distinctively left-wing in its views (the direction in which the constitutional law academy famously trends these days). That it has been heavily cited suggests a substantive judgment about its technical merit and originality, and not just ideological sympathy.
So Kagan, it seems to me, is a successful scholar whose interests have extended beyond scholarship, to government service and to educational institution-building. As a result, she hasn’t written as much as she would have had she only been interested in scholarship (though I suspect that her time in the Clinton Administration helped her produce her administrative law articles). But that reflects the breadth of her interests, and not any intellectual limitations.
2. On then to my own evaluation of the First Amendment articles: I think they’re excellent. I disagree with them in significant ways (this article, for instance, reaches results that differ quite a bit from those suggested by Kagan’s Private Speech, Public Purpose article, see, e.g., PDF pp. 8–9). But I like them a lot.
The articles attack difficult and important problems (Private Speech, Public Purpose, for instance, tries to come up with a broad theory to explain much of free speech law). They seriously but calmly criticize the arguments on both sides, and give both sides credit where credit is due. For instance, I particularly liked Kagan’s treatment of both the Scalia R.A.V. v. City of St. Paul majority and the Stevens concurrence, in her Changing Faces of First Amendment Neutrality article.
As importantly, the articles go behind glib generalizations and formalistic distinctions and deal with the actual reality on the ground, such as the actual likely effects of speech restrictions, and of First Amendment doctrine. (I’m a big believer in formalism in the sense of a preference for rules over standards; but I share many people’s disapproval of formalistic arguments in the fashioning of rules, when those arguments ignore real-world distinctions and effects, and obscure the important policy questions rather than revealing them.) This is legal scholarship as it should be, and as it too rarely is.
3. But how would Elena Kagan likely actually vote in First Amendment cases? It’s hard to tell for sure.
This is partly because her work is in large measure structural and theoretical, rather than focusing on specific constitutional controversies. And it is partly because even her articles that focus on such specific controversies, such as over so-called “hate speech” and pornography, are often more analytical (here’s how we should understand the law, and here are the pluses and minuses of various approaches) than prescriptive (here’s the rule courts should adopt). That’s a fine trait in an article — the analytical components are generally more useful to readers than the prescriptive components. But it does make it hard to predict just how the author would decide cases as a Supreme Court Justice.
Still, here’s my rough sense of the matter:
a. Kagan’s First Amendment work suggests a general acceptance of current free speech law, and an attempt to better understand it and make it more internally consistent rather than to radically change it. I can’t tell for sure whether this flows from a judgment about what’s more useful scholarship, from a largely precedent-respecting temperament, or from agreement with the underlying free speech caselaw. But my guess is that it at least in part reflects a general comfort with the current precedents, and a lack of desire to shift them much.
b. On so-called “hate speech” and pornography, the two First Amendment topics on which Kagan has most explicitly written, I likewise see little interest in moving the law much. Kagan seems to find much that’s sensible about R.A.V. v. City of St. Paul — which held that even within the unprotected category of “fighting words,” the government may not single out words based on their racially, religiously, etc. themed message. And to the extent she’s skeptical about that decision, it sounds like most that she would tolerate is a restriction within this unprotected category of fighting words: I don’t think she would endorse restrictions on allegedly racist or otherwise bigoted speech outside this traditionally unprotected category.
Likewise, while she might tolerate some restrictions on pornography — probably limited to pornography that depicts violent sex — it seems likely that she won’t go much beyond (and likely not at all beyond) restrictions on pornography that already fits within the “obscenity” exception. I am no fan of the obscenity exception, chiefly because of its nearly lawless vagueness. But while it sounds like Kagan probably wouldn’t vote to get rid of the exception, or even go so far as Stevens to argue that obscenity could only be punished through civil enforcement and not the criminal law, it also sounds like Kagan probably wouldn’t materially expand the exception, or create similar exceptions to join it.
c. What about the matters on which Justices on the left wing of the Court have generally taken a relatively speech-restrictive view — campaign finance speech restrictions, and restrictions on religious speech in generally available government subsidy programs (see, e.g., Rosenberger v. University of Virginia)? (I do not include within this category so-called “hate speech” or pornography, even violent and allegedly misogynistic pornography, since the Justices on the left wing of the Court have not generally taken a relatively speech-restrictive view as to these.)
Here, Kagan’s writings are relatively opaque. Some passages in her Private Speech, Public Purpose article suggests that she’s at least sympathetic with Buckley v. Valeo’s holding that restrictions on individual expenditures related to campaigns are unconstitutional. If that’s so, then she would probably take a more speech-protective view than Justices Stevens, Ginsburg, and probably Breyer (we don’t know much about Justice Sotomayor’s views on the question). But it’s hard to be even close to certain of this.
My guess is that the likeliest bet would be to say that a Justice Kagan would be roughly where Justice Ginsburg is — generally pretty speech-protective, but probably with some exceptions in those areas where the liberal Justices on the Court have taken a more speech-restrictive view, chiefly expensive speech related to campaigns and religious speech in generally available government subsidies. Not perfect from my perspective, but not bad, and no worse than Justice Stevens, with whom Justice Ginsburg largely agreed on such matters.
Federalizing Unintended Crime
Reply #147 on:
May 19, 2010, 08:25:42 AM »
Long, comprehensive examination of a federal trend to criminalize laws and regulations, generally quite obscure ones, without intending to. Piece states that there are currently almost 4500 federal laws that don't require intent to violate, and an estimated 10,000 federal regulations. Link to the full report here:
Executive summary follows:
For centuries, “guilty mind,” or mens rea, requirements restricted criminal punishment to those who were truly blameworthy and gave individuals fair notice of the law. No person should be convicted of a crime without the government having proved that he acted with a guilty mind—that is, that he intended to violate a law or knew that his conduct was unlawful or sufficiently wrongful so as to put him on notice of possible criminal liability. In a sharp break with this tradition, the recent proliferation of federal criminal laws has produced scores of criminal offenses that lack adequate mens rea requirements and are vague in defining the conduct that they criminalize.
The National Association of Criminal Defense Lawyers and The Heritage Foundation jointly under- took an unprecedented look at the federal legislative process for all studied non-violent criminal offenses introduced in the 109th Congress in 2005 and 2006. This study revealed that offenses with inadequate mens rea requirements are ubiquitous at all stages of the legislative process: Over 57 percent of the of- fenses introduced, and 64 percent of those enacted into law, contained inadequate mens rea requirements, putting the innocent at risk of criminal punishment. Compounding the problem, this study also found consistently poor legislative drafting and broad delegation of Congress’s authority to make criminal law to unaccountable regulators.
According to several scholars and legal researchers, Congress is criminalizing everyday conduct at a reckless pace. This study provides further evidence in support of that finding. Members of the 109th Congress proposed 446 non-violent criminal offenses and Congress enacted 36 of them. These totals do not include the many offenses concerning firearms, possession or trafficking of drugs or pornography, immigration violations, or intentional violence. The sheer number of criminal offenses proposed dem- onstrates why so many of them were poorly drafted and never subjected to adequate deliberation and oversight.
Even more troubling is the study’s finding that many of the criminal offenses Congress is enacting are fundamentally flawed. Not only do a majority of enacted offenses fail to protect the innocent with adequate mens rea requirements, many of them are so vague, far-reaching, and imprecise that few lawyers, much less non-lawyers, could determine what specific conduct they prohibit and punish.
These failings appear to be related to the reckless pace of criminalization. Congress is awash with crim- inal legislation, and the House and Senate Judiciary Committees lack the time and opportunity to review each criminal offense and correct weak mens rea requirements. Over half (52 percent) of the offenses in the study were never referred to either judiciary committee. This is despite these committees’ special expertise in crafting criminal offenses, knowledge of the priorities and resources of federal law enforcement, and express jurisdiction over federal criminal law.
One encouraging finding is that oversight by the House Judiciary Committee does improve the qual- ity of mens rea requirements. Oversight includes marking up a bill or reporting it out of committee for consideration by the full House of Representatives. Based upon this analysis, and upon the specific criminal law jurisdiction and expertise of the House and Senate Judiciary Committees, automatic referral of all bills adding or modifying criminal offenses to these two committees is likely to improve mens rea requirements. More importantly, automatic referral could stem the tide of criminalization by forcing Congress to adopt a measured and prioritized approach to criminal lawmaking. By neglecting the expertise of the judiciary committees, Congress endangers civil liberties.
The study also revealed that Congress frequently delegates its criminal lawmaking authority to other bodies, typically executive branch agencies. Delegation empowers unelected regulators to decide what conduct will be punished criminally, rather than requiring Congress to make that determination itself. This “regulatory criminalization” significantly increases the scope and complexity of federal criminal law, pre- vents systematic congressional oversight of the criminal law, and lacks the public accountability provided by the normal legislative process.
To begin to solve the problems identified in the study, this report offers five specific recommendations for reform. Congress should:
1. Enact default rules of interpretation to ensure that mens rea requirements are adequate to protect against unjust conviction.
Congress should enact statutory law that directs federal courts to grant a criminal defendant the ben- efit of the doubt when Congress has failed to adequately and clearly define the mens rea requirements for criminal offenses and penalties. First, this reform would address the unintentional omission of mens rea terminology by directing federal courts to read a protective, default mens rea requirement into any criminal offense that lacks one. Second, it would direct courts to apply any introductory or blanket mens rea terms in a criminal offense to each element of the offense. In this way, it would improve the mens rea protections throughout federal criminal law, provide needed clarity, force Congress to give careful consideration to mens rea requirements when adding or modifying criminal offenses, and help ensure that fewer individuals are unjustly prosecuted and punished.
2. Codify the common-law rule of lenity, which grants defendants the benefit of doubt when Congress fails to legislate clearly.
The rule of lenity directs a court, when construing an ambiguous criminal law, to resolve the ambiguity in favor of the defendant. In a recent U.S. Supreme Court decision, United States v. Santos, Justice Antonin Scalia explained that this “venerable rule vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed.” Giving the benefit of the doubt to the defendant is consistent with the traditional rules that all defendants are presumed innocent and that the government bears the burden of proving every element of a crime beyond a reasonable doubt. Codifying this venerable common-law rule would serve the rights of all defendants at every stage of the criminal process. This reform would also protect Congress’s lawmaking authority because it would restrict the ability of federal courts to legislate from the bench and reduce the frequency with which those courts must speak because Congress has failed to legislate clearly.
3. Require judiciary committee oversight of every bill that includes criminal offenses or penalties.
Congressional rules should require every bill that would add or modify criminal offenses or penalties to be subject to automatic referral to the relevant judiciary committee. A “sequential” referral requirement would give the House or Senate Judiciary Committee exclusive control over a bill until it reports the bill out or the time limit for its consideration expires, and only at that point could the bill move to another committee. The judiciary committees have special expertise in crafting criminal offenses, knowledge of the priorities and resources of federal law enforcement, and express jurisdiction over federal criminal law. While automatic referral may not produce stronger, more protective mens rea requirements, it should result in clearer, more specific, and higher quality criminal offenses. More importantly, this rule could help stem the tide of criminalization by forcing Congress to adopt a measured and prioritized approach to criminal lawmaking. Further, it would increase congressional accountability for new criminalization and ultimately reduce overcriminalization.
4. Require detailed written justification for and analysis of all new federal criminalization.
This reform would require the federal government to produce a standard public report assessing the purported justification, costs, and benefits of all new criminalization. This report must include:
• A description of the problem that the criminal offense or penalty is intended to redress, includ- ing an account of the perceived gaps in existing law, the wrongful conduct that is currently unpunished or under-punished, and any specific cases or concerns motivating the legislation;
• A direct statement of the express constitutional authority under which the federal government purports to act;
• An analysis of whether the criminal offenses or penalties are consistent with constitutional and prudential considerations of federalism;
• A discussion of any overlap between the conduct to be criminalized and conduct already crimi- nalized by existing federal and state law;
• A comparison of the new law’s penalties with the penalties under existing federal and state laws for comparable conduct;
• A summary of the impact on the federal budget and federal resources, including the judiciary, of enforcing the new offense and penalties to the degree required to solve the problem that the new criminalization purports to address;
• A review of the resources that federal public defenders have available and need in order to adequately defend indigent defendants charged under the new law; and
• An explanation of how the mens rea requirement of each criminal offense should be interpreted and applied to each element of the offense.
This reform would also require Congress to collect information on regulatory criminalization, includ- ing an enumeration of all new criminal offenses and penalties that federal agencies have added to federal regulations, as well as the specific statutory authority supporting these regulations.
Mandatory reporting would increase accountability by requiring the federal government to perform basic analysis of the grounds and justification for all new and modified criminal offenses and penalties.
5. Draft every criminal offense with clarity and precision.
One overarching reform recommendation is a slower, more focused, and deliberative approach to the creation and modification of federal criminal offenses. When drafting criminal offenses, Members of Congress should always:
• Include an adequate mens rea requirement; • Define both the actus reus (guilty act) and the mens rea (guilty mind) of the offense in specific and
unambiguous terms; • Provide a clear statement of whether the mens rea requirement applies to all the elements of the
offense or, if not, which mens rea terms apply to which elements of the offense; and • Avoid delegating criminal lawmaking authority to regulators.
The importance of sound legislative drafting cannot be overstated, for it is the drafting of a criminal offense that frequently determines whether a person acting without intent to violate the law and lacking knowledge that his conduct was unlawful or sufficiently wrongful to put him on notice of possible criminal liability will endure a life-altering prosecution and conviction—and lose his freedom.
It is equally important that Members of Congress resist the temptation to bypass the arduous task of drafting criminal legislation by delegating it to unelected regulators. It is the legislative branch’s responsibil- ity to ensure that no individual is punished if Congress itself did not devote the time and resources neces- sary to clearly and precisely articulate the law giving rise to that punishment.
These five reforms would help ensure that every proposed criminal offense receives the attention due whenever Congress determines how to focus the greatest power government routinely uses against its own citizens: the criminal law. Coupled with increased public awareness and scrutiny of the criminal offenses Congress enacts, these reforms would strengthen the protections against unjust conviction and prevent the dangerous proliferation of federal criminal law. With their most basic liberties at stake, Americans are entitled to no less.
Three Deadly Weapons
Reply #148 on:
May 19, 2010, 03:27:04 PM »
Three Deadly Weapons
by Timothy Reeves, Oregon Tenth Amendment Center
Any honest reading of the US Constitution gives the impression that the Federal Government is but a lackey to the states. However, when it comes to the way it has been interpreted (incorrectly), there are three clauses which are widely cited as authority to usurp power which belongs elsewhere. In this article, I intend to delve into these and examine how they are true or false. I also intend to highlight the impact that the abuse/use of these clauses has had.
Article I Section8 Clause3 of the Constitution states that Congress has the power:
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
This obviously means Congress has the right to regulate how much grain you can grow on your land for your own consumption, right? If you said no it does not (like any other thinking person), you are out of step with the US Supreme Court. This also means that the Congress can force you to purchase health insurance, right? If you said no, you are out of step with the Congress. Surely the Commerce clause means that if a migratory bird (that is hunted in another state) lands on your property, then your property can be seized by the Federal Govt. due to it’s part in interstate commerce right? No?
How about this one; The Federal Government can make gun laws (in direct contravention of the US Constitution) because they are sold over state lines. Obviously the ambiguous verbiage above allows them the authority to ignore the clearly unambiguous verbiage of “shall not be infringed,” right?
Well, there is the Government’s case, now how about the governed? For our case I will focus on some quotes from the founders:
How about that James Madison (the acknowledged father of the Constitution)?
It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.
So… the way I read James Madison here is that the Commerce clause is to keep the states themselves from interfering with commerce (laying tariffs between states, placing restrictions on imports, etc…). It seems that Madison did not want the Federal Government using the Commerce clause to control… well.. everything.
How about Thomas Jefferson? Here is the quote I found from him-
“[The commerce clause] does not extend to the internal regulation of the commerce of a State (that is to say, of the commerce between citizen and citizen) … but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes.”
Hmmm… I think Thomas Jefferson agreed with me. The Commerce clause was intended only to regulate resale.
In fact, the federalist papers used the term “commerce” dozens of times, and they all amounted to the resale of things by merchants and shippers, not one time did it mean growing of agriculture or manufacturing of products for sale. If this context was examined, then this would be the original intent of the Constitution.
Necessary And Proper Clause
Article I Section8 Clause18 states that Congress has the power:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Most school children are taught that this clause was added so that Congress could legislate on issues that would come with new inventions. (My teacher used to say that there were no autos in 1789, so they needed to put this clause in).
Surely this clause means that Congress can make any law they want, right? The problem with this view is that at the end of this clause the Constitution clearly limits the power to making laws necessary to carry out the other laws in the Constitution. In other words, Congress has the power to raise and support a navy, so they have the power to train sailors and commission ships.
These powers are referred to as “incidental powers.” They must be smaller than the power they are used in conjunction with. That is, they may regulate interstate commerce, but may not regulate state governments or laws.
Some examples of “necessary and proper” overreach are:
In 1896, it was ruled that it was legal for the Federal Government to condemn a railroads property to build a national park on the basis that it was necessary to the national defense that the citizens are proud of their country.
Now, I love my country as much as anyone else alive, however, I love the freedoms more than the national park, and this just illustrates what freedoms we do not have. The necessary and proper clause was also used to justify the national bank as necessary to conduct the borrowing and national defense powers of Congress. But lets look at some other input:
Joseph Story (an early Supreme Court Justice) said-
“The plain import of the clause is, that congress shall have all the incidental and instrumental powers, necessary and proper to carry into execution all the express powers. It neither enlarges any power specifically granted; nor is it a grant of any new power to congress. But it is merely a declaration for the removal of all uncertainty, that the means of carrying into execution those, otherwise granted, are included in the grant.”
This about spells it out. The debate for McCullough Vs. Maryland is another source for quotes from Hamilton, Madison and Jefferson.
General Welfare Clause
To promote or to provide for the general welfare, appears in two places in the US Constitution;
First in the preamble, which is just a listing of reasons and gives no powers whatsoever, and then Article I Section8 Clause 1 where it states:
“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”
Does this clause mean that Congress has no limits except what they believe will advance the “general welfare?” Is it just the Supreme Court which determines the general welfare, but the federal government may do anything that the court does not forbid? This is the primary opinion of the elite and the elected. It has been used to justify welfare, Medicare, Social Security, Medicaid, and a host of freedom-destroying legislation. But what did the founders think of this?
Take James Madison-
“If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress… Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.”
or this one:
“With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”
Or this one from Thomas Jefferson
“Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.”
In reality, the “General welfare” clause is a qualifier. Congress may only lay taxes for revenue to be used for the general welfare (as opposed to the special welfare) of the states, for example, they may lay taxes to build postal roads, but they may not lay taxes for building postal roads in New Hampshire, to the detriment of the rest of the states. So, ironically, the way that Congress horse-trades favors for votes in Congress makes most legislation unconstitutional.
In addition to these gross misconceptions by the Federal Govt., they add the Supremacy clause, which states:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwith-standing.”
This is pointed to anytime the Federal Government wants to escape criticism from people saying they have exceeded their authority. However, a careful reading of the passage above makes it clear that only laws in pursuance of the US Constitution are supreme. Anytime the Federal Govt. goes beyond the Constitution, citizens are not bound to obey them.
The preceding examples of intentional misconstruction of the Constitution are examples of our Federal Government out of control. They pit the citizens against each other; they take from the hand of labor to give to the hand of not only the needy, but the banks and corporations as well.
They make people perpetual slaves by addicting them to handouts and then denying them the escape from this perpetual misery by over-regulating prospective employers for these people. They have bogged us down in perpetual wars overseas for over a period of 70 years, ignoring the appropriate method of war-making under the Constitution.
They have criminalized multiple forms of commerce, suspended Habeas corpus in absence of properly declared wars, and they have systematically denied due process rights for the people.
Indeed, this list could go on for pages. Most of these transgressions against the natural rights of man are done in the name of the good intentions (saving people from themselves). These need to end, and our country needs to return to the republican form of government it was founded on. Our states need to resume pushing back at the Federal Government and interposing on our behalf.
Tim Reeves is an 11 year veteran of the U.S Navy, and is now an engineer, He grew up in Michigan, but has resided in the Pacific NW since 1992. He’s the State Chapter Coordinator for the Oregon Tenth Amendment Center.
Re: Issues in the American Creed (Constitutional Law and related matters)
Reply #149 on:
May 19, 2010, 04:14:15 PM »
That is a very nice article and very practical for citing. Good find!
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