Dog Brothers Public Forum
Return To Homepage
Welcome, Guest. Please login or register.
July 24, 2014, 05:57:54 AM

Login with username, password and session length
Search:     Advanced search
Welcome to the Dog Brothers Public Forum.
81207 Posts in 2243 Topics by 1046 Members
Latest Member: MikeT
* Home Help Search Login Register
+  Dog Brothers Public Forum
|-+  Politics, Religion, Science, Culture and Humanities
| |-+  Science, Culture, & Humanities
| | |-+  Issues in the American Creed (Constitutional Law and related matters)
« previous next »
Pages: 1 ... 4 5 [6] 7 8 ... 25 Print
Author Topic: Issues in the American Creed (Constitutional Law and related matters)  (Read 95374 times)
G M
Power User
***
Posts: 11814


« Reply #250 on: September 14, 2010, 06:23:43 PM »

Ok Det. BBG, here is your case:

You are called out to a suburban home in a middle class neighborhood. Patrol officers and the coroner's office is on scene. You have a deceased middle aged female in the home with visible blunt force trauma to the face and neck. She is partially clad, underwear pulled down to her ankles. The decedent's husband made the initial call to 911, reporting that he found his home burglarized and his wife deceased when he returned home from work. He gave an initial statement to patrol to this effect, complained of chest pains and was taken by ambulance to a local ER.

Ok, so please tell me how you would investigate this case without doing anything you feel to be unconstitutional.
Logged
Body-by-Guinness
Power User
***
Posts: 2787


« Reply #251 on: September 15, 2010, 12:18:54 PM »

Meh, not my cup of tea so I'm not gonna flounder around making a fool of myself.

My concerns, moreover, are misconstrued. If there is a body left cooling on the ground by all means use the tools at hand to reconstruct the crime. My concern involves the megagigterragobs of info being salted away by who know whom and correlated who knows how to who knows what end. It's not very difficult to extrapolate all sorts of very unsavory results as examples already abound. Kids take pictures down their pants and get arrested for child pornography and are forced to register wherever they move for the rest of their lives. Companies bounce folks for their Facebook warblings. Employers google prospective hires and see what emerges, and so on.

Couples get arrested for kissing in public in Qatar. What happens when the customs person can pull up your FB page as you disembark in a foreign land? I've posted pieces about people being arrested and prosecuted by the feds here for laws they were ignorant of in other countries that they ran afoul of via a third party. What happens when your online opposition via post like this to say the ground zero mosque is made illegal in Pakistan? I was a chef for a lot of years in the 70s, 80s, and a piece of the 90s when standards of sensitivity were quite different. So say some waitress tweets "I asked Chef BBG if my tenderloin was coming and he said it was still involved in foreplay." Imagine that incident arising during a job interview at a university 10 years later.

And this is just stuff that's more or less happening today. I've already pointed out to you that there were times and places where things a person wrote a decade or two earlier lead to their execution under Stalin, Mao, Hitler, or whoever. I've written tons of stuff that pisses people off; who's to say some echo of that isn't archived somewhere ready to bite my fanny a couple decades hence? Perhaps some surf to the silly girls gone naked splashpage, and the resultant surf history is squirreled away. Whoopsy, we find out several years later one of the lasses lied about her age and you had been surfing what is now called child porn. Explain that one away should you run for office and have the opposition research get ahold of that tidbit. This circumstance has already occurred in the porn industry.

We haven't even gotten to the current circumstances yet when any number of intelligence agencies can grab your email, surf history, locational data, google searches, credit info, cell phone calls, land line calls, online haunts, and who know what else about you and all around you and put it to work towards some national security end for which there is little oversight and scant likelihood of appeal. Perhaps the American government is so benign that a citizen should have little to worry about. But, as you've pointed out, intelligence agencies share data to skirt prohibitions, not all governments are as benign as our putatively is, and data committed to the digital maw will still be there after this or that regime changes.

This morning I got a Linkedin update--Linkedin is a business contact online service that I got roped into--where it was suggested I invite various, specific Facebook friends to join my Linkedin network. I have my FB account locked down pretty tight, as I do my Linkedin on, yet somehow they had compared who my business contacts were against my FB friends and then filled in the blanks. Small potatoes yes, but it bodes larger things that I will make any sized wager you'd like will someday soon prove antithetical to American freedoms most citizens consider sacrosanct.
Logged
G M
Power User
***
Posts: 11814


« Reply #252 on: September 15, 2010, 01:53:19 PM »

Well, the point was that today there would be technological elements to the investigation, but much of it would be the same as decades ago. You talk to people, look for witnesses. The husband might be placed at the scene by a cell phone tower ping, or even better by old Mrs. Jones across the street that heard a loud fight from the residence at the estimated time of death.
Logged
DougMacG
Power User
***
Posts: 5799


« Reply #253 on: September 15, 2010, 03:06:07 PM »

Another hot issue I would love to hear Bigdog's take on is Prop. 8 Gay marriage in California.  In that case the judge did strike down the will of the people so I would think the Court will step in or else it becomes settled law by one lower judge.

The 'fundamental right' at stake is marriage, but marriage has always been recognized as one man and one woman becoming husband and wife so some new combination of that  a new right and a new recognized relationship(IMO).

The legal concept at stake is Equal Protection, that is, equal protection if similarly circumstanced.

Progressive taxation allows one taxpayer to be taxed on their last or next dollar of income at very different rates and in some cases to be taxed not at all.  This passes constitutional muster in terms of equal protection under the law because it is 'equal protection, but different circumstances.

Jumping to gay marriage,  a law (state constitutional amendment) that allows a citizen to marry only only person of the opposite gender fits that exact mold in my view.  Gay people coupled and single people without a partner are not denied the right to marry one person of the opposite gender, they are just in a different circumstance.

I don't see how the Supreme Court can reject the equal protection - different circumstance argument without undermining our uneven taxation system and a host of other unequally distributed programs.   But it does sounds like a pretty good trade to me.
Logged
G M
Power User
***
Posts: 11814


« Reply #254 on: September 15, 2010, 08:53:53 PM »

Isn't a core belief of libertarianism personal responsibility? No one makes you join facebook or any other social network. The interwebs is dangerous and all sorts of beasties lurk in it's depths. I assume that I'm always being looked at on the web and act accordingly.
Logged
Freki
Power User
***
Posts: 513


« Reply #255 on: September 16, 2010, 07:16:47 AM »

DougMacG

It bothers me to no end if a judge is using the equal protection clause in such a way. It is my understanding the income tax is derived from the 16th amendment. They had to pass it to get around the equal protection clause.

Here is the 16th amendment:
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.

Logged
Body-by-Guinness
Power User
***
Posts: 2787


« Reply #256 on: September 16, 2010, 07:30:56 AM »

Quote
Isn't a core belief of libertarianism personal responsibility? No one makes you join facebook or any other social network. The interwebs is dangerous and all sorts of beasties lurk in it's depths. I assume that I'm always being looked at on the web and act accordingly.

Sure, but that's only a small piece of what's looming. Just about our every interaction will soon be leaving a digital trace in its wake, those traces are already being collated and correlated in manners that don't see much sunlight or accountability, and it's only going to get worse.

Guess I don't see how the concept of personal responsibility somehow leads to letting folks rummage through your digital dandruff without complaint.
Logged
G M
Power User
***
Posts: 11814


« Reply #257 on: September 16, 2010, 07:46:44 AM »

Because it's not the same as someone rummaging through your sock drawers in your home. You have a reasonable expectation of privacy in your home. You sure don't in the net.
Logged
Body-by-Guinness
Power User
***
Posts: 2787


« Reply #258 on: September 21, 2010, 09:15:38 AM »

I've been rummaging around my mind for a reply, but it keeps coming up "no sale." No reasonable expectation of privacy in my online banking? In my online purchases? In the sweet nothings I email my wife when out of town? The list could go on for quite some time, and I've little doubt as to how the nation's founders would weigh in.

I'm not sure we can have constructive exchanges about this stuff, GM. It sounds like you favor some sort of Chinese model light when it comes time to monitor the 1s and 0s everyone is tossing about these days. Assuming everything digital is in plain sight and thus monitorable--after the feds have worked long and hard with the telecoms to make sure that is the case--has all sorts of scary implications. The US has one of the largest per capita incarceration rates on the planet; the feds are indicting, prosecuting, and bankrupting people for breaking obscure laws in other countries; the executive branch is headed by a gent who has his DOJ ignore blatant acts of polling place intimidation as his secretary of health warns of dire consequences if insurance companies raise rates, yet have no problem setting precedents that allow the current administration to rummage around everyone's digital underwear drawer? Got a petard? Ready to be hoisted by it? 
Logged
G M
Power User
***
Posts: 11814


« Reply #259 on: September 21, 2010, 09:24:02 AM »

Again, the standard is reasonable expectation of privacy. Email, unless it's encrypted is just as private as a postcard. Anyone can read it from place to place. Your bank transactions are hopefully encrypted and require a subpeona or search warrant.
Logged
Body-by-Guinness
Power User
***
Posts: 2787


« Reply #260 on: September 21, 2010, 09:59:11 AM »

Hmm, okay, make that your mantra when they come for you.

Meanwhile back at the ranch, here are our pals at the FBI who can't even be bothered to come up with a convincing lie:

And Of Course They Won’t, No Not Until The Next Time

Posted by Julian Sanchez

Here is the test of whether we still live in a society governed by the rule of law: Will anyone at the FBI be fired over the latest report out of the Office of the Inspector General?

Let’s review. Earlier this year, a comprehensive OIG report revealed that for years the FBI had ignored the paper-thin procedures demanded by our National Security Letter statutes to obtain sensitive telecommunications records of thousands of Americans, not just without a court order—because apparently we’re fine with that now—but without any kind of legitimate process at all. With nothing more elaborate than a Post-It Note requesting the data. As far as the public record is concerned, nobody has suffered any consequences for this massive abuse of the public trust.

Now we learn that an FBI supervisor, in an exercise of spectacularly poor judgment, sent a rookie out to monitor an antiwar rally—evading the charge of monitoring Americans based exclusively on the basis of First Amendment protected activity only because of the laughable pretext that said rookie was there to eye the crowd for any international terrorists who might be in attendance. Fine.  But when Congress got wind of this and began to inquire into why this had occurred—and why said rookie had filed a report on “antiwar activity” that focused on whether any persons of apparent “Middle Eastern descent” had been involved—the OIG found that someone at the FBI had utterly fabricated a retroactive justification for the investigation, involving dubious “terror suspects” that nobody had actually believed at the time might be present at this rally.

According to the FBI, this fabrication was then offered up by FBI Director Robert Mueller before the Bureau’s overseers in Congress. This leaves us with a limited number of possibilities. One is that the head of the FBI was aware of and welcomed what the OIG determined to be a complete invention designed to cover up for an improper investigation. If that’s what happened, the head of the FBI committed perjury and should be prosecuted for it. But the OIG doesn’t believe that’s how it went, and I’m inclined to believe them: It would be irrational to risk perjuring oneself before the Senate Judiciary Committee over a minor error like this, however foolish.

But then someone gave the FBI director a pack of lies to feed to Congress, and the OIG was inexplicably unable to trace this fabrication to its source—which even allowing for the FBI’s massively dysfunctional computer systems seems implausible. So now we have a pressing question: If we don’t think the head of the FBI decided to lie to Congress, who concocted the lies he told them? Are we to believe that the nation’s top cops are either so inept or so indifferent to the question that they can’t answer it? I suspect they very well could find out if they were so inclined. If they don’t, and if there are no consequences for this clumsy cover-up, why should we believe that congressional oversight of intelligence will ever discover or check abuse of investigative power? The message will be clear: Concoct lies to protect your bosses, and your colleagues will wink at your deception, perhaps grateful for having been spared the obligation of making up their own lies.  One lie out of a hundred might be called out in an OIG report—they only have so much time and so many resources—but even if it is, no harm will come of it. The investigators will be mysteriously unable to identify the liar, and everything will blow over. Why risk telling the truth? The initial fuss will subside, and Americans will soon enough be distracted by the next episode of Jersey Shore.

I think we’ve had quite enough of that.  Someone at the FBI decided that it was a good idea to lie to Congress in order to cover up improper monitoring of an unpopular political group.  In this case, it was pacifists, but who knows who’ll be next. If brazen lies aren’t punished the one case out of a dozen or a hundred that draw the attention of the overseers, why should they ever bother to observe the rules? So watch the Department of Justice.  If someone is fired over this, maybe we still live in a country governed by the rule of law. If not, they’re convinced we’re so dim and besotted by reruns of Friends that they no longer even feel obliged to put up a good show.

http://www.cato-at-liberty.org/and-of-course-they-wont-no-not-until-the-next-time/
Logged
DougMacG
Power User
***
Posts: 5799


« Reply #261 on: September 21, 2010, 10:17:22 AM »

A postcard is protected by federal law if it sits in your mailbox and would require a search warrant if it sat on your kitchen counter and the authorities were not already in your kitchen, it seems to me.  Email boxes are password protected, an expectation of privacy at least at your end.  At work, the email account, the network and all the hardware may likely be the property of the employer - more like setting your postcard on someone else's counter.
Logged
G M
Power User
***
Posts: 11814


« Reply #262 on: September 22, 2010, 09:26:46 PM »

http://law.jrank.org/pages/8385/Mail-Cover.html

The process governed by the U.S. Postal Regulations (39 C.F.R. § 233.3) that allows the recording of all the information that appears on the outside cover of mail in any class, and also allows the recording of the contents of second-, third-, and fourth-class mail, international parcel post mail, and mail on which the appropriate postage has not been paid.

Mail covers may be granted by the chief postal inspector, or a delegate of the inspector's, and are allowed upon the request of a law enforcement agency. The law enforcement agency's purpose must be to protect national security, locate a fugitive, obtain evidence of the commission or attempted commission of a crime, or help identify property, proceeds or assets forfeitable under law.


Read more: Mail Cover - Court, Amendment, Held, Regulations, Law, and Postal http://law.jrank.org/pages/8385/Mail-Cover.html#ixzz10JdOLrst
Logged
G M
Power User
***
Posts: 11814


« Reply #263 on: September 23, 2010, 11:38:45 AM »

http://supreme.justia.com/us/442/735/

The telephone company, at police request, installed at its central offices a pen register to record the numbers dialed from the telephone at petitioner's home. Prior to his robbery trial, petitioner moved to suppress "all fruits derived from" the pen register. The Maryland trial court denied this motion, holding that the warrantless installation of the pen register did not violate the Fourth Amendment. Petitioner was convicted, and the Maryland Court of Appeals affirmed.

Held: The installation and use of the pen register was not a "search" within the meaning of the Fourth Amendment, and hence no warrant was required. Pp. 442 U. S. 739-746.

(a) Application of the Fourth Amendment depends on whether the person invoking its protection can claim a "legitimate expectation of privacy" that has been invaded by government action. This inquiry normally embraces two questions: first, whether the individual has exhibited an actual (subjective) expectation of privacy; and second, whether his expectation is one that society is prepared to recognize as "reasonable." Katz v. United States, 389 U. S. 347. Pp. 442 U. S. 739-741.

(b) Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not "legitimate." First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does, in fact, record it for various legitimate business purposes. And petitioner did not demonstrate an expectation of privacy merely by using his home phone, rather than some other phone, since his conduct, although perhaps calculated to keep the contents of his conversation private, was not calculated to preserve the privacy of the number he dialed. Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as "reasonable." When petitioner voluntarily conveyed numerical information to the phone company and "exposed" that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information
Logged
G M
Power User
***
Posts: 11814


« Reply #264 on: September 23, 2010, 02:10:58 PM »

Hmm, okay, make that your mantra when they come for you.


When did the US become a totalitarian country? 1890, When law enforcement first started communications intercepts? In 1979, When SMITH V. MARYLAND was decided?

Facts are good. Police-state-Hypochondria isn't.

http://www.mayoclinic.com/health/hypochondria/DS00841

Hypochondria is a chronic mental illness in which you fear having an undiagnosed serious or life-threatening disease. Hypochondria is currently considered a psychosomatic disorder, which means it's a psychological disorder with physical symptoms. However, some researchers believe hypochondria is a form of obsessive-compulsive disorder, and its designation may eventually change.
Logged
Body-by-Guinness
Power User
***
Posts: 2787


« Reply #265 on: September 23, 2010, 05:28:04 PM »

Yes, and ignore the IG report that followed my quote, and all my points that at given times and places--INCLUDING IN THE US--various folks have used questionably obtained information to excuse or fuel all sorts of heinous behavior.

As you ought to know in view or your interest in intelligence gathering, when assessing an opponent or other entity, intelligence pros deal in capabilities instead of stated intentions. The capabilities that concern me have been documented throughout various threads, as repeatedly pointed out yet not spoken to by you, the current administration--one that you have serious qualms with--has made many a sketchy call, while progressives in general have brought us all sorts of joys such as eugenics and communism, yet veering into hypochondria garnished name calling is the best you can do when the obvious is outlined?

I know, the policeman if our friend, there's nothing to see here so we should move along, and only paranoiacs worry that creating the infrastructure that would allow the government to monitor anyone most all the time will be used in a wholesale manner rather than the retail one already well demonstrated. Clearly reeducation is in order, or perhaps the sort of mental health therapies the former Soviet Union use to offer those who objected to the deeply inserted tendrils of the state.
Logged
G M
Power User
***
Posts: 11814


« Reply #266 on: September 23, 2010, 06:15:23 PM »

As much as our current president and friends might not like it, we still are a nation of laws. Unlike the KGB, Chinese Ministry for State Security or any other real totalitarian entity, the FBI and other federal/state/local entities face legal review of their actions. The agencies face legal liabilities, individual LEOs face both civil and criminal liabilities at both the state and federal levels.

Everything you do as a LEO faces scrutiny. You face judges and juries who can nullify your investigative work, sometimes on a whim. Every training class I've taken with a legal update consists of deputy DA's reminding you to not screw up on search and seizure or you'll ruin the case and potentially open yourself up to a 42 USC 1983 action, which cannot be discharged by bankruptcy. I've never heard one say "Hey, we have the PATRIOT act, do whatever you want."

The FBI and other federal agencies have "Offices of Professional Responsibility" (Internal Affairs) as well as IGs offices. I'm pretty sure the Khmer Rouge didn't have any such things. The Khmer Rouge didn't have computers, cell phones or probably much in the way of technological surveillance capabilities, right?

42 U.S.C. § 1983 : US Code - Section 1983: Civil action for deprivation of rights http://codes.lp.findlaw.com/uscode/42/21/I/1983

Stalin and Mao did their thing without much in the way of technology. Why the neo-ludditism here?

You've never seen me argue that law enforcement should operate without scrutiny. You don't need re-education, just education on the topic. This is why I bother to drag all the applicable laws and caselaw here.
Logged
G M
Power User
***
Posts: 11814


« Reply #267 on: September 23, 2010, 06:39:39 PM »

http://www.justice.gov/opa/pr/2010/August/10-crt-968.html

http://www.justice.gov/opa/pr/2010/August/10-crt-944.html

http://www.justice.gov/opa/pr/2010/August/10-crt-919.html

http://www.justice.gov/opa/pr/2010/July/10-crt-876.html

http://www.justice.gov/opa/pr/2010/July/10-crt-871.html

http://www.justice.gov/opa/pr/2010/July/10-crt-791.html

http://www.atf.gov/press/releases/2010/08/082410-dal-former-fbi-agent-sentenced-on-firearms-violations.html

See the accountability?
Logged
Body-by-Guinness
Power User
***
Posts: 2787


« Reply #268 on: September 23, 2010, 07:52:21 PM »

Again, I'm not arguing intention, I'm arguing capability, with current capabilities being so vast few can wrap their heads around them. Not sure how it's 'sposed to be a comfort that Mao, Stalin, Hitler, Pol Pot, et al did what they did without these sorts of resources. These kinds of capabilities make a totalitarian's job easier, yes?

If arguing for transparency and accountability makes me a neo-Luddite then I guess I'm guilty as charged and a lot of dictionaries need to update the meaning of that term.
Logged
G M
Power User
***
Posts: 11814


« Reply #269 on: September 23, 2010, 08:06:27 PM »

History shows that totalitarians do not need technology to do their worst. Does technology potentially make a totalitarian state stronger? Maybe. Technology is a double edged sword. Despite the great firewall of China, technology has done much to empower the Chinese people.

Bad guys make use of technology. It would be negligent for law enforcement not to move to counter that, while using the limits set by the applicable laws and rulings by the courts.
Logged
Body-by-Guinness
Power User
***
Posts: 2787


« Reply #270 on: September 24, 2010, 12:30:41 PM »

Prosecutors' conduct can tip justice scales

By Rhyne Piggott, USA TODAY

Antonino "Nino" Lyons spent almost three years in jail before his case was thrown out because of prosecutorial misconduct.
   

"The scary part is it probably does happen every day, and nobody ever figures it out"

-Robert Berry,
Nino Lyons' attorney


Prosecutors are "the A+ students. They're not used to losing."


-Laurie Levenson,
Loyola Law School professor


ORLANDO — The jurors who helped put Nino Lyons in jail for three years had every reason to think that he was a drug trafficker, and, until July, no reason to doubt that justice had been done.

For more than a week in 2001, the jurors listened to one witness after another, almost all of them prison inmates, describe how Lyons had sold them packages of cocaine. One said that Lyons, who ran clothing shops and nightclubs around Orlando, even tried to hire him to kill two drug suppliers.

But the federal prosecutors handling the case did not let the jury hear all the facts.

Instead, the prosecutors covered up evidence that could have discredited many of Lyons' accusers. They never revealed that a convict who claimed to have purchased hundreds of pounds of cocaine from Lyons struggled even to identify his photograph. And they hid the fact that prosecutors had promised to let others out of prison early in exchange for their cooperation.

VIDEO: Wrongfully jailed man: 'It can happen to you'
EXPLORE CASES: Investigate the misconduct cases we identified
JUSTICE DEPARTMENT: Prosecutors must brush up on duties
FULL COVERAGE: Federal prosecutors series
Federal prosecutors are supposed to seek justice, not merely score convictions. But a USA TODAY investigation found that prosecutors repeatedly have violated that duty in courtrooms across the nation. The abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions.

Judges have warned for decades that misconduct by prosecutors threatens the Constitution's promise of a fair trial. Congress in 1997 enacted a law aimed at ending such abuses.

Yet USA TODAY documented 201 criminal cases in the years that followed in which judges determined that Justice Department prosecutors — the nation's most elite and powerful law enforcement officials — themselves violated laws or ethics rules.

In case after case during that time, judges blasted prosecutors for "flagrant" or "outrageous" misconduct. They caught some prosecutors hiding evidence, found others lying to judges and juries, and said others had broken plea bargains.

Such abuses, intentional or not, doubtless infect no more than a small fraction of the tens of thousands of criminal cases filed in the nation's federal courts each year. But the transgressions USA TODAY identified were so serious that, in each case, judges threw out charges, overturned convictions or rebuked prosecutors for misconduct. And each has the potential to tarnish the reputation of the prosecutors who do their jobs honorably.

In July, U.S. District Judge Gregory Presnell did more than overturn Lyons' conviction: He declared that Lyons was innocent.

Neither the Justice Department nor the lead prosecutor in the Lyons case, Bruce Hinshelwood, would explain the events that cost Lyons his home, his businesses and nearly three years of freedom. The department investigated Hinshelwood but refused to say whether he was punished; records obtained by USA TODAY show that the agency regulating Florida lawyers ordered him to attend a one-day ethics workshop, scheduled for Friday.

Asked about Presnell's ruling exonerating Lyons, Hinshelwood said only, "It is of no concern to me."

The circumstances of Lyons' conviction did trouble Presnell, who oversaw his trial nine years ago. Presnell savaged the Justice Department in a written order for "a concerted campaign of prosecutorial abuse" by attorneys who, he wrote, covered up evidence and let felons lie to the jury.

Records from the Justice Department's internal ethics watchdogs show the agency has investigated a growing number of complaints by judges about misconduct they observed. In 2001, the department investigated 42 such complaints; last year, 61.

The department will not reveal how many of those prosecutors were punished because, it said, doing so would violate their privacy rights. USA TODAY, drawing on state bar records, identified only one federal prosecutor who was barred even temporarily from practicing law for misconduct during the past 12 years.

Even high-profile cases have been affected. Last year, a judge in Washington, D.C. — saying the department could not be trusted to investigate its own prosecutors — launched his own probe of the attorneys who handled the corruption trial of former Alaska senator Ted Stevens. After a jury found Stevens guilty, the department admitted that prosecutors had hidden evidence, then dropped the charges. (Stevens died in an August plane crash.)

Stevens' lawyers question how misconduct could have tainted such a closely watched case — and what that might mean for routine prosecutions. "It's a frightening thought and calls into question the generally accepted belief that our system of justice performs at a high level and yields just results," said Brendan Sullivan, Stevens' attorney.

Pattern of 'glaring misconduct'

Unlike local prosecutors, who often toil daily in crowded courts to untangle routine burglaries and homicides, Justice Department attorneys handle many of the nation's most complex and consequential crimes.

With help from legal experts and former prosecutors, USA TODAY spent six months examining federal prosecutors' work, reviewing legal databases, department records and tens of thousands of pages of court filings. Although the true extent of misconduct by prosecutors will likely never be known, the assessment is the most complete yet of the scope and impact of those violations.

USA TODAY found a pattern of "serious, glaring misconduct," said Pace University law professor Bennett Gershman, an expert on misconduct by prosecutors. "It's systemic now, and … the system is not able to control this type of behavior. There is no accountability."

He and Alexander Bunin, the chief federal public defender in Albany, N.Y., called the newspaper's findings "the tip of the iceberg" because many more cases are tainted by misconduct than are found. In many cases, misconduct is exposed only because of vigilant scrutiny by defense attorneys and judges.

However frequently it happens, the consequences go to the heart of the justice system's promise of fairness:

• Innocent people are punished. In Arizona, a woman spent eight years in prison for her conviction in a 2000 bank robbery because the prosecution never told her that another woman —who matched her description almost exactly — had been charged with robbing banks in the area. In Washington, D.C., a court in 2005 threw out murder charges against two men who had spent two decades in prison for a murder they didn't commit, in part because prosecutors hid evidence that two others could have committed the crime.

They were among 47 cases USA TODAY documented in which defendants were either exonerated or set free after the violations surfaced.

Among the consequences of misconduct, wrongful convictions are the most serious, said former U.S. attorney general Dick Thornburgh. He said, "No civilized society should countenance such conduct or systems that failed to prevent it."

Even people who never spent a day in jail faced ruinous consequences: lost careers, lost savings and lost reputations. Last year, a federal appeals court wiped out Illinois businessman Charles Farinella's 2007 conviction for changing "best when purchased by" dates on bottles of salad dressing he sold to discount stores. The judges ruled that what he had done wasn't illegal and blasted lead prosecutor Juliet Sorensen for violations that robbed Farinella of a fair trial. Exoneration came too late to salvage his business or to help the 20 or so employees he had laid off.

"It's the United States government against one person," Farinella said in his first public comment on the case. "They beat you down because they are so powerful. They have trillions of dollars behind them. Even someone who's innocent doesn't have much of a chance."

• Guilty people go free or face less punishment. In Puerto Rico, a federal court blocked prosecutors from seeking the death penalty for a fatal robbery because they failed to turn over evidence; the defendant was sentenced to life in prison instead. In California, a double agent accused of sharing defense secrets with China was sentenced to probation instead of prison because prosecutors refused to let her lawyer talk to her FBI handler, a key witness. Dozens of other defendants — including drug dealers and bank robbers — left prison early because their trials were tainted.

• Taxpayers foot the bill. The Justice Department has paid nearly $5.3 million to reimburse the legal bills of defendants who were wrongly accused. It has spent far more to repeat trials for people whose convictions were thrown out because of misconduct, a process that can take years, although the full price tag is impossible to tally.

In one California case, for example, it took prosecutors four years and three trials to convict a man of tax fraud. Then an appeals court set aside his conviction because it said a prosecutor "sat silently as his witness lied."

The violations happened in almost every part of the nation, though USA TODAY found the most cases in federal courts in San Diego; Massachusetts; Washington, D.C.; and Puerto Rico. That pattern means misconduct is "not an isolated problem," said Laurie Levenson, a Loyola Law School professor and former federal prosecutor in Los Angeles.

Trial, jail and vindication

The American legal system puts enormous faith in juries: Give 12 men and women the facts, and they will separate the guilty from the innocent.

The Constitution, Congress and courts have set elaborate rules to ensure jurors get the facts and aren't swayed by emotion or fear. Rules are particularly exacting for prosecutors, as they act with government authority and their mistakes can put people in prison.

One of those rules, established by the Supreme Court nearly 50 years ago in a case called Brady v. Maryland, is that prosecutors must tell defendants about evidence that could help prove their innocence. Withholding that evidence is "reprehensible," the court later said.

Nonetheless, USA TODAY identified 86 cases in which judges found that prosecutors had failed to turn over evidence to defendants. That's what happened to Nino Lyons.

Lyons, now 50, grew up in the public housing projects of Cocoa, Fla., outside Orlando; his father spent time in prison, and for several years, his mother raised him alone. Even so, Lyons thrived: He graduated from college and worked briefly at the nearby Kennedy Space Center. In the 1990s, he opened clothing stores and nightclubs in Cocoa and Orlando. He was vice president of the local NAACP chapter.

How Lyons also became a drug suspect is unclear. But five days before Christmas in 2000, police stormed his Rockledge house, searching for an illegal machine gun. They did not find a machine gun or any drugs. What they did find was suspicious: an assortment of legal guns and $185,000 in cash, some of it counterfeit. Lyons said he was saving for a down payment on an Orlando nightclub.

Within a year, prosecutors put together a procession of more than two dozen inmates willing to testify that Lyons was a major drug trafficker. Jurors convicted Lyons of almost every charge, including carjacking, selling counterfeit clothing and a drug conspiracy that could have put him in prison for life.

"With all the evidence they had brought forth in this trial, I didn't have any choice but to vote guilty on him," said one juror, Harold Newsome.

The evidence prosecutors hid from Newsome and the other jurors did not fully come to light until 2004, during Lyons' third year in jail. It surfaced only because of one line in a government sentencing report that hinted at undisclosed evidence. When it emerged, the Justice Department agreed to drop the drug charge against Lyons, and Presnell, the judge who oversaw the trial, threw out the rest.

It was a drastic step and meant Lyons could never be retried. Presnell wrote that he had no other option: "The Government's protracted course of misconduct," he wrote, "caused extraordinary prejudice to Lyons, exhibited disregard of the Government's duties, and demonstrated contempt for this court."

By then, Lyons had spent 1,003 days in a county jail north of Orlando. He was never sentenced, but remained locked up while courts sorted through the problems in his case. He saw his son and daughter, then in middle school, only through the thick glass windows of the visiting room, and spoke to them only via telephone.

His businesses folded while he was in jail. His wife, Debbie, was demoted from her job as principal of an elementary school, a move the school said was unrelated to the case. She sold the couple's house and took a night job tutoring the children of migrant farm workers to pay the bills.

"It was bad for me, but I didn't realize until I came home how bad it had been for my wife and my kids, people that really loved me," Lyons said.

Records show the Justice Department eventually paid $150,000 of Lyons' legal bills in a settlement that was never made public. It admitted in a court filing that prosecutors made "serious errors" in their handling of the case. The attorney who replaced Hinshelwood as the case dragged on, Lee Bentley, personally apologized to Lyons.

For Debbie Lyons, 51, it wasn't enough. "When they targeted him, they targeted me. They targeted my kids," she said. Prosecutors "don't have the courtesy to say, 'We're wrong, our agents were wrong, we pursued this case wrong. We know we lied, we know we withheld evidence.' "

Lyons said he's "thankful to God" that Presnell finally declared him innocent. But almost nine years after he was first found guilty, exoneration hasn't repaired the damage to his reputation.

In the six years since he was released from jail, he hasn't been able to find a regular job or even land an interview. Now he works part time for a church program in Orlando that finds mentors for kids whose parents are in jail. The grant that pays for the program will run out at the end of the month.

"Even if the president comes out tomorrow and says this man is 1,000% innocent, you're going to have somebody somewhere say, 'I'm not sure about that. I don't think the government would have did that if he was innocent,' " Lyons said.

'The scary part'

Logged
Body-by-Guinness
Power User
***
Posts: 2787


« Reply #271 on: September 24, 2010, 12:31:05 PM »

Sniffing out misconduct can be a matter of serendipity — or luck, as Lyons' attorneys discovered.

The evidence that eventually set Lyons free came to light only because of one sentence buried in a 40-page draft of a probation officer's sentencing report. Those drafts are dense and at times ignored, but this one offered a tantalizing clue: an account by one of Lyons' accusers, a federal inmate, that differed from his testimony during the trial.

That stuck out to Robert Berry, one of Lyons' attorneys, who wondered what else he hadn't been told. His digging led to hundreds of pages of other evidence prosecutors had never disclosed.

"If it wasn't for that one sentence, he would be in prison right now, probably for the rest of his life," Berry said. "The scary part is it probably does happen every day and nobody ever figures it out."

One reason violations may go undetected is that only a small fraction of criminal cases ever get the scrutiny of a trial, the process most likely to identify misconduct. Trials play a "very important" role, said former deputy attorney general David Ogden, because they force judges and attorneys to review a case in far more exacting detail.

The number of people charged with crimes in federal district courts has almost doubled over the past 15 years. Yet the number whose cases actually go to trial has fallen almost 30%, to about 3,500 last year, USA TODAY found. Last year, just four defendants out of 100 went to trial; the rest struck plea bargains that resolved their cases quickly, with far less scrutiny from judges.

"We really should be more concerned about the cases we don't know about," said Levenson, the Loyola professor. "Many of the types of misconduct you identified could happen every day, and we'd never know about it if defendants plead out."

Deliberate violations

In a justice system that prosecutes more than 60,000 people a year, mistakes are inevitable. But the violations USA TODAY documented go beyond everyday missteps. In the worst cases, say judges, former prosecutors and others, they happen because prosecutors deliberately cut corners to win.

"There are rogue prosecutors, often motivated by personal ambition or partisan reasons," said Thornburgh, who was attorney general under Presidents Reagan and George H.W. Bush. Such people are uncommon, though, he added: "Most former federal prosecutors, like myself, are resentful of actions that bring discredit on the office."

Judges have seen those abuses, too. "Sometimes, you get inexperienced and unscrupulous assistant U.S. attorneys who don't care about the rules," said U.W. Clemon, the former chief judge in northern Alabama's federal courts.

How often prosecutors deliberately violate the rules is impossible to know. The Justice Department's internal ethics watchdog, the Office of Professional Responsibility, insists it happens rarely. It reported that it completed more than 750 investigations over the past decade, and found intentional violations in just 68. The department would not identify the cases it concluded were marred by intentional violations, and removes from its public reports any details that could be used to identify the prosecutors involved.

State records, however, offer a glimpse into what can go wrong. Three years ago, two federal prosecutors in Illinois, each with more than a decade of experience, were ordered to answer to the state Attorney Registration and Disciplinary Commission for problems that almost torpedoed a drug case. The lawyers failed to turn over information to defense attorneys that could have discredited a key witness. That tactic, the U.S. Court of Appeals for the 7th Circuit concluded, was "designed to deliberately mislead the court and defense counsel."

Both prosecutors told authorities that they knew the rules, and both admitted that they didn't turn over the evidence, according to a transcript of the hearing. One, Bradley Murphy, said he was counting on the witness to reveal the damaging information himself during his testimony. The other, John Campbell, apologized. "It's embarrassing, to say the least," he told the commission.

State records show that the Justice Department suspended both prosecutors for a day. Both also were censured by the Illinois Supreme Court.

They remain federal prosecutors.

Attorney General Eric Holder declined to be interviewed; earlier this year, he told judges that officials "must take seriously each and every lapse, no matter the cause." The head of the department's criminal division, Lanny Breuer, said, "Obviously, even one example of real misconduct is too many. … If you've engaged in misconduct, the response of the department has to be swift and strong."

In practice, however, the response — by the Justice Department and the state officials who oversee lawyers — has frequently been neither. Department records show that its internal investigations often take more than a year to complete, and usually find that prosecutors, at worst, made a mistake, even when judges who presided over the trials ruled that there was serious misconduct.

In one rare exception, the department in 2007 prosecuted one of its former attorneys, Richard Convertino, for obstructing justice in his handling of a Detroit terrorism case. He was acquitted, and he unsuccessfully accused the attorneys who prosecuted him of misconduct. The department called Convertino "unmanageable" in one court filing, but still kept its internal review of the case secret.

In the one case in which USA TODAY found that state officials suspended a federal prosecutor from practicing law, the punishment lasted only a year. In that case, Florida's Supreme Court found that Karen Schmid Cox had let a witness lie about her name during a trial, making it impossible for defense attorneys to check the witness's background. If they had, they would have found that the witness had been previously accused of lying to a judge and filing a false police report.

Pressures on prosecutors

In some cases, Justice Department records and court documents suggest that prosecutors broke the rules inadvertently, often because they were inexperienced or unsupervised.

Former prosecutors from offices across the nation insist that the Justice Department never put pressure on them to cut corners — "there wasn't any pervasive attitude of win-at-any-cost," said Rick Jancha, a former prosecutor in Orlando.

But there are other pressures. For one thing, prosecutors are taking on more cases than ever. In the mid-1990s, the offices had one attorney for every 14 defendants; last year, they had one attorney for every 28. Even though most of those cases end in plea bargains, the increase can be taxing, because prosecutors often are responsible not just for conducting trials but overseeing investigations.

And prosecutors put pressure on themselves. "They're the A+ students. They're not used to losing," Levenson said.

"Prosecutors think they're doing the Lord's work, and that they wear the white hat. When I was a prosecutor, I thought everything I did was right," said Jack Wolfe, a former federal prosecutor in Texas and now a defense lawyer. "So even if you got out of line, you could tell yourself that you didn't do it on purpose, or that it was for the greater good."

Beyond that, most federal prosecutors do their jobs with little day-to-day supervision, said Michael Seigel, the second-in-command of the U.S. attorney's office in Tampa from 1995 to 1999.

And, until last year, prosecutors were not required to get regular training in ethics such as their constitutional duty to share evidence with defendants. That training is important: Many of the legal rules prosecutors must follow are complex, and not everyone agrees on the boundary between aggressive lawyering and misconduct.

Last year, Ogden, Holder's second-in-command, headed a review of problems with prosecutors' failure to turn over evidence to defendants, the issue that ultimately undermined the Lyons case. It concluded that most violations were "not the product of people who intentionally set about to cheat but … more of a lack of training and a lack of resources," said Ogden, who left the department this year. That review prompted a new requirement that prosecutors get two hours of annual training in their duty to share evidence.

'Real sloppy and lazy'

Before Bruce Hinshelwood became a federal prosecutor, he tried murder cases and those involving other high-profile crimes as a state attorney. He headed the Justice Department's Jacksonville office, and was briefly second-in-command of the middle district surrounding Tampa. Later, he tried drug cases in Orlando. In all that time, there is no indication Hinshelwood was faulted for misconduct. The Lyons case changed that.

Hinshelwood's former boss, Paul Perez, became U.S. attorney in Tampa in 2002, shortly after Lyons' trial ended. When the case against Lyons fell apart, it was his job to figure out why.

Perez said in an interview that he personally never doubted that Lyons was guilty. He said the problems came down to inattention: Hinshelwood was "an experienced but very lazy prosecutor," but didn't break the rules on purpose. He was, Perez said, "real sloppy and lazy."

Judge Presnell drew harsher conclusions. In a 2004 order, he said the Justice Department's failures in the case could be explained, "at best, by its agents' sloppy investigative work or, at worst, by their knowing failure to meet constitutional duties." He later faulted prosecutors not just for failing to turn over evidence but for "brazenly" defying court orders and presenting witnesses who were "allowed, if not encouraged, to lie under oath."

Records from the Florida Bar, which regulates the state's lawyers, show that the Justice Department investigated Hinshelwood's handling of the Lyons case, a fact the department refused to confirm for fear of invading his privacy. The department completed its report in 2007 and referred its findings to the bar in 2009, a step Justice Department policies say it takes when it finds misconduct.

Despite Presnell's rebuke and its own investigation, there is no evidence that the Justice Department ever punished Hinshelwood. He continued prosecuting cases until he retired in February 2008 to open his own law practice in Orlando.

The Florida Bar investigated Hinshelwood last year — seven years after Presnell accused him of misconduct by name in a court order — but concluded that too much time had passed to take action for what happened at the trial. It let Hinshelwood resolve the complaint by paying $1,111.80 in costs and attending Friday's ethics workshop.

"That's the extent of it?" Lyons said.

The bar opened a second investigation of Hinshelwood in July after Presnell declared Lyons innocent, an uncommon step that officials would not explain publicly.

To Lyons, nothing the bar can do would be strong enough. Hinshelwood "should suffer or go to jail," Lyons said. "The justice system not only didn't work initially in my case, it's still not working. Bruce Hinshelwood has his pension. He still works every single day. His life is not miserable. I'm not saying mine is, but it's nothing like it was before."

McCoy reported from New York. Contributing: Rhyne Piggott.

http://www.usatoday.com/news/washington/judicial/2010-09-22-federal-prosecutors-reform_N.htm
Logged
G M
Power User
***
Posts: 11814


« Reply #272 on: September 24, 2010, 01:05:48 PM »

http://pajamasmedia.com/blog/lawless-legislators-the-federal-rupture-of-the-rule-of-law/?singlepage=true

Lawless Legislators: The Federal Rupture of the Rule of Law
In recent years, it has succumbed to the rule of men.
September 24, 2010 - by Jeff Perren

    If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

    James Madison, Federalist Paper No. 51 (1788)

The Rule of Lawlessness

In the American system the legislature is tasked with making laws, and the executive with executing them. For those rules to be just laws they have to be comprehensible and apply equally to all. Following them must entail reasonably predictable results. To be valid they must not contradict the Constitution; they must not violate the basic rights it outlines.

Lately, Congress and the Obama administration alike fail on all those criteria. While that’s been a problem in the U.S. for generations now, that trend has worsened since the 2006 elections, and accelerated in the past 20 months. The Democratic majority that came to power in 2006 has violated the rule of law at every turn. The administration has upped the ante: from the petty to the critical, their actions have often been lawless in a very literal sense of the term.

In a dozen small ways, the ruling class expresses its contempt for the law and its intended function of protecting the rights of citizens.

Obama’s aunt flagrantly violates immigration law for years but is not deported, thanks to her family connection. Timothy Geithner neglects to pay his taxes and is still appointed Treasury secretary. Chris Dodd gets a sweetheart real estate loan from Countrywide and remains in office years afterward to retire with a comfy pension.

There is, unfortunately, a treasure trove of major examples from which to choose.

ObamaCare violates the Constitution in at least three different ways, and still passed. The financial reform bill lets regulators force any bank in the country out of business whenever they decide it represents an undue risk to “the system.” Obama himself violated long-standing bankruptcy laws by giving preference to union interests during GM’s reorganization. He appointed Ken Feinberg to hand out billions of BP’s dollars according to that petty dictator’s personal sense of fair play.

Maybe most worrisome of all is the half-complete CyberSpace National Asset Act, which would allow the president to shut down the Internet whenever deemed necessary for “national security.” (As it stands, the bill would limit the shutdown period to 120 days, but that can be extended by Congress. Cold comfort.) A more dangerous affront to free speech and the property rights of hundreds of millions of users would be hard to imagine.

This is the rule of men — and not good men at that — run amok.
Logged
Body-by-Guinness
Power User
***
Posts: 2787


« Reply #273 on: October 13, 2010, 07:58:47 PM »

http://reason.com/blog/2010/10/13/i-could-kill-you-but-then-id-h
Reason Magazine


I Could Kill You, But Then I'd Have to Keep It a Secret

Jacob Sullum | October 13, 2010

On Friday the Center for Constitutional Rights and the American Civil Liberties Union, which are challenging President Obama's claim that he can order the killing of anyone he unilaterally identifies as an enemy of the United States, responded to the Justice Department's arguments for dismissing the lawsuit. The government argues that Obama's policy of "targeted killings" is a "political question" unsuited for judicial review and that allowing the case to proceed would risk revealing "state secrets." Hence Obama is not only claiming a license to kill; he is asserting that the license can never be revoked, suspended, or even examined by the courts. ACLU Deputy Legal Director Jameel Jaffer sums up the situation:

If the government's arguments were accepted, the current administration and every future administration would have unreviewable authority to carry out targeted killings of Americans deemed to be enemies of the state. While that power would be limited to contexts of armed conflict, the government has argued that the armed conflict against al Qaeda extends everywhere, indefinitely. This is an extraordinary and unprecedented claim, and one that we urge the courts to reject unequivocally. The courts have a crucial role to play in ensuring that the government's counterterrorism policies are consistent with the Constitution.

Glenn Greenwald notes that even David Rivkin, a Bush I administration lawyer who routinely defends executive power in the service of the War on Terror, thinks Obama is going too far by claiming his summary executions must remain secret. "I'm a huge fan of executive power," Rivkin told The New York Times last month, "but if someone came up to you and said the government wants to target you and you can't even talk about it in court to try to stop it, that's too harsh even for me."

The government's motion to dismiss is here (PDF). The CCR/ACLU reply brief is here (PDF). Last week David Harsanyi criticized Obama's use of the state secrets privilege to bar litigation over targeted killings. Last month I discussed Obama's use of the privilege to block lawsuits by torture victims.
Logged
G M
Power User
***
Posts: 11814


« Reply #274 on: October 13, 2010, 08:18:04 PM »

So, should we have to have a trial before we can send drones out to zap a haji? Should there have been a due process requirement before we shot down Yamamoto?
Logged
Body-by-Guinness
Power User
***
Posts: 2787


« Reply #275 on: October 13, 2010, 08:39:02 PM »

I wasn't aware Yamamoto was an American citizen.
Logged
G M
Power User
***
Posts: 11814


« Reply #276 on: October 13, 2010, 08:58:18 PM »

We had American citizens fighting for the Axis powers. Should they have a different status than anyone else were were fighting?

http://www.discoverthenetworks.org/individualProfile.asp?indid=811

    *  Recruiter and ringleader of the New York-based al Qaeda cell, the Buffalo Six
    * Trained in Yemen as a terrorist
    * Communicated with Tawfiq bin Atash, a planner of the 2000 attack on the USS Cole
    * In 2001, he persuaded six followers to accompany him and train at an al Qaeda camp in Afghanistan



In 2001 Kamal Derwish recruited six young people into an al Qaeda "sleeper" cell of would-be terrorists popularly known as the Buffalo Six or Lackawanna Six. Like his recruits, Derwish was a native of the region of Lackawanna, New York on the shore of Lake Erie just to the south of Buffalo. Lackawanna is home to a community of approximately 3,000 Yemeni Muslims.

Born in Buffalo in 1973, Derwish, the son of a steelworker,  was taken by his family to live in Yemen when he was five. Soon thereafter his father died in a car accident. The boy was then sent to live with relatives in Saudi Arabia, where he was educated under the influence of the kingdom's fundamentalist Wahhabist sect of Islam. The Saudi government deported him to Yemen in 1997 because of his radical political activity.

Derwish returned to Lackawanna in 1998 and began giving lectures at a local mosque. He preached about the evils of listening to popular music, watching television, engaging in loose relations with women, and other behaviors forbidden by Wahhabism. He also made periodic visits to the Middle East. In 1999 he married in Yemen and thereafter returned to the U.S.

Reputedly a charismatic speaker, Derwish's fervor and passion for Islam attracted a small circle of young male disciples in Lackawanna. He persuaded six followers in particular -- Mukhtar Al-Bakri, Sahim A. Alwan, Faysal Galab, Shafal Mosed, Yasein Taher and Yahya A. Goba -- to make a pilgrimage to Afghanistan with him in early 2001. While there, they attended for several weeks an al Qaeda training camp where they were instructed in weapons use and terrorist tactics. During their stay, the camp was visited by the revered Osama bin Laden.

In the wake of the 9/11 terrorist attacks, the FBI and CIA began to find threads of evidence linking Derwish and his six followers to al Qaeda. For instance, intelligence agents learned that Derwish had received advanced weapons training at an al Qaeda camp, and that during the mid-1990s he had fought alongside Muslim rebels in Bosnia. The agents also became aware of communications between Derwish and bin Laden's son Saad, as well as between Derwish and Tawfiq bin Atash; the latter was one of the planners of the deadly 2000 terror attack against the U.S.S. Cole in Yemen.

On November 3, 2002, an unmanned CIA Predator drone flying high above the Yemeni desert unleashed a Hellfire missile at a car that was carrying Kamal Derwish, instantly killing him and four others. Also among the dead was Salim Sinan al Harethi (a.k.a. Abu Ali), the suspected mastermind of the U.S.S. Cole attack.
Logged
Body-by-Guinness
Power User
***
Posts: 2787


« Reply #277 on: October 13, 2010, 09:22:55 PM »

Noting how the Chamber of Commerce, the Tea Party, and so on are being vilified by the present administration, do we really want to give the President the power to kill anyone he declares enemy of the state without any sort of review allowed?

I would imagine this would be a bit of a conundrum for you on the order of "can God make a rock so big that He Himself can't move it?" Should an administration you hold in contempt be allowed to summarily execute those who display the ultimate form of contempt toward it? Let the dividing by zero begin.
Logged
G M
Power User
***
Posts: 11814


« Reply #278 on: October 13, 2010, 09:34:24 PM »

Let me know when Obama starts sending drones after Sarah Palin or Glenn Beck.
Logged
Body-by-Guinness
Power User
***
Posts: 2787


« Reply #279 on: October 13, 2010, 09:47:13 PM »

Kinda hoping to avoid that by imposing checks against summary executions before Barry starts going all Putin on us.
Logged
G M
Power User
***
Posts: 11814


« Reply #280 on: October 13, 2010, 09:48:39 PM »

  Section 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States
Logged
G M
Power User
***
Posts: 11814


« Reply #281 on: October 13, 2010, 09:51:29 PM »

Do you seriously think O-Barry would use the US military to target political opposition? If he was, do you think some sort of law would stop him?
Logged
Body-by-Guinness
Power User
***
Posts: 2787


« Reply #282 on: October 13, 2010, 10:00:51 PM »

Isn't that exactly what he's doing every time he launches a predator at an American citizen said to be playing pattycake with the Taliban?
Logged
G M
Power User
***
Posts: 11814


« Reply #283 on: October 13, 2010, 10:07:15 PM »

No. There is a huge difference between someone engaging in war against the US and engaging in constitutionally protected speech.
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 30582


« Reply #284 on: October 14, 2010, 12:42:06 AM »

You mean the war against man made disasters?
Logged
Body-by-Guinness
Power User
***
Posts: 2787


« Reply #285 on: October 14, 2010, 08:10:59 AM »

Quote
No. There is a huge difference between someone engaging in war against the US and engaging in constitutionally protected speech.

Cognitive dissonance is rearing its head here. You've made it quite clear you have huge issues with this admin. I've already listed a couple instances where Barry has made vilifying the opposition a centerpiece of his engagement strategy, and many more could be found without too much effort. We've had instances before where Presidents, notably Clinton in Sudan, launched missile strikes for reasons that appear at least as much political as they were tactical. And you can't understand why I might be concerned about decisions made to off citizens that are not subject to any sort of review whatsoever?

The dude already launches unprincipled verbal attacks on a regular basis that the media frequently averts its eyes from, but you want him to be able to do the same with drones sans any modicum of oversight whatsoever? Sounds like the height of folly to me.
Logged
G M
Power User
***
Posts: 11814


« Reply #286 on: October 14, 2010, 09:37:33 AM »

I have huge issues with this administration. In a sane world, Obama should only see the inside of the white house as part of a public tour. However, he is the elected president and thus has the lawful authority of that position as commander in chief of the US military.

You can have any reservations you want about his decisionmaking and ethics, of lack thereof, but I see no valid claim regarding the use of the military to make war on those who have made war on us. Were Barry to have airstrikes called in on Tea Party gatherings, then you would have a point.
Logged
Body-by-Guinness
Power User
***
Posts: 2787


« Reply #287 on: October 14, 2010, 10:10:32 AM »

And who decides who "makes war on us" and who reviews that decision? When you are spreading citizen's thin in distant lands, some form of accountability would seem in order.
Logged
G M
Power User
***
Posts: 11814


« Reply #288 on: October 14, 2010, 10:42:33 AM »

Although not as constitutionally pure as a declaration of war, we have the congressional authorization to use force.

    Authorization for Use of Military Force
    September 18, 2001

    Public Law 107-40 [S. J. RES. 23]

    107th CONGRESS

    JOINT RESOLUTION

    To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

    Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

    Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

    Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

    Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

    Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it

          Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

    SECTION 1. SHORT TITLE.

          This joint resolution may be cited as the `Authorization for Use of Military Force'.

    SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

          (a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

          (b) War Powers Resolution Requirements-

                (1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

                (2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.


    Approved September 18, 2001.

Logged
DougMacG
Power User
***
Posts: 5799


« Reply #289 on: October 14, 2010, 11:20:46 AM »

Important in these matters to not weaken the Presidency just because we have a bad one.  The pre-oversight is the congressional authorization.  The ongoing oversight may be the congressional appropriations that fund operations.  Also we can have congressional review of actions taken by our military to expose past actions and influence the future ones, but still the Commander makes the real-time decision in war, not a committee.  The ultimate oversight is that new elections here are always coming.

Very little good has come out of this Presidency other than the rise of opposition to them, but one thing good IMO is to just imagine the uproar of left activists and lamestream media if these unmanned drone attacks in Paki-Waziristan tribal villages were being conducted by Bush or other R. administration.

The 9/18/2001 authorization looks like it covers these strikes unless rescinded.  After that we need to put some trust in the Commander in Chief in spite of the folly of who we last chose.

The real abuse was the threat or reality of siccing the IRS on political opponents, a much greater power than our military.

There are competing philosophies to defense and the war on terror (human caused disasters) to ague elsewhere and settle in the elections.  There is surrender entirely and unilaterally as many far leftists prefer.  There is the so-called Fortress-America view that some on the far right would like, meaning defend strongly here but end the missions outside our borders, and there is take the battle to the enemy.  Even the far leftist Obama believed war in Afghanistan is necessary, which should mean strikes anywhere harboring terrorists who threaten America are necessary too, until another viewpoint wins over at least one branch.
Logged
Body-by-Guinness
Power User
***
Posts: 2787


« Reply #290 on: October 17, 2010, 01:40:43 PM »

Why Liberals Don't Get the Tea Party Movement
Our universities haven't taught much political history for decades. No wonder so many progressives have disdain for the principles that animated the Federalist debates.
By PETER BERKOWITZ

Highly educated people say the darndest things, these days particularly about the tea party movement. Vast numbers of other highly educated people read and hear these dubious pronouncements, smile knowingly, and nod their heads in agreement. University educations and advanced degrees notwithstanding, they lack a basic understanding of the contours of American constitutional government.

New York Times columnist Paul Krugman got the ball rolling in April 2009, just ahead of the first major tea party rallies on April 15, by falsely asserting that "the tea parties don't represent a spontaneous outpouring of public sentiment. They're AstroTurf (fake grass-roots) events."

Having learned next to nothing in the intervening 16 months about one of the most spectacular grass-roots political movements in American history, fellow Times columnist Frank Rich denied in August of this year that the tea party movement is "spontaneous and leaderless," insisting instead that it is the instrument of billionaire brothers David and Charles Koch.

Washington Post columnist E. J. Dionne criticized the tea party as unrepresentative in two ways. It "constitutes a sliver of opinion on the extreme end of politics receiving attention out of all proportion with its numbers," he asserted last month. This was a step back from his rash prediction five months before that since it "represents a relatively small minority of Americans on the right end of politics," the tea party movement "will not determine the outcome of the 2010 elections."

View Full Image

Getty Images
Washington Post Columnist E.J. Dionne

In February, Mr. Dionne argued that the tea party was also unrepresentative because it reflected a political principle that lost out at America's founding and deserves to be permanently retired: "Anti-statism, a profound mistrust of power in Washington goes all the way back to the Anti-Federalists who opposed the Constitution itself because they saw it concentrating too much authority in the central government."

Mr. Dionne follows in the footsteps of progressive historian Richard Hofstadter, whose influential 1964 book "The Paranoid Style in American Politics" argued that Barry Goldwater and his supporters displayed a "style of mind" characterized by "heated exaggeration, suspiciousness, and conspiratorial fantasy." Similarly, the "suspicion of government" that the tea party movement shares with the Anti-Federalists, Mr. Dionne maintained, "is not amenable to 'facts'" because "opposing government is a matter of principle."

To be sure, the tea party sports its share of clowns, kooks and creeps. And some of its favored candidates and loudest voices have made embarrassing statements and embraced reckless policies. This, however, does not distinguish the tea party movement from the competition.

Born in response to President Obama's self-declared desire to fundamentally change America, the tea party movement has made its central goals abundantly clear. Activists and the sizeable swath of voters who sympathize with them want to reduce the massively ballooning national debt, cut runaway federal spending, keep taxes in check, reinvigorate the economy, and block the expansion of the state into citizens' lives.

In other words, the tea party movement is inspired above all by a commitment to limited government. And that does distinguish it from the competition.

But far from reflecting a recurring pathology in our politics or the losing side in the debate over the Constitution, the devotion to limited government lies at the heart of the American experiment in liberal democracy. The Federalists who won ratification of the Constitution—most notably Alexander Hamilton, James Madison and John Jay—shared with their Anti-Federalist opponents the view that centralized power presented a formidable and abiding threat to the individual liberty that it was government's primary task to secure. They differed over how to deal with the threat.

The Anti-Federalists—including Patrick Henry, Samuel Bryan and Robert Yates—adopted the traditional view that liberty depended on state power exercised in close proximity to the people. The Federalists replied in Federalist 9 that the "science of politics," which had "received great improvement," showed that in an extended and properly structured republic liberty could be achieved and with greater security and stability.

This improved science of politics was based not on abstract theory or complex calculations but on what is referred to in Federalist 51 as "inventions of prudence" grounded in the reading of classic and modern authors, broad experience of self-government in the colonies, and acute observations about the imperfections and finer points of human nature. It taught that constitutionally enumerated powers; a separation, balance, and blending of these powers among branches of the federal government; and a distribution of powers between the federal and state governments would operate to leave substantial authority to the states while both preventing abuses by the federal government and providing it with the energy needed to defend liberty.

Whether members have read much or little of The Federalist, the tea party movement's focus on keeping government within bounds and answerable to the people reflects the devotion to limited government embodied in the Constitution. One reason this is poorly understood among our best educated citizens is that American politics is poorly taught at the universities that credentialed them. Indeed, even as the tea party calls for the return to constitutional basics, our universities neglect The Federalist and its classic exposition of constitutional principles.

For the better part of two generations, the best political science departments have concentrated on equipping students with skills for performing empirical research and teaching mathematical models that purport to describe political affairs. Meanwhile, leading history departments have emphasized social history and issues of race, class and gender at the expense of constitutional history, diplomatic history and military history.

Neither professors of political science nor of history have made a priority of instructing students in the founding principles of American constitutional government. Nor have they taught about the contest between the progressive vision and the conservative vision that has characterized American politics since Woodrow Wilson (then a political scientist at Princeton) helped launch the progressive movement in the late 19th century by arguing that the Constitution had become obsolete and hindered democratic reform.

Then there are the proliferating classes in practical ethics and moral reasoning. These expose students to hypothetical conundrums involving individuals in surreal circumstances suddenly facing life and death decisions, or present contentious public policy questions and explore the range of respectable progressive opinions for resolving them. Such exercises may sharpen students' ability to argue. They do little to teach about self-government.

They certainly do not teach about the virtues, or qualities of mind and character, that enable citizens to shoulder their political responsibilities and prosper amidst the opportunities and uncertainties that freedom brings. Nor do they teach the beliefs, practices and associations that foster such virtues and those that endanger them.

Those who doubt that the failings of higher education in America have political consequences need only reflect on the quality of progressive commentary on the tea party movement. Our universities have produced two generations of highly educated people who seem unable to recognize the spirited defense of fundamental American principles, even when it takes place for more than a year and a half right in front of their noses.

Mr. Berkowitz is a senior fellow at Stanford's Hoover Institution.

http://online.wsj.com/article/SB10001424052748704631504575531913602803980.html
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 30582


« Reply #291 on: October 28, 2010, 04:24:15 PM »

THE PATRIOT POST
Alexander's Essay -- October 28, 2010
=================================
On the Web: http://patriotpost.us/alexander/2010/10/28/rights-endowed-by-whom/
Printer Friendly:
http://patriotpost.us/alexander/2010/10/28/rights-endowed-by-whom/print
PDF Version: http://pdf.patriotpost.us.s3.amazonaws.com/2010-10-28-alexander.pdf

-------------

Rights Endowed by Whom?

-------------

What is really at stake in this election?

"The preservation of the sacred fire of liberty, and the destiny of the republican
model of government, are justly considered deeply, perhaps as finally, staked on the
experiment entrusted to the hands of the American people." --George Washington

Next Tuesday's 2010 midterm election marks the first major battle in a fired-up
grassroots effort to restore constitutional integrity, one with a fervor not seen
since the election of Ronald Reagan (http://reagan2020.us/ ) 30 years ago.

The stakes in this election and those to follow are much higher than a mere contest
between competing political platforms and personas. These elections will determine
who is this nation's arbiter of "Life, Liberty and the pursuit of Happiness."

Perhaps unwittingly, Barack Hussein Obama, by way of omission in several recent
speeches, has made it abundantly clear whom he and his comrades reject as the source
of the rights of all men. On three separate occasions, when speaking at fundraisers
for his Leftist comrades, Obama has referenced the Declaration of Independence
(http://patriotpost.us/document/the-declaration-of-independence/ ).

Speaking at the Hispanic Caucus Institute's Annual Awards Gala, Obama said, "We hold
these truths to be self-evident, that all men are ... endowed with certain
inalienable [sic] rights: life, liberty and the pursuit of happiness." When
questioned about the omission of who, precisely, endowed those rights, the White
House press office claimed that Obama went off script ... unlikely for a man who has
been glued and tattooed to his Teleprompters.

A few days later, speaking at a fundraiser for the Democratic Congressional Campaign
Committee, Obama said, "If we believe that ... everybody is endowed with certain
inalienable [sic] rights and we're going to make those words live, and we're going
to give everybody opportunity, everybody a ladder into the middle class..." For the
record, that utterance was not "off script." Rather, it was precisely how the White
House posted his speech.

At the Democratic Senatorial Campaign Committee fundraiser, he did it again, saying,
"What makes this place special is not something physical. It has to do with this
idea that was started by 13 colonies that decided to throw off the yoke of an empire
and said, 'We hold these truths to be self-evident, that all men ... are endowed
with certain inalienable [sic] rights.'"

In each instance, Obama omitted the Declaration's clear affirmation that the rights
of all people are "endowed by their Creator," not by some potentate or government.

Our Declaration of Independence was derived from inherent common law, and in its
first sentence, our Declaration establishes the rights of man as "which the Laws of
Nature and Nature's God entitle them."

When asked again about Obama's omission, White House Press Secretary Robert Gibbs
asserted, "I can assure you the president believes in the Declaration of
Independence."

So, Obama "believes in the Declaration"? The Declaration is a piece of paper, one
that expresses a self-evident Truth. Were it destroyed today, or had it never been
written, the right of all people to "Life, Liberty and the pursuit of Happiness,"
among other rights, would still be endowed by our Creator.

Mr. Gibbs' assurances notwithstanding, Obama's subtle but telling omissions expose
the underbelly of the political beast that is intent on devouring Essential Liberty
(http://patriotshop.us/index.php?cPath=85 ) and replacing it with the rule of men.

With his omissions now a matter of public interest, Obama has now tossed "our
Creator" into a stump speech before Election Day. But make no mistake: That would be
subterfuge. Obama believes that the rights of men are subject to the rule of men,
and the terminus of the unabated rule of men is always tyranny.

The election of Barack Hussein Obama was the worst of insults to our nation's
heritage of Liberty, but in one important way, it has proven a blessing in disguise.

It has drawn millions of Americans to the frontlines of the eternal war for Liberty
and Rule of Law
(http://patriotpost.us/alexander/2010/09/16/the-enshrinement-of-essential-liberty/
), as enshrined in our national Constitution. Still, this midterm election cycle is
different than the knee-jerk response to Bill Clinton that seated a Republican
majority back in 1994.

There is a Great Awakening across our nation, one being spearheaded by Tea Party
Patriots (http://patriotpost.us/alexander/2010/06/24/the-tea-party-movement/ ) who
are armed with, among other things, the right tools
(http://patriotshop.us/index.php?cPath=78 ) to articulate the difference between
Rule of Law and rule of men, and who are willing to passionately fight for the
former over the latter.

In the words of Thomas Paine, "I call not upon a few, but upon all: not on this
state or that state, but on every state; up and help us; lay your shoulders to the
wheel; better have too much force than too little, when so great an object is at
stake."

At this moment, the future of Liberty is at stake.

Our Declaration of Independence concludes, "And for the support of this Declaration,
with a firm reliance on the protection of divine Providence, we mutually pledge to
each other our Lives, our Fortunes and our sacred Honor." (I suspect Obama would
omit "with a firm reliance on the protection of divine Providence.")

I know that you have "pledged your sacred honor
(http://patriotpost.us/alexander/2008/11/14/our-sacred-honor-to-support-and-defend/
)" for the defense of Liberty. I beseech you to help us muster
(https://patriotpost.us/donate/ ) millions of additional Patriots to the frontlines
for the battle ahead.

Semper Vigilo, Fortis, Paratus et Fidelis!
Mark Alexander
Publisher, The Patriot Post (http://patriotpost.us/subscribe/ )

-------------

-------------

Follow The Patriot Post:

Facebook -- http://www.facebook.com/PatriotPost
Twitter -- http://twitter.com/patriotpost
RSS -- http://patriotpost.us/feeds/
YouTube -- http://www.youtube.com/patriotpost

Logged
Body-by-Guinness
Power User
***
Posts: 2787


« Reply #292 on: November 05, 2010, 01:24:13 PM »

Happy birthday, Stephen J. Field!
Today is the birthday of one of the great figures in the history of American liberty—Stephen Johnson Field, who was born on this day in 1816.

Field was born into an illustrious family; his brother, Cyrus, laid the first transatlantic telegraph cable (and is mentioned in 20,000 Leagues Under The Sea), and his other brother, David Dudley Field, was perhaps the most famous and influential lawyer in his day. But unlike his brothers, Stephen came west to California in 1849, arriving in San Francisco, where he started a law firm. It failed quickly, and he moved to Marysville, where he was soon elected alcalde—something similar to mayor. After serving in the state legislature, Field was elected to the California Supreme Court in 1857, and soon achieved wide respect, although he clashed with his colleague, Chief Justice David S. Terry. When Terry shot and killed California Senator David Broderick in a duel two years later, Field replaced him as Chief Justice of California.

In 1863, needing a western Democrat for the Supreme Court, Abraham Lincoln appointed Stephen Field to the new 10th seat, making him the first Californian on the Supreme Court. Field soon distinguished himself as a defender of economic freedom and a friend to the Chinese immigrants who were so severely persecuted in California at the time. While riding circuit in the state, for instance, Field struck down the San Francisco “queue ordinance.” This was a law requiring any person who was thrown in jail to first have his head shaved. Although the government claimed this was a health measure intended to prevent lice infestation, Field recognized that it was really an attempt to allow the cutting off of the Chinese workers’ long hair braids, or queues, that they prized for traditional reasons: “we cannot shut our eyes to matters of public notoriety and general cognizance,” Field wrote. “When we take our seats on the bench we are not struck with blindness, and forbidden to know as judges what we see as men.” Ho Ah Kow v. Nunan, 12 F. Cas. 252, 255 (C.C.D. Cal. 1879).

Field was a champion of the individual’s right to earn a living without unreasonble interference by the government. (Which is why I dedicated my book to him.) In a persuasive dissenting opinion in Munn v. Illinois, 94 U.S. (4 Otto.) 113 (1877), Field argued that a law limiting how much the owners of grain silos could charge for storing grain was a violation of the due process clause, because it violated the owners’ right to do with their property as they pleased—not to protect the general public, but simply to benefit a group that managed to exercise greater political influence than their rivals. The Court majority devised a new test, saying that any business “affected with a public interest” could be regulated by the government in this way, but Field pointed out that the storage of grain was simply “a private business,” and if the legislature could dictate the prices owners could charge simply by declaring that the business is “affected with a public interest,” then “all property and all business in the State are held at the mercy of a majority of its legislature,” which might just as easily

fix the rent of all tenements used for residences, without reference to the cost...[or set prices for] cotton, woollen, and silken fabrics, in the construction of machinery, in the printing and publication of books and periodicals, and in the making of utensils of every variety, useful and ornamental; indeed, there is hardly an enterprise or business...in which the public has not an interest in the sense in which that term is used by the court...and the doctrine which allows the legislature to interfere with and regulate the charges which the owners of property thus employed shall make for its use...has never before been asserted, so far as I am aware, by any judicial tribunal in the United States.

Field rightly saw that Munn would open the door to a flood of government control over businesses, and in the decade that followed (virtually every state held a constitutional convention in the 1870s) legislatures declared industries willy-nilly to be affected with a public interest so that bureaucrats could control large segments of industry. Likewise, in what is probably his most famous opinion—his dissent in The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873)—Field insisted that the privileges or immunities clause protected, among other rights, the right to engage in a business without unreasonable government interference—a right protected by the common law for more than two and a half centuries at that time.

It’s ironic that Progressive legal theorists like Roscoe Pound later accused the pro-free market judges like Field of being “formalists.” Field was anything but a formalist, as the quote from the queue case suggests. In Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867), he struck down a Missouri law that required people to swear they’d never been a supporter of secession before they could take certain jobs. This scheme was just a clever attempt at double-punishment for the same offense, Field wrote, and

what cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows. Its inhibition was levelled at the thing, not the name. It intended that the rights of the citizen should be secure against deprivation for past conduct by legislative enactment, under any form, however disguised. If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding.

Field ended up serving on the Court longer than any other justice except John Marshall. (William O. Douglas later surpassed him.) During that time, his influence on American law was profound—far greater than is usually recognized by legal historians. Upon his retirement from the bench, Field explained that in his view, the Supreme Court was actually the most democratic of the branches of the government, because while the legislature represents the will of temporary majorities that change over time, the Supreme Court’s job is to preserve the Constitution—the true will of the people—and protect it from legislatures that often abuse their constituents and ignore their constitutional limits.

Field also had a very colorful personal life. He ran for President several times while serving on the Supreme Court, and he’s the only Supreme Court justice ever arrested for murder. David Terry—the Chief Justice of California who had resigned after killing Senator Broderick—threatened Field’s life after Field ruled against Terry’s girlfriend in a divorce case. Field was then assigned a bodyguard, a U.S. Marshal named David Neagle. Not long afterwards, when Field was traveling through Lathrop, California, on judicial business, he happened upon David Terry, who walked up to Field and slapped him in the face. Marshal Neagle immediately pulled out his revolver and shot Terry dead. Although the sheriff arrested both Field and Neagle on murder charges, Field was immediately released and never charged. Neagle, however, was charged, and appealed to the U.S. Supreme Court, which held that the Marshal could not be tried under state law.

For more on this remarkable figure, check out Paul Kens’ book Stephen Field: Shaping Liberty from The Gold Rush to The Gilded Age, or Carl Brent Swisher’s book Stephen Field: Craftsman of The Law. Field also wrote a memoir of his early days in California. And not long ago I visited his gravesite.

http://sandefur.typepad.com/freespace/2010/11/happy-birthday-stephen-j-field.html
Logged
Body-by-Guinness
Power User
***
Posts: 2787


« Reply #293 on: November 11, 2010, 01:44:27 PM »

Repeal the Seventeenth Amendment
From the November 15, 2010, issue of NR

Joe Miller, Alaska’s Republican nominee for the United States Senate, recently expressed support for an idea that is rapidly gaining steam in Tea Party circles: the repeal of the Seventeenth Amendment. Miller subsequently backtracked from his statement, but he shouldn’t have: Repealing the Seventeenth Amendment would go a long way toward restoring federalism and frustrating special-interest influence over Washington.

Ratified in 1913, the Seventeenth Amendment replaced the election of U.S. senators by state legislators with the current system of direct election by the people. By securing the Seventeenth Amendment’s ratification, progressives dealt a blow to the Framers’ vision of the Constitution from which we have yet to recover.

The Constitution did not create a direct democracy; it established a constitutional republic. Its goal was to preserve liberty, not to maximize popular sovereignty. To this end, the Framers provided that the power of various political actors would derive from different sources. While House members were to be elected directly by the people, the president would be elected by the Electoral College. The people would have no direct influence on the selection of judges, who would be nominated by the president and confirmed by the Senate to serve for life or “during good behavior.” And senators would be elected by state legislatures.

Empowering state legislatures to elect senators was considered both good politics and good constitutional design. At the Constitutional Convention in Philadelphia, the proposal was ratified with minimal discussion and recognized as the approach “most congenial” to public opinion. Direct election was proposed by Pennsylvania’s James Wilson but defeated ten to one in a straw poll. More important than public opinion, however, was that limitations on direct popular sovereignty are an important aspect of a constitutional republic’s superiority to a direct democracy. As Madison observes in Federalist 51, “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Election of senators by state legislatures was a cornerstone of two of the most important “auxiliary precautions”: federalism and the separation of powers. Absent some direct grant of federal influence to state governments, the latter would be in peril of being “swallowed up,” to use George Mason’s phrase. Even arch-centralizer Hamilton recognized that this institutional protection was necessary to safeguard state autonomy. In addition, the Senate was seen as a means of linking the state governments together with the federal one. Senators’ constituents would be state legislators rather than the people, and through their senators the states could influence federal legislation or even propose constitutional amendments under Article V of the Constitution.

The Seventeenth Amendment ended all that, bringing about the master-servant relationship between the federal and state governments that the original constitutional design sought to prevent. Before the Seventeenth Amendment, the now-widespread Washington practice of commandeering the states for federal ends — through such actions as “unfunded mandates,” laws requiring states to implement voter-registration policies that enable fraud (such as the “Motor Voter” law signed by Bill Clinton), and the provisions of Obamacare that override state policy decisions — would have been unthinkable. Instead, senators today act all but identically to House members, treating federalism as a matter of political expediency rather than constitutional principle.

There is no indication that the supporters of the Seventeenth Amendment understood that they were destroying federalism. But they failed to recognize a fundamental principle of constitutional design: that in order for constraints to bind, it is necessary for politicians to have personal incentives to respect them. “Ambition,” Madison insisted in Federalist 51, “must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”

Under the original arrangement, senators had strong incentives to protect federalism. They recognized that their reelection depended on pleasing state legislators who preferred that power be kept close to home. Whereas House members were considered representatives of the people, senators were considered ambassadors of their state governments to the federal government and, like national ambassadors to foreign countries, were subject to instruction by the parties they represented (although not to recall if they refused to follow instructions). And they tended to act accordingly, ceding to the national government only the power necessary to perform its enumerated functions, such as fighting wars and building interstate infrastructure. Moreover, when the federal government expanded to address a crisis (such as war), it quickly retreated to its intended modest level after the crisis had passed. Today, as historian Robert Higgs has observed, federal expansion creates a “ratchet effect.”

Just as important as its role in securing federalism, the Senate as originally conceived was essential to the system of separation of powers. Bicameralism — the division of the legislature into two houses elected by different constituencies — was designed to frustrate special-interest factions. Madison noted in Federalist 62 that basing the House and Senate on different constituent foundations would provide an “additional impediment . . . against improper acts of legislation” by requiring the concurrence of a majority of the people with a majority of the state governments before a law could enacted. By resting both houses of Congress on the same constituency base — the people — the Seventeenth Amendment substantially watered down bicameralism as a check on interest-group rent-seeking, laying the foundation for the modern special-interest state.

Finally, the Framers hoped that indirect election of senators would elevate the quality of the Senate, making it a sort of American version of the House of Lords, by bringing to public service men of supreme accomplishment in business, law, and military affairs. There is some evidence that the indirectly elected Senate was more accessible to non-career politicians than today’s version is. And research by law professor Vikram Amar has found that during the 19th century, accomplished senators such as Webster and Calhoun frequently rotated out of the Senate and into the executive branch or the private sector, with an understanding among state legislators — and, notably, the senator selected to fill the seat — that they could return to service if they wished to do so or were needed. Foes of the Seventeenth Amendment argued at the time that its enactment would spawn a deterioration in the body’s quality. Whether the modern titans of the Senate such as Trent Lott, Bill Frist, Harry Reid, and the late Ted Kennedy are superior to Webster, Clay, and Calhoun is to some extent a matter of taste. But it is likely that reinstating the original mode of selection would change the type of individuals selected — and it is not implausible to think that the change would be positive.

Establishment media and liberal politicians have mocked tea partiers’ calls for repeal of the Seventeenth Amendment as anti-democratic. To be sure, indirect election would be less democratic than direct election, but this is beside the point. Notably, those who are most shocked by the proposal to repeal the Seventeenth Amendment are also the most vociferous in denouncing democratic election of judges. The Framers understood what today’s self-interested sloganeers of democracy do not: What matters is not whether a given method of selecting governmental officials is more or less democratic, but whether it will safeguard the constitutional functions bestowed upon each branch and conduce to their competent execution. Indeed, certain of the Senate’s duties — such as its role as a type of jury for impeachment proceedings — make sense only if it is somewhat insulated from the public’s passions of the moment, as was well demonstrated by the farcical Senate trial of Bill Clinton.

Critics of repeal have also contended that election of senators by state legislatures was, and would be today, unusually prone to corruption and bribery. But research by historian C. H. Hoebeke found that of the 1,180 Senate elections between 1789 and 1909, in only 15 cases was fraud credibly alleged, and in only seven was it actually found — approximately one-half of 1 percent. Moreover, it is absurd to think that even this modest degree of corruption would be tolerated in the modern media age, any more than politicians can today sell judgeships or other appointed offices, as they frequently did in the past. And even in the progressive era it was not believed that direct election of senators would prevent corruption. Among the Seventeenth Amendment’s staunchest supporters were urban political machines (hardly advocates of clean government), which understood that direct election would boost their control of the Senate as they drove and bribed their followers to the polls.

Repealing the Seventeenth Amendment would not be a panacea for what ails the American political and constitutional system. As during the era before the Seventeenth Amendment, many states would probably adopt either de facto direct election of senators, in which legislatures essentially agree to ratify the popular vote, or attenuated forms of it, such as primaries or conventions to select party nominees from whom the legislatures choose. And much work would remain to be done to restore the public’s understanding of the difference between a direct democracy and a democratic constitutional republic. But repeal would be a step in the direction of restraining an imperialistic central government and frustrating special-interest influence. Whether or not it is good politics, it remains sound constitutional design.

—Mr. Zywicki is a George Mason University Foundation professor of law and a senior scholar of the Mercatus Center. He has written several law-review articles examining the history and impact of the Seventeenth Amendment. This article first appeared in the November 15, 2010, issue of National Review.

http://www.nationalreview.com/articles/252825/repeal-seventeenth-amendment-todd-zywicki?page=1#
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 30582


« Reply #294 on: December 12, 2010, 09:16:49 PM »

Breyer: Founding Fathers Would Have Allowed Restrictions on Guns

Published December 12, 2010

If you look at the values and the historical record, you will see that the Founding Fathers never intended guns to go unregulated, Supreme Court Justice Stephen Breyer contended Sunday.

Appearing on "Fox News Sunday," Breyer said history stands with the dissenters in the court's decision to overturn a Washington, D.C., handgun ban in the 2008 case "D.C. v. Heller."

Breyer wrote the dissent and was joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg. He said historians would side with him in the case because they have concluded that Founding Father James Madison was more worried that the Constitution may not be ratified than he was about granting individuals the right to bear arms.

Madison "was worried about opponents who would think Congress would call up state militias and nationalize them. 'That can't happen,' said Madison," said Breyer, adding that historians characterize Madison's priority as, "I've got to get this document ratified."

Therefore, Madison included the Second Amendment to appease the states, Breyer said.

"If you're interested in history, and in this one history was important, then I think you do have to pay attention to the story," Breyer said. "If that was his motive historically, the dissenters were right. And I think more of the historians were with us."

That being the case, and particularly since the Founding Fathers did not foresee how modern day would change individual behavior, government bodies can impose regulations on guns, Breyer concluded.

In July 2008, the concurring opinion in "D.C. v. Heller" written by Justice Antonin Scalia and shared by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. found that the district's ban on handgun possession at home "violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense."

The ruling raised concerns by dissenters like Breyer that gun laws nationwide would be thrown out. That has not happened yet.

Breyer, who just published "Making Our Democracy Work," a book about the role of the court in American life, outlined his judicial philosophy as one in which the court must take a pragmatic approach in which it "should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances."

Since the Founding Fathers could not foresee the impact of modern day communications and technology, the only option is to take the values of the Founding Fathers and apply them to today's challenges.

"The difficult job in open cases where there is no clear answer is to take those values in this document, which all Americans hold, which do not change, and to apply them to a world that is ever changing," Breyer said. "It's not a matter of policy. It is a matter of what those framers intended."

He suggested that those values and intentions mean that the Second Amendment allows for restrictions on the individual, including an all-out ban on handguns in the nation's capital.

"We're acting as judges. If we're going to decide everything on the basis of history -- by the way, what is the scope of the right to keep and bear arms? Machine guns? Torpedoes? Handguns?" he asked. "Are you a sportsman? Do you like to shoot pistols at targets? Well, get on the subway and go to Maryland. There is no problem, I don't think, for anyone who really wants to have a gun."
Logged
bigdog
Power User
***
Posts: 2136


« Reply #295 on: December 16, 2010, 05:01:39 AM »

Health Suits Stir Concerns on Court Partisanship

http://www.nytimes.com/2010/12/16/health/policy/16health.html?_r=2&src=twt&twt=nytimes

Representative Pete Stark, a California Democrat who leads the Ways and Means subcommittee on health, added, “Apparently Republicans are now for judicial activism after they were against it.”
Logged
bigdog
Power User
***
Posts: 2136


« Reply #296 on: December 16, 2010, 05:18:19 AM »

"Instead of this crucial question being decided by one conservative judge in Virginia, it will likely be decided by one bizarre, unpredictable judge in Washington, Anthony Kennedy." From DougMacG, in a different thread

There has been a recent fascination with Justice Kennedy, no doubt spurred by Justice SDO retiring in 2006.  Her retirement left Kennedy as the "swing" justice.  As a result of this, there has been a fair amount of research done by political scientists, journalists, and law professor types.  Most of them conclude that Kennedy is not as unpredicatable as is popularly understood.  

Some examples:

Linda Greenhouse's "Is the 'Kennedy Court' Over?" which can be found here: http://opinionator.blogs.nytimes.com/2010/07/15/rethinking-the-kennedy-court/

Frank Colucci's Justice Kennedy's Jurisprudence: The Full and Necessary Meaning of Liberty reviewed here: http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/colucci0110.htm

Helen Knowles' The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty reviewed here:
http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/knowles0509.htm

Vol. 19 No. 5 (May, 2009) pp.347-350
THE TIE GOES TO FREEDOM: JUSTICE ANTHONY M. KENNEDY ON LIBERTY, by Helen J. Knowles.  Lanham, Maryland: Rowman & Littlefield, 2009.  312pp.  Hardback. $44.95/£30.00/€44.50.  ISBN: 9780742562578. 

 

Reviewed by Tobias T. Gibson, Department of Political Science, Monmouth College.  Tgibson [at] monm.edu.

 

With the recent announcement that Justice David Souter is retiring from the United States Supreme Court, there has been a great amount of wordage from journalists and judicial scholars about the type of justice that President Barack Obama will nominate to fill Souter’s seat.  There is much discussion about the strength of decisions that the new justice will pen, especially given Souter’s reserved judicial demeanor.  However, many court watchers believe that junior justices, like children in days past, are to be seen but not heard.  Helen J. Knowles, in her excellent book, offers some insight into how a junior justice can have profound impact on the Supreme Court.  Knowles suggests that Kennedy, as a junior justice, made significant jurisprudential arguments when still a junior justice on the Court, and continues to do so today.

 

Knowles chronicles Justice Anthony Kennedy’s career and jurisprudential views, especially as they relate to three important areas of civil liberties: privacy, race and speech.

 

Knowles uses the Introduction of the book to suggest that Kennedy’s reputation of writing opinions which are “doctrinally weak” does not do justice to the Justice.  Instead, the purpose of this book is “to try to identify some of the most prominent and important philosophical and legal threads that are woven into the cloth from which Justice Kennedy’s jurisprudence is cut” (p.2).  Knowles starts from the assertion that Kennedy is a “moderate libertarian.”  This assertion stems from Kennedy’s avoidance of radical legal positions, coupled with his belief in diverse views and protection of human dignity. 

Importantly, Knowles approaches this study from a perspective related to neo-institutionalism and the strategic model of judicial decision making.  Knowles views this as a key element in the book, because like the adherents of these models, she is “interested in asking why justices vote the way they do and how they are constrained and/or influenced by the broad political, historical, and cultural contexts within which they work” (pp.9-10).

 

In Chapter 1, Knowles begins to attack her overall hypothesis by defining libertarianism, with the assistance of such luminaries and Robert Nozick, Jeremy Bentham, John Locke and John Stuart Mill (whose ON LIBERTY is purposefully part of the title of the current book).  Following the definition, the challenge is to see Kennedy’s application of libertarianism.  Knowles uses interviews and speeches to convince the reader that Kennedy is a moderate libertarian who believes in tenets of libertarianism, such as toleration and personal responsibility.  More importantly, in direct contrast to [*348] Justice Antonin Scalia and failed Supreme Court nominee Judge Robert Bork, Knowles notes that during his confirmation, Kennedy testified to the Senate about his broad understanding of rights that are not specifically enumerated in the Constitution.

   

The second chapter begins the heart of the book and focuses on Justice Kennedy’s views on the freedom of speech, which, for Kennedy, is particularly sacred because he sees speech as the “beginning of thought.”  Knowles introduces this chapter with a quote from Justice Kennedy in INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS v. LEE (1992): “The First Amendment is often inconvenient.  But that is beside the point.  Inconvenience does not absolve the government of its obligation to tolerate speech” (p.53).  This is an important belief for Kennedy and can be seen throughout his defense of speech.  Knowles predictably, and correctly, also utilizes Kennedy’s famous concurring opinion in TEXAS v. JOHNSON (1989).  The most interesting portion of this chapter, however, is the discussion about Kennedy’s views about the use of “strict scrutiny,” which was first made public in SIMON & SCHUSTER v. CRIME VICTIMS BD. (1991).  Kennedy makes the argument, again in a concurrence, that the strict scrutiny test, applied in the opinion of the court, is unnecessary.  Kennedy feels this way because he believes that the strict scrutiny test “has no real or legitimate place when the Court considers the straightforward question whether the state may enact a burdensome restriction of speech based on content only” (p.69).  Knowles acknowledges that Kennedy’s position toward the freedom of speech is not absolute, but carefully notes also that even when his view is “tempered by the realities of the different cases he has confronted” (p.87), he remains true to his root belief that government should not try to control the thoughts or expression of its citizens. 

 

In the third chapter, Knowles then turns to individual dignity, rather than “membership” in a group, based on race, sexuality or other particular characteristics.  Knowles again does a convincing job of illustrating Kennedy’s dedication to libertarian ideals in this chapter.  She effectively draws upon ROMER v. EVANS (1996) and LAWRENCE v. TEXAS (2003) to make the point that in this area of law, Kennedy views too much governmental intrusion to be at odds with individual freedom.  At issue in ROMER was a Colorado state constitutional amendment that prevented discrimination on the basis of sexual orientation.  Kennedy wrote that the amendment was “so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects” (p.110).  Similarly, in LAWRENCE, Kennedy takes the Court’s decision in BOWERS v. HARDWICK to task by writing “Bowers was not correct when it was decided, and it is not correct today” (p.116).  His reasoning for this is that “Liberty protects the person from unwarranted government intrusions into a dwelling or other private place. . . . And, there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence.  Freedom extends beyond spatial boundaries” (p.121). [*349]

 

In the following chapter, Knowles extends the discussion of Kennedy’s aversion to group based characterization of the individual.  Here, the focus turns to race.  The case at the heart of the discussion in this chapter is METRO BROADCASTING v. FEDERAL COMMUNICATIONS COMMISSION (1990), in which preferential treatment for minority owned communications companies was given in issuing federal communications licenses.  Kennedy dissented from the majority opinion which upheld these preferences in support of diversity.  Kennedy voiced his preference for strict scrutiny here, which was at odds with the less exacting test employed by Brennan.  Kennedy, in writing what one commentator described as an “apocalyptic” dissent, compares the majority opinion to the infamous PLESSY and KOREMATSU decisions.  He elaborates on this by stating “[p]erhaps the Court can succeed in its assumed role of case-by-case arbiter of when it is desirable and benign for the Government to disfavor some citizens and favor others based on the color of their skin.  Perhaps the tolerance and decency to which our people aspire will let the disfavored rise above hostility and the favored to escape condescension” (p.137).  Knowles presents an impressive discussion of several cases here to make the point that Kennedy’s real concern is that, by focusing on group characteristics, the individual’s freedom is jeopardized because the individual cannot have all of the characteristics of the group.

 

The fifth chapter focuses on abortion cases, with a particular nod to PLANNED PARENTHOOD v. CASEY (1992) in which Kennedy coauthored the opinion of the Court with Justices O’Connor and Souter.  Because Kennedy’s view is that there is no clear boundary of where individual liberties lie with regard to abortion, Knowles makes the argument that Kennedy’s understanding of abortion rights is based on the “relationships between (1) libertarianism and abortion and (2) libertarianism and personal responsibility” (p.163).  Knowles supports this, observing that, while Kennedy and the other authors note the importance of the woman’s liberty to have an abortion, the decision is not “isolated in privacy.”  This observation allows Knowles to come full circle from the first chapter, where she defines and describes Kennedy’s limited libertarian view.

 

The conclusion serves to reiterate the points made in the prior chapters.  Knowles also uses this opportunity to note the political importance of understanding Kennedy’s views.  For example, in the first term since John Roberts and Samuel Alito took their seats on the bench, Knowles reports that Kennedy was the sole justice to be in the majority in all 5-4 decisions.  Perhaps the best indication of Knowles’ view of Kennedy on the current Court is the title of the concluding chapter: “It all Depends on Justice Kennedy.”

 

In THE TIE GOES TO FREEDOM, Knowles utilizes several sources.  The primary sources come from Justice Kennedy’s opinions written during his tenure on the High Bench.  Additionally, Knowles uses material from Kennedy’s speeches and written articles, and interviews he has given.  Another strength of this work is Knowles’ ability to buttress her arguments between and among chapters.  Although the chapters [*350] facially are unique, there are clear connections through the book.  Additionally, Knowles does a wonderful job of displaying that Kennedy is not inconsistent with his jurisprudence or that he falls victim to the “Greenhouse Effect” by trying to please the reporters on the Supreme Court beat.

 

This book serves an important purpose.  While Knowles focuses on Justice Kennedy, because of his position on the Supreme Court as the median justice, THE TIE GOES TO FREEDOM is also suggestive of the policies we are likely to see coming from the Court for years to come.  Knowles’ work packs a punch and could be considered required reading for any number of undergraduate and graduate courses, including the typical constitutional law and jurisprudence classes, but also those related to the institution of the Supreme Court.  This book is one of the more interesting and well written books that I have read in recent years.

 

CASE REFERENCES:

BOWERS v. HARDWICK, 478 U.S. 186 (1986).

 

INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS v. LEE, 505 US 672 (1992).

 

KOREMATSU v. US, 323 U.S. 214 (1944).

 

LAWRENCE AND GARNER v. TEXAS, 539 U.S. 558 (2003).

 

METRO BROADCASTING v. FEDERAL COMMUNICATIONS COMMISSION, 497 U.S. 547 (1990).

 

PLESSY v. FERGUSON, 163 U.S. 537 (1896).

 

PLANNED PARENTHOOD v. CASEY, 505 U.S. 833 (1992).

 

ROMER v. EVANS, 517 U.S. 620 (1996).

 

SIMON & SCHUSTER v. CRIME VICTIMS BOARD, 502 U.S. 105 (1991).

 

TEXAS v. JOHNSON, 491 U.S. 397 (1989).

*********************

© Copyright 2009 by the author, Tobias T. Gibson.



« Last Edit: December 16, 2010, 06:54:42 AM by bigdog » Logged
DougMacG
Power User
***
Posts: 5799


« Reply #297 on: December 16, 2010, 01:01:40 PM »

"“Apparently Republicans are now for judicial activism after they were against it.”"

I was trying to make the same point from the other direction.  One judge or one court far away strikes down the age-old and majority approved idea that marriage means a man and woman become husband and wife or that Sharia Law law foreign law should not be considered in state court and the action receives pundit and scholar applause.  Now we have one instance of a conservative judge saying the constitution doesn't give the federal government a power that the constitution certainly didn't give in any clear or direct way anywhere in its articles or amendments - and those who applauded earlier receive back a taste of the judicial review they were applauding.  Activist? Yes, he over-ruled out elected representatives.  The question to me though is whether he got it right upholding constitutional limits on federal government powers.

"it will likely be decided by one bizarre, unpredictable judge in Washington, Anthony Kennedy."

Bizarre and unpredictable would be from my point of view; I'm sure it all makes sense from his....  I will read the links posted and come back better informed.  (Learning more about Anthony Kennedy though will be hours of my life I can never get back.)  In the meantime I accept this description from Knowles (bigdog post) as better worded: Kennedy is a “moderate libertarian” and I agree to make no wisecracks about that sounding like a very clever oxymoron...

If in 1988 Reagan's top constitutional advisers had reassured the President, even in the earliest stages of Alzheimer's, that this man Kennedy will be a moderate for in the defense of individual liberties for this nation for the rest of his life, I am wondering if he would have gotten that job. (sad face)

Forgive me as I go nuts over Kelo again: Knowles on Kennedy in Lawrence (from bigdog post): "His reasoning for this is that “Liberty protects the person from unwarranted government intrusions into a dwelling or other private place. . . ."  But Kelo (the taking of your private property on a government whim for other private ownership) is not an "unwarranted government intrusions into a dwelling or other private place"??!! It is a warranted intrusion (in Kennedy's opinion) for the government to force out private property owners to accommodate a different private owners whose purpose is at that moment is believed to be preferable to the [all-knowing, all-caring, with sarcasm] City government.  We should all go right now to the New London site and see how warranted that intrusion and displacement turned out to be and how great a city can become with greater central government powers.  It is vacant land, they never broke ground on the residential site and Pfiser left New London in 2009.  

FYI to Kennedy and other Kelo supporters from one who has had his property taken by a city to transfer ownership to politically connected private ownership:  We didn't need a new government power to transfer private ownership of private property.  We already have something - it's called a purchase agreement and it gets signed by consenting parties, with an agreed price [in a free society].  Seller's consent is one liberty that this 'moderate libertarian' Justice Kennedy failed to recognize, and now the legitimate power of government to acquire property necessary to build needed public facilities and right-of-ways can now run wild across the municipalities buying and selling access to government power for preferred private ownership.

If Kennedy is not "bizarre and unpredictable" as I wrote, and some thread runs through his logic and values, and if the different sides of the issue of individual mandate are already known, then maybe one of the scholars linked will already know how Kennedy will come down on the healthcare mandate.

In the meantime, someone please tell me what is wrong with having the 2/3rds and 3/4th majorities required to amend the constitution to grant the federal government a new power - do so - before exercising that power against unwilling Americans.
« Last Edit: December 16, 2010, 01:14:46 PM by DougMacG » Logged
G M
Power User
***
Posts: 11814


« Reply #298 on: December 16, 2010, 01:32:27 PM »

http://volokh.com/2010/12/14/sixth-circuit-rules-that-e-mail-protected-by-the-fourth-amendment-warrant-requirement/

Sixth Circuit Rules that E-Mail Protected by the Fourth Amendment Warrant Requirement
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 30582


« Reply #299 on: December 19, 2010, 12:03:03 PM »



Justice Scalia and the Tea Party
Published: December 18, 2010
When the Tea Party holds its first Conservative Constitutional Seminar next month, Justice Antonin Scalia is set to be the speaker. It was a bad idea for him to accept this invitation. He should send his regrets.

Related
Times Topic: Antonin Scalia
The Tea Party epitomizes the kind of organization no justice should speak to — left, right or center — in the kind of seminar that has been described in the press. It has a well-known and extreme point of view about the Constitution and about cases and issues that will be decided by the Supreme Court.

By meeting behind closed doors, as is planned, and by presiding over a seminar, implying give and take, the justice would give the impression that he was joining the throng — confirming his new moniker as the “Justice from the Tea Party.” The ideological nature of the group and the seminar would eclipse the justice’s independence and leave him looking rash and biased.

There is nothing like the Tea Party on the left, but if there were and one of the more liberal justices accepted a similar invitation from it, that would be just as bad. This is not about who appointed the justice or which way the justice votes. Independence and the perception of being independent are essential for every justice.

Justice Scalia has been particularly assertive that the American public should trust his ability to handle ethical questions. Incidents like this seminar emphasize that it is in the interest of the Supreme Court to provide him and every justice with more specific guidance. The court remains the only federal court not covered by the Code of Conduct for United States Judges. The court and the country would be better off if the justices were responsible to the code. Even without a duty to the code, each justice has a duty to its principles. Each has a duty to promote the judiciary’s impartiality. That means avoiding any activity that could raise reasonable doubts about his or her ability to decide cases fairly.

By presiding over this seminar, Justice Scalia would provide strong reasons to doubt his impartiality when he ruled later on any topic discussed there. He can best convey his commitment to the importance of his independence, and the court’s, by deciding it would be best not to attend.
Logged
Pages: 1 ... 4 5 [6] 7 8 ... 25 Print 
« previous next »
Jump to:  

Powered by MySQL Powered by PHP Powered by SMF 1.1.19 | SMF © 2013, Simple Machines Valid XHTML 1.0! Valid CSS!