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Author Topic: Issues in the American Creed (Constitutional Law and related matters)  (Read 102311 times)
ccp
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« Reply #1150 on: October 03, 2013, 11:07:48 AM »

Bigdog asks,

"I rephrase my question: should we not be a nation of law?"

Of course.

But I would add and emphasize for Republicans,

We should also be a nation of laws AND strive to apply those laws *equally to all*.

Not simply expand the number of laws into complexity akin to billions of iterations of DNA.

When we now have Democrats even admitting at the Federal level to passing laws they don't, can't read then we don't have order, we have confusion, ignorance, politicization, corruption, and a country that is mired in gobbly goop.
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bigdog
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« Reply #1151 on: October 03, 2013, 01:06:54 PM »

Democrats are not solely responsible for the politicalization, confusion, and ignorance of the process.
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ccp
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« Reply #1152 on: October 03, 2013, 07:46:00 PM »

"Democrats are not solely responsible for the politicization, confusion, and ignorance of the process"

No but they certainly bare more responsibility for it.

As for Republicans who seem to believe in social engineering (as Newt put it), it is time for them to be held accountable. 

That is what the Tea Party is all about.
Time for them to stop the phony talk and time to start the walk.

If Republicans can address the insane proliferation of laws and their complexity and strive to have them streamlined with the goal of applying them equally to everyone they might actually pick up a few more votes.
 
Democrats won't address this.   They wouldn't even admit to it.   
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bigdog
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« Reply #1153 on: October 05, 2013, 04:31:50 PM »

http://www.washingtonpost.com/lifestyle/magazine/the-question-facing-ruth-bader-ginsburg-stay-or-go/2013/10/04/4d789e28-1574-11e3-a2ec-b47e45e6f8ef_story.html?tid=pm_lifestyle_pop

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Crafty_Dog
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« Reply #1154 on: October 05, 2013, 06:30:11 PM »

In Bush v. Gore she emphasized deference to the FL court.  First time I ever knew her to care about states rights, but there are plenty of times she emphasized federal power over the states.   We argued in class about National League of Cities v. Usery.
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Crafty_Dog
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« Reply #1155 on: October 06, 2013, 11:55:41 AM »



http://nationalreview.com/article/360228/origins-origination-clause-andrew-c-mccarthy
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DougMacG
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« Reply #1156 on: October 06, 2013, 11:43:27 PM »

"But do I want political speech?" Defined as speech or "speech"? The phrase "money talks" is not literal. If money is speech, why all the concern over George Soros's "speech"? Or is it, like you suggest, in effect that laws are in the eyes of the beholder?

Future congress's are not bound by the 1974 Budget Act or the ACA. But I repeat: Until a law is repealed or superceded, it is binding, is it not?

"We are a nation strangling in laws.  If you asked me if we should be a nation of far fewer laws, where all of them conform with a careful reading of the letter and spirit of our constitutional limits...". I don't think we disagree here. In fact, as you might recall, I've posted several times about the hopes that Congress would meet its constitutional requirements rather than delegating power to the president (whomever that may be... is this where we differ?).

Bigdog, good stuff.  I was out vacationing on the shores of mighty Lake Superior, seeing peak colors of autumn and other of nature's magnificent wonders.

Where I wrote 'political speech' I meant 'unlimited political speech' which I think you correctly interpreted to mean I was questioning or favoring unlimited money in political speech at least in the case of legitimate players, citizens and their associations and representatives.  I have to look into the point about George Soros.  What I see is that he is an American citizen since 1961 which means I think he is a legitimate political player with all recognized rights.  Just misguided.

Money is speech in this sense:  If you look backward over the last quarter century or more, I'm sure every serious US Senate candidate in every state would tell that the additional political speech that can make a difference in their election is measured in dollars needed to buy enough television time to get out their message out to their potential voters.  Talking to yourself or in an unpublicized, unreported event doesn't do it.  I sense you disagree so this is a big topic of its own, perhaps for another day.


BD: "Future congress's are not bound by the 1974 Budget Act or the ACA. But I repeat: Until a law is repealed or superceded, it is binding, is it not?"

On the first part, I think you are confirming my original point.  And what I am asking is, what can we point to in the constitution to show that this congress is not bound by those acts of previous congresses?

On the second part of that point, I'm not sure what you mean.  It is still a law; the 1974 Budget Act wasn't repealed or superceded, but it was ignored.  I think we are both saying that the 93rd and 111th Congresses cannot bind the actions and spending of 113th Congress. 


Relating to fewer laws with closer observance to constitutional limits, BD wrote: "I don't think we disagree here. In fact, as you might recall, I've posted several times about the hopes that Congress would meet its constitutional requirements rather than delegating power to the president (whomever that may be... is this where we differ?)."

No, I think we agree there as well.  The IRS is writing tax laws, EPA is writing environmental laws, the ACA is giving "Secretary" all this discretionary, law making power.  These are all congressional powers and constitutional responsibilities and it is wrong that they are given to or taken by these agencies of the executive branch.  The question of how to end those wrongful practices is one of the great challenges we face.
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bigdog
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« Reply #1157 on: October 07, 2013, 05:28:36 AM »

Doug: I hope you enjoyed the vacation and it is good to have you back. This is an insane week for me, so I won't be able to do your post justice, and I am unsure when/if I'll be able to get back to it.

Saying that, we do disagree on the money. Something that leads to speech isn't speech. Driving to a convention isn't speech... but driving, as many like to say is a privilege not a right, even if the act means you will be at a place where thousands can hear your voice. The right to speech is not the same as having a right to be heard.

I am glad to see your concluding thoughts. As always, I appreciate your thoughts.
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G M
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« Reply #1158 on: October 07, 2013, 06:52:39 AM »

So, if you are interested in small government your message can be ignored/distorted/vilified by the MSM while they act as an official part of your political opponent's information operation.

Just suck it up and hope your tax audits come out ok, right?

Free speech!
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DougMacG
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« Reply #1159 on: October 07, 2013, 09:51:23 AM »

Bigdog has made the point from time to time that conservatives too like to bend the constitution to meet their needs.  Obviously money is not speech in the precise words of the framers.  Nor is your ability to travel to your speech. 

But if those are not enumerated rights, wouldn't they most certainly be unenumerated rights?  The government does not owe you a car, a driver's license, a podium, microphone or an hour of television time to accommodate your speech, but certainly they can not curtail your mobility for the sole reason that your travel is related to political speech.  If you have the right and the ability to spend unlimited money on television time to sell laundry soap, certainly you have the right to do the same for political speech.


Speaking of laws unenforced, what law prevents IRS targeting, the official act of bureaucrats and political conspiracies choosing which political speech to limit in order to swing political elections?  I would argue is banned in the equal protection clauses.  And whose constitutional responsibility is it to enforce these protections?  I would argue it is the executive branch, most likely in the duties of the Attorney General of the United States.  What are the consequence of the executive branch not enforcing our laws?  None.  In fact, if you attack them they will spend unlimited amounts of their money and also public resources to come and destroy you.  And you cannot spend unlimited amounts of money fighting back.  Tyranny, and it all started with the people and their representatives ignoring the words and spirit of our founding documents.
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Crafty_Dog
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« Reply #1160 on: October 07, 2013, 09:54:30 AM »

"The right to speech is not the same as having a right to be heard."

Of course, however to say this is not to say that the government can BLOCK you from being heard i.e. denying you raising money so you can be heard.
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Crafty_Dog
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« Reply #1161 on: October 07, 2013, 10:08:49 AM »

second post:

Here's another case focused on whether taking/denying people money matters:


How Prosecutors Rig Trials by Freezing Assets
Is it fair to seize all a defendant owns without showing its criminal source? The Supreme Court will rule.


    By
    HARVEY SILVERGLATE

On Oct. 16, the Supreme Court will hear oral arguments on a claim brought by husband and wife Brian and Kerri Kaley. The Kaleys are asking the high court to answer a serious and hotly contested question in the federal criminal justice system: Does the Constitution allow federal prosecutors to seize or freeze a defendant's assets before the prosecution has shown at a pretrial hearing that those assets were illegally obtained?

Such asset freezes often prevent a defendant from hiring the trial counsel of his choice to mount a vigorous defense, thus increasing the likelihood of the government extracting a guilty plea or verdict. Because asset forfeiture almost automatically follows conviction, a pretrial freeze ultimately enables the Justice Department to grab the frozen assets for use by executive-branch law enforcement agencies. It is a neat, vicious circle.


What crimes are the Kaleys charged with? Kerri Kaley was a sales representative for a subsidiary of Johnson & Johnson JNJ -0.70% . Beginning in 2005, the fedsin Florida investigated her, her husband Brian, and other sales reps for reselling medical devices given to them by hospitals. The hospitals had previously bought and stocked the devices but no longer needed or wanted the overstock since the company was offering new products. Knowing that the J&J subsidiary had already been paid for the now-obsolete products and was focused instead on selling new models, the sales reps resold the old devices and kept the proceeds.

The feds had various theories for why this "gray market" activity was a crime, even though prosecutors could not agree on who owned the overstocked devices and, by extension, who were the supposed victims of the Kaleys' alleged thefts. The J&J subsidiary never claimed to be a victim.

The Kaleys were confident that they would prevail at trial if they could retain their preferred lawyers. A third defendant did go to trial with her counsel of choice and was acquitted. But the Justice Department made it impossible for the Kaleys to pay their chosen lawyers for trial.

The government insisted that as long as the Kaleys' assets—including bank accounts and their home—could be traced to the sale of the medical devices, all of those assets could be frozen. The Kaleys were not allowed to go a step further and show that their activities were in no way criminal, since this would be determined by a trial. But the Kaleys insisted that if the government wanted to freeze their funds, the court had to hold a pretrial hearing on the question of the legality of how the funds were earned.

The Kaleys complained that the asset freeze effectively deprived them of their Sixth Amendment right to the counsel of their choice—the couple couldn't afford to hire the defense that they wanted. Prosecutors and the trial judge responded that the Kaleys could proceed with a public defender. This wouldn't have been an encouraging prospect for them, for while public counsel is often quite skilled, such legal aid wouldn't meet the requirements the Kaleys believed they needed for this complex defense. Choice of counsel in a free society, one would think, lies with the defendant, not with the prosecutor or the judge. (The Kaleys' chosen trial lawyers have agreed to stick with the case during the pretrial tussling over the asset-freeze question, but trying the case before a jury would be much more expensive and would require the frozen funds.)

Federal asset-forfeiture statutes like the one the Kaleys are fighting are actually a relatively recent invention. Before 1970, when Congress adopted the first provisions seeking to strip organized-crime figures of ill-gotten racketeering gains, there were no such laws (with the exception of the Civil War-era Confiscation Acts providing for the forfeiture of property of Confederate soldiers).

Since 1970, however, such federal statutes have expanded to cover a breathtaking number of crimes, from the sale of fraudulent passports and contraband cigarettes right up to murder and drug trafficking. An authoritative treatise, the 4th edition of the encyclopedia "Federal Practice & Procedure," asserts that federal forfeiture is now available "for almost every crime." In January, the New York Times quoted Manhattan U.S. Attorney Preet Bharara as saying that asset forfeiture is "an important part of the culture" and "an example of the government being efficient and bringing home the bacon." In 2012 alone, federal prosecutors seized more than $4 billion in assets. The Justice Department is allowed by law to put that bacon to use however prosecutors wish—to pay informants, provide snazzy cars to cooperating witnesses, whatever.

The Kaleys are hardly alone. The recently completed prosecution of Conrad Black indicates starkly how such seizures can torpedo a defendant's chance of getting a fair trial. In his 2007 high-profile case, Mr. Black, a former newspaper publisher indicted for alleged fraud and related crimes in the sale of Hollinger International, endured a federal freeze of his major unencumbered asset, the cash proceeds from the sale of his New York City apartment. That freeze prevented him from being able to retain the legal counsel upon whom he had relied before the asset freeze.

Mr. Black ultimately was convicted on two counts, winning on all the others in a shifting array of counts that numbered more than a dozen. Last year, having served his 42-month prison sentence, he filed a petition in federal court seeking to vacate his convictions on the ground that the government's asset-forfeiture tactics had deprived him of his counsel of choice. That effort foundered when the judge concluded that Mr. Black's trial counsel—not his counsel of choice, it must be noted, but rather the counsel he could afford after the asset freeze—had failed to properly raise and hence preserve the issue for later appellate review.

The Supreme Court has now threatened to upset the game that is so lucrative for the government and disabling for defendants. On March 18, the court agreed to consider the Kaleys' claim that the asset freeze without a hearing on the merits of the underlying criminal charge violated their constitutional rights. At oral argument in mid-October, the broader question will be whether, after four decades of federal asset seizures, the high court will put a freeze on the Justice Department.

Mr. Silverglate, a Boston criminal defense and civil liberties lawyer, is the author, most recently, of "Three Felonies a Day: How the Feds Target the Innocent" (Encounter Books, updated second edition 2011).
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G M
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« Reply #1162 on: October 07, 2013, 11:22:35 AM »

How Internet Censorship Actually Works in China
Studies show that the government permits some dissent online—but strikes down hard on calls for collective action.


http://www.theatlantic.com/china/archive/2013/10/how-internet-censorship-actually-works-in-china/280188/
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DougMacG
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« Reply #1163 on: October 16, 2013, 10:31:47 AM »

WSJ excerpted: On Tuesday, the Justices agreed to review how far the agency can go in regulating greenhouse gases under the Clean Air Act.

In Utility Air Regulatory Group v. EPA, the Court consolidated six cert petitions and will consider a single legal question: Does the EPA's authority under the Clean Air Act to regulate greenhouse gas emissions from "mobile sources" like cars also apply to emissions from "stationary sources" like power plants?
...
Regulatory agencies don't have the power to rewrite laws on their own without the authority granted by Congress. (more at: http://online.wsj.com/news/articles/SB10001424052702304106704579137431281832884?mod=WSJ_Opinion_AboveLEFTTop)
----------------------

Unlike the Obamacare decision, this is not a question of federal government power, it is a question about federal agency power beyond congressional authorization.
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ccp
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« Reply #1164 on: October 16, 2013, 11:01:59 AM »

Dershowitz throws the Constitution, figuratively, at Ted Cruz

National Constitution Center
By NCC Staff 7 minutes ago
 
Harvard law professor Alan Dershowitz, a noted liberal, threw the Constitution figuratively at GOP Senator Ted Cruz on Tuesday night, as tensions flared in the debt-ceiling debate.

Ted Cruz

As of Wednesday morning, Democrats and Republicans were still trying to make a deal before a Thursday deadline set by the Treasury Department as a milestone for when the federal government lacked the ability to borrow money.

The so-called “debt ceiling” might, in turn, cause the government to partially default on its public debt, since the Treasury Department won’t have enough cash to pay all its bills.

The nonpartisan Bipartisan Policy Council has set a date range between October 22 and November 1 for the default, if a debt-ceiling deal can’t be reached.

Alan Dershowitz appeared with Bill Richardson, the former New Mexico governor, with CNN host Piers Morgan to discuss what negotiation tactics could be used in Congress.

Instead, Dershowitz had harsh words for Cruz, his former law student at Harvard, whom he had praised this spring.

Cruz had led the fight for the GOP’s conservative wing to scale back or repeal the Affordable Care Act, or Obamacare, and to cut back government spending in general. He is also blamed or praised, by some, for helping facilitate the federal government shutdown as a protest against Obamacare and for his leadership role in seeking concessions from Democrats in any debt-ceiling deal.

After praising Cruz as a student, as he had done earlier this year, Dershowitz leveled some harsh claims against him.

“He has to qualify among the brightest of the students,” Dershowitz said, who added that Cruz is deeply principled.

But when it came to the shutdown and debt-ceiling fight, Dershowitz made his case.

“I think it raises very serious constitutional questions of the kind that Ted Cruz should be interested in. Could you imagine Hamilton and Madison sitting around and drafting the Constitution and the Federalist Papers. They’re talking about how the government has to pay its debts, how it has to secure the credit of the United States, how the House of Representatives to originate bills on revenue. Nobody in a million years would have contemplated the power of Congress to shut down the government, to create doubts about our creditworthiness,” he said.

“I think you can make a very strong argument that what Ted Cruz is doing is deeply unconstitutional. Whether a court would accept that or say it’s a political question is another issue, but Cruz is a principled man. He ought to look at the Constitution and look into his heart and ask himself, ‘What would Alexander Hamilton have done,’” Dershowitz said.

The comments quickly found their way to the Internet and got an equally quick response from author and radio show host Mark Levin.

“Dershowitz is dead wrong. We don’t have to imagine anything,” he told the Newsbusters website. “Congress and only Congress can authorize borrowing under Article I. The president must first pay interest on the debt under the 14th Amendment. The federal government collects 10 times as much revenue each month as it needs to cover those payments. As long as the president complies with the Constitution there can be no default. This is basic stuff. Even a Harvard law professor like Dershowitz should comprehend it.”

Cruz has emerged as the most talked-about figure in the Washington budget battle, and he might be at the center of another constitutional test, as any final bill that goes through the Senate will need to survive a cloture vote, with at least 60 senators agreeing to overcome a filibuster to bring a bill up for a vote.

As of Wednesday morning, there were reports that a deal was struck with John Boehner, the House’s speaker, to have the proposed Senate compromise voted on first by the House, which would limit potential efforts by Cruz, Mike Lee, and other conservatives to extend debate time in the Senate.

Cruz hasn’t publicly indicated if he would try to block or slow down the bill in the Senate. But there are estimates that delays in the Senate could push the bill’s passage closer to this weekend, and several days past the Thursday deadline for borrowing.

Recent Constitution Daily Stories
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bigdog
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« Reply #1165 on: October 16, 2013, 11:29:04 AM »

http://www.newyorker.com/online/blogs/comment/2013/10/will-the-supreme-court-help-shut-down-dc.html

From the article:


But the issue is enormously important, and the National Labor Relations Board shows why. Republicans have always loathed the N.L.R.B., but, before Obama, a Democratic President’s nominees were almost always either confirmed or rejected. Not anymore. Wielding the filibuster, Republican minority in the Senate refused to allow the confirmation votes on Obama’s nominees to the N.L.R.B. The President responded with recess appointments. As has been customary in recent years, some of those recesses were between congressional sessions and some were brief recesses during sessions. The Noel Canning company argued that the Constitution did not recognize intra-session recesses but, rather, only inter-session recesses.
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bigdog
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« Reply #1166 on: October 18, 2013, 01:33:58 PM »

http://www.lawfareblog.com/2013/10/the-data-on-fisa-warrants/

From the article:

Now we know:  the Foreign Intelligence Surveillance Court bounces a quarter of the government’s applications for surveillance orders.  This according to statistics released this week by the court’s chief judge, Reggie Walton, in a letter to Senator Patrick Leahy, Chairman of the Senate Judiciary Committee.  It also turns out the FISA Court is tougher on the government’s applications for orders designed to get foreign intelligence sitting on U.S. circuits than are the federal courts with respect to government applications for traditional wiretap warrants, which are mostly directed against U.S. citizens and permanent residents. But you wouldn’t know that from the media, because the media haven’t reported it.

Here’s the story.
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Crafty_Dog
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« Reply #1167 on: October 18, 2013, 04:43:29 PM »

Ummm , , , could that be because the data hasn't been reported until just now?

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bigdog
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« Reply #1168 on: October 18, 2013, 07:45:00 PM »

Ummm , , , could that be because the data hasn't been reported until just now?



No. Later in the article I posted: "You can find that comparison in Judge Walton’s letter—it’s in footnote 6—and the information has always been available through the Administrative Office of the United States Courts for any journalist who isn’t afraid of numbers. "
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Crafty_Dog
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« Reply #1169 on: October 19, 2013, 01:04:31 PM »

Well then, that things are not as bad as feared is a good thing.

That the media is lazy is not a new thing.
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bigdog
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« Reply #1170 on: October 23, 2013, 04:59:53 PM »

http://www.scotusblog.com/2013/10/appeals-court-limits-gps-tracking/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+scotusblog%2FpFXs+%28SCOTUSblog%29
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Crafty_Dog
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« Reply #1171 on: November 06, 2013, 04:03:40 PM »



http://patriotpost.us/articles/21444

Judicial Benchmarks: Federalism at the High Court
Nov. 5, 2013


A big constitutional law battle is about to reach its climax – a battle between the Supremacy Clause of the Constitution and the Tenth Amendment. The Supremacy Clause (Article VI, Clause 2) states, “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” The Tenth Amendment reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The Tenth Amendment was intended to assure ratifying States that the powers of the federal government were limited and would not displace powers and areas of law traditionally belonging to the States. However, with an ever-expanding federal government, there have been increasing clashes of federal and state law. For example, real property and land use laws traditionally are within the bailiwick of the States. However, state control of this area is increasing displaced by federal environmental laws and regulations through the process of preemption.

Preemption has its roots in the Supremacy clause and has been interpreted to mean where the federal and state governments are attempting to regulate the same conduct, state law will be given deference unless Congress has demonstrated a clear and manifest purpose to displace state law.

The place of treaties in the Supremacy Clause has been open to debate. Are they at the same level as the Constitution? Are they separate and apart from the Constitution? If they are, could the United States, under treaty law, be required to perform an unconstitutional act? For example, the Second Amendment recognizes the citizens' right to bear arms. Nevertheless, this September, Secretary of State John Kerry signed the UN Arms Trade Treaty, which seeks to control the international transfer of firearms, parts and ammunition.

Soon, we may receive some enlightenment in this muddy area. This week, the Supreme Court heard arguments in Bond v. U.S., a case involving Pennsylvania resident Carol Bond, who spread a toxic chemical on the car and mailbox of a friend who had an affair with her husband. The chemical did minimal harm despite her clear intent to do so. This should have been a problem handled by Pennsylvania law, but the Feds charged Bond with violating the chemical-weapons convention that the Senate ratified in 1997. Unbelievably, she was convicted of waging chemical warfare. (Too bad Vladimir Putin didn't intervene to protect Bond as he did Syria's Bashar al-Assad.)

This is Bond's second trip to see the Supremes. Two years ago, they ruled 9-0 that Bond could challenge her conviction under the Tenth Amendment. However, on remand, the lower courts still upheld her conviction.

Limited federal powers were of paramount importance to the Framers of the Constitution. Before ratification of the Constitution, each State was considered a separate state, a nation under international law, joined in a confederation. They jealously guarded these rights by limiting the powers of the new federal government while retaining those powers not ceded to the federal government to themselves through the Tenth Amendment. The Framers surely didn't intend that treaties would be used to end-run constitutional restraints under guise of the Supremacy Clause. Yet Bond may have an upstream fight. Among those filing friend of the court briefs in favor of the government's position are Professors of International Law and Legal History and Former State Department Legal Advisers. Let's hope the view of the Framers is upheld by the Supreme Court.
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bigdog
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« Reply #1172 on: November 07, 2013, 09:53:32 AM »

This might go here: http://www.lawfareblog.com/wiki/the-lawfare-wiki-document-library/war-powers/

I'm not sure there is a "perfect" thread for this.
« Last Edit: November 07, 2013, 10:42:45 AM by Crafty_Dog » Logged
ccp
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« Reply #1173 on: November 12, 2013, 07:49:24 AM »

Constitution Check: Is devotion to the Constitution destroying democracy?

National Constitution Center
By Lyle Denniston 2 hours ago      
Lyle Denniston looks at a claim that interpreting an old document, like the U.S. Constitution, is a doomed attempt to apply outdated legal principles.


theconstitutionTHE STATEMENT AT ISSUE:
“Professor Neuborne describes this dysfunctional democracy very well, but he does not give the real reason for that dysfunction – the reverence for the United States Constitution.   Each of the Supreme Court’s iniquities he lists is based on the interpretation by five of nine high priests of increasingly irrelevant documents written by wealthy white men in an unimaginably different and distant world.”

 – Michael Gorman of Chicago, a native of Great Britain, as quoted in The New York Times on November 10.  He was one of several writers engaging in a dialogue with New York University law professor Burt Neuborne over the professor’s complaint about harm done to American democracy by a series of modern Supreme Court rulings. The full exchange can be read here.

http://www.nytimes.com/2013/11/06/opinion/invitation-to-a-dialogue-democracy-gone-awry.html?_r=0&adxnnl=1&adxnnlx=1384171630-7yEFDKkFT5rO5TOK1yVMsA

WE CHECKED THE CONSTITUTION, AND…

One of the fundamental issues that deeply divides the nine Justices now serving on the Supreme Court is the proper way to interpret the Constitution’s meaning for today’s world.  Some of the Justices believe that the key is the “original meaning” of the document – that is, as it was understood in 1787.  Others believe that the document is a “living Constitution” that is adaptable to changing times and thus acquires new meaning from time to time.

No one expects that disagreement ever to be finally resolved. At the same time, all of the Justices agree that the Constitution embodies enduring principles, and that it is the duty of judges in this country to apply them.  Even a sincere devotion to those principles, though, is bound to produce disagreements about their contemporary meaning.

What is often misunderstood about the process of constitutional reasoning is that the Constitution itself does not provide all of the necessary answers to any legal problem that turns on enduring principles.  No document, and certainly no legal document, can always be understood by its literal meaning.  Words are means of expressing ideas, and the same words can mean different things to different judges.

Take, for example, the words of the First Amendment, declaring that “Congress shall make no law….”, etc.  Does that mean that the Amendment only restricts Congress in the use of its powers?  The Supreme Court interpreted it that way – until 1925.   In the decision that year in Gitlow v. New York, the Court began applying the idea that at least some parts of the Bill of Rights restricted the powers of state governments, too.  (Some scholars say that this process actually got its start in 1897.)

That process has continued, off and on, since then.  Most recently, in 2010, the Supreme Court ruled for the first time that the Second Amendment “right to keep and bear arms,” when understood as a personal right to have a gun, applied to state and local gun control laws, too.

What’s the explanation for that process?  The Court interpreted the 14th Amendment’s guarantee of “due process” – two words that are inherently indefinite – to embrace certain fundamental rights, so that the states and local governments, as well as Congress, had to respect and enforce them.

At a more basic level, this process also reflects the very nature of law.  Law is the means by which a society keeps order, and a society would be in constant anarchy if the people could not count on the law being relatively stable. If law is developed in a sound way, that stability reflects how a well-ordered society should be run, by more or less common agreement.

But stability does not mean that legal principles are frozen in time.  There was a time, for example, when petty theft could bring a death sentence.  As more civilized ways of resolving property disputes developed, and as community policing brought more civic order, such punishment was seen as too harsh.  In American constitutional history, this kind of changing perception is reflected in the way that the Eighth Amendment’s ban on “cruel and unusual punishment” has evolved over time.  As one example, it is now unconstitutional to execute a minor even for murder.

As the British native Michael Gorman suggests, in his comment quoted above, some critics of American constitutionalism seem to believe that interpreting the old document means a doomed attempt to apply outdated legal principles.

But even in his own native land, there is such a thing as the “British constitution,” embodying fundamental legal norms, even though it is not written down in the same way as the U.S. Constitution is.   Law in Britain is the accumulation of the “common law,” as it has been developed by judges over time, supplemented by parliamentary legislation.  British courts still respect some parts of the Magna Carta, even though it dates from 1215.

And, for the past four years, Britain has been imitating – to a degree – the U.S. model of a Supreme Court.  The United Kingdom Supreme Court was created by an act of “constitutional reform” in 2005, and began work four years later.  Its power to overturn laws is not as extensive as that of the American court, but it does have significant power to determine law for Britain.

The very idea of a supreme court, of course, is that, somewhere in government, the power to interpret basic legal commitments and promises must be lodged.  The American experiment, now more than two centuries old, shows that this power of interpretation should not be left to the elected political branches.

Perhaps one can attempt to dismiss devotion to the constitutional idea of judicial review as sentimental “reverence,” but it is more properly understood as a good faith belief in abiding principles of justice and equality.   Perhaps more importantly, it has shown that judicial power can be exercised along with democratic government.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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DougMacG
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« Reply #1174 on: November 12, 2013, 10:14:34 AM »

Interesting hypothetical, but I haven't seen any signs of devotion to the constitution, nor do we live in a Democracy.

The consitution IS living and breathing in the sense that it includes an amendment process. 

I went to City Hall a few years ago to ask them to up hold their own laws and found out that the city was not governed by City Code, but the precedent of all the variances already granted by the council, allowing people to get around the laws as written instead of changing the law.

That same process was on display in the Supreme Court as they rationalize the basis for the Obamacare decision.  This type of governance was UNTHINKABLE at the time of the framing and things have not changed so much that we now need Orwellian governance, while giving lip service to upholding a constitution with specific limits on federal government power.

Too bad that so many critics of the constitution happen to be Justices on the Supreme Court.
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« Reply #1175 on: November 12, 2013, 07:39:42 PM »

I thought someone (BD?) posted to the effect that this cause of action had been accounted for, but from the looks of this , , , maybe not:

http://www.tpnn.com/house-members-file-brief-backing-origination-clause-court-challenge-to-obamacare/
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« Reply #1176 on: November 13, 2013, 06:48:22 AM »

I think it was Doug. It appears to be in a different circuit (DC this time; 2nd (I think) in the first case).

I thought someone (BD?) posted to the effect that this cause of action had been accounted for, but from the looks of this , , , maybe not:

http://www.tpnn.com/house-members-file-brief-backing-origination-clause-court-challenge-to-obamacare/
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« Reply #1177 on: November 13, 2013, 10:02:19 AM »

http://dogbrothers.com/phpBB2/index.php?topic=1850.msg75155#msg75155
http://dogbrothers.com/phpBB2/index.php?topic=1850.1100

Origination case was dismissed in DC District Court:

Matthew Sissel v. Dept HHS  The origination case was dismissed by US District Court Washington DC.  The House had passed a shell bill, not a tax, and then went back and inserted Obamacare into it.  'Inelegant', but legal.  (Not in my view.)  http://blog.pacificlegal.org/wordpress/wp-content/uploads/2013/07/SisselDismissal.pdf
---------------------------------

It certainly did NOT originate in the House, but likely falls under the Roberts Doctrine:

If you can find a way, no matter how irrational or contorted, to uphold an action of the legislative branch creating new government powers not authorized by the framers and stomping on individual liberties, then you, the Chief Justice and swing vote of the United States Supreme Court, must do so.
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« Reply #1178 on: November 18, 2013, 07:20:00 PM »



From last week.
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« Reply #1179 on: November 18, 2013, 07:20:38 PM »

http://www.c-span.org/Events/Supreme-Court-Justice-Speaks-at-American-Constitution-Society-Conference/10737431611/

From last year.
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bigdog
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« Reply #1180 on: November 22, 2013, 07:09:10 AM »

Man... you guys are going to "love" this:

http://www.scotusblog.com/2013/11/scotus-for-law-students-sponsored-by-bloomberg-law-gambling-on-personal-jurisdiction/

From the article:

But personal jurisdiction is exactly what the Supreme Court will consider on Monday, when it hears oral arguments in Walden v. Fiore. At issue in the case is whether Fiore and Gipson can sue a Georgia police officer working as a Drug Enforcement Administration (DEA) agent in federal district court in Nevada for seizing their funds without probable cause and holding the money for more than six months before it was returned to them.
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« Reply #1181 on: November 22, 2013, 07:19:10 AM »

How would you assess this case BD?
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« Reply #1182 on: November 23, 2013, 07:30:49 AM »

As the officer in question was doing the work of the DEA, it seems to me that the original 9th circuit panel got it right. That said, I am going to ask a friend who has a practice in this (approximate) area who I hope to have a discussion with.

GM, do you have any thoughts on this?
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bigdog
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« Reply #1183 on: November 25, 2013, 05:22:08 AM »

How would you assess this case BD?


Had the talk with the lawyer friend. His assessment is that because the GA officer was personally named the case is "crap." Had the two kept to named the DEA, for example, then the case has merit. He also noted his great interest in the amici filed (seen here: http://www.scotusblog.com/case-files/cases/walden-v-fiore/), in particular the one offered by the Federal Law Enforcement Officers Association.

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G M
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« Reply #1184 on: November 25, 2013, 05:43:01 AM »

Just skipped through the amicus from FLEOA. It makes sense that allowing for what would be an open door for venue shopping would be chaos.

I'm not sure why suing the officer in question ruins the civil action, if indeed the officer acted in bad faith. I don't think the DEA would have much liability unless it could be shown he was told to write bad faith affidavits by them.
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« Reply #1185 on: December 12, 2013, 09:47:34 AM »

How would the Supreme Court play in Peoria? And would some of the justices need a map to find it?

The good people of the city of 115,000 in central Illinois — remember that, for later — might be a bit puzzled as to how they ended up in the middle of the court’s consideration Wednesday of the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

Justice Sonia Sotomayor started it all, and those who criticize the justices as too similar in geographic background and too East Coast-centric might find fodder in the oral arguments in Lozano v. Alvarez. It concerned the treaty’s mandates about a parent who abducts a child and conceals the whereabouts from the other parent.

“My gosh, all it takes is moving to Peoria?” Sotomayor said, seeming to pluck the city out of the air. She paused as she considered whether that came out wrong.

“I mean, I don’t mean to denigrate Peoria, but all it takes is moving to a place that has no connection to . . .”

Justice Antonin Scalia cut in before she could finish to enlighten the lawyer at the podium.

“Justice Sotomayor is from New York,” said Scalia, who was raised in Queens.

“Yes, obviously,” said Sotomayor, who grew up in the Bronx. “Obviously.”

There was laughter in the courtroom, and then Chief Justice John G. Roberts Jr. broke in.

“Those of us from the Midwest think it’s actually easier to hide a child in New York,” said Roberts, who spent most of his childhood in Indiana.

Justices Ruth Bader Ginsburg (Brooklyn) and Elena Kagan (Upper West Side of Manhattan) held their peace.

That might have been the end of it, except for Justice Stephen G. Breyer.

Breyer grew up in San Francisco and came to the Supreme Court via the appeals court in Boston. In fact, all but one of the former judges now on the court served on one of the “Acela circuits”: Boston, New York, Philadelphia and Washington.

Breyer picked up Sotomayor’s hypothetical — and perhaps made matters worse.

In his embellished version, the mother and child “live in a grain elevator, a nicely refurbished grain elevator, in Peoria for a year.”

After that time, he speculated, a family judge might find that “the child is settled here now in Iowa.”

Members of the courtroom audience looked at one another, and Roberts seemed to shoot Breyer a warning glance. It was not received.

Later, Breyer hypothesized about the father finding the child “in Iowa” and a judge making a custody decision “under Iowa law.”

The actual case before the court involves a Colombian couple who met in London. The mother took her child from the United Kingdom and settled in the United States.

In New York.
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DougMacG
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« Reply #1186 on: December 12, 2013, 11:36:15 AM »

Peoria, Iowa.   It is one thing to not know where a famous American city of 115,000 is.  But he didn't not know; he knew wrongly.  Makes one wonder what else Justice Breyer falsely believes is true. 
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« Reply #1187 on: January 01, 2014, 12:00:44 PM »

Florida Law on Drug Tests for Welfare Is Struck Down
By FRANCES ROBLES
Published: December 31, 2013


KEY WEST, Fla. — A federal judge on Tuesday struck down as unconstitutional a Florida law that required welfare applicants to undergo mandatory drug testing, setting the stage for a legal battle that could affect similar efforts nationwide.


Judge Mary S. Scriven of the United States District Court in Orlando held that the testing requirement, the signature legislation of Gov. Rick Scott, a Republican who campaigned on the issue, violated the protection against unreasonable searches.

“The court finds there is no set of circumstances under which the warrantless, suspicionless drug testing at issue in this case could be constitutionally applied,” she wrote. The ruling made permanent an earlier, temporary ban by the judge.

Mr. Scott, who had argued that the drug testing was necessary to protect children and ensure that tax money was not going to illegal drugs, said that the state would appeal the ruling.

“Any illegal drug use in a family is harmful and even abusive to a child,” he said in a statement. “We should have a zero-tolerance policy for illegal drug use in families — especially those families who struggle to make ends meet and need welfare assistance to provide for their children.”

Florida passed the measure in 2011, and the case was being closely watched by several other states, including Georgia, which passed similar legislation in 2013 but found it dogged by legal challenges. State data in Florida also showed that the measure produced few results. Only 108 out of 4,086 people tested — 2.6 percent — were found to have been using narcotics. State records showed that the requirement cost more money to carry out than it saved.

But as the country emerged from the recession, numerous states, powered by the strength of Republicans in many legislatures, sought to make welfare or unemployment checks contingent on drug testing. That is despite a 2003 federal court ruling in Michigan that struck down drug testing for welfare recipients because it amounted to an illegal search.

“In Michigan a number of years ago there was a court decision that had a chilling effect on these kinds of proposals,” said Grant Smith, policy manager of the Drug Policy Alliance, an organization that advocates more liberal drug-use laws. “This new ruling should give pause. We have seen a number of proposals continue to be put forward across the country, but the writing is on the wall that requiring people to submit to drug testing for no reason other than being poor and in need of assistance is not going to pass constitutional muster. It’s not fair, it’s not cost effective, and it’s unreasonable.”

Arizona passed a drug-testing requirement in 2009. Nine more states, including Florida, have passed such laws since 2011. At least 29 states debated such measures in 2013, but only two of the bills passed.

In Georgia, the law’s rollout was delayed pending the outcome of the Florida legal challenge. In North Carolina, Gov. Pat McCrory, a Republican, vetoed such a law. Although the Republican-controlled legislature overrode the veto, the governor has continued to object to the requirement, which he called costly and ineffective.

Tarren Bragdon, chief executive of the Foundation for Government Accountability, a conservative group in Naples, Fla., that focuses on health care and welfare policy, said the judge’s decision would most likely result in states around the country adjusting their laws so they could meet constitutional muster.

“I think what we are seeing is Florida pursuing a strategy of protecting kids by testing all applicants,” Mr. Bragdon said. “You’re going to see a shift in strategy of how to best protect kids in a constitutional way.”

For example, some states are now screening applicants and require drug tests only of those who appear to be drug users. “The decision is not that you can’t drug test applicants,” Mr. Bragdon said. “It’s that you can’t blanket drug test all of them.”

Tuesday’s decision stemmed from a 2011 suit filed by the American Civil Liberties Union of Florida and the Florida Justice Institute on behalf of a Central Florida resident, Luis W. Lebron, a Navy veteran and full-time student who had filed for public assistance. Mr. Lebron, who provided care for his disabled mother and was raising a young child as a single father, argued that it was unfair to require drug testing when no suspicion of drug abuse existed.

Judge Scriven agreed.

Howard Simon, executive director of the A.C.L.U. of Florida, said that “the courts are now signaling to politicians that they are not going to treat poor people as if they were exempt from constitutional rights.”
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G M
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« Reply #1188 on: January 02, 2014, 07:47:23 AM »

I gotta right to your money!
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DougMacG
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« Reply #1189 on: January 02, 2014, 09:01:20 AM »

I gotta right to your money!

Also the other way around, we have no right to place strings on how our money is used.  Is there not a right to turn down the money if the rules are too invasive?  As suggested, we don't have a right to the money we earn, but when we don't earn enough we have an unfettered right to money of others.

More important than the merits is the question of who decides.  One judge knows better than the sausage factory of self government - the people of Florida making mistakes and trying to correct them. Elected government is unfair and inefficient compared to proclamation by the elite.

What did Chief Justice John Roberts say, find a way to uphold legislative acts?  Only when it supports larger government.
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bigdog
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« Reply #1190 on: January 13, 2014, 01:06:46 PM »

http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/01/13/is-recess-over/

From the article:

There is much for the Supreme Court to ponder here, as Carl Cecere points out in a useful essay at Scotusblog. His post suggests that “original intent” is not so self-evident and that the history provides fodder for both sides. More recent opinion is split too: In 2004 the 11th Circuit Court of Appeals (responding to a Democratic challenge to a recess appointment made by Bush) upheld the appointment. The circumstances were different, since the Senate was indubitably in recess, but nor was it between sessions; that decision held explicitly that “the text of the Constitution does not differentiate expressly between inter- and intrasession recesses for the Recess Appointments Clause” (p. Cool.  On the other hand, in May 2013, the 3rd Circuit upheld the distinction, following the DC Circuit’s reasoning. So the question is certainly ripe for the Supreme Grammarians.
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bigdog
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« Reply #1191 on: February 06, 2014, 10:50:48 AM »

http://www.bizpacreview.com/2014/02/05/justice-scalia-on-wartime-internment-camps-youre-kidding-yourself-if-you-think-it-wont-happen-again-98893

From the article:

U.S. Supreme Court Justice Antonin Scalia warned law students Monday evening that the high court could again authorize wartime internment camps like those seen in the U.S. during World War II.

While answering a question at the law school at the University of Hawaii about the 1944 Supreme Court case Korematsu v. United States  – which upheld the use of Japanese-American internment camps – Scalia said that though the court’s decision was wrong, “[Y]ou are kidding yourself if you think the same thing will not happen again.”
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bigdog
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« Reply #1192 on: February 07, 2014, 06:12:11 AM »

http://www.nationalreview.com/article/370441/nine-years-after-kelo-seized-land-empty-alec-torres

From the article:

Nine years after the Supreme Court’s Kelo decision gutted the right of American property owners to resist eminent-domain seizures, the neighborhood at the center of the case remains a wasteland.

Fort Trumbull in New London, Conn., was bulldozed to fulfill the vision of politicians and developers eager to create a New Urbanist mixed-use “hub” for upscale living in the depressed town near the mouth of Long Island Sound.

But after nearly a decade, the land is nothing but vacant urban prairie. After homeowners were forced off their property for the sake of “economic development,” the city’s original development deal fell apart, and the urban-renewal corporation that ordered the destruction has not found a developer to use the land.



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DougMacG
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« Reply #1193 on: February 07, 2014, 07:56:41 PM »

http://www.nationalreview.com/article/370441/nine-years-after-kelo-seized-land-empty-alec-torres

From the article:

Nine years after the Supreme Court’s Kelo decision gutted the right of American property owners to resist eminent-domain seizures, the neighborhood at the center of the case remains a wasteland.

Fort Trumbull in New London, Conn., was bulldozed to fulfill the vision of politicians and developers eager to create a New Urbanist mixed-use “hub” for upscale living in the depressed town near the mouth of Long Island Sound.

But after nearly a decade, the land is nothing but vacant urban prairie. After homeowners were forced off their property for the sake of “economic development,” the city’s original development deal fell apart, and the urban-renewal corporation that ordered the destruction has not found a developer to use the land.

Thank you for the update on this.  This was a travesty before the planned development crashed.  Five U.S. Supreme Court Justices should have been impeached and removed for this.

 
http://www.ij.org/kelo-v-new-london  Susette Kelo house

(From BD's link above)

Pfizer to Leave City That Won Land-Use Case
http://www.nytimes.com/2009/11/13/nyregion/13pfizer.html

"Had I known all of what you just told us, I would have voted differently." - Connecticut Justice Richard N. Palmer
http://articles.courant.com/2011-09-18/news/hc-op-justice-palmer-apology-20110918_1_epilogue-justice-palmer-s-susette-kelo
« Last Edit: February 07, 2014, 08:07:49 PM by DougMacG » Logged
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« Reply #1194 on: February 08, 2014, 07:21:41 AM »

Robert A. Levy, Chairman of Cato, wrote last year on the limits of nullification:

http://www.cato.org/publications/commentary/yes-states-can-nullify-some-federal-laws-not-all
http://www.nytimes.com/2013/09/04/opinion/the-limits-of-nullification.html?_r=0

Are states required to enforce federal laws and enact regulatory programs that Congress mandates? The answer on both counts is “No.”
...

Since[Madison-Marbury], nullification attempts have failed on three occasions: In 1828, South Carolina tried to nullify two national tariffs. President Andrew Jackson proclaimed nullification to be treason; Congress authorized Jackson to send troops, and the state backed down. In 1859, the Supreme Court rejected nullification in Ableman v. Booth.

If a state deems a federal law to be unconstitutional... The remedy is a lawsuit challenging the constitutionality of the suspect federal regulation or statute.
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DougMacG
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« Reply #1195 on: February 12, 2014, 10:02:47 PM »

"With his decision declaring ObamaCare constitutional, Chief Justice John Roberts turned what F.A. Hayek called "The Road to Serfdom" into a super highway. The government all but owns us now, and can order us to do pretty much whatever it wants us to do."  - Thomas Sowell

http://townhall.com/columnists/thomassowell/2014/02/11/random-thoughts-n1792776/page/full
« Last Edit: February 13, 2014, 08:07:59 AM by Crafty_Dog » Logged
bigdog
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« Reply #1196 on: February 26, 2014, 08:36:33 AM »

http://www.washingtonpost.com/politics/supreme-court-rules-in-favor-of-police-in-home-searches-without-objector-present/2014/02/25/7bc1bb6a-9e5a-11e3-b8d8-94577ff66b28_story.html

From the article:

“An occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason,” Justice Samuel A. Alito Jr. wrote for the majority.
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Crafty_Dog
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« Reply #1197 on: February 28, 2014, 06:30:37 PM »

http://reason.com/blog/2014/02/27/supreme-court-expands-police-power-to-se
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DougMacG
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« Reply #1198 on: April 02, 2014, 09:49:37 PM »

http://www.powerlineblog.com/archives/2014/04/cass-sunsteins-april-fools-joke.php
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« Reply #1199 on: April 15, 2014, 12:05:38 PM »

Stevens' Amendments
Retired Supreme Court Justice John Paul Stevens has a new book titled, "Six Amendments: How and Why We Should Change the Constitution." Naturally, coming from a leftist jurisprude like Stevens, the recommendations are a bit out of line with our Founders' vision. For example, Stevens' Second Amendment would be amended to read, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed." That, of course, would gut the real meaning of the right to keep and bear arms. He has other changes, including virtually dispatching with federalism. All in all, we're glad he's no longer on the bench, even if his replacement Elena Kagen also leaves much to be desired.


Marc:  Apparently Justice Stevens is unaware of Title 10 Ssection 313 (hope I am remembering this correctly) about the unorganized militia.
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