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Crafty_Dog
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« on: October 19, 2006, 07:32:38 AM »

AT LAW

Sending a Message
Congress to courts: Get out of the war on terror.

BY JOHN YOO
Thursday, October 19, 2006 12:01 a.m. EDT

During the bitter controversy over the military commission bill, which President Bush signed into law on Tuesday, most of the press and the professional punditry missed the big story. In the struggle for power between the three branches of government, it is not the presidency that "won." Instead, it is the judiciary that lost.

The new law is, above all, a stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world. It was passed in response to the effort by a five-justice majority in Hamdan v. Rumsfeld to take control over terrorism policy. That majority extended judicial review to Guantanamo Bay, threw the Bush military commissions into doubt, and tried to extend the protections of Common Article 3 of the Geneva Conventions to al Qaeda and Taliban detainees, overturning the traditional understanding that Geneva does not cover terrorists, who are not signatories nor "combatants" in an internal civil war under Article 3.

Hamdan was an unprecedented attempt by the court to rewrite the law of war and intrude into war policy. The court must have thought its stunning power grab would go unchallenged. After all, it has gotten away with many broad assertions of judicial authority before. This has been because Congress is unwilling to take a clear position on controversial issues (like abortion, religion or race) and instead passes ambiguous laws which breed litigation and leave the power to decide to the federal courts.

Until the Supreme Court began trying to make war policy, the writ of habeas corpus had never been understood to benefit enemy prisoners in war. The U.S. held millions of POWs during World War II, with none permitted to use our civilian courts (except for a few cases of U.S. citizens captured fighting for the Axis). Even after hostilities ended, the justices turned away lawsuits by enemy prisoners seeking to challenge their detention. In Johnson v. Eisentrager, the court held that it would not hear habeas claims brought by alien enemy prisoners held outside the U.S., and refused to interpret the Geneva Conventions to give new rights in civilian court against the government. In the case of Gen. Tomoyuki Yamashita, the court refrained from reviewing the operations of military commissions.

In Hamdan, the court moved to sweep aside decades of law and practice so as to forge a grand new role for the courts to open their doors to enemy war prisoners. Led by John Paul Stevens and abetted by Anthony Kennedy, the majority ignored or creatively misread the court's World War II precedents. The approach catered to the legal academy, whose tastes run to swashbuckling assertions of judicial supremacy and radical innovations, rather than hewing to wise but boring precedents.





Thoughtful critics point out that because the enemy fights covertly, the risk of detaining the innocent is greater. But so is the risk of releasing the dangerous. That's why enemy combatants who fight out of uniform, such as wartime spies, have always been considered illegals under the law of war, not entitled to the same protections given to soldiers on the battlefield or ordinary POWs. Disguised suicide- bombers in an age of WMD proliferation and virulent America-hatred are more immediately dangerous than the furtive information-carriers of our Cold War past. We now know that more than a dozen detainees released from Guantanamo have rejoined the jihad. The real question is how much time, energy and money should be diverted from winning the fight toward establishing multiple layers of review for terrorists. Until Hamdan, nothing in the law of war ever suggested that enemy status was anything but a military judgment.
While there may be different ways to strike a balance, this is a decision for the president and Congress, not the courts. The Constitution gives Congress the authority to determine the jurisdiction of federal courts in peacetime, and also declares that habeas corpus can be suspended "in Cases of Rebellion or Invasion" when "the public Safety may require it." Congress's power is even greater when it is correcting the justices' errors. Courts are ill-equipped to decide whether vast resources should be devoted to reviewing military detentions. Or whether military personnel's time should be consumed traveling back to the U.S. for detainee hearings. Or whether we risk revealing information in these hearings that might compromise the intelligence sources and methods that may allow us to win the war.

This time, Congress and the president did not take the court's power grab lying down. They told the courts, in effect, to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with the military commissions. It is the first time since the New Deal that Congress had so completely divested the courts of power over a category of cases. It is also the first time since the Civil War that Congress saw fit to narrow the court's habeas powers in wartime because it disagreed with its decisions.

The law goes farther. It restores to the president command over the management of the war on terror. It directly reverses Hamdan by making clear that the courts cannot take up the Geneva Conventions. Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions.

All this went overlooked during the fight over the bill by the media, which focused on Sens. McCain, Graham and Warner's opposition to the administration's proposals for the use of classified evidence at terrorist trials and permissible interrogation methods. In its eagerness to magnify an intra-GOP squabble, the media mostly ignored the substance of the bill, which gave current and future administrations, whether Democrat or Republican, the powers needed to win this war.

Mr. Yoo, professor of law at Berkeley and visiting scholar at the American Enterprise Institute, served in the Bush Justice Department from 2001-03. He is the author of "War By Other Means" (Grove/Atlantic 2006).
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Crafty_Dog
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« Reply #1 on: January 09, 2007, 08:26:50 PM »

Fielding Subpoenas
Bush recruits an expert on Presidential power.

Tuesday, January 9, 2007 12:01 a.m. EST

For a President said to be irrelevant, George W. Bush has certainly managed to hire a big name to be his next chief White House counsel. In recruiting Fred Fielding, Chief of Staff Josh Bolten has donned some necessary armor for the subpoena assault that is sure to come from Democrats in Congress.

Mr. Fielding replaces Harriet Miers, a Texan and personal friend of the President. Ms. Miers was an ill-fated nominee for the Supreme Court, but she served Mr. Bush well both on judicial selection and preserving Presidential powers. Both of those areas are likely to get fiercer as Democrats look to bloody the White House in the run-up to 2008.

It's hard to imagine a more experienced choice than Mr. Fielding on the subject of executive power. As deputy White House counsel from 1972 to 1974, he witnessed the modern low tide of Presidential authority as Richard Nixon was besieged by Watergate. And as Ronald Reagan's counsel from 1981 to 1986, he had to cope with a Democratic House that unleashed special prosecutors on the executive branch.

The "independent counsel" law has happily expired, but this Congress will be looking to assert itself in particular on war powers. Mr. Fielding understands the importance of fighting off such poaching--for the sake of Mr. Bush and the Office of the Presidency. This ought to mean recommending that Mr. Bush veto any weakening of last year's law on military tribunals, as well as resisting any further delegation of executive power to the judiciary for approving warrantless wiretaps of al Qaeda.

The question of responding to the avalanche of subpoenas will be more politically delicate. Congress has every right to conduct oversight of the executive branch, and the White House will be obliged to supply numerous documents. However, the principle of executive privilege is vital to Presidential decision-making, and preserving the privacy of that deliberative process will be one of Mr. Fielding's primary tasks.





Another duty will be offering Mr. Bush advice on judicial selection. The conventional Beltway wisdom is that Senate Democrats will block all but liberal nominees to the appellate courts, and that might be right. But the judges issue proved to be a good one for Republicans in both the 2002 and 2004 campaigns, and the White House shouldn't shrink from appointing capable members of the Federalist Society simply because they might not be confirmed.
This is an issue that deserves to be framed for 2008--all the more so if Mr. Bush gets another Supreme Court nomination. Democrats may want to block any Bush nominee, but they won't find it politically painless to do so if the President selects nominees as capable and conservative as Chief Justice John Roberts and Justice Samuel Alito.

Amid all the Washington talk of "bipartisanship," the reality of our current political division means inevitable conflict. It's good to see Mr. Bush recruiting some experienced generals for the battles ahead.

WSJ editorial
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DougMacG
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« Reply #2 on: January 28, 2007, 05:21:27 PM »

This author was Supreme Court analyst for the Jim Lehrer News Hour and for the Chicago Tribune, now of ABC news.  Today she writes at opinionjournal.com about my favorite justice on the court:
--

The Truth About Clarence Thomas
He's an independent voice, not a Scalia lackey.

BY JAN CRAWFORD GREENBURG
Sunday, January 28, 2007 12:01 a.m. EST

Clarence Thomas has borne some of the most vitriolic personal attacks in Supreme Court history. But the persistent stereotypes about his views on the law and subordinate role on the court are equally offensive--and demonstrably false. An extensive documentary record shows that Justice Thomas has been a significant force in shaping the direction and decisions of the court for the past 15 years.

That's not the standard storyline. Immediately upon his arrival at the court, Justice Thomas was savaged by court-watchers as Antonin Scalia's dutiful apprentice, blindly following his mentor's lead. It's a grossly inaccurate portrayal, imbued with politically incorrect innuendo, as documents and notes from Justice Thomas's very first days on the court conclusively show. Far from being a Scalia lackey, the rookie jurist made clear to the other justices that he was willing to be the solo dissenter, sending a strong signal that he would not moderate his opinions for the sake of comity. By his second week on the bench, he was staking out bold positions in the private conferences where justices vote on cases. If either justice changed his mind to side with the other that year, it was Justice Scalia joining Justice Thomas, not the other way around.

Much of the documentary evidence for this comes from the papers of Justice Harry Blackmun, who recorded the justices' votes and took detailed notes explaining their views. I came across vivid proof while reading the papers as part of my research for a book about how the Rehnquist Court--a court with seven justices appointed by Republican presidents--evolved into an ideological and legal disappointment for conservatives.

Justice Thomas's first term was especially interesting. He replaced legendary liberal icon Thurgood Marshall, and joined the court just a year after David Souter took William Brennan's seat. There appeared to be a solid conservative majority, with the court poised to finally dismember the liberal legacy of the Warren Court. But that year it instead lurched inexplicably to the left--even putting Roe v. Wade on more solid ground.

Justice Thomas's first year on the job brought to life the adage that a new justice makes a new court. His entry didn't merely change the vote of the liberal justice he replaced. It turned the chessboard around entirely, rearranging ideological alliances. Justice Thomas acted as a catalyst in different ways, shoring up conservative positions in some cases and spurring others--the moderate Justice Sandra Day O'Connor, in particular--to realign themselves into new voting blocs.

Consider a criminal case argued during Justice Thomas's first week. It concerned a thief's effort to get out of a Louisiana mental institution and the state's desire to keep him there. Eight justices voted to side with the thief. Justice Thomas dissented, arguing that although it "may make eminent sense as a policy matter" to let the criminal out of the mental institution, nothing in the Constitution required "the states to conform to the policy preferences of federal judges."

After he sent his dissenting opinion to the other justices, as is custom, Justices Rehnquist, Scalia and Kennedy changed their votes. The case ended up 5-4.

Justice Thomas's dissents persuaded Justice Scalia to change his mind several times that year. Even in Hudson v. McMillan, the case that prompted the New York Times to infamously label Justice Thomas the "youngest, cruelest justice," he was again, initially, the lone dissenter. Justice Scalia changed his vote after he read Justice Thomas's dissent, which said a prison inmate beaten by guards had several options for redress--but not under the Eighth Amendment's prohibition of "cruel and unusual punishment."

From the beginning, Justice Thomas was an independent voice. His brutal confirmation hearings only enforced his autonomy, making him impervious to criticism from the media and liberal law professors. He'd told his story, and no one listened. From then on, he did not care what they said about him.

Clarence Thomas, for example, is the only justice who rarely asks questions at oral arguments. One reason is that he thinks his colleagues talk too much from the bench, and he prefers to let the lawyers explain their case with fewer interruptions. But his silence is sometimes interpreted as a lack of interest, and friends have begged him to ask a few questions to dispel those suggestions. He refuses to do it. "They have no credibility," he says of critics. "I am free to live up to my oath."

But the forcefulness and clarity of Justice Thomas's views, coupled with wrongheaded depictions of him doing Justice Scalia's bidding, created an internal dynamic that caused the court to make an unexpected turn in his first year. Justice O'Connor--who sought ideological balance--moved to the left. With the addition of Chief Justice John Roberts and Associate Justice Samuel Alito, the court now is poised to finally fulfill the hopes of the conservative movement. As George W. Bush told his legal advisers early in his presidency, he wanted justices in "the mold of Thomas and Scalia." Interestingly, on President Bush's marquee, Justice Thomas got top billing.

Ms. Crawford Greenburg, legal correspondent for ABC News, is the author of "Supreme Conflict: The Inside Story for Control of the United States Supreme Court" (Penguin Press, 2007).
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DougMacG
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« Reply #3 on: May 03, 2007, 12:09:01 PM »

Crafty made the following comment as part of a preface to an editorial on a current homeland security proposal:

"... but a President who chose and stands by an Attorney General who doesn't belive that habeas corpus is a Constitutional right has credibility problems of his own too."

Crafty, can you expand on what you meant.  I searched and found what you are likely referring to - the following exchange between Gonzales and Sen. Specter in a committee meeting this January:

Gonzales: There is no express grant of habeas in the Constitution. There's a prohibition against taking it away. ...

Specter: Wait a minute. Wait a minute. The Constitution says you can't take it away except in cases of rebellion or invasion. Doesn't that mean you have the right of habeas corpus unless there's an invasion or rebellion?

Gonzales: I meant by that comment, the Constitution doesn't say every individual in the United States or every citizen is hereby granted or assured the right to habeas. Doesn't say that. It simply says the right of habeas corpus shall not be suspended except...

Specter: You may be treading on your interdiction and violating common sense, Mr. Attorney General.

--

I'm not an attorney, but wondered if Gonzales was making a correct technical point while creating a public relations blunder, or is there a real difference in views here.

In the US Constitution under the heading of 'Limits on Congress'  I see the only reference: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

To the untrained eye, it would seem that a) the right of habeus, to not be detained long without charges filed, is presumed in the constitution, b) the limit placed is on Congress and not on the Commander in Chief in wartime, and c) the context of the threat of terrorism against public safety at this moment in time might persuasively be argued to comprise a "Rebellion or Invasion".

Presuming a right by reading the limits placed on it in the constitution didn't cut it in the (faulty) Kelo decision allowing taking of private property to give/sell to other private concerns.   I think it was the Justice Thomas dissent that pointed out the irony and tragedy that they couldn't have even entered or searched without permission or a warrant and they couldn't have gotten a warrant without probable cause, yet the majority ruled that they could take title and demolish it.  I wouldn't want to bet my life on presumed rights under activist judges.

Look forward to reading the thoughts of others on this.


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G M
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« Reply #4 on: May 03, 2007, 12:27:57 PM »

Bottom line, al qaeda has no habeas corpus rights, or coverage under the laws of war, being illegal combatants.
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Crafty_Dog
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« Reply #5 on: May 03, 2007, 04:05:10 PM »

Doug:

You are right.

GM:

You too.

 grin
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Crafty_Dog
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« Reply #6 on: May 04, 2007, 05:44:22 PM »

GONZALES WANTS ARBITRARY POWER TO BLOCK GUN PURCHASES; SAF SAYS HE SHOULD RESIGN
BELLEVUE, WA – Attorney General Alberto Gonzales’ troubling support of legislation that would allow him and future attorneys general the arbitrary power to block firearms purchases without due process is cause for him to step down as the nation’s highest ranking law enforcement officer, the Second Amendment Foundation said today.

The bill, S. 1237, was introduced last week at the Justice Department’s request by Sen. Frank Lautenberg (D-NJ), one of the most extreme anti-gunners in Congress. Called the “Denying Firearms and Explosives to Dangerous Terrorists Act of 2007,” this legislation would give the Attorney General discretionary authority to deny the purchase of a firearm or the issuance of a firearm license or permit because of some vague suspicion that an American citizen may be up to no good.

“This bill,” said SAF founder Alan Gottlieb, “raises serious concerns about how someone becomes a ‘suspected terrorist.’ Nobody has explained how one gets their name on such a list, and worse, nobody knows how to get one’s name off such a list.

“The process by which someone may appeal the Attorney General’s arbitrary denial seems weak at best,” Gottlieb suggested, “and there is a greater concern. When did we decide as a nation that it is a good idea to give a cabinet member the power to deny someone’s constitutional right simply on suspicion, without a trial or anything approaching due process?

“We’re not surprised that General Gonzales has found an agreeable sponsor in Frank Lautenberg,” Gottlieb observed. “The senator from New Jersey has never seen a restrictive gun control scheme he did not immediately embrace, and S. 1237 is loaded with red flags. It would allow an appointed bureaucrat the authority to suspend or cancel someone’s Second Amendment right without even being charged with a crime.

“Attorney General Gonzales has no business asking for that kind of power over any tenet in the Bill of Rights,” Gottlieb said. “He took an oath to uphold the Constitution, not trample it. Perhaps it is time for him to go.”
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DougMacG
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« Reply #7 on: May 05, 2007, 12:04:19 AM »

Thanks for posting.  The act is called:"Denying Firearms and Explosives to Dangerous Terrorists Act of 2007".  - I'll keep an open mind to arguments otherwise, but my first reaction is that denying firearms and explosives to dangerous terrorists is a good idea (obviously), that the word "arbitrary" would mean the denial could be done without revealing sources and methods, and that the criteria would not require legal threshholds such as preponderance of the evidence, that would also require disclosure.  The Attorney General hopefully has good motives, and some oversight: congress, the President and the next election.  I think I'm as big a liberty fanatic as anyone, but I recognize that a serious enemy wants to cause serious carnage here. 

Like the FISA/surveillance issue, in the best case a tragedy is averted.  In the worst case an innocent person has accidental contact or communication with an offshoot or a contact of an alleged terrorist organization and might find that communications looked at or in this case that someone from Washington is blocking their ability to buy a firearm or or to buy expolsives.  I strongly support the "shall issue" wording of concealed carry permit laws, but see this an exception, as you should have with a felon, a psycho or 'an arbitrary block' signed by the Attorney General of the United states.  I don't don't see that as the end of second amendment rights.
--
A friend of mine owns a quarry of very hard rock that is broken form the ground with explosives.  He was questioned after the Oklahoma City bombing about whether anyone had ever approached him for explosives.  Post 9/11 and in the context of suicide bombers that can't be deterred with death penalty or any other law enforcement after the fact, I would hope that preventive policies are in place and from my point of view that their hands are not tied.
--
Meanwhile, here in the west suburbs of Minneapolis I received from law enforcement today a registered letter threatening serious legal consequences against me because my tenant has a vehicle in his private driveway with a sticker that is no longer current.  I guess I'd rather have them hunting terrorists.


 
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Crafty_Dog
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« Reply #8 on: June 12, 2007, 10:03:51 PM »

BY JAMES TARANTO
Tuesday, June 12, 2007 3:24 p.m. EDT
WSJ

Unpack Your Adjectives
From a New York Times editorial today:

. . . grandiose . . . threatening . . . treacherous . . . dire . . . disastrous . . . powerful . . . relevant . . . strong . . . odious . . .

They left out "foggy" and "soggy." The subject is Al-Marri v. Wright, in which the Fourth U.S. Circuit Court of Appeals held yesterday that the U.S. lacks the authority to detain as an enemy combatant one Ali Saleh Kahlah al-Marri, a Qatari national and U.S. resident alien who was captured in Peoria, Ill., and found to be "engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism."

The U.S. Supreme Court has previously held that U.S. citizens can be held as enemy combatants, including one--Abdullah al-Muhajir, né Jose Padilla--who had been captured in the U.S. What distinguishes al-Marri's case, according to Judge Diana Motz, is this:

Al-Marri is not alleged to have been part of a Taliban unit, not alleged to have stood alongside the Taliban or the armed forces of any other enemy nation, not alleged to have been on the battlefield during the war in Afghanistan, not alleged to have even been in Afghanistan during the armed conflict there, and not alleged to have engaged in combat with United States forces anywhere in the world.

To Motz and Judge Roger Gregory, both Clinton nominees, that makes him a civilian. Judge Henry Hudson dissented:

Although al-Marri was not personally engaged in armed conflict with U.S. forces, he is the type of stealth warrior used by al Qaeda to perpetrate terrorist acts against the United States. . . . There is little doubt from the evidence that al-Marri was present in the United States to aid and further the hostile and subversive activities of the organization responsible for the terrorist attacks that occurred on September 11, 2001.

This makes clear the perversity of the court's reasoning. By its logic, alien terrorists are entitled to all the constitutional rights of civilians provided that they manage to stay out of Afghanistan and do their planning in America. The 9/11 terrorists, had they been caught, would have enjoyed more rights under this scheme than some low-level Taliban foot soldier.

So-called civil liberties advocates who are cheering this ruling ought to take a moment to ponder its possible consequences. The Constitution gives the president the power to suspend habeas corpus in the event of rebellion or invasion, as President Lincoln did in 1862. President Bush is not about to suspend the writ.

But let's say that two years from now America suffers another terrorist attack on the scale of 9/11, carried out by people who, like Al-Marri, did their planning within America and never set foot on a conventional battlefield. In the face of such an "invasion," does anyone doubt that, say, a President Hillary Clinton would suspend habeas corpus in a New York minute?
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Crafty_Dog
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« Reply #9 on: June 14, 2007, 09:00:47 AM »

Comments?
=======================

Al Qaeda's American Harbor
A bad decision likely to be overturned.
WSJ
Thursday, June 14, 2007 12:01 a.m. EDT


On Monday, the Fourth Circuit Court of Appeals ruled that al Qaeda agent Ali Saleh Kahlah al-Marri can't be detained as an enemy combatant. The press corps is reporting--no, shouting, cheering, doing somersaults--that this is further proof that Bush Administration detainee policies are doomed to legal oblivion.

Well, here's a wager: This decision is the outlier and will be overturned on appeal, while most of the Administration's legal antiterror architecture will survive past January 20, 2009. Any takers?

There's no doubt that the 2-1 Fourth Circuit ruling in Al-Marri v. Wright is remarkable and dangerous in its sweeping judicial claims. Judges Diane Motz and Roger Gregory, both Bill Clinton nominees, ruled that a person like al-Marri does not qualify as an enemy combatant, because the U.S. cannot be "at war" with a private group like al Qaeda.
For the "enemy combatant" moniker to apply, the court said, a terrorist must have set foot in the soil "alongside" the forces of an enemy state--i.e., Iraq or Afghanistan. This is odd in itself, since by definition al Qaeda is a transnational organization. In some respects this makes it more of a security threat because there is no government the U.S. can hold responsible for its actions.

By such fancy footwork, the judges also get around the fact that their decision contradicts existing precedent in both their own circuit and the Supreme Court. In Hamdi v. Rumsfeld, the Supreme Court ruled that an American captured on a battlefield in Afghanistan could be designated an enemy combatant. Ditto Fourth Circuit precedent, which strengthened Hamdi with its ruling in the case of Jose Padilla, the U.S. citizen who was arrested at O'Hare airport with plans to detonate a dirty bomb.

Judges Motz and Gregory duck these precedents by ruling that al-Marri belongs in a different category, having never taken up arms on a foreign battlefield. He was merely trying to kill us here at home. Al-Marri came to the U.S. on a student visa as part of an al Qaeda "sleeper cell," looking for new opportunities to disrupt the U.S. financial system after September 11. Working for 9/11 honcho Khalid Sheikh Mohammed, he posed as a student at Bradley University while plotting. He was arrested for credit card fraud, and as his case worked through the court system, evidence of his al Qaeda affiliation built and he was transferred to a military brig in South Carolina.

There are few defined battlefields in the war on terror. So for new homegrown terrorist recruits, the Fourth Circuit decision is great news: If you join al Qaeda today, and get your training outside a wartime-environment, any violent acts you commit against the U.S. cannot qualify you as an enemy combatant or subject you to the system of military interrogation. You will instead be prosecuted in the U.S. criminal justice system, which would make any al Qaeda operative's day.

A case against a terrorist suspect would require a level of transparency that could compromise intelligence gathering and possibly the nation's security. Through the discovery process, the terrorist "defendant" would be privy to the sources that compromised him--sources that would thereby be made obsolete. And don't forget the domestic criminal rules of evidence. You think a lot of cases are dismissed on "technicalities" now?





This is the reason the Bush Administration decided on a separate legal process for handling terror cases--a process that has been substantially upheld by the courts. While the Supreme Court has put some limits on executive decision-making, it has upheld the President's right to designate "enemy combatants" and upheld the legality of Guantanamo and of military commissions. The next President may decide to close Guantanamo as a global PR gesture, but we doubt he or she will turn al Qaeda over to the civilian courts. And don't expect Hillary Clinton to make it a major campaign plank.
This assumes, to be sure, that this decision is overturned on appeal, either by the entire Fourth Circuit or by the Supreme Court. By the way, under the Military Commissions Act, cases of this nature are supposed to go to the D.C. Circuit Court of Appeals, and then on appeal to the Supreme Court. The Fourth Circuit panel's justification for taking the case was tortured enough to underscore that the judges knew better. Let's hope they're overturned and that their ruling becomes an unfortunate historical footnote.

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Crafty_Dog
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« Reply #10 on: June 17, 2007, 08:29:16 AM »


Don’t Listen to What the Man Says
NY Times editorial
June 17, 2007

If the Supreme Court, with its new conservative majority, wanted to announce that it was getting out of the fairness business, it could hardly have done better than its decision last week in the case of Keith Bowles. The court took away Mr. Bowles’s right to challenge his murder conviction in a ruling that was so wrong and mean-spirited that it seemed like an outtake from MTV’s practical joke show “Punk’d.”

Mr. Bowles, an Ohio inmate, challenged his conviction in federal district court and lost. The court told Mr. Bowles that he had until Feb. 27 to appeal. He filed the appeal on Feb. 26, and was ready to argue why he was wrongly convicted. But it turned out the district court made a mistake. The appeal should have been filed by Feb. 24.

The Supreme Court ruled, 5 to 4, in a majority opinion written by Justice Clarence Thomas, that Mr. Bowles was out of luck, and his appeal was invalid. So much for heeding a federal judge.

The decision was wrong for many reasons. The Supreme Court has made clear in its past rulings that deadlines like this are not make-or-break. Appeals could still be heard, the court recognized in the past, if there were “unique circumstances” that accounted for the delay. Clearly, following an order from a federal judge is such a circumstance.

Courts also have the authority to create an exception to the rules in the interest of fairness. The Supreme Court has recognized that an “equitable exception” should be granted when a party has relied on an order from a federal judge. By refusing to do so now, Justice David Souter argued for the dissenters, the court was saying that “every statement by a federal court is to be tagged with the warning ‘Beware of the judge.’ ”

The four dissenters distilled this case perfectly when they said, “it is intolerable for the judicial system to treat people this way.”
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Crafty_Dog
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« Reply #11 on: September 07, 2007, 08:29:07 AM »

The Patriot Post
Founders' Quote Daily

"It will be of little avail to the people, that the laws are made
by men of their own choice, if the laws be so voluminous that they
cannot be read, or so incoherent that they cannot be understood;
if they be repealed or revised before they are promulgated, or
undergo such incessant changes that no man, who knows what the
law is to-day, can guess what it will be to-morrow."

-- Alexander Hamilton and James Madison (Federalist No. 62, 1788)
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« Reply #12 on: October 08, 2007, 05:29:02 AM »

WASHINGTON —  President Bush, who presided over 152 executions as governor of Texas, wants to halt the state's execution of a Mexican national for the brutal killing of two teenage girls.

The case of Jose Ernesto Medellin has become a confusing test of presidential power that the U.S. Supreme Court, which hears the case this week, ultimately will sort out.

The president wants to enforce a decision by the International Court of Justice that found the convictions of Medellin and 50 other Mexican-born prisoners violated their rights to legal help as outlined in the 1963 Vienna Convention.

That is the same court Bush has since said he plans to ignore if it makes similar decisions affecting state criminal laws.

"The president does not agree with the ICJ's interpretation of the Vienna Convention," the administration said in arguments filed with the court. This time, though, the U.S. agreed to abide by the international court's decision because ignoring it would harm American interests abroad, the government said.

Texas argues that neither the international court nor Bush has any say in Medellin's case.

Medellin was born in Mexico, but spent much of his childhood in the United States. He was 18 in June 1993, when he and other members of the Black and Whites gang in Houston encountered two teenage girls on a railroad trestle.

The girls were gang-raped and strangled. Their bodies were found four days later.

Medellin was arrested a few days later. He was told he had a right to remain silent and have a lawyer present, but the police did not tell him that he could request assistance from the Mexican consulate.

Medellin gave a written confession. He was convicted of murder in the course of a sexual assault, a capital offense in Texas. A judge sentenced him to death in October 1994.

Medellin did not raise the lack of assistance from Mexican diplomats during his trial or sentencing. When he did claim his rights had been violated, Texas and federal courts turned him down because he had not objected at his trial. Mexico later sued the United States in the International Court of Justice in The Hague, Netherlands, on behalf of Medellin and 50 other Mexicans on death row in the U.S.

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« Reply #13 on: October 08, 2007, 08:24:30 AM »

Second post of the morning:

WORLD POWER

Another U.N. Power Grab
What would Reagan do? On the Law of the Sea Treaty, we know the answer.

BY WILLIAM P. CLARK AND EDWIN MEESE
Monday, October 8, 2007 12:01 a.m. EDT

It is an impressive testament to the abiding affection and political influence of former President Ronald Reagan that the fate of a controversial treaty now before the U.S. Senate may ultimately turn on a single question: What would Reagan do?

As we had the privilege of working closely with President Reagan in connection with the foreign policy, national security and domestic implications of the United Nations Convention on the Law of the Sea (better known as the Law of the Sea Treaty or LOST), there is no question about how our 40th president felt about this accord. He so strongly opposed it that he formally refused to sign the treaty. He even sent Donald Rumsfeld as a personal emissary to our key allies around the world to explain his opposition and encourage them to follow suit. All of them did so at the time.

Proponents of LOST, however, have lately taken--on these pages and elsewhere--to portray President Reagan's concerns as relatively circumscribed. They contend that those objections were subsequently and satisfactorily addressed in a multilateral accord known as the Agreement of 1994. To the extent that such assertions may induce senators who would otherwise oppose the Law of the Sea Treaty to vote for it, perhaps within a matter of weeks and after only the most cursory of reviews, we feel compelled to set the record straight.

Ronald Reagan actually opposed LOST even before he came to office. He was troubled by a treaty that had, in the course of its protracted negotiations, mutated beyond recognition from an effort to codify certain navigation rights strongly supported by our Navy into a dramatic step toward world government. This supranational agenda was most closely identified with, but not limited to, the Treaty's Part XI, which created a variety of executive, legislative and judicial mechanisms to control the resources of the world's oceans.

In a radio address titled "Ocean Mining" on Oct. 10, 1978, Mr. Reagan applauded the idea that "no nat[ional] interest of ours could justify handing sovereign control of two-thirds of the earth's surface over to the Third World." He added, "No one has ruled out the idea of a [Law of the Sea] treaty--one which makes sense--but after long years of fruitless negotiating, it became apparent that the underdeveloped nations who now control the General Assembly were looking for a free ride at our expense--again."





The so-called seabed mining provisions were simply one manifestation of the problems Ronald Reagan had with LOST. That was made clear by an entry in his diary dated June 29, 1982, after months of efforts to negotiate extensive changes in the draft treaty text came to naught. On that evening, President Reagan wrote: "Decided in [National Security Council] meeting--will not sign 'Law of the Sea' treaty even without seabed mining provisions."
The man selected by President Reagan to undertake those renegotiations was the remarkable James Malone. In 1984, Ambassador Malone explained why the Law of the Sea Treaty was unacceptable: "The Treaty's provisions were intentionally designed to promote a new world order--a form of global collectivism known as the New International Economic Order (NIEO)--that seeks ultimately the redistribution of the world's wealth through a complex system of manipulative central economic planning and bureaucratic coercion. The Treaty's provisions are predicated on a distorted interpretation of the noble concept of the Earth's vast oceans as the 'common heritage of mankind.'"

Interestingly, Ambassador Malone declared in 1995, "This remains the case today." That statement is particularly relevant insofar as LOST's supporters, including some of our colleagues from the Reagan administration, insist that the 1994 Agreement "fixed" the previously unacceptable Part XI provisions. As James Malone explained to a conference on the Law of the Sea Treaty before his untimely death more than a decade ago:

"All the provisions from the past that make such a [new world order] outcome possible, indeed likely, still stand. It is not true, as argued by some, and frequently mentioned, that the U.S. rejected the Convention in 1982 solely because of technical difficulties with Part XI. The collectivist and redistributionist provisions of the treaty were at the core of the U.S. refusal to sign."

He added, "The regime's structural arrangements place central planning ahead of free market interests in determining influence over world resources; and yet, the collapse of socialist central planning throughout the world makes this a step in the wrong direction."

In a comment that is, if anything, even more true at present, Ambassador Malone observed that: "Today, not only are the seabed mining provisions inadequately corrected, and the collectivist ideologies of a now repudiated system of global central planning still imbedded in the treaty, new and potentially serious concerns have arisen."

Currently, these include: the increasingly brazen hostility of the United Nations and other multilateral institutions to the United States and its interests; the organization's ambition to impose international taxes, which would allow it to become still less transparent and accountable to member nations; the determination of European and other environmentalists to impose the "precautionary principle" (a Luddite, "better safe than sorry" approach that requires proof no harm can come from any initiative before it can be undertaken); the increasing practice of U.S. courts to allow "universal jurisprudence" to trump American constitutional rights and laws; and the use of "lawfare" (multilateral treaties, tribunal rulings and convention declarations) by adversaries of the U.S. military as asymmetric weapons to curtail or impede American power and operations.





Such developments only serve to reinforce the concerns President Reagan rightly had about the central, and abiding, defect of the Law of the Sea Treaty: its effort to promote global government at the expense of sovereign nation states--and most especially the United States. One of the prime movers behind LOST, the late Elisabeth Mann Borgese of the World Federalist Association (which now calls itself Citizens for Global Solutions), captured what is at stake when she cited an ancient aphorism: "He who rules the sea, rules the land." A U.N. publication lauding her work noted that Borgese saw LOST as a "possible test-bed for ideas she had developed concerning a common global constitution."
While we would not presume to speak for President Reagan, his own words and those of the man who worked most closely with him and us on Law of the Sea matters, Jim Malone, make one thing clear: Even if the 1994 Agreement actually amended LOST (and there are multiple reasons why it did not actually alter so much as a single word of the treaty), Ronald Reagan's belief in the U.S. as an exceptional "shining city on a hill" and his enmity towards threats to our sovereignty in general, and global governance schemes in particular, were such that he would likely encourage the Senate to do today what he did in 1982: Reject LOST.

Judge Clark and Mr. Meese served in several capacities in President Reagan's administration including, respectively, as national security adviser and attorney general.
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« Reply #14 on: October 09, 2007, 08:15:24 AM »

The Real Clarence Thomas
His fidelity to the Constitution often leads to results liberals like.
WSJ
BY JOHN YOO
Tuesday, October 9, 2007 12:01 a.m. EDT

Supreme Court Justice Clarence Thomas again finds himself in the crosshairs of liberals. After 16 years of diligently avoiding the press, he has written a memoir, "My Grandfather's Son," that describes his life story--from birth into poverty and an upbringing by a grandfather descended from slaves to the tough confirmation battle that brought him to the Supreme Court.

The book honestly and openly denies his former employee Anita Hill's accusations of sexual harassment, which almost derailed his appointment to the nation's highest bench. Liberals now are girding to insinuate that Justice Thomas is so angry about the personal attacks on him during his confirmation hearings that he must be unfit to sit on the bench.

But if Justices Stephen Breyer or Ruth Bader Ginsburg are the apple of liberal groups' eye, does that mean that they are unfit because they must be biased? Liberal attacks on Justice Thomas echo segregation-era hate speech that would be called racist if leveled at any other black.

For years, critics whispered that Justice Thomas was a mere clone of Justice Antonin Scalia, and that he could not think for himself. When speculation ran high that Justice Thomas might rise to chief justice, Sen. Harry Reid called him "an embarrassment" whose "opinions are poorly written." Mr. Reid apparently had not read a Thomas opinion, and his own Senate Web site ended up providing a nice contrast on grammar and writing style with Justice Thomas's fine work. Now, they say, Justice Thomas is so bitter over his ugly treatment at the hands of liberals, he must be unable to impartially judge cases argued by groups like the ACLU, Sen. Joseph Biden or the Yale Law School.

Critics ignore the unique, powerful intellect that Justice Thomas brings to the court. He is the justice most committed to the principle that the Constitution today means what the Framers thought it meant.

At times, this can cause him to lean liberal. He agrees, for example, that the use of thermal imaging technology by police in the street to scan for marijuana in homes violates the Constitution's ban on unreasonable searches. He opposes the court's effort to place caps on punitive damages. He has voted to strike down literally thousands of harsher criminal sentences because they were based on facts found by judges rather than juries, as required by the Bill of Rights. He supports the right of anonymous political speech, and wants advertising and other commercial speech to receive the same rights as political speech.

So was it Justice Thomas's anger, or lack of intellect, that made him rule in favor of the rights of criminals, the press and the plaintiffs bar--one of the Democratic Party's largest financial supporters?





No one, of course, would deny that Justice Thomas has strong conservative views on constitutional law. He would reject much of affirmative action, end constitutional protection for abortion, recognize broad executive powers in wartime and allow religious groups more participation in public life. What he brings to the court as no other justice does is a characteristically American skepticism of social engineering plans promoted by elites--whether in the media, academia or well-heeled lobbies in Washington--and a respect for individual self-reliance and individual choice. He writes not to be praised by professors or pundits, but for the American people.
As his memoir shows, Justice Thomas's views were forged in the crucible of a truly authentic American story. This is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him. A man like this on the court is the very definition of the healthy diversity his detractors pretend to support.

In his dissent from the court's approval of the use of race in law-school admissions, he quoted Frederick Douglass: "If the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone!" Justice Thomas observed: "Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators."

In a 1995 race case, Justice Thomas explained without cavil why he thought the government's use of race was wrong. Racial quotas and preferences run directly against the promise of the Declaration of Independence that all men are created equal. Affirmative action is "racial paternalism" whose "unintended consequences can be as poisonous and pernicious as any other form of discrimination."

Justice Thomas speaks from personal knowledge when he says: "So-called 'benign' discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence." He argued that "these programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are 'entitled' to preferences."

By forswearing the role of coalition builder or swing voter--a position happily occupied by Justice Anthony Kennedy--Justice Thomas has used his opinions to highlight how the latest social theories sometimes hurt those they are said to help. Because he both respects grass-roots democracy and knows more about poverty than most people do, he dissented vigorously from the court's 1999 decision to strike down a local law prohibiting loitering in an effort to reduce inner-city gang activity. "Gangs fill the daily lives of many of our poorest and most vulnerable citizens with a terror that the court does not give sufficient consideration, often relegating them to the status of prisoners in their own homes."

Justice Thomas is an admirer of the work of Friedrich Hayek and Milton Friedman, both classical liberals. His firsthand experience of poverty, bad schools and crime has led him to favor bottom-up, decentralized solutions for such problems.

He rejects, for example, the massive, judicially run desegregation decrees that have produced school busing and judicially imposed tax hikes. A student of a segregated school himself, Justice Thomas declares that "it never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior."





To Justice Thomas, the national government's command-and-control policies have failed to make the poorest any better off. Rather, they have simply suppressed innovation in solving the nation's problems. He believes that the Constitution allows not just states and cities, but religious groups, to experiment to provide better education. In a 2002 concurrence supporting the use of school vouchers, Justice Thomas again quoted Frederick Douglass: Education "means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light of truth, the light by which men can only be made free." Justice Thomas followed with the sad truth: "Today many of our inner-city public schools deny emancipation to urban minority students."
"While the romanticized ideal of universal public education resonates with the cognoscenti who oppose vouchers," Justice Thomas wrote, "poor urban families just want the best education for their children, who will certainly need it to function in our high-tech and advanced society."

These are not the words of an angry justice, or a political justice, but of a human justice. Justice Thomas's personal story shows him to be all too aware of the imperfections in our society and mindful of the limits of the government's ability to solve them. That kind of understanding and humility, and personal courage in the face of incessant unjustified attack, is what most Americans would want on their Supreme Court.

Mr. Yoo is a professor at the Law School of the University of California at Berkeley, and a former Supreme Court clerk for Justice Thomas
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rogt
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« Reply #15 on: October 09, 2007, 10:53:02 AM »

Too much in that article to give a full response to, but I'll pick a couple of parts.

Quote
In his dissent from the court's approval of the use of race in law-school admissions, he quoted Frederick Douglass: "If the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone!" Justice Thomas observed: "Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators."

A reasonable person might take those statements to mean that if a black person gets a chance to achieve and fails, then it's his own damn fault.  Clarence's (pretty cynical) interpretation is that blacks shouldn't consider themselves entitled to even a chance.

Quote
Mr. Yoo is a professor at the Law School of the University of California at Berkeley, and a former Supreme Court clerk for Justice Thomas

Mr. Yoo is also the author of several memos defending torture and arguing for essentially un-checked power of the executive branch while working for the Justice Department under George W. Bush.
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« Reply #16 on: October 11, 2007, 08:06:21 PM »

A SLAPP Against Freedom
Judith Miller

Attorneys have an effective new way to defeat Islamic groups’ libel suits.

Nothing gets a journalist’s attention like a subpoena. While authoritarian regimes silence critics by murdering or jailing them, journalists (and other critics) in the United States face gentler, but still effective, intimidation: libel lawsuits. Over the last few years, Islamists have tried silencing reporters, scholars, and citizens by suing them for defamation, often successfully. But recent legal cases in California, Massachusetts, and Minnesota suggest that the tactic may finally be backfiring, at least in the United States, if not in Britain, where libel laws overwhelmingly favor plaintiffs. The American lawsuits’ outcomes—poorly covered by the media—represent victories for the free expression and public participation that the First Amendment guarantees.

The latest victory came in August, when an Islamic charity, KinderUSA, and its board chairman, Laila Al-Marayati, dropped the libel suit they had filed in April in California state court against former Treasury Department official Matthew Levitt, the Washington Institute for Near East Policy (which now employs him), and Yale University Press. In 2006, Yale published Levitt’s book on Hamas, which Washington says supports terrorism. Levitt never mentioned Al-Marayati in his book, but he did assert that KinderUSA, founded to raise money for Palestinian children, had ties to terrorist groups.

Al-Marayati and KinderUSA charged that Levitt had made “false and damaging” charges that caused “irreparable harm to its reputation,” and they sought at least $500,000 in damages, a public retraction, and a halt to the book’s distribution. But Levitt and his codefendants stood by his claims. In June, they filed a motion against the charity and its chairman, seeking to quash the libel suit and demanding that the plaintiffs pay all legal fees. They cited a California law that bans “SLAPP”—or “strategic litigation against public participation”—suits, which aim not at winning in court, but at intimidating into silence a group or a publication raising issues of public concern. “California enacted anti-SLAPP legislation to get rid of inappropriate lawsuits like this one,” they wrote in a 15-page brief.

Less than six weeks later, Al-Marayati and KinderUSA dropped the suit. Todd Gallinger, who represented the plaintiffs, insisted that the charity had sued not to intimidate or silence Levitt, but rather to force him to correct charges that it still considers libelous. “They were trying to suppress the charity’s legitimate activities,” he said. But KinderUSA underestimated the costs involved, he acknowledged, and the defendants’ anti-SLAPP motion was a factor in its decision to drop the suit.

“Anti-SLAPP laws are a very powerful tool,” agreed Roger Myers, an attorney who specializes in using the law to defend journalists in libel claims. “There has been a fairly dramatic decline in the number of libel cases being filed here in California.”

Levitt’s case isn’t unique. Last May, the Islamic Society of Boston dropped its suit against the Boston Herald, a local Fox news channel, journalist Steven Emerson, and 14 others. The Society had accused the defendants of libel and of infringing its civil rights by claiming that it had funded terrorist organizations, received money from Saudi Arabia, and bought land for a mosque below market value from the City of Boston.

Though Massachusetts’s anti-SLAPP law does not cover media firms, ten of the non-media defendants filed a motion to quash the Society’s suit. When a state judge rejected the motion, a legal discovery process got under way while the defendants appealed. Bank records and other documents revealed that, contrary to its claims, the Society had raised over $7 million from Saudi and other Middle Eastern sources and had funded two groups that the Bush administration has designated terrorist entities: the Holy Land Foundation for Relief and Development and the Benevolence International Foundation. Records also showed that Society directors had deleted all e-mails about the Society’s land purchase. Finally, discovery revealed that the deputy director of the Boston city agency in charge of negotiating the land deal not only was a Society member whom it had paid to raise money in the Middle East, but also secretly advised the group about obtaining the land cheaply—a clear conflict of interest.

On May 29, soon after the state appellate court heard arguments on the anti-SLAPP appeal, the Society abandoned the suit. Though its lawyers did not respond to requests for comment and its website tried to put a good face on the surrender, Jeff Robbins, who represented several defendants in the complex lawsuit, expressed their belief that the Society had caved, fearing the prospect of paying what could have been millions of dollars in court and legal fees. “The anti-SLAPP motion clearly played a role,” said Robbins, who represented two clients for free because First Amendment issues were involved. Another factor, he said, was the Society’s fear that the court would order it to answer questions under oath and release information that it had tried to keep secret, such as the names of its donors. The case shows that while anti-SLAPP legislation makes it somewhat easier, cheaper, and faster for those accused of libel to fight back, “it doesn’t solve the problem entirely,” said Jeff Hermes, a lawyer for the Boston Herald. “Media companies are not covered by our state’s statute, and defendants in such cases still need to prepare a full defense.”

In Minnesota, a third lawsuit didn’t involve journalists or SLAPP statutes, but it did threaten citizens’ right to petition or warn the government on public safety issues. It also prompted Congress to protect people retroactively who report suspicious behavior. The defendants were anonymous citizens whose complaints about what they considered suspicious behavior by six Muslim imams on a flight in late 2006 led US Airways to remove the clerics from the plane. In a 2007 federal lawsuit claiming discrimination, the imams sued the airline, the Minneapolis airport, and several of the passengers who had complained.

But in August 2007, the “flying imams” dropped all claims against the passengers after Congress approved legislation to protect passengers from retaliatory lawsuits for reporting potentially terror-related activity. Under the measure, as in an anti-SLAPP law, if the plaintiffs cannot prove that a passenger lied in his complaint to the government, they can be held responsible for all court and legal fees. “The imams saw the handwriting on the wall,” said Representative Peter King, the New York Republican who promoted the bill. Gerry Nolting, a lawyer who represented a passenger, also without a fee, said that the imams might never have filed their suit if Minnesota had on its books an anti-SLAPP law like California’s.

However intimidating and expensive defamation lawsuits remain in the United States, the challenge is far greater in Britain, where journalists must prove that their allegations are true. Rachel Ehrenfeld, a New York–based terrorism researcher and the author of Funding Evil, is among more than 30 writers and publishers whom Saudi billionaire Khalid bin Mahfouz sued for libel in England for accusing him of ties to terrorist groups, a charge he denies. But rather than give him the apology, retraction, and $225,000 in fees that a British court ordered, Ehrenfeld, whose book was never even published in England, fought back. In 2004, she countersued bin Mahfouz in New York, asking the federal court here to declare the judgment against her unenforceable in America and contrary to the First Amendment protections that Americans enjoy.

In June, the Second Circuit Court of Appeals, overturning a lower court ruling, asked the state’s highest court to determine whether bin Mahfouz should be subject to New York jurisdiction. If it rules affirmatively, Ehrenfeld would be able to obtain considerable information about his finances in preparing for a trial. If he then failed to cooperate, he might have difficulty doing business in America.

Ehrenfeld’s effort comes none too soon, says Andrew McCarthy, a former federal prosecutor, for bin Mahfouz no longer needs to sue to intimidate his critics. After he merely threatened Cambridge University Press with a libel suit this spring, the prestigious publisher agreed to apologize on its website, pay his legal costs and unspecified damages, and stop distributing Alms for Jihad, a book written by J. Millard Burr, a former State Department analyst and relief coordinator, and Robert O. Collins, a former University of California history professor, which outlines bin Mahfouz’s alleged financial support for terrorism. Cambridge also asked libraries to remove the book from their shelves. On its website, Cambridge states that it took such steps because “under English libel laws, we simply did not have a defensible case.” A court victory for Rachel Ehrenfeld, and more anti-SLAPP statutes—only some 20 states have enacted such laws—would help curb the pernicious “libel tourism” so inimical to the free flow of information on which an informed citizenry and effective counterterrorism depend.

Judith Miller, a contributing editor of City Journal, is a Pulitzer Prize–winning journalist who writes about national security issues. She has written or coauthored four books, including Germs: Biological Weapons and America's Secret War.

http://www.city-journal.org/html/17_4_sndgs01.html
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« Reply #17 on: October 13, 2007, 01:11:20 AM »

Too much in that article to give a full response to, but I'll pick a couple of parts.

Quote
In his dissent from the court's approval of the use of race in law-school admissions, he quoted Frederick Douglass: "If the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone!" Justice Thomas observed: "Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators."

A reasonable person might take those statements to mean that if a black person gets a chance to achieve and fails, then it's his own damn fault.  Clarence's (pretty cynical) interpretation is that blacks shouldn't consider themselves entitled to even a chance.

Quote
Mr. Yoo is a professor at the Law School of the University of California at Berkeley, and a former Supreme Court clerk for Justice Thomas

Mr. Yoo is also the author of several memos defending torture and arguing for essentially un-checked power of the executive branch while working for the Justice Department under George W. Bush.

Yes, black people can only succeed with the help of paternalistic white liberals and government programs. rolleyes

The un-checked power of the executive branch is only ok when the democrats are in office. Everyone knows that.
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« Reply #18 on: October 16, 2007, 12:46:11 PM »

Yes, black people can only succeed with the help of paternalistic white liberals and government programs. rolleyes

Of course you know I said no such thing...  Just as I'm sure you're not saying that racism is not real.
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« Reply #19 on: October 17, 2007, 10:36:41 AM »

Permission slip for the sea—by Oliver North
In his 2004 State of the Union Address, President Bush said, “America will never seek a permission slip to defend the security of our country.” Members of both parties and both houses of Congress applauded. But if the Senate votes to ratify the United Nations Convention on the Law of the Sea—known as the Law of the Sea Treaty—or its appropriate acronym—LOST—he and his successors are going to need lots of permission slips.

In 1982, Ronald Reagan, concerned about the treaty’s implications for our sovereignty and national security, formally rejected LOST because it did “not satisfy the objectives sought by the United States.” In 1994, William Jefferson Clinton, eager to appease One World Government advocates in his own party and at the United Nations, negotiated a parallel “agreement” that purported to address Mr. Reagan’s concerns—and urged ratification. Since then, LOST has gathered dust in the bowels of the U.S. Senate Foreign Relations Committee. All that may be about to change. The deeply flawed, Soviet-era agreement giving unelected, unaccountable international bureaucrats control over 71 percent of the Earth’s surface is now on a fast track to ratification.

Advocates for LOST—among them Senate Foreign Relations Committee Chairman Joe Biden (D-DE)—claim that the Clinton-negotiated parallel “agreement” eliminates concerns about empowering international organizations to collect heavy fees or interfere with the U.S. military or intelligence collection. Yet a careful reading of LOST’s 202 pages—and the so-called agreement—proves that’s not true.

The UN Convention on the Law of the Sea already has created a Byzantine array of international organizations to administer the provisions of LOST. Everything from compliance with global environmental agreements, to the collection of “user fees” from private companies, to disputes about military operations above, on or under international waters are subject to mandatory dispute resolution by one or more of these international bodies.

According to the UN, the purpose of LOST is to preserve international waters for peaceful purposes. But Articles 19 and 20 of the treaty would proscribe the U.S. Navy from training with weapons, collecting intelligence or interfering with enemy communications in the territorial waters of other countries without their expressed permission. Military aircraft are prohibited specifically from taking off and landing in these waters, and severe limitations would be imposed on loading and unloading “any commodity, currency or person” including military equipment. Submarines are required to travel on the surface and “show their flag in territorial waters.” Article 30 states that warships not complying with the laws of a coastal nation can be forced to leave. Disputes about these issues would be adjudicated by international lawyers. Right.

LOST’s proponents discount these concerns by claiming the U.S. simply will exempt military activities from the treaty’s compulsory dispute resolution requirements. However, the “opt out” clause in Article 298 fails to define such operations. In our own Congress, intelligence functions are not considered to be military activities, so it is far from certain that the UN would accept the U.S. position that intelligence operations over, on or under the seas are indeed military activities. If there is a dispute as to what is or isn’t a military activity, LOST requires the matter to be resolved by international arbitration.

In 2003, Navy Adm. Michael Mullen, now the chairman of the Joint Chiefs of Staff, told the Senate Foreign Relations Committee that rulings from these arbitration panels “could have an impact on operational planning and activities, and our security.” Last week, in response to questions from Sen. David Vitter (R-LA) during a committee hearing, professor Bernard Oxman, a witness supporting LOST, admitted that if the parties to a dispute can’t agree on the arbitration panel, the UN secretary-general will chose the arbitrators. Lawyers in Pyongyang, Havana and Tehran: Call Turtle Bay.

LOST also opens the door to a long-sought UN goal: the redistribution of wealth by taxing Americans. The International Seabed Authority, a bloated, multinational bureaucracy headquartered in Jamaica, has the mandate to distribute revenues and “other economic benefits” on the basis of “equitable sharing criteria, taking into account the interests and needs of developing states.” In addition to acting as a global IRS, the ISA also decides which companies from which nations will develop mineral resources on the seabed.

In urging ratification, former President Bill Clinton described LOST as “a far-reaching environmental accord” that would “harmonize” U.S. laws to “prevent, reduce and control pollution” in the “best practical means.” But Article 213 requires nations to adopt “laws and regulations... to prevent, reduce and control pollution of the marine environment from land-based sources.” Thus, LOST could become a means of enforcing another agreement we never ratified: the Kyoto Protocol on global warming. Al Gore, call your office.

Before casting a vote to ratify LOST, all 100 senators should read Article 314 of this onerous treaty and Article II, Section 2 of the U.S. Constitution. The UN-crafted document specifies that amendments to the treaty can be adopted—and therefore enforced—without the consent of any signatory. Yet our Constitution requires that two-thirds of our Senate concur in any treaty. Do 67 members of this Senate now want to surrender that authority to foreign governments?

Quote of the week
“One of the most ridiculous arguments for LOST is to protect us against Russia’s claim to the North Pole and its oil riches. If we ratify LOST, we would have to accept the LOST tribunal’s decision. Even though the United States already has valid claims to the North Pole region under the Doctrine of Discovery, the chances of the LOST bureaucrats ruling for us against Russia are about 1 in 155.” —Phyllis Schlafly, founder and president of the Eagle Forum


Patriot Post
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Crafty_Dog
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« Reply #20 on: October 17, 2007, 05:16:48 PM »

Second post of the day:

As early as today, we'll find out whether House Speaker Nancy Pelosi really believes she can win a veto showdown with the president over a national security issue.

Ms. Pelosi is nudging legislation towards a floor vote to reauthorize the terrorist surveillance program for another two years. Mr. Bush has already said he will veto the bill for two reasons: It would severely hamper his ability to combat terrorism and does nothing to protect American phone companies from billion-dollar lawsuits for complying with government efforts to listen in on foreign phone calls involving suspected terrorists.

The ultra-liberal group MoveOn.org believes this is a fight Ms. Pelosi should make. On Monday, the organization blasted an email to 3.3 million supporters urging her into the fray. Trial lawyers, a big Democratic constituency that stands to benefit handsomely from such lawsuits, have been letting others carry the fight so far. Ms. Pelosi didn't mince words in a press conference last week in referring to Verizon, AT&T and other target companies: "These are not individual citizens without resources, these are major telecom companies with a phalanx of lawyers who understand the Constitution and the law. And if they have exposure, the courtroom is the place to go."

But Democrats would be wise to remember that they've lost elections and, ultimately, control of one house of Congress over the appearance of caring more about the party's bankrollers than national security. In 2002, Georgia Sen. Max Cleland lost his seat when Republican Saxby Chambliss ran a hard charging campaign that made an issue of Mr. Cleland's willingness to carry water for labor unions in establishing the Department of Homeland Security. Thanks partly to Mr. Cleland's loss, the GOP won back control of the Senate.

According to the New York Post, after al Qaeda operatives launched a sneak attack on American forces in Iraq last May, killing several GIs and capturing three others, a U.S. search-and-rescue team was halted from monitoring cell phone calls between enemy operatives because those calls were routed through American servers. For more than nine critical hours lawyers debated how to proceed. When confronted with incidents like that, voters might see the Democratic desire to let trial lawyers fatten their wallets at the expense of U.S. phone companies in a new light.

-- Brendan Miniter
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« Reply #21 on: October 23, 2007, 11:11:54 AM »

For the record, I opposed Bork's nominatin because of his interpretation that there is no right to Privacy in the Constitution.  In my opinion, this theory would make the Ninth Amendment meaningless.  That said, the vicious and scurrilous personal attacks on a fine man and a quality legal mind were an important and precedent setting step downwards in American political culture.

=====
AT LAW

The War for the Constitution
The anniversary of Robert Bork's failed nomination reminds us what's at stake in the coming election.

BY GARY L. MCDOWELL
Tuesday, October 23, 2007 12:01 a.m. EDT

Twenty years ago today the United States Senate voted to reject President Reagan's nomination of Judge Robert H. Bork to the Supreme Court. The senators may have had every reason to believe that was the end of the story. However ugly it had been, however much time it had taken, Mr. Bork's defeat was only one more routine sacrifice to partisan politics. But time would prove wrong anyone who actually thought that. The battle over Mr. Bork was politically transformative, its constitutional lessons enduring.

To many at the time (and still today) it was inconceivable that a man of Mr. Bork's professional accomplishments and personal character could be found unacceptable for a seat on the Court. Warren Burger summed it up for many when he described Mr. Bork as simply the best qualified nominee in the former chief justice's own professional lifetime--a span of years that included the appointments of such judicial luminaries as Benjamin Cardozo, Hugo Black and Felix Frankfurter. Such praise was no empty exaggeration.

A former Yale law professor and U.S. Solicitor General, Mr. Bork was, at the time of his nomination, a judge on the United States Court of Appeals for the District of Columbia Circuit. When he was a circuit court judge, Mr. Bork's opinions not only were never overruled on appeal, but on several occasions his dissents were adopted by the Supreme Court as its majority view.

In an earlier day such an appointment would have been celebrated as adding breadth, depth and luster to the highest bench. Instead, the nominee faced a mauling by those who set out not only to destroy him personally but to discredit all that he stood for as a jurist.

It was immediately clear that the unprecedented vote of 58-42 against his confirmation reflected something far more historic and fundamental than an ordinary partisan standoff. The confrontation in fact had been one of the most cataclysmic and divisive events in American domestic politics during the second half of the 20th century. The reason was that Mr. Bork's opponents succeeded in making the fight over his nomination into a contest over the future of the Constitution.

The issue that united the judge's critics in their fiery, scorched-earth opposition was never his ability or reputation but rather his theory of judging. Mr. Bork's belief was that judges and justices in their interpretations of the Constitution must be bound to the original intentions of its framers. In his sober constitutional jurisprudence there was no room for any airy talk about a general right of privacy, allegedly unwritten constitutions, vague notions of unenumerated rights, or what the progressive Justice Black once derided as "any mysterious and uncertain natural law concept." For Mr. Bork, the framers said what they meant, and meant what they said.

Mr. Bork's approach had its roots in hundreds of years of common law history as well as in the political philosophy of those whose works serve as the foundation of American constitutionalism. Chief Justice John Marshall had summed up that received tradition when he proclaimed that recourse to a lawgiver's original intention is "the most sacred rule of interpretation." In Marshall's view, it is always "the great duty of a judge who construes an instrument . . . to find the intention of its makers." As with Marshall, so also with Mr. Bork.





At its deepest level, Mr. Bork's defeat was the result of the very public affirmation by the Senate of a dangerous theory of ideological judging that had been developing for quite some time. It was the idea of a so-called "living" Constitution, one that various scholars have said means there need be "no theoretical gulf between law and morality," and that ordinary judges are empowered to interpret the fundamental law in light of their own "fresh moral insight" in order to effect a judicially mandated "moral evolution" of the nation.
The aim of this new approach to judging that was used to pillory Mr. Bork was not a matter of mere metaphysical speculation. It was the concrete political reality of Roe v. Wade and its judicially created right to abortion--and behind that, Griswold v. Connecticut and its even more amorphous right to privacy. Mr. Bork's originalism denied the constitutional legitimacy of such contrived decisions and would have left such issues to be resolved by the people in their legislatures.

Thus, his nomination threatened not only all that had been gained by judicial fiat, such as abortion rights, but all that might be gained, such as constitutional protections for same-sex marriages. That was why, to his critics, he had to be stopped at all costs.

The price paid has proved high, indeed. The defeat heralded a fundamental transformation in the process surrounding judicial appointments and thereby radically politicized the public's view of the nature and extent of judicial power under the Constitution. Confirmation battles from Mr. Bork to Clarence Thomas to Samuel Alito have taken on the trappings of ordinary political campaigns, from instant polling to rallies and protests and attack ads. Sadly, the courts are no longer above the fray.

The Supreme Court has continued to give voice to the rhetoric of a morally evolving or living Constitution, along the way upholding Roe in 1992 and striking down state sodomy laws in 2003. Moreover, the Court has decreed that it is "invested with the authority to speak . . . before all others for [the people's] constitutional ideals."

And Judge Bork's replacement as a nominee, Justice Anthony Kennedy, has insisted that the concept of liberty has both "spatial" and "transcendent dimensions," the boundaries of which "are not susceptible of expression as a simple rule." Thus constitutional meaning, even for some Republican appointees, is no longer a matter of the framers' intention but only the judges' intuition.

Recalling Mr. Bork's experience serves to remind us of how precarious the judiciary's balance is at any given time, and how today's highly politicized process prevents even the most gifted and prominent jurists from expecting to be confirmed (or perhaps even desiring the chance to undergo the ordeal).





But more important, it is a reminder that presidents must be willing to undertake what they know will be a horrific fight in order to see the bench filled not with liberals or conservatives or partisans, but with constitutionalists.
In this sense, the Bork vote is not just a matter of quaint historical interest, but the first great battle in the contemporary war for the Constitution--a continuing war that must be won if true self-government is to prevail.

Time has shown that Mr. Bork's theory of constitutional interpretation remains very much alive; he was defeated but his central idea was never discredited. That theory of interpretation and its implicit belief in restrained judging should continue to guide anyone who believes that the inherent arbitrariness of government by judiciary is not the same thing as the rule of law.

Mr. McDowell, currently a recipient of a fellowship from the National Endowment for the Humanities, is a professor at the Jepson School of Leadership Studies at the University of Richmond.

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Crafty_Dog
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« Reply #22 on: October 31, 2007, 11:47:07 AM »

Woof All:

RBG was my Constitutional Law prof at Columbia, so I read this piece with particular interest.  I would add that in the Gore v. Bush decision of the 2000 election her opinion was the first time I ever heard her side with a state's rights argument in a federalism issue.  Indeed, quite the contrary-- I got on her frosty side by disagreeing with her in class over National League of Cities vs. Usery (IIRC whether the Feds could compel state governments to pay federal minimum wage).

Marc
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Speaking Ruth to Power
What business does Justice Ginsburg have trying "to propel legislative change"?

BY ORIN KERR
Wednesday, October 31, 2007 12:01 a.m. EDT

Justice Ruth Bader Ginsburg recently gave an address on the role of dissenting opinions that included a remarkable explanation for her dissent last term in Ledbetter v. Goodyear Tire & Rubber. That case involved a statute regulating when discrimination claims must be filed; the Supreme Court ruled 5-4 that the lawsuit in that case was filed too late. Justice Ginsburg dissented, and she took the unusual step of reading her dissent from the bench.

In her address, Justice Ginsburg explains that the purpose of her dissent was "to attract immediate public attention and to propel legislative change." She then explains how the other branches responded:


Several members of Congress responded within days after the Court's decision issued. A corrective measure passed the House on July 31, 2007. Senator Kennedy introduced a parallel bill, with 21 co-sponsors. The response was just what I contemplated when I wrote: "The ball is in Congress' court . . . to correct [the Supreme] Court's parsimonious reading of Title VII." But the fate of the proposed legislation has been clouded. On July 27, the Administration announced that if the measure "were presented to the President, his senior advisors would recommend that he veto the bill."
If I understand Justice Ginsburg correctly, she wrote a legal opinion at least in significant part to push a different branch of government to enact a law closer to her personal policy preferences. If I am reading her speech correctly, she appears to be pleased that Congress is following up on her efforts. She's watching the House and Senate, and the passage of a bill in the House and introduction in the Senate is just what she had in mind when she wrote her dissent and read it from the bench. But then she seems less than pleased that President Bush has "clouded" the prospects of the bill's passage by threatening a veto.
I find this explanation troubling. It seems to me that a Justice's job in a statutory case is to say what the statute means and no more. If you dissent, then dissent. But trying to push Congress to enact a law that you like better isn't part of the job description.


 

To be clear, it's not newsworthy that Supreme Court justices have been and are influenced by their personal policy preferences. That much is human nature. But Justice Ginsburg is not saying that her own views may color her view of what the law is. Nor is she simply acknowledging her personal view that it would be good for Congress to amend the law in a particular way (a position I tentatively share). Rather, she seems to believe that she has a legitimate interest in her capacity as a Supreme Court Justice to push coequal branches of government to enact a new law that will be more to her personal liking.
This view seems hard to square with Justice Ginsburg's frequent invocations of "judicial independence," the notion that legislators should leave the judging to the judges. Justice Ginsburg has frequently criticized legislators--particularly conservatives--who have tried to influence the federal courts by regulating its jurisdiction or closely scrutinizing appointees on political grounds. According to Justice Ginsburg, these efforts threaten the constitutional order because they involve legislative overreaching into the sphere of the judiciary.

But shouldn't this be a two-way street? If it is improper for legislators to try to influence the outcomes of future cases, why is it perfectly OK for her as a Supreme Court justice to try to influence the outcomes of future legislation? I don't mean to be too harsh, but I do find her position quite puzzling. Some might argue that her view of her role really isn't surprising, and that we should expect Justice Ginsburg to try to influence Congress this way. But if that's true, doesn't it mean Justice Ginsburg's argument for judicial independence falls flat and that legislators are justified in trying to influence the decisions of the court? I don't see how you can have it both ways.

Mr. Kerr is a law professor at George Washington University.
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« Reply #23 on: November 03, 2007, 08:26:01 AM »

A Sinkable Treaty
Why America doesn't need the Law of the Sea.

Saturday, November 3, 2007 12:01 a.m. EDT

The Senate Foreign Relations Committee voted 17-4 Wednesday to approve the Law of the Sea Treaty, meaning it's now up to 34 Senate Republicans to send this giant octopus of a document back where it belongs. To wit, the bottom of the ocean.

The U.S. last disposed of the United Nations Convention on the Law of the Sea--LOST to its critics--when Ronald Reagan was President. This May, however, the Bush Administration reversed course and declared that the Gipper's objections had been fixed by a 1994 amendment. We've since had a debate on these pages over that point, with former Secretaries of State George Shultz and James Baker in favor, while Ed Meese and William Clark, Reagan's Attorney General and National Security Adviser, remain opposed.

The best arguments for the treaty come from the U.S. Navy, which likes how it creates a legal framework for navigational rights. The oil and gas industry approves of provisions that create an "exclusive economic zone" for the U.S. out to 200 miles. There's also the potential for development (with clear legal title) of resources in the deep seabed, which would be managed by the International Seabed Authority on which the U.S. would be guaranteed a seat. And, in fact, the 1994 amendment did get rid of some of LOST's most obnoxious provisions, such as mandatory technology transfers and other redistributionist nostrums.





Then again, the Navy has been getting along fine by using the "customary law" that has guaranteed freedom of the seas for three centuries. Treaty proponents have taken to arguing that, unless we ratify, Russia will lay claim to oil rights over the Arctic seabed. But Russia's expansive Arctic claims, possibly including the sea floor under the North Pole, are themselves a product of the treaty. We also hear that the U.S. must have its proverbial "seat at the table" in negotiations over such claims. But the nations with a direct geographic Arctic claim ought to be able to cut a deal without giving Cuba or Zimbabwe a seat. America's historic experience with similar multinational bodies (e.g., the U.N. Human Rights Commission) hardly justifies confidence that having a seat will enhance our influence, rather than constrain it.
The larger problem is the treaty's sheer size, with no fewer than 320 articles and nine annexes. These cover everything from "Criminal jurisdiction on board a foreign ship" (Article 27) to "Anadromous stocks" and "Catadromous Species" (Articles 65 and 66) to the "Jurisdiction of the Seabed Disputes Chamber" (Article 187). Much of this is anodyne, but perhaps the Senators should read the fine print before voting. They might be surprised by what they find.

Consider the treaty's potential effects on military activities. The Administration says these are excluded from the treaty and, further, that the U.S. gets to decide what constitutes such activity. But then how to explain Article 20, which states that "In the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag." How will this affect the ability of U.S. submarines to gather intelligence in coastal waters or deploy special forces on hostile shores? Last we checked, a $1 billion submarine called the USS Jimmy Carter had been built precisely for that purpose.

The Navy might also ask how its powerful sonars--which some environmentalists say harm marine life--could run afoul of Article 196. This states that countries "shall take all measures necessary to prevent, reduce and control pollution of the marine environment resulting from the use of technologies under their jurisdiction or control."

Or take concerns that the treaty's requirements on pollution are a back-door mechanism for forcing U.S. compliance with the Kyoto Treaty and other global environmental pacts. Confronted with the argument, an Administration spokesman told the Senate that the treaty did not exercise jurisdiction over land-based pollution. Replied Republican Senator David Vitter: "If it is . . . not covered by the treaty, why is there a section entitled, 'Pollution from Land-Based Sources'?" A good question, considering that Article 213 notes that countries "shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations" to control such pollution. Note our emphasis.





Critics are also right to be concerned about the powers of direct taxation the treaty confers on the International Seabed Authority. The details of this innovation are buried in Article 13 of the treaty's third annex, and contain a mix of "production charges" and annual million-dollar "administrative" fees. Such measures are all but unprecedented for an international organization and have a potential for corruption, especially when the taxes can run as high as 70% of net proceeds.
Some 154 countries have joined the Law of the Sea Treaty, with the U.S. one of the few holdouts. Critics are being labeled isolationists, or worse. But the U.S. has been abiding voluntarily with the terms of the treaty since 1983, with no ill effect. Twenty-some years ago a former President objected to handing sovereignty over two-thirds of the Earth's surface to another unaccountable international body. Ronald Reagan sank the treaty then; now it's up to 34 Senators to show similar courage.

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« Reply #24 on: November 07, 2007, 08:02:16 AM »

Lobbyists or Spies?
By GABRIEL SCHOENFELD
November 6, 2007; Page A19

Government insiders who engage in unauthorized leaks of classified information are violating their oaths, breaking the law, damaging national security and deserving of punishment. Sometimes those outside government who receive secrets and pass them to others are also breaking the law and deserve punishment. The latter category includes enemy spies. But what about American lobbyists -- and journalists -- who receive secrets and pass them along?

In an important trial set to begin in January, the Justice Department has irresponsibly confused the distinction between spying and lobbying. Keith Weissman and Steven J. Rosen, two former employees of AIPAC, the pro-Israel lobbying organization, are charged with unlawfully receiving and transmitting classified national-defense information. The stakes are high. The Pentagon official, Lawrence Franklin, who illicitly furnished the two men with secrets, and then participated in an FBI sting operation against them, has pleaded guilty for his part in the affair and was sentenced by federal judge T.S. Ellis III to more than 12 years in federal prison.

This past Friday, the same judge decided a pivotal preliminary issue in the Weissman-Rosen case. The defense has subpoenaed 20 present and former administration officials to appear as witnesses for its side, including Elliott Abrams, Richard Armitage, Douglas Feith, Dennis Ross, Paul Wolfowitz, Stephen Hadley and Condoleezza Rice. The idea is to use their testimony to demonstrate that their clients had every reason to believe that what Mr. Franklin told them in conversation -- no classified documents ever changed hands in this case -- was part and parcel of the normal back-channel method by which the U.S. government sometimes conveys information to the media and/or to allied countries, in this case, to Israel.

Prosecutors have resisted this contention and moved to quash the subpoenas to almost all of the officials. On Friday, Judge Ellis ruled against the prosecutors. The defendants, he wrote in his opinion, "claim that AIPAC played an important role in U.S. foreign-policy development." If true, he continued, the "government's use of AIPAC for 'back channel' purposes may serve to exculpate defendants by negating the criminal states of mind the government must prove to convict defendants of the charged offenses."

Judge Ellis has cut to a core issue, pertinent to the broader issue of secrecy. Back in February 2006, the New York Times published classified information that compromised the NSA's terrorist-surveillance program aimed at intercepting the communications of al-Qaeda suspects around the world. While the Justice Department did not prosecute the paper, it was clear that the Times had run afoul of Section 798 of Title 18, which protects the ultra-sensitive category of communications intelligence. Under it, intent is irrelevant; the willful disclosure of classified information is itself the crime. Even observers sympathetic to the Times acknowledge that it broke black-letter law.

The Times repeated its reckless behavior in the spring of 2006, when it compromised another highly sensitive counterterrorism program aimed at tracking the movement of al-Qaeda funds. Here the Times' disclosure, while damaging and deplorable, was probably not a crime. Because communications intelligence was not involved, the only other applicable statute was the Espionage Act of 1917, the same law under which the two AIPAC men have been charged. That antiquated law, unlike Section 798, contains stringent criminal-intent requirements. However much one might disapprove of what the Times did, it would be nearly impossible to demonstrate that its editors and reporters acted with a criminal state of mind.

In the AIPAC case, an equal or even higher barrier to successful prosecution exists. In order to convict, Judge Ellis has ruled, the prosecutors must prove the defendants had a long laundry list of "mental states," indicative of culpability. They not only had to be acting in bad faith, but had to know that the information they received was classified and closely held.

The high-profile witnesses whom the defense can now bring into the courtroom will make it a tall order to demonstrate any of this. They are almost certain to attest that, at one or another juncture in the course of their careers, they were authorized, as a means of promoting the national interest, to disclose classified information to individuals outside of government, including, on some occasions, to officials at AIPAC itself.

When Lawrence Franklin passed on classified information to the two defendants, he lacked such authorization, which is why he is a felon. But given how routinely classified information is dispensed for legitimate purposes, how were Mr. Weissman and Mr. Rosen to know that Mr. Franklin was telling them things he was not allowed to tell them and involving them in his crime? The answer is: They could not know.

Under the circumstances, this is a case that should never have been brought. No fair-minded jury could conclude that Mr. Weissman and Mr. Rosen acted with criminal intent. Jurors will see only two lobbyists going about their jobs, interacting with government officials in an ordinary fashion as other lobbyists do all the time. Yes, protecting classified information is crucial to our national defense. But the law is narrowly and properly tailored to protect innocent people from becoming ensnared by it.

Mr. Schoenfeld, senior editor of Commentary, blogs for connectingthedots.us.com.

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« Reply #25 on: November 15, 2007, 04:43:36 PM »

Justice for Sale
How special-interest money threatens the integrity of our courts.

BY SANDRA DAY O'CONNOR
Thursday, November 15, 2007 12:01 a.m. EST

Voters generally don't express much interest in the election of judges. This year, as in years past, voter turnout in elections for judges was very low. But judicial elections, which occur in some form in 39 states, are receiving growing attention from those who seek to influence them. In fact, motivated interest groups are pouring money into judicial elections in record amounts. Whether or not they succeed in their attempts to sway the voters, these efforts threaten the integrity of judicial selection and compromise public perception of judicial decisions.

The final four candidates running for open seats on the Supreme Court of Pennsylvania raised more than $5.4 million combined in 2007, shattering fund-raising records in Pennsylvania judicial elections. Since 2006, high court campaigns in Georgia, Kentucky, Oregon and Washington also set fund-raising records. Since 2004, nine other states broke records for high court election spending.

Most of this money comes from special interest groups who believe that their contributions can help elect judges likely to rule in a manner favorable to their causes. As interest-group spending rises, public confidence in the judiciary declines. Nine out of 10 Pennsylvanians regard judicial fund raising as evidence that justice is for sale, and many judges agree. According to a nationwide survey by the Annenberg Public Policy Institute, partisan judicial elections decrease public confidence that courts are fair, impartial and operating in the best interest of the American people.

The first step that a state like Pennsylvania can take to reverse this trend is replace the partisan election of its judges with a merit-selection system, or at least with a nonpartisan system in which the candidates do not affiliate with political parties. In a typical merit-based system, an independent commission of knowledgeable citizens recommends several qualified candidates suitable for appointment by the governor of the state. After several years of service, the appointed judge's name is then submitted to the voters for an up or down vote known as a retention election.
The second step a state can take is set up campaign-conduct committees to educate voters and the media about the criteria people should use to select judges. These committees can also publicize accurate information about the sources of big contributions, providing the kind of transparency that allows voters to decide whether a judicial candidate's impartiality may be compromised by her contributors. Finally, the committees can flag inappropriate campaign conduct and provide information to help voters interpret charges made in campaign advertising sound bites.

The boundary of decency was certainly crossed in Pennsylvania this year when a candidate for the Supreme Court was called "the drug dealer's choice" by the opposing political party because of a decision that she had made to overturn a conviction based on an illegal search. Campaign-conduct committees can help restore a little perspective when the going gets too rough in judicial races.

The third step a state can take is distribute voter education pamphlets to provide accurate and unbiased information about the qualifications of a judicial candidate. Voter education guides can provide information about relevant qualifications that are often left out of campaign ads and meager media coverage.

These three reforms will help, but will not solve the problem of direct interest-group attacks on judicial candidates. Pennsylvania's experience demonstrates this problem. In addition to the contested Supreme Court seats, 67 state judges were up for retention election in Pennsylvania this year. Retention elections are historically very low profile, but they became contentious in 2007 when a small but organized grass-roots campaign sought to oust all but one of the judges whose names were before the voters because the judges had accepted a legislatively enacted pay raise rather than returning the money to the state treasury. They attacked the judges as "pigs in robes," conjuring images of greedy out-of-control politicians.

Fortunately, Pennsylvania voters were not swayed by the spurious attack, but that doesn't mean that the attacks weren't harmful, as they were essentially all anyone heard about Pennsylvania's 2007 retention elections. One of the dangers of low media coverage and high interest-group spending is that voters hear only from activists who have targeted a particular judicial race. The Pennsylvania retention races show how easily the issues in judicial elections can be controlled by special interests.

Special interest appeals to emotion and policy preferences tempt voters to join efforts to control the decisions of judges. Voters are less likely to devote themselves to the core value of judicial independence, because when judges apply the law fairly and impartially they cannot guarantee the outcome any particular voter might want. But fair and impartial judging is an essential part of our government, and must be preserved.

In the long term, a commitment to judicial independence will only come from robust civics education, starting at a very young age. Today, only a little more than one-third of Americans can name the three branches of government--much less explain the balance of power among them. If we lose appreciation for our government's structure and the role of the judiciary within it, it is only a matter of time before the judicial branch becomes just another political arm of the government. With the stakes so high, we cannot wait until the election cycle to educate the citizenry. We must start with civics education in our nation's schools.
Perhaps children can understand the role of a fair and impartial judiciary better than any of us. Children depend on their teachers, their parents and their sports referees to know the rules and to apply them fairly. Thus schools are the ideal place for the life-long process of civics education to begin. In the meantime, we need to look at practical short-term reforms that will restore public confidence in the selection of state judges.

Justice O'Connor is a retired associate justice of the Supreme Court of the United States.

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« Reply #26 on: December 03, 2007, 05:54:37 PM »

Anyone remember  Kelo v. New London, 2005? It was one of the worst supreme court decisions in history. Kelo allowed government to take private property to give to other private property purposes and worse that local elected officials have unique local knowledge so courts shouldn't make judgment on those decisions.  The public good can be as simple as higher property taxes collected after re-development or that new homes are more attractive to look at.

After the fake-emergency to get the  real owners out against their will 2-3 years ago, the project is still delayed. http://www.theday.com/re.aspx?re=95bf73ca-9e07-41a3-968a-f9d9cf6b0563

Here is the link to the decision. I recommend a read of the dissent by Clarence Thomas: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-108
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« Reply #27 on: March 22, 2008, 10:48:47 PM »

Mr. Constitution
By DAVID B. RIVKIN and LEE A. CASEY
March 22, 2008; Page A25
WSJ

Clarence Thomas leaps from his chair. He retrieves a wire coat hanger from his closet for a demonstration -- the same demonstration he gives his law clerks. He bends it and says: "How do you compensate? So, you say well, deal with it. Bend this over here. Oh, wait a minute, bend it a little bit there. And you're saying that it throws everything out of whack. What do you do?"

He holds up a twisted wire, useless now for its original purpose and the point is made. "If you notice sometimes I will write just to point out that I think that we've gone down a track that's going to cause some distortion, then it's quite precisely because of that. I don't do things that I think are illegitimate in other areas, just to bend it back to compensate for what's already happened."

 
Terry Shoffner 
Interpreting the Constitution is the Supreme Court's most important and most difficult task. An even harder question is how to approach a Constitution that, in fact, is no longer in pristine form -- with the Framers' design having been warped over the years by waves of judicial mischief. There is an obvious temptation to redress the imbalance, which Associate Justice Thomas decisively rejects. Thus his coat hanger metaphor.

So is the most controversial Supreme Court justice an "originalist" when it comes to Constitutional interpretation? He says he doesn't like labels, though he does admit to being a "meat and potatoes" kind of guy.

Upon entering his spacious office overlooking the Capitol Dome in Washington, D.C., the first thing to catch your eye is his Nebraska Cornhuskers screen saver. Mr. Thomas never attended the University of Nebraska, or even lived in the state. He's just a fan. His office is also decorated with pictures of the historical figures he admires, Frederick Douglass, Abraham Lincoln, Booker T. Washington, Thomas More and Winston Churchill, and he speaks of them with knowledge and passion. Watching over all is a bust of his grandfather atop Mr. Thomas's bookcase -- its countenance as stern as a Roman consul. There is little doubt this man was the driving force in Mr. Thomas's life -- a fact he confirms, and which is reflected in the title of his recently published memoir, "My Grandfather's Son."

Mr. Thomas faced one of the most destructive and personally vicious Supreme Court confirmation hearings in American history -- described at the time by Mr. Thomas himself as a "high-tech lynching." Mr. Thomas's opponents smeared his character and integrity. To this day, disappointed and embittered, they feel entitled to insult his qualifications, intelligence and record.

In 2004, when Mr. Thomas's name was floated as a possible replacement for ailing Chief Justice William Rehnquist, then Senate Minority Leader Harry Reid called him an "embarrassment" to the Court, and attacked his opinions as "poorly written."

In point of fact, Mr. Thomas's opinions are well-written, displaying a distinctive style -- a sure sign that the Justice and not his clerks does most of the writing.

As for his judicial philosophy, "I don't put myself in a category. Maybe I am labeled as an originalist or something, but it's not my constitution to play around with. Let's just start with that. We're citizens. It's our country, it's our constitution. I don't feel I have any particular right to put my gloss on your constitution. My job is simply to interpret it."

In that process, the first place to look is the document itself. "And when I can't find something in that document or in the tradition or history around that document, then I am getting on dangerous ground. Because that's when you drift so much more towards your own policy preferences."

It is the insertion of those policy preferences into the interpretive process that Mr. Thomas finds particularly illegitimate. "People can say you are an originalist, I just think that we should interpret the Constitution as it's drafted, not as we would have drafted it."

Mr. Thomas acknowledges that discerning a two-hundred-year-old document's meaning is not always easy. Mistakes are possible, if not inevitable, as advocates of a malleable "living constitution," subject to endless judicial revision, never tire of pointing out. "Of course it's flawed" agrees Mr. Thomas, "but all interpretive models are flawed."

Simply following your own preferences is both flawed and illegitimate, he says. "But if that is difficult, does that difficulty legitimate just simply watching your own preference?" By doing that "I haven't cleared up the problem, I've simply trumped it with my personal preferences."

Mr. Thomas has also been criticized for his supposed lack of respect for precedent. Even his fellow conservative, Justice Antonin Scalia, was reported by a Thomas biographer to have claimed that Mr. Thomas just doesn't believe in "stare decisis." Latin for "let the decision stand," stare decisis is an important aspect of the Anglo-American system of precedent -- deciding new cases based on what the courts have done before and leaving long established rules in place.

Mr. Thomas, however, is less absolute here than his critics suggest. He understands the Supreme Court can't simply erase decades, or even centuries, of precedent -- "you can't do it."

At the same time, he views precedent with respect, not veneration. "You have people who will just constantly point out stare decisis, stare decisis, stare decisis . . . then it is one big ratchet. It is something that you wrestle with." History would seem to vindicate Mr. Thomas and his insistence on "getting it right" -- even if that does mean questioning precedent.

The perfect example is Brown v. Board of Education (1954), where the Supreme Court overruled the racist "separate but equal" rule of Plessy v. Ferguson (1896), which permitted legally enforced segregation and had been settled precedent for nearly 60 years.

It is the Plessy dissent of Justice John Marshall Harlan to which Mr. Thomas points for an example of a Justice putting his personal predilections aside to keep faith with the Constitution. Harlan was a Kentucky aristocrat and former slaveowner, although he was also a Unionist who fought for the North during the Civil War. A man of his time, he believed in white superiority, if not supremacy, and wrote in Plessy that the "white race" would continue to be dominant in the United States "in prestige, in achievements, in education, in wealth and in power . . . for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty."

"But," Harlan continued, "in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among its citizens."

That, for Mr. Thomas, is the "great 'But,'" where Harlan's intellectual honesty trumped his personal prejudice, causing Mr. Thomas to describe Harlan as his favorite justice and even a role model. For both of them, justice is truly blind to everything but the law.

More than anything else, this explains Mr. Thomas's own understanding of his job -- a determination to put "a firewall between my [PERSONAL\]view and the way that I interpret the Constitution," and to vindicate his oath "that I will administer justice without respect to person, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all of the duties incumbent upon me as an Associate Justice of the Supreme Court of the United States."

This insistence by the Justice on judging based upon the law, and not on who the parties are, presents a stark contrast with today's liberal orthodoxy. The liberal approach -- which confuses law-driven judging with compassion-driven politics, enthused with a heavy distrust of the American political system's fairness -- was recently articulated by Democratic presidential candidate Barack Obama, who emphasized the need for judges with "heart" and "empathy" for the less fortunate, judges willing to favor the disempowered.

Born in rural Georgia in 1948, Mr. Thomas and his brother were mostly raised in Savannah by their maternal grandparents. His grandfather, Myers Anderson, believed in work, and that rights come with responsibilities. According to his book, Mr. Anderson told the seven-year-old Clarence that "the damn vacation is over" the morning he moved in.

Says Mr. Thomas: "Being willing to accept responsibility, that sort of dark side of freedom, first -- before you accept all the benefits. Being ready to be responsible for yourself -- you want to be independent. That was my grandfather." Anderson also taught his grandson to arrive at his conclusions honestly and not "to be bullied away from opinions that I think are legitimate. You know, not being unreasonable, but not being bullied away."

For a man who has been subjected to a great deal of vitriol, Mr. Thomas manifests remarkable serenity. He rejoices in life outside the Court, regaling us with stories about his travels throughout the U.S., his many encounters with ordinary Americans, and his love of sports -- especially the Cornhuskers, the Dallas Cowboys and Nascar.

Mr. Thomas isn't much bothered by his critics. "I can't answer the cynics and the negative people. I can't answer them because they can always be cynical about something."

Mr. Thomas speaks movingly about the Court as an institution, and about his colleagues, both past and present. He sees them all, despite their differences, as honorable, each possessing a distinctive voice, and trying to do right as they see it. Our job, he concludes, is "to do it right. It's no more than that. We can talk about methodology. It's merely a methodology. It's not a religion. It is in the approach to doing the job right. And at bottom what it comes to, is to choose to interpret this document as carefully and as accurately and as legitimately as I can, versus inflicting my personal opinion or imposing my personal opinion on the rest of the country."

And why doesn't he ask questions at oral argument, a question oft-posed by critics insinuating that he is intellectually lazy or worse? Mr. Thomas chuckles wryly and observes that oral advocacy was much more important in the Court's early days. Today, cases are thoroughly briefed by the time they reach the Supreme Court, and there is just too little time to have a meaningful conversation with the lawyers. "This is my 17th term and I haven't found it necessary to ask a bunch of questions. I would be doing it to satisfy other people, not to do my job. Most of the answers are in the briefs. This isn't Perry Mason."

Messrs. Rivkin and Casey served in the Justice Department under President George H.W. Bush.
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ccp
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« Reply #28 on: April 20, 2008, 09:01:19 AM »

According to Jonah BO opinion:

"The Democratic front-runner and former lecturer on constitutional law at the University of Chicago has explained his thinking toward judicial appointments thus: “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old — and that’s the criteria by which I’ll be selecting my judges.”

What?HuhHuh?  How about justice?  How about victim's rights?  How about a nation of laws?
BO my friends, is *radical* left.  In my view he is nuts.  This talk about we have to get past the rhetoric falls in line with his own proclaimed learned way of dealing with white folks.  Hold their hand, talk sweet and deflect their "innermost fears".  We are being conned.  Another version of BS the likes of HC and BC.

This guy is worse than Dukakis.

Just we wait till shrillary is out of the picture.  The right is going to (rightly in my view) have a field day with this guy.

   
   

April 18, 2008 12:00 AM

Courting Disaster
In a very real sense, this election year we face the question: Do we want to live in a monarchy or a nation of laws?

By Jonah Goldberg

 

Every four years, we’re told that this is the most important election since a caveman asked for a show of hands. So some skepticism seems warranted when we hear the same refrain this year.

But then there’s the question of the Supreme Court. And here, at least for me, skepticism melts away into real anxiety, even panic.

Consider the stunning decision handed down from the Supreme Court this week.
The court ruled that the state of Kentucky may continue to use lethal injections when administering the death penalty. But that’s not what’s shocking. Nor was it surprising that for the first time Justice John Paul Stevens admitted he thinks the death penalty is unconstitutional.

What is staggering, or at least should be, is that Stevens freely admits that he no longer considers “objective evidence” or even the plain text of the Constitution determinative of what is or isn’t constitutional: “I have relied on my own experience in reaching the conclusion that the imposition of the death penalty” is unconstitutional.

Justice Antonin Scalia, in a blistering response, justifiably exclaimed that, “Purer expression cannot be found of the principle of rule by judicial fiat.”

I say “justifiably” rather than “accurately” because I think we hear purer expressions of the principle that “good” judges are those who make it up as they go along all the time. Consider Barack Obama. The Democratic front-runner and former lecturer on constitutional law at the University of Chicago has explained his thinking toward judicial appointments thus: “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old — and that’s the criteria by which I’ll be selecting my judges.”

When defending his vote against Justice John Roberts’ confirmation, Obama explained that the standard for a justice must be “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”

Now that  is a pure expression of the principle of judicial fiat.

Indeed, by Obama’s own words the best justices are those who will most shamelessly violate their own oath of office.

Supreme Court justices must “solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as a justice of the Supreme Court of the United States under the Constitution and laws of the United States, so help me God.”

Note the bit about doing right to poor and rich alike. Feeling sorry for the poor guy who violates the Constitution or the law has no role in how a Supreme Court justice is supposed to make a decision. Legislators can write laws based on empathy. They can invoke their pet theories about “how the world works.” They can even, as Justices Stephen Breyer and Ruth Bader Ginsberg are fond of doing, consult foreign laws and court decisions in their efforts to make a more perfect union. But Supreme Court justices are supposed to decide what the written law requires, not pick winners and losers based upon some sense of noblesse oblige. That’s why all of those statues of Lady Justice show her standing blindfolded, not bent over kissing the boo-boos of the unfortunate and the downtrodden.

In a very real sense, this election year we face the question: Do we want to live in a monarchy or a nation of laws? Is this to be a country where justices serve as a reliable backstop against encroachments upon the constitutional order, or is this to be a country where the most undemocratic branch of government serves as the tip of the spear for such intrusions?

Five of the last seven presidents have been Republicans at least nominally committed to appointing conservative justices. Some have fallen short in that department (though not President George W. Bush), which is why the Supreme Court today hangs in the balance. John McCain could conceivably make the mistake of appointing a Souter or a Stevens or some other justice who sees the Constitution as an ink blot. But the key difference between McCain and his Democratic rivals is that he promises not to appoint such justices. Clinton and Obama consider it among their top priorities. That’s at least one reason for saying this is one of the most important elections in a very long time.

— Jonah Goldberg is the author of Liberal Fascism: The Secret History of the American Left from Mussolini to the Politics of Meaning.

(C) 2008 Tribune Media Services, Inc.

© National Review Online 2008. All Rights Reserved.


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Crafty_Dog
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« Reply #29 on: June 27, 2008, 09:36:24 AM »

News Flash: The Constitution Means What It Says
By RANDY E. BARNETT
June 27, 2008; Page A13
WSJ

Justice Antonin Scalia's majority opinion in yesterday's Supreme Court decision in District of Columbia v. Heller is historic in its implications and exemplary in its reasoning.

A federal ban on an entire class of guns in ordinary use for self-defense – such as the handgun ban adopted by the District of Columbia – is now off the table. Every gun controller's fondest desire has become a constitutional pipe dream.

 
Getty Images 
Two important practical issues remain. First, will this ruling also apply to states and municipalities? That will depend on whether the Supreme Court decides to "incorporate" the right to keep and bear arms into the 14th Amendment. But in the middle of his opinion Justice Scalia acknowledges that the 39th Congress that enacted the 14th Amendment did so, in part, to protect the individual right to arms of freedmen and Southern Republicans so they might defend themselves from violence.

My prediction: This ruling will eventually be extended to the states.

Second, how will the court deal with firearms regulations that fall short of a ban? The majority opinion strongly suggests that such regulations must now be subjected to meaningful judicial scrutiny. The exact nature of this scrutiny is not clear, but Justice Scalia explicitly rejects the extremely deferential "rationality" review advocated by Justice Stephen Breyer.

Most likely, gun laws will receive the same sort of judicial scrutiny that is now used to evaluate "time, place and manner" regulations of speech and assembly. Such regulations of First Amendment freedoms are today upheld if they are narrowly tailored to achieve a truly important government purpose, but not if they are really a pretext for undermining protected liberties.

My prediction? Because gun-rights groups like the NRA have so successfully prevented enactment of unreasonable gun laws, most existing gun regulations falling short of a ban will eventually be upheld. But more extreme or merely symbolic laws that are sometimes proposed – whose aim is to impose an "undue burden" by raising the cost of gun production, ownership and sale – would likely be found unconstitutional. All gun regulations – for example, safe storage laws and licensing – will have to be shown to be consistent with an effective right of self-defense by law-abiding citizens.

Justice Scalia's opinion is exemplary for the way it was reasoned. It will be studied by law professors and students for years to come. It is the clearest, most careful interpretation of the meaning of the Constitution ever to be adopted by a majority of the Supreme Court. Justice Scalia begins with the text, and carefully parses the grammatical relationship of the "operative clause" identifying "the right to keep and bear arms" to the "prefatory clause" about the importance of a "well-regulated militia." Only then does he consider the extensive evidence of original meaning that has been uncovered by scholars over the past 20 years – evidence that was presented to the Court in numerous "friends of the court" briefs.

Justice Scalia's opinion is the finest example of what is now called "original public meaning" jurisprudence ever adopted by the Supreme Court. This approach stands in sharp contrast to Justice John Paul Stevens's dissenting opinion that largely focused on "original intent" – the method that many historians employ to explain away the text of the Second Amendment by placing its words in what they call a "larger context." Although original-intent jurisprudence was discredited years ago among constitutional law professors, that has not stopped nonoriginalists from using "original intent" – or the original principles "underlying" the text – to negate its original public meaning.

Of course, the originalism of both Justices Scalia's and Stevens's opinions are in stark contrast with Justice Breyer's dissenting opinion, in which he advocates balancing an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. Guess which wins out in the balancing? As Justice Scalia notes, this is not how we normally protect individual rights, and was certainly not how Justice Breyer protected the individual right of habeas corpus in the military tribunals case decided just two weeks ago.

So what larger lessons does Heller teach? First, the differing methods of interpretation employed by the majority and the dissent demonstrate why appointments to the Supreme Court are so important. In the future, we should be vetting Supreme Court nominees to see if they understand how Justice Scalia reasoned in Heller and if they are committed to doing the same.

We should also seek to get a majority of the Supreme Court to reconsider its previous decisions or "precedents" that are inconsistent with the original public meaning of the text. This shows why elections matter – especially presidential elections – and why we should vet our politicians to see if they appreciate how the Constitution ought to be interpreted.

Good legal scholarship was absolutely crucial to this outcome. No justice is capable of producing the historical research and analysis upon which Justice Scalia relied. Brilliant as it was in its execution, his opinion rested on the work of many scholars of the Second Amendment, as I am sure he would be the first to acknowledge. (Disclosure: I joined a brief by Academics for the Second Amendment supporting the individual rights interpretation; one of my articles was cited by Justice Scalia and another by Justice Breyer in his dissent.)

Due to the political orthodoxy among most constitutional law professors, some of the most important and earliest of this scholarship was produced by nonacademics like Don Kates, Stephen Halbrook, David Kopel, Clayton Cramer and others. Believe it or not, Heller was a case of nearly first impression, uninhibited by any prior decisions misinterpreting the Second Amendment.

Last but not least, tribute must be paid to the plaintiffs – Shelly Parker, Dick Anthony Heller, Tom Palmer, Gillian St. Lawrence, Tracey Ambeau, and George Lyon – who went where the National Rifle Association feared to tread, and to their lawyers Robert Levy, Clark Neily, and lead counsel Alan Gura. I was privileged to witness Mr. Gura argue the case – his first Supreme Court argument ever – and he was outstanding. Heller provides yet another reminder of the crucial role that private lawyers play in the preservation of our liberties.

Mr. Barnett, a professor at Georgetown Law, is the author of "Restoring the Lost Constitution: The Presumption of Liberty" (Princeton, 2004).
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DougMacG
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« Reply #30 on: September 08, 2008, 09:49:55 PM »

JDN: "As for Justices, perhaps I was too harsh on Thomas, but I do not think he has the intellect of the others".

Still no examples.  I strongly disagree and challenge you / others again to illustrate this often stated assertion.  He doesn't ask questions of the lawyers who appear but he reads the briefs and writes opinions with wisdom and constitutional discipline like almost no one else IMO.

EXAMPLE: Kelo v. New London.  The worst decision in recent memory destroying private property rights by allowing local governments to take private property for what THEY deem to be better private property purposes.  Thomas wrote the strongest opinion opposing it.

Thomas' opinion follows. He goes beyond the dissent of Sandra Day O'Connor and argues very persuasively the original meaning of the public use in the takings restrictions clause.  I watched his confirmation hearings and his intellect held up very well especially as compared to the Senators in the room.  - Doug

(aside: JDN, I didn't know you play squash. Maybe we have another way of settling this...)
-----------------------------
Thomas, J., dissenting

SUPREME COURT OF THE UNITED STATES

No. 04—108
SUSETTE KELO, et al., PETITIONERS v. CITY OF
NEW LONDON, CONNECTICUT, et al.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CONNECTICUT

[June 23, 2005]

    Justice Thomas, dissenting.

    Long ago, William Blackstone wrote that “the law of the land … postpones even public necessity to the sacred and inviolable rights of private property.” 1 Commentaries on the Laws of England 134—135 (1765) (hereinafter Blackstone). The Framers embodied that principle in the Constitution, allowing the government to take property not for “public necessity,” but instead for “public use.” Amdt. 5. Defying this understanding, the Court replaces the Public Use Clause with a “ ‘[P]ublic [P]urpose’ ” Clause, ante, at 9—10 (or perhaps the “Diverse and Always Evolving Needs of Society” Clause, ante, at 8 (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is “legitimate” and the means “not irrational,” ante, at 17 (internal quotation marks omitted). This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a “public use.”

    I cannot agree. If such “economic development” takings are for a “public use,” any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O’Connor powerfully argues in dissent. Ante, at 1—2, 8—13. I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, however, the Court’s error runs deeper than this. Today’s decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government’s eminent domain power. Our cases have strayed from the Clause’s original meaning, and I would reconsider them.
I.     The Fifth Amendment provides:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process, of law; nor shall private property be taken for public use, without just compensation.” (Emphasis added.)

It is the last of these liberties, the Takings Clause, that is at issue in this case. In my view, it is “imperative that the Court maintain absolute fidelity to” the Clause’s express limit on the power of the government over the individual, no less than with every other liberty expressly enumerated in the Fifth Amendment or the Bill of Rights more generally. Shepard v. United States, 544 U.S. ___, ___ (2005) (slip op., at 2) (Thomas, J., concurring in part and concurring in judgment) (internal quotation marks omitted).

    Though one component of the protection provided by the Takings Clause is that the government can take private property only if it provides “just compensation” for the taking, the Takings Clause also prohibits the government from taking property except “for public use.” Were it otherwise, the Takings Clause would either be meaningless or empty. If the Public Use Clause served no function other than to state that the government may take property through its eminent domain power–for public or private uses–then it would be surplusage. See ante, at 3—4 (O’Connor, J., dissenting); see also Marbury v. Madison, 1 Cranch 137, 174 (1803) (“It cannot be presumed that any clause in the constitution is intended to be without effect”); Myers v. United States, 272 U.S. 52, 151 (1926). Alternatively, the Clause could distinguish those takings that require compensation from those that do not. That interpretation, however, “would permit private property to be taken or appropriated for private use without any compensation whatever.” Cole v. La Grange, 113 U.S. 1, 8 (1885) (interpreting same language in the Missouri Public Use Clause). In other words, the Clause would require the government to compensate for takings done “for public use,” leaving it free to take property for purely private uses without the payment of compensation. This would contradict a bedrock principle well established by the time of the founding: that all takings required the payment of compensation. 1 Blackstone 135; 2 J. Kent, Commentaries on American Law 275 (1827) (hereinafter Kent); J. Madison, for the National Property Gazette, (Mar. 27, 1792), in 14 Papers of James Madison 266, 267 (R. Rutland et al. eds. 1983) (arguing that no property “shall be taken directly even for public use without indemnification to the owner”).1 The Public Use Clause, like the Just Compensation Clause, is therefore an express limit on the government’s power of eminent domain.

    The most natural reading of the Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever. At the time of the founding, dictionaries primarily defined the noun “use” as “[t]he act of employing any thing to any purpose.” 2 S. Johnson, A Dictionary of the English Language 2194 (4th ed. 1773) (hereinafter Johnson). The term “use,” moreover, “is from the Latin utor, which means ‘to use, make use of, avail one’s self of, employ, apply, enjoy, etc.” J. Lewis, Law of Eminent Domain §165, p. 224, n. 4 (1888) (hereinafter Lewis). When the government takes property and gives it to a private individual, and the public has no right to use the property, it strains language to say that the public is “employing” the property, regardless of the incidental benefits that might accrue to the public from the private use. The term “public use,” then, means that either the government or its citizens as a whole must actually “employ” the taken property. See id., at 223 (reviewing founding-era dictionaries).

    Granted, another sense of the word “use” was broader in meaning, extending to “[c]onvenience” or “help,” or “[q]ualities that make a thing proper for any purpose.” 2 Johnson 2194. Nevertheless, read in context, the term “public use” possesses the narrower meaning. Elsewhere, the Constitution twice employs the word “use,” both times in its narrower sense. Claeys, Public-Use Limitations and Natural Property Rights, 2004 Mich. St. L. Rev. 877, 897 (hereinafter Public Use Limitations). Article 1, §10 provides that “the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States,” meaning the Treasury itself will control the taxes, not use it to any beneficial end. And Article I, §8 grants Congress power “[t]o raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.” Here again, “use” means “employed to raise and support Armies,” not anything directed to achieving any military end. The same word in the Public Use Clause should be interpreted to have the same meaning.

    Tellingly, the phrase “public use” contrasts with the very different phrase “general Welfare” used elsewhere in the Constitution. See ibid. (“Congress shall have Power To … provide for the common Defence and general Welfare of the United States”); preamble (Constitution established “to promote the general Welfare”). The Framers would have used some such broader term if they had meant the Public Use Clause to have a similarly sweeping scope. Other founding-era documents made the contrast between these two usages still more explicit. See Sales, Classical Republicanism and the Fifth Amendment’s “Public Use” Requirement, 49 Duke L. J. 339, 368 (2000) (hereinafter Sales) (noting contrast between, on the one hand, the term “public use” used by 6 of the first 13 States and, on the other, the terms “public exigencies” employed in the Massachusetts Bill of Rights and the Northwest Ordinance, and the term “public necessity” used in the Vermont Constitution of 1786). The Constitution’s text, in short, suggests that the Takings Clause authorizes the taking of property only if the public has a right to employ it, not if the public realizes any conceivable benefit from the taking.

    The Constitution’s common-law background reinforces this understanding. The common law provided an express method of eliminating uses of land that adversely impacted the public welfare: nuisance law. Blackstone and Kent, for instance, both carefully distinguished the law of nuisance from the power of eminent domain. Compare 1 Blackstone 135 (noting government’s power to take private property with compensation), with 3 id., at 216 (noting action to remedy “public …nuisances, which affect the public and are an annoyance to all the king’s subjects”); see also 2 Kent 274—276 (distinguishing the two). Blackstone rejected the idea that private property could be taken solely for purposes of any public benefit. “So great … is the regard of the law for private property,” he explained, “that it will not authorize the least violation of it; no, not even for the general good of the whole community.” 1 Blackstone 135. He continued: “If a new road … were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without the consent of the owner of the land.” Ibid. Only “by giving [the landowner] full indemnification” could the government take property, and even then “[t]he public [was] now considered as an individual, treating with an individual for an exchange.” Ibid. When the public took property, in other words, it took it as an individual buying property from another typically would: for one’s own use. The Public Use Clause, in short, embodied the Framers’ understanding that property is a natural, fundamental right, prohibiting the government from “tak[ing] property from A. and giv[ing] it to B.” Calder v. Bull, 3 Dall. 386, 388 (1798); see also Wilkinson v. Leland, 2 Pet. 627, 658 (1829); Vanhorne’s Lessee v. Dorrance, 2 Dall. 304, 311 (CC Pa. 1795).

    The public purpose interpretation of the Public Use Clause also unnecessarily duplicates a similar inquiry required by the Necessary and Proper Clause. The Takings Clause is a prohibition, not a grant of power: The Constitution does not expressly grant the Federal Government the power to take property for any public purpose whatsoever. Instead, the Government may take property only when necessary and proper to the exercise of an expressly enumerated power. See Kohl v. United States, 91 U.S. 367, 371—372 (1876) (noting Federal Government’s power under the Necessary and Proper Clause to take property “needed for forts, armories, and arsenals, for navy-yards and light-houses, for custom-houses, post-offices, and court-houses, and for other public uses”). For a law to be within the Necessary and Proper Clause, as I have elsewhere explained, it must bear an “obvious, simple, and direct relation” to an exercise of Congress’ enumerated powers, Sabri v. United States, 541 U.S. 600, 613 (2004) (Thomas, J., concurring in judgment), and it must not “subvert basic principles of” constitutional design, Gonzales v. Raich, ante, at __ (Thomas, J., dissenting). In other words, a taking is permissible under the Necessary and Proper Clause only if it serves a valid public purpose. Interpreting the Public Use Clause likewise to limit the government to take property only for sufficiently public purposes replicates this inquiry. If this is all the Clause means, it is, once again, surplusage. See supra, at 3. The Clause is thus most naturally read to concern whether the property is used by the public or the government, not whether the purpose of the taking is legitimately public.

II  

Early American eminent domain practice largely bears out this understanding of the Public Use Clause. This practice concerns state limits on eminent domain power, not the Fifth Amendment, since it was not until the late 19th century that the Federal Government began to use the power of eminent domain, and since the Takings Clause did not even arguably limit state power until after the passage of the Fourteenth Amendment. See Note, The Public Use Limitation on Eminent Domain: An Advance Requiem, 58 Yale L. J. 599, 599—600, and nn. 3—4 (1949); Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 250—251 (1833) (holding the Takings Clause inapplicable to the States of its own force). Nevertheless, several early state constitutions at the time of the founding likewise limited the power of eminent domain to “public uses.” See Sales 367—369, and n. 137 (emphasis deleted). Their practices therefore shed light on the original meaning of the same words contained in the Public Use Clause.

    States employed the eminent domain power to provide quintessentially public goods, such as public roads, toll roads, ferries, canals, railroads, and public parks. Lewis §§166, 168—171, 175, at 227—228, 234—241, 243. Though use of the eminent domain power was sparse at the time of the founding, many States did have so-called Mill Acts, which authorized the owners of grist mills operated by water power to flood upstream lands with the payment of compensation to the upstream landowner. See, e.g., id., §178, at 245—246; Head v. Amoskeag Mfg. Co., 113 U.S. 9, 16—19, and n. (1885). Those early grist mills “were regulated by law and compelled to serve the public for a stipulated toll and in regular order,” and therefore were actually used by the public. Lewis §178, at 246, and n. 3; see also Head, supra, at 18—19. They were common carriers–quasi-public entities. These were “public uses” in the fullest sense of the word, because the public could legally use and benefit from them equally. See Public Use Limitations 903 (common-carrier status traditionally afforded to “private beneficiaries of a state franchise or another form of state monopoly, or to companies that operated in conditions of natural monopoly”).

    To be sure, some early state legislatures tested the limits of their state-law eminent domain power. Some States enacted statutes allowing the taking of property for the purpose of building private roads. See Lewis §167, at 230. These statutes were mixed; some required the private landowner to keep the road open to the public, and others did not. See id., §167, at 230—234. Later in the 19th century, moreover, the Mill Acts were employed to grant rights to private manufacturing plants, in addition to grist mills that had common-carrier duties. See, e.g., M. Horwitz, The Transformation of American Law 1780—1860, pp. 51—52 (1977).

    These early uses of the eminent domain power are often cited as evidence for the broad “public purpose” interpretation of the Public Use Clause, see, e.g., ante, at 8, n. 8 (majority opinion); Brief for Respondents 30; Brief for American Planning Assn. et al. as Amici Curiae at 6—7, but in fact the constitutionality of these exercises of eminent domain power under state public use restrictions was a hotly contested question in state courts throughout the 19th and into the 20th century. Some courts construed those clauses to authorize takings for public purposes, but others adhered to the natural meaning of “public use.”2 As noted above, the earliest Mill Acts were applied to entities with duties to remain open to the public, and their later extension is not deeply probative of whether that subsequent practice is consistent with the original meaning of the Public Use Clause. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 370 (1995) (Thomas, J., concurring in judgment). At the time of the founding, “business corporations were only beginning to upset the old corporate model, in which the raison d’ętre of chartered associations was their service to the public,” Horwitz, supra, at 49—50, so it was natural to those who framed the first Public Use Clauses to think of mills as inherently public entities. The disagreement among state courts, and state legislatures’ attempts to circumvent public use limits on their eminent domain power, cannot obscure that the Public Use Clause is most naturally read to authorize takings for public use only if the government or the public actually uses the taken property.

(opinion didn't fit, continued in next post)
« Last Edit: September 08, 2008, 09:53:59 PM by DougMacG » Logged
DougMacG
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« Reply #31 on: September 08, 2008, 09:56:15 PM »

(Kelo v. New London, Justice Thomas dissenting continued)

III

    Our current Public Use Clause jurisprudence, as the Court notes, has rejected this natural reading of the Clause. Ante, at 8—10. The Court adopted its modern reading blindly, with little discussion of the Clause’s history and original meaning, in two distinct lines of cases: first, in cases adopting the “public purpose” interpretation of the Clause, and second, in cases deferring to legislatures’ judgments regarding what constitutes a valid public purpose. Those questionable cases converged in the boundlessly broad and deferential conception of “public use” adopted by this Court in Berman v. Parker, 348 U.S. 26 (1954), and Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), cases that take center stage in the Court’s opinion. See ante, 10—12. The weakness of those two lines of cases, and consequently Berman and Midkiff, fatally undermines the doctrinal foundations of the Court’s decision. Today’s questionable application of these cases is further proof that the “public purpose” standard is not susceptible of principled application. This Court’s reliance by rote on this standard is ill advised and should be reconsidered.

A

    As the Court notes, the “public purpose” interpretation of the Public Use Clause stems from Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 161—162 (1896). Ante, at 11. The issue in Bradley was whether a condemnation for purposes of constructing an irrigation ditch was for a public use. 164 U.S., at 161. This was a public use, Justice Peckham declared for the Court, because “[t]o irrigate and thus to bring into possible cultivation these large masses of otherwise worthless lands would seem to be a public purpose and a matter of public interest, not confined to landowners, or even to any one section of the State.” Ibid. That broad statement was dictum, for the law under review also provided that “[a]ll landowners in the district have the right to a proportionate share of the water.” Id., at 162. Thus, the “public” did have the right to use the irrigation ditch because all similarly situated members of the public–those who owned lands irrigated by the ditch—had a right to use it. The Court cited no authority for its dictum, and did not discuss either the Public Use Clause’s original meaning or the numerous authorities that had adopted the “actual use” test (though it at least acknowledged the conflict of authority in state courts, see id., at 158; supra, at 9, and n. 2). Instead, the Court reasoned that “[t]he use must be regarded as a public use, or else it would seem to follow that no general scheme of irrigation can be formed or carried into effect.” Bradley, supra, at 160—161. This is no statement of constitutional principle: Whatever the utility of irrigation districts or the merits of the Court’s view that another rule would be “impractical given the diverse and always evolving needs of society,” ante, at 8, the Constitution does not embody those policy preferences any more than it “enacts Mr. Herbert Spencer’s Social Statics.” Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting); but see id., at 58—62 (Peckham, J., for the Court).

    This Court’s cases followed Bradley’s test with little analysis. In Clark v. Nash, 198 U.S. 361 (1905) (Peckham, J., for the Court), this Court relied on little more than a citation to Bradley in upholding another condemnation for the purpose of laying an irrigation ditch. 198 U.S., at 369—370. As in Bradley, use of the “public purpose” test was unnecessary to the result the Court reached. The government condemned the irrigation ditch for the purpose of ensuring access to water in which “other land owners adjoining the defendant in error … might share,” 198 U.S., at 370, and therefore Clark also involved a condemnation for the purpose of ensuring access to a resource to which similarly situated members of the public had a legal right of access. Likewise, in Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527 (1906), the Court upheld a condemnation establishing an aerial right-of-way for a bucket line operated by a mining company, relying on little more than Clark, see Strickley, supra, at 531. This case, too, could have been disposed of on the narrower ground that “the plaintiff [was] a carrier for itself and others,” 200 U.S., at 531—532, and therefore that the bucket line was legally open to the public. Instead, the Court unnecessarily rested its decision on the “inadequacy of use by the general public as a universal test.” Id., at 531. This Court’s cases quickly incorporated the public purpose standard set forth in Clark and Strickley by barren citation. See, e.g., Rindge Co. v. County of Los Angeles, 262 U.S. 700, 707 (1923); Block v. Hirsh, 256 U.S. 135, 155 (1921); Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U.S. 30, 32 (1916); O’Neill v. Leamer, 239 U.S. 244, 253 (1915).

B

    A second line of this Court’s cases also deviated from the Public Use Clause’s original meaning by allowing legislatures to define the scope of valid “public uses.” United States v. Gettysburg Electric R. Co., 160 U.S. 668 (1896), involved the question whether Congress’ decision to condemn certain private land for the purpose of building battlefield memorials at Gettysburg, Pennsylvania, was for a public use. Id., at 679—680. Since the Federal Government was to use the lands in question, id., at 682, there is no doubt that it was a public use under any reasonable standard. Nonetheless, the Court, speaking through Justice Peckham, declared that “when the legislature has declared the use or purpose to be a public one, its judgment will be respected by the courts, unless the use be palpably without reasonable foundation.” Id., at 680. As it had with the “public purpose” dictum in Bradley, supra, the Court quickly incorporated this dictum into its Public Use Clause cases with little discussion. See, e.g., United States ex rel. TVA v. Welch, 327 U.S. 546, 552 (1946); Old Dominion Land Co. v. United States, 269 U.S. 55, 66 (1925).

    There is no justification, however, for affording almost insurmountable deference to legislative conclusions that a use serves a “public use.” To begin with, a court owes no deference to a legislature’s judgment concerning the quintessentially legal question of whether the government owns, or the public has a legal right to use, the taken property. Even under the “public purpose” interpretation, moreover, it is most implausible that the Framers intended to defer to legislatures as to what satisfies the Public Use Clause, uniquely among all the express provisions of the Bill of Rights. We would not defer to a legislature’s determination of the various circumstances that establish, for example, when a search of a home would be reasonable, see, e.g., Payton v. New York, 445 U.S. 573, 589—590 (1980), or when a convicted double-murderer may be shackled during a sentencing proceeding without on-the-record findings, see Deck v. Missouri, 544 U.S. ___ (2005), or when state law creates a property interest protected by the Due Process Clause, see, e.g., Castle Rock v. Gonzales, post, at __; Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576 (1972); Goldberg v. Kelly, 397 U.S. 254, 262—263 (1970).

    Still worse, it is backwards to adopt a searching standard of constitutional review for nontraditional property interests, such as welfare benefits, see, e.g., Goldberg, supra, while deferring to the legislature’s determination as to what constitutes a public use when it exercises the power of eminent domain, and thereby invades individuals’ traditional rights in real property. The Court has elsewhere recognized “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic,” Payton, supra, at 601, when the issue is only whether the government may search a home. Yet today the Court tells us that we are not to “second-guess the City’s considered judgments,” ante, at 18, when the issue is, instead, whether the government may take the infinitely more intrusive step of tearing down petitioners’ homes. Something has gone seriously awry with this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not. Once one accepts, as the Court at least nominally does, ante, at 6, that the Public Use Clause is a limit on the eminent domain power of the Federal Government and the States, there is no justification for the almost complete deference it grants to legislatures as to what satisfies it.

C

    These two misguided lines of precedent converged in Berman v. Parker, 348 U.S. 26 (1954), and Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984). Relying on those lines of cases, the Court in Berman and Midkiff upheld condemnations for the purposes of slum clearance and land redistribution, respectively. “Subject to specific constitutional limitations,” Berman proclaimed, “when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation.” 348 U.S., at 32. That reasoning was question begging, since the question to be decided was whether the “specific constitutional limitation” of the Public Use Clause prevented the taking of the appellant’s (concededly “nonblighted”) department store. Id., at 31, 34. Berman also appeared to reason that any exercise by Congress of an enumerated power (in this case, its plenary power over the District of Columbia) was per se a “public use” under the Fifth Amendment. Id., at 33. But the very point of the Public Use Clause is to limit that power. See supra, at 3—4.

    More fundamentally, Berman and Midkiff erred by equating the eminent domain power with the police power of States. See Midkiff, 467 U.S., at 240 (“The ‘public use’ requirement is … coterminous with the scope of a sovereign’s police powers”); Berman, 348 U.S., at 32. Traditional uses of that regulatory power, such as the power to abate a nuisance, required no compensation whatsoever, see Mugler v. Kansas, 123 U.S. 623, 668—669 (1887), in sharp contrast to the takings power, which has always required compensation, see supra, at 3, and n. 1. The question whether the State can take property using the power of eminent domain is therefore distinct from the question whether it can regulate property pursuant to the police power. See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014 (1992); Mugler, supra, at 668—669. In Berman, for example, if the slums at issue were truly “blighted,” then state nuisance law, see, e.g., supra, at 5—6; Lucas, supra, at 1029, not the power of eminent domain, would provide the appropriate remedy. To construe the Public Use Clause to overlap with the States’ police power conflates these two categories.3

    The “public purpose” test applied by Berman and Midkiff also cannot be applied in principled manner. “When we depart from the natural import of the term ‘public use,’ and substitute for the simple idea of a public possession and occupation, that of public utility, public interest, common benefit, general advantage or convenience … we are afloat without any certain principle to guide us.” Bloodgood v. Mohawk & Hudson R. Co., 18 Wend. 9, 60—61 (NY 1837) (opinion of Tracy, Sen.). Once one permits takings for public purposes in addition to public uses, no coherent principle limits what could constitute a valid public use—at least, none beyond Justice O’Connor’s (entirely proper) appeal to the text of the Constitution itself. See ante, at 1—2, 8—13 (dissenting opinion). I share the Court’s skepticism about a public use standard that requires courts to second-guess the policy wisdom of public works projects. Ante, at 16—19. The “public purpose” standard this Court has adopted, however, demands the use of such judgment, for the Court concedes that the Public Use Clause would forbid a purely private taking. Ante, at 7—8. It is difficult to imagine how a court could find that a taking was purely private except by determining that the taking did not, in fact, rationally advance the public interest. Cf. ante, at 9—10 (O’Connor, J., dissenting) (noting the complicated inquiry the Court’s test requires). The Court is therefore wrong to criticize the “actual use” test as “difficult to administer.” Ante, at 8. It is far easier to analyze whether the government owns or the public has a legal right to use the taken property than to ask whether the taking has a “purely private purpose”—unless the Court means to eliminate public use scrutiny of takings entirely. Ante, at 7—8, 16—17. Obliterating a provision of the Constitution, of course, guarantees that it will not be misapplied.

    For all these reasons, I would revisit our Public Use Clause cases and consider returning to the original meaning of the Public Use Clause: that the government may take property only if it actually uses or gives the public a legal right to use the property.

IV

    The consequences of today’s decision are not difficult to predict, and promise to be harmful. So-called “urban renewal” programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect “discrete and insular minorities,” United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938), surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects. The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse. It encourages “those citizens with dis-
proportionate influence and power in the political pro-
cess, including large corporations and development
firms” to victimize the weak. Ante, at 11 (O’Connor, J., dissenting).

    Those incentives have made the legacy of this Court’s “public purpose” test an unhappy one. In the 1950’s, no doubt emboldened in part by the expansive understanding of “public use” this Court adopted in Berman, cities “rushed to draw plans” for downtown development. B. Frieden & L. Sagalayn, Downtown, Inc. How America Rebuilds Cities 17 (1989). “Of all the families displaced by urban renewal from 1949 through 1963, 63 percent of those whose race was known were nonwhite, and of these families, 56 percent of nonwhites and 38 percent of whites had incomes low enough to qualify for public housing, which, however, was seldom available to them.” Id., at 28. Public works projects in the 1950’s and 1960’s destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland. Id., at 28—29. In 1981, urban planners in Detroit, Michigan, uprooted the largely “lower-income and elderly” Poletown neighborhood for the benefit of the General Motors Corporation. J. Wylie, Poletown: Community Betrayed 58 (1989). Urban renewal projects have long been associated with the displacement of blacks; “n cities across the country, urban renewal came to be known as ‘Negro removal.’ ” Pritchett, The “Public Menace” of Blight: Urban Renewal and the Private Uses of Eminent Domain, 21 Yale L. & Pol’y Rev. 1, 47 (2003). Over 97 percent of the individuals forcibly removed from their homes by the “slum-clearance” project upheld by this Court in Berman were black. 348 U.S., at 30. Regrettably, the predictable consequence of the Court’s decision will be to exacerbate these effects.
***
    The Court relies almost exclusively on this Court’s prior cases to derive today’s far-reaching, and dangerous, result. See ante, at 8—12. But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham’s high opinion of reclamation laws, see supra, at 11. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning. For the reasons I have given, and for the reasons given in Justice O’Connor’s dissent, the conflict of principle raised by this boundless use of the eminent domain power should be resolved in petitioners’ favor. I would reverse the judgment of the Connecticut Supreme Court.

Notes

1.  Some state constitutions at the time of the founding lacked just compensation clauses and took property even without providing compensation. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1056—1057 (1992) (Blackmun, J., dissenting). The Framers of the Fifth Amendment apparently disagreed, for they expressly prohibited uncompensated takings, and the Fifth Amendment was not incorporated against the States until much later. See id., at 1028, n. 15.

2.  Compare ante, at 8, and n. 8 (majority opinion) (noting that some state courts upheld the validity of applying the Mill Acts to private purposes and arguing that the “ ‘use by the public’ test” “eroded over time”), with, e.g., Ryerson v. Brown, 35 Mich. 333, 338—339 (1877) (holding it “essential” to the constitutionality of a Mill Act “that the statute should require the use to be public in fact; in other words, that it should contain provisions entitling the public to accommodations”); Gaylord v. Sanitary Dist. of Chicago, 204 Ill. 576, 581—584, 68 N. E. 522, 524 (1903) (same); Tyler v. Beacher, 44 Vt. 648, 652—656 (1871) (same); Sadler v. Langham, 34 Ala. 311, 332—334 (1859) (striking down taking for purely private road and grist mill); Varner v. Martin, 21 W. Va. 534, 546—548, 556—557, 566—567 (1883) (grist mill and private road had to be open to public for them to constitute public use); Harding v. Goodlett, 3 Yerg. 41, 53 (1832); Jacobs v. Clearview Water Supply Co., 220 Pa. 388, 393—395, 69 A. 870, 872 (1908) (endorsing actual public use standard); Minnesota Canal & Power Co. v. Koochiching Co., 97 Minn. 429, 449—451, 107 N. W. 405, 413 (1906) (same); Chesapeake Stone Co. v. Moreland, 126 Ky. 656, 663—667, 104 S. W. 762, 765 (Ct. App. 1907) (same); Note, Public Use in Eminent Domain, 21 N. Y. U. L. Q. Rev. 285, 286, and n. 11 (1946) (calling the actual public use standard the “majority view” and citing other cases).

3.  Some States also promoted the alienability of property by abolishing the feudal “quit rent” system, i.e., long-term leases under which the proprietor reserved to himself the right to perpetual payment of rents from his tenant. See Vance, The Quest for Tenure in the United States, 33 Yale L. J. 248, 256—257, 260—263 (1923). In Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), the Court cited those state policies favoring the alienability of land as evidence that the government’s eminent domain power was similarly expansive, see id., at 241—242, and n. 5. But they were uses of the States’ regulatory power, not the takings power, and therefore were irrelevant to the issue in Midkiff. This mismatch underscores the error of conflating a State’s regulatory power with its taking power.
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Crafty_Dog
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« Reply #32 on: September 09, 2008, 03:04:26 AM »

Over to you JDN  smiley
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« Reply #33 on: September 09, 2008, 11:01:13 AM »

Over to you JDN  smiley

Gee thanks Crafty    smiley

Doug said, "... maybe we have another way of settling this..."  While I haven't played
squash in a while, I think I will start practicing...  My odds, albeit weak, still might be better on the squash court    smiley

PS Is the question this particular case?  I too am against and agree with Thomas that "modern" courts have wrongly given a carte blanche
to "public purpose" and eminent domain.  Yet, often the "public purpose" should provail; it depends upon the need and circumstances.  Hospitals, roads, schools, etc. are all important for the public good.

As an example of abuse, in a nearly town (Alhambra) the city has given heavy handed notice (eminent domain) and intends to destroy a large public (privately owned) parking lot (note - parking is in short supply) and two small businesses.  Why?  To build a strip mall...  One has to wonder...  Why is the city interceding and claiming eminent domain... I don't get it.

As for Thomas, he sleeps on the court and in general puts me to sleep.  He is not a leader and rarely writes the majority opinion.  He seems  to merely follow Scalla and rarely speaks.  That said, I too often agree with his vote.  Yet I hope for more from people on the Supreme Court.
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« Reply #34 on: September 09, 2008, 12:00:14 PM »

The question was the depth of Thomas' intellect.  My example was the opinion posted.  He is no lightweight.  That Scalia or others find themselves on the same side does not mean Thomas followed them. He VERY often writes a separate opinion concurring or dissent. If the majority didn't sign on with this opinion, from my point of view, shame on them. 

Jan Crawford Greenburg covers the court for the PBS Jim Lehrer News Hour, ABC News, and Chicago Tribune.  I find her to be informed and objective.  She wrote this for the Wall Street Journal in 2007: (this was posted previously)

AT LAW
The Truth About Clarence Thomas
He's an independent voice, not a Scalia lackey.
by JAN CRAWFORD GREENBURG
January 28, 2007 http://www.opinionjournal.com/extra/?id=110009590

Clarence Thomas has borne some of the most vitriolic personal attacks in Supreme Court history. But the persistent stereotypes about his views on the law and subordinate role on the court are equally offensive--and demonstrably false. An extensive documentary record shows that Justice Thomas has been a significant force in shaping the direction and decisions of the court for the past 15 years.

That's not the standard storyline. Immediately upon his arrival at the court, Justice Thomas was savaged by court-watchers as Antonin Scalia's dutiful apprentice, blindly following his mentor's lead. It's a grossly inaccurate portrayal, imbued with politically incorrect innuendo, as documents and notes from Justice Thomas's very first days on the court conclusively show. Far from being a Scalia lackey, the rookie jurist made clear to the other justices that he was willing to be the solo dissenter, sending a strong signal that he would not moderate his opinions for the sake of comity. By his second week on the bench, he was staking out bold positions in the private conferences where justices vote on cases. If either justice changed his mind to side with the other that year, it was Justice Scalia joining Justice Thomas, not the other way around.

Much of the documentary evidence for this comes from the papers of Justice Harry Blackmun, who recorded the justices' votes and took detailed notes explaining their views. I came across vivid proof while reading the papers as part of my research for a book about how the Rehnquist Court--a court with seven justices appointed by Republican presidents--evolved into an ideological and legal disappointment for conservatives.

Justice Thomas's first term was especially interesting. He replaced legendary liberal icon Thurgood Marshall, and joined the court just a year after David Souter took William Brennan's seat. There appeared to be a solid conservative majority, with the court poised to finally dismember the liberal legacy of the Warren Court. But that year it instead lurched inexplicably to the left--even putting Roe v. Wade on more solid ground.

Justice Thomas's first year on the job brought to life the adage that a new justice makes a new court. His entry didn't merely change the vote of the liberal justice he replaced. It turned the chessboard around entirely, rearranging ideological alliances. Justice Thomas acted as a catalyst in different ways, shoring up conservative positions in some cases and spurring others--the moderate Justice Sandra Day O'Connor, in particular--to realign themselves into new voting blocs.

Consider a criminal case argued during Justice Thomas's first week. It concerned a thief's effort to get out of a Louisiana mental institution and the state's desire to keep him there. Eight justices voted to side with the thief. Justice Thomas dissented, arguing that although it "may make eminent sense as a policy matter" to let the criminal out of the mental institution, nothing in the Constitution required "the states to conform to the policy preferences of federal judges."

After he sent his dissenting opinion to the other justices, as is custom, Justices Rehnquist, Scalia and Kennedy changed their votes. The case ended up 5-4.

Justice Thomas's dissents persuaded Justice Scalia to change his mind several times that year. Even in Hudson v. McMillan, the case that prompted the New York Times to infamously label Justice Thomas the "youngest, cruelest justice," he was again, initially, the lone dissenter. Justice Scalia changed his vote after he read Justice Thomas's dissent, which said a prison inmate beaten by guards had several options for redress--but not under the Eighth Amendment's prohibition of "cruel and unusual punishment."

From the beginning, Justice Thomas was an independent voice. His brutal confirmation hearings only enforced his autonomy, making him impervious to criticism from the media and liberal law professors. He'd told his story, and no one listened. From then on, he did not care what they said about him.

Clarence Thomas, for example, is the only justice who rarely asks questions at oral arguments. One reason is that he thinks his colleagues talk too much from the bench, and he prefers to let the lawyers explain their case with fewer interruptions. But his silence is sometimes interpreted as a lack of interest, and friends have begged him to ask a few questions to dispel those suggestions. He refuses to do it. "They have no credibility," he says of critics. "I am free to live up to my oath."

But the forcefulness and clarity of Justice Thomas's views, coupled with wrongheaded depictions of him doing Justice Scalia's bidding, created an internal dynamic that caused the court to make an unexpected turn in his first year. Justice O'Connor--who sought ideological balance--moved to the left. With the addition of Chief Justice John Roberts and Associate Justice Samuel Alito, the court now is poised to finally fulfill the hopes of the conservative movement. As George W. Bush told his legal advisers early in his presidency, he wanted justices in "the mold of Thomas and Scalia." Interestingly, on President Bush's marquee, Justice Thomas got top billing.
« Last Edit: September 09, 2008, 12:28:14 PM by DougMacG » Logged
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« Reply #35 on: September 09, 2008, 12:58:10 PM »

Ok, ok, ok, I am busy looking for a sweater, a shirt, a sheet, SOMETHING white, anything white to wave...   grin

I stand corrected; Mea Culpa; I will pay more attention to Thomas and I now have greater respect. Thank you;
I should not have simply followed the herd, rather I should have analyzed his opinions and influence as you have
properly done. 

But then that is why I come to this forum; to learn.
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« Reply #36 on: September 09, 2008, 09:07:30 PM »

Its why its such good fun around here.  Glad to have you a part of it.
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« Reply #37 on: January 10, 2009, 09:42:09 AM »

Barack Obama's cabinet choices are understandably getting most media attention, but everyone knows policy is also made by the sub-cabinet. So we think more public scrutiny should be drawn to Mr. Obama's choice of Dawn Johnsen to lead one of the executive branch's most important legal offices. Her appointment makes sense for a President Gulliver, but not for a Commander in Chief fighting terrorists.


Ms. Johnsen became famous in the left-wing blogosphere as an especially arch critic of the Bush Administration's war on terror. As an Indiana University law professor, she took to the Web with such lawyerly analysis as "rogue," "lawless," "outrage," and that's the mild stuff. Now she's been nominated to run the Justice Department's Office of Legal Counsel, which interprets the law for the entire executive branch.

One of the OLC's main duties is to defend the Presidency against the inevitable encroachment of the judiciary and Congress on Constitutional authority, executive privilege, war powers, and so forth. Ms. Johnsen knows this, or should, having served as acting OLC head in the Clinton Administration between 1997 and 1998. The office has since become all the more central in a war on terror that has been "strangled by law," to quote Jack Goldsmith, a former Bush OLC chief.

Yet Ms. Johnsen seems to think her job isn't to defend the Presidency but to tie it down with even more legal ropes. She has written that "an essential source of constraint is often underappreciated and underestimated: legal advisors within the executive branch." And in touting her qualifications, the Obama transition cited her recent law review articles "What's a President to Do?: Interpreting the Constitution in the Wake of the Bush Administration's Abuses"; and "Faithfully Executing the Laws: Internal Legal Constraints on Executive Power."

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In other words, Mr. Obama has nominated as his main executive branch lawyer someone who believes in diminishing the powers of the executive branch. This is akin to naming a conscientious objector as the head of the armed forces, or hiring your wife's divorce lawyer to handle your side of the settlement too.

It's also a radical reinvention of the Framers' view that the three branches of the federal government would vigorously assert their powers to achieve the proper political balance. For this reason, OLC's longstanding jurisprudence -- reaching across Administrations of both parties -- emphasizes an expansive reading of Presidential authority. For example, the office has always filed opinions opposing the 1973 War Powers Act, which sought to limit the chief executive's ability to send military forces abroad. Such opinions covered both Bill Clinton's intervention in Kosovo and George H.W. Bush's in Somalia.

Ms. Johnsen's work ignores all of this in an attempt to assail the entire scope of Bush counterterrorism policy, from surveillance to detention to interrogation. She claims that the OLC "misinterpreted relevant constitutional authorities, particularly when seeking to justify actions otherwise prohibited by law." She pays special attention to John Yoo's August 2002 OLC memorandum that set down the legal limits for interrogation, which she calls "the Torture Opinion."

In Today's Opinion Journal
 

REVIEW & OUTLOOK

Muslims Against HamasA Regulator With Promise – Really

Ms. Johnsen accuses Mr. Yoo of "seeking maximum flexibility -- that is, the ability to use the most extreme methods possible without risking criminal liability -- in interrogations of suspected al Qaeda operatives." She means this as a condemnation. But this in fact is the OLC's job -- to explore the legal boundaries of vague statutes and treaties to define where lawful interrogation ends and torture begins. You can debate that Mr. Yoo went too far, as Mr. Goldsmith later did when the Bush Administration withdrew the opinion. But Mr. Yoo was acting in good faith in response to the CIA's request for legal clarity, while leaving the policy choices to the war fighters.

And that's where Ms. Johnsen's premises are most dangerous. "In considering whether a proposed action is lawful," she writes, "the proper OLC inquiry is not simply whether the executive branch can get away with it," in the sense of writing opinions that can "withstand judicial review." She sees the OLC staff not as legal technicians working on behalf of the President but as a policy outfit free to quash Presidential actions with which it happens to disagree.

This is far from an academic exercise, because the OLC's advice is traditionally binding for the executive branch except in rare cases where it is overruled by the President or Attorney General. To the extent that such a mentality seeps across the executive branch, it will begin to make our spies and other war fighters risk-averse and overcautious. This is precisely what happened during the Clinton years after Deputy Attorney General Jamie Gorelick's infamous 1995 memo instructed FBI agents and federal prosecutors to go "beyond what the law requires" in limiting their collaboration against al Qaeda.

Suffocating our terror fighters with excessive legal caution can only impair the difficult task of defending a free society that believes in the rule of law from terrorists who believe in neither freedom nor law. If President Obama matures under the burden and accountability of stopping the next terror attack, he may come to regret having Dawn Johnsen around.
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« Reply #38 on: January 10, 2009, 09:50:53 AM »

Second post of the morning:

By DAVID B. RIVKIN JR. and BRUCE D. BROWN
The farce of foreigners suing Americans for defamation in overseas forums, where the law does not sufficiently protect free speech, is so well-known that it has a fitting nickname: libel tourism. And London is its hot destination. Particularly since 9/11, foreign nationals have cynically exploited British courts in an attempt to stifle any discussion by American journalists about the dangers of jihadist ideology and terrorist supporters.

At long last, U.S. politicians are waking up to the dangers posed by libel tourism, which threatens both the First Amendment and American national security. The trouble is that their efforts, though well-intentioned, are relatively toothless and constitutionally problematic.

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Early last year, New York State passed the nation's first anti-libel tourism law. The law allows state courts to assert authority over foreign citizens based solely on a libel judgment they have obtained abroad against a New Yorker.

The statute's passage was prompted by libel tourism's most frequent flier, Saudi bigwig Khalid bin Mahfouz. He brought a claim in England against author Rachel Ehrenfeld, who alleged in a 2003 book that the international moneyman also financed terrorism. Although "Funding Evil" was published in the U.S., Mr. Mahfouz relied upon (and the British court accepted) the fact that the book was purchased by a small number of British readers on the Internet as sufficient grounds to sue Ms. Ehrenfeld in England.

Under the New York law, the target of a foreign libel suit does not even have to defend himself overseas. If a judgment is entered against him, he can seek a declaration that the foreign tribunal did not live up to First Amendment standards and therefore its ruling cannot be enforced against his U.S. assets. While emotionally satisfying, it does not protect a libel tourism victim's assets outside the U.S.

Moreover, the New York law takes a constitutionally dubious approach to the acquisition of personal jurisdiction over libel tourists. U.S courts have never before claimed jurisdiction over individuals who have no ties whatsoever to the U.S., other than suing an American in a foreign court.

Rep. Peter King (D., N.Y.) and Sens. Arlen Specter (R., Pa.) and Joe Lieberman (I., Conn.) have been advancing federal libel tourism bills. Unfortunately these bills, which are modeled on New York's, carry the same constitutional risks.

It is a mistake to respond to libel tourism by seeking to catch foreign plaintiffs with no U.S. contacts in our jurisdictional net. This smacks of the same legal one-upmanship that makes libel tourism itself so odious.

It is high time for a strategy that would stop libel tourists dead in their tracks, without sacrificing constitutional values. The answer lies not in stretching claims of personal jurisdiction, but in federal legislation that would enable American publishers to sue for damages, including punitive damages, for the harms they have suffered. A proper federal libel tourism bill would punish conduct that takes place overseas -- in this case, the commencement of sham libel actions in foreign courts -- by utilizing the well-recognized congressional authority to apply U.S. laws extraterritorially when compelling interests demand it. The Alien Tort Statute, for example, gives U.S. courts subject matter jurisdiction over brutal acts that violate the "law of nations" wherever they may occur. More recently, Congress has created civil remedies to enable victims of international terrorism and human trafficking to sue in our courts for money damages.

But in devising a robust, substantive cause of action for damages -- a bludgeon that Messrs. King, Specter and Lieberman appropriately include in their bills -- Congress should not change normal personal jurisdiction rules. In order to sue foreigners under the federal libel tourism bill and remain consistent with due process, these individuals would have to visit or transact business in the U.S. in order for the U.S. courts to acquire jurisdiction over them. (Radovan Karadzic, the Bosnian Serb leader charged with genocide, was famously served with an Alien Tort complaint while leaving a Manhattan hotel restaurant.)

Under such a law, U.S. courts would be asked to evaluate, at the beginning stages of a foreign lawsuit, whether the plaintiffs are seeking to punish speech protected under the First Amendment. This type of early intervention by judges has worked very well in the 26 states that have passed laws to discourage frivolous libel suits here in the U.S.

To give this approach sufficiently sharp teeth, the damages awarded in libel tourism cases would have to be very substantial. While it is somewhat unusual in tort law to set statutory damages, it presents no constitutional problems. Accordingly, an effective federal bill should give courts the authority to impose damages that amount to double any foreign judgment, plus court costs and attorneys' fees (in both proceedings) for good measure. Habitual libel tourists who obviously seek to impair Americans' First Amendment freedoms should face even stiffer fines. Such a robust response would make foreign libel adventures fiscally disadvantageous, and should deter most overseas suits from ever being filed.

For libel tourists our courts can't fairly touch, it is better to leave them alone than to overreach and tread into unconstitutional territory. But they may yet pay a price. Availing themselves the pleasures of American life could one day be costly. As Karadzic learned, if you violate U.S. law, don't dine out in Manhattan.

Messrs. Rivkin and Brown are partners in the Washington, D.C., office of Baker Hostetler LLP.
« Last Edit: January 11, 2009, 04:08:36 PM by Crafty_Dog » Logged
Crafty_Dog
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« Reply #39 on: February 10, 2009, 06:18:35 PM »

President Obama has learned that choosing a Cabinet without proper vetting can produce painful headaches. The same may be said of some sub-cabinet officials at the Justice Department, now being rushed through the confirmation process. Today the Senate Judiciary Committee holds hearings on Elena Kagan to be Solicitor General and Thomas Perrelli to be Associate Attorney General. Their consideration should not come at the expense of a thorough airing of their records.

Much government policy gets made at the sub-cabinet level. Attorney General Eric Holder may be on the front pages, but it is the subalterns whose work will leave a mark on the country's laws and legal policy. Last week's hearing for Deputy Attorney General David Ogden raised issues involving his work on abortion, the death penalty and obscenity cases while in private practice. Mr. Ogden told the committee he did not always share the controversial views of those he represented.


At the confirmation, Senator Jon Kyl said Mr. Ogden had "talked about the need to employ human compassion and described a tension between the rule of law and human compassion in judging cases." This resembles former Senator Obama's comment on the campaign trail that "empathy" was an important qualification for a judge. Pressed by Senator Kyl, Mr. Ogden said, "I think it's important, as I think the President does, that judges understand the circumstances of the people who are in front of them and understand the consequences of their rulings. I think that's quite important. But in the end, the law has to guide legal judgment."

In an op-ed in the Legal Times earlier in his career, Mr. Ogden wrote that "Constitutional interpretation cannot be limited to ascertain the way a particular law would have been viewed by the Framers." We'll see.

As a dean of Harvard Law School, Ms. Kagan has a thinner paper trail, though there are areas of her record the Senators should explore today, including her opposition to the Solomon Amendment. This law makes it possible to deny federal money to colleges and universities that ban military recruiters on campus -- an action Harvard Law School took under her guidance in 2004. In 2006 the Supreme Court ruled the Solomon Amendment constitutional with an 8-0 decision. Mr. Perrelli was known for his work with the Florida ACLU in defense of Terry Schiavo's husband in the hard-fought case over whether to take the Florida woman off life support.

None of these positions may trump the appropriate deference President Obama deserves in choosing those who serve him, but they qualify as legitimate information to be shared with the voters. While Mr. Obama has staked moderate positions on many issues, appointing sub-cabinet officials with more radical views amounts to a kind of back-door activism, out of view of the voters. Shortened timelines for confirmation leaves the Senate with little time to consider the thousands of pages of documents that were submitted for consideration prior to these hearings.

Complicit in this haste has been Judiciary Chairman Patrick Leahy, who arranged the Justice hearings at lightning speed, a sharp turn from the endless stalling that marked his treatment of Bush nominees. Ms. Kagan's hearing comes only 36 days after her nomination -- a sprint compared to the average 56 days for Solicitor General nominees since 1980 or the 74 days since September 11, 2001. Similar fast reviews apply to Messrs. Perrelli and Ogden.

Elections have consequences and no one should be surprised that Mr. Obama is picking people who represent the left of the political spectrum. But Senate confirmation exists for a reason. The point is less to give Senators a veto than it is to inform the public. These people will govern in their name.
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Crafty_Dog
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« Reply #40 on: March 11, 2009, 08:30:51 AM »

World Net Daily is not a particularly reliable source, and in the opinion of some, this is a crank subject-- but if we stay with logic alone, I do not see why the proof of BO's qualifications should not be seen by everyone.
================

Wednesday, March 11, 2009


Lawyer confronts justice about prez's qualifications



By Bob Unruh


WorldNetDaily

A lawyer lobbying the U.S. Justice Department and the U.S. Supreme Court for a review of Barack Obama's qualifications to be president says a key conservative justice has hinted that another conservative justice has been voting against hearing the dispute.

According to Orly Taitz, a California attorney working through her Defend Our Freedoms Foundation on several cases challenging Obama, said she was presented with an opportunity to ask a question of Supreme Court Justice Antonin Scalia yesterday.

The issue of Obama's eligibility has been raised before the Supreme Court at least four times already but has yet to be given a single hearing. Cases have been brought by Taitz, Philip Berg, Cort Wrotnowski and Leo Donofrio.

While the requests have been heard "in conference" by the justices, no hearings have resulted on the evidence. WND previously has reported that cases brought to individual justices on an emergency basis can be discussed in such conferences, but they need the affirmative vote from four justices before a hearing on the merits can be scheduled.

The Supreme Court today is considered to have mainly a 4-4 conservative-liberal split, with one swing vote on most issues. On the conservative side generally are Chief Justice John Roberts, Justice Samuel Alito, Scalia and Justice Clarence Thomas. Justice Anthony Kennedy often is the swing vote.  The liberal side frequently includes Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens.

No explanations on the court's response to the Obama citizenship issue have been offered until now.

Taitz reported she attended a reception for Scalia and stood "right by the mic, just to make sure I have an opportunity to ask a question. Only four lawyers out of about 300 in the audience got to ask their questions and I was lucky to be one of them."

She said, "I told Scalia that I was an attorney that filed Lightfoot v. Bowen that Chief Justice Roberts distributed for conference on Jan. 23 and now I represent nine state reps and 120 military officers, many of them high ranked, and I want to know if they will hear Quo Warranto and if they would hear it on original jurisdiction, if I bring Hawaii as an additional defendant to unseal the records and ascertain Obama's legitimacy for presidency."

Taitz said she had some worries asking the question.

"I have to say that I prepared myself to a lot of boo-ing, knowing that Los Angeles trial lawyers and entertainment elite are Obama's stronghold, however there was no boo-ing, no negative remarks," she said. "I actually could see a lot of approving nods, smiles, many gasped and listened intensely. I could tell, that even Obama's strongest supporters wanted to know the answer.

"Scalia stated that it would be heard if I can get four people to hear it. He repeated, you need four for the argument. I got a feeling that he was saying that one of these four that call themselves constitutionalists went to the other side," Taitz said.

"He did not say that it is a political question, he did not say that it is for the legislature to decide. For example, right after me another attorney has asked him about his case of taxing some Internet commerce and right away Scalia told him that he should address it with the legislature. He did not say it to me. He did not say that Quo Warranto is antiquated or not appropriate. No, just get four," she said.

She then bought Scalia's book and waited in line to get it autographed.

"I gave him the books to sign and asked, 'Tell me what to do, what can I do, those soldiers [her plaintiffs] can be court-martialed for asking a legitimate question, who is the president, is he legitimate.' He said, 'Bring the case, I'll hear it, I don't know about others.'"

Taitz' latest effort is a case of Quo Warranto submitted to U.S. Attorney General Eric Holder.

The legal phrase essentially means an explanation is being demanded for what authority Obama is using to act as president. An online constitutional resource says Quo Warranto "affords the only judicial remedy for violations of the Constitution by public officials and agents."

The plaintiffs allege Obama failed to submit prima facie evidence of his qualifications before Jan. 20, 2009.

"Election officers failed to challenge, validate or evaluate his qualifications. Relators submit that as president elect, Respondent Obama failed [tO] qualify per U.S. CONST. Amend. XX [paragraph] 3," the document said.

John Eidsmoe, an expert on the U.S. Constitution working with the Foundation on Moral Law, said the demand is a legitimate course of action.

"She basically is asking, 'By what authority' is Obama president," he told WND. "In other words, 'I want you to tell me by what authority. I don't really think you should hold the office.'"

Taitz said Americans should flood Holder's office with calls, e-mails and faxes, urging him to take action on the case.

WND has reported on dozens of legal challenges to Obama's status as a "natural born citizen." The Constitution, Article 2, Section 1, states, "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President."

Some of the lawsuits question whether he was actually born in Hawaii, as he insists. If he was born out of the country, Obama's American mother, the suits contend, was too young at the time of his birth to confer American citizenship to her son under the law at the time.

Other challenges have focused on Obama's citizenship through his father, a Kenyan subject to the jurisdiction of the United Kingdom at the time of his birth, thus making him a dual citizen. The cases contend the framers of the Constitution excluded dual citizens from qualifying as natural born.

Where's the proof Barack Obama was born in the U.S. or that he fulfills the "natural-born American" clause in the Constitution? If you still want to see it, join more than 300,000 others and sign up now!

Although Obama officials have told WND all such allegations are "garbage," here is a partial listing and status update for some of the cases over Obama's eligibility:

New Jersey attorney Mario Apuzzo has filed a case on behalf of Charles Kerchner and others alleging Congress didn't properly ascertain that Obama is qualified to hold the office of president.

Pennsylvania Democrat Philip Berg has three cases pending, including Berg vs. Obama in the 3rd U.S. Circuit Court of Appeals, a separate Berg vs. Obama which is under seal at the U.S. District Court level and Hollister vs. Soetoro a/k/a Obama, (now dismissed) brought on behalf of a retired military member who could be facing recall to active duty by Obama.


Leo Donofrio of New Jersey filed a lawsuit claiming Obama's dual citizenship disqualified him from serving as president. His case was considered in conference by the U.S. Supreme Court but denied a full hearing.

Cort Wrotnowski filed suit against Connecticut's secretary of state, making a similar argument to Donofrio. His case was considered in conference by the U.S. Supreme Court, but was denied a full hearing.

Former presidential candidate Alan Keyes headlines a list of people filing a suit in California, in a case handled by the United States Justice Foundation, that asks the secretary of state to refuse to allow the state's 55 Electoral College votes to be cast in the 2008 presidential election until Obama verifies his eligibility to hold the office. The case is pending, and lawyers are seeking the public's support.

Chicago attorney Andy Martin sought legal action requiring Hawaii Gov. Linda Lingle to release Obama's vital statistics record. The case was dismissed by Hawaii Circuit Court Judge Bert Ayabe.


Lt. Col. Donald Sullivan sought a temporary restraining order to stop the Electoral College vote in North Carolina until Barack Obama's eligibility could be confirmed, alleging doubt about Obama's citizenship. His case was denied.


In Ohio, David M. Neal sued to force the secretary of state to request documents from the Federal Elections Commission, the Democratic National Committee, the Ohio Democratic Party and Obama to show the presidential candidate was born in Hawaii. The case was denied.


Also in Ohio, there was the Greenberg v. Brunner case which ended when the judge threatened to assess all case costs against the plaintiff.


In Washington state, Steven Marquis sued the secretary of state seeking a determination on Obama's citizenship. The case was denied.


In Georgia, Rev. Tom Terry asked the state Supreme Court to authenticate Obama's birth certificate. His request for an injunction against Georgia's secretary of state was denied by Georgia Superior Court Judge Jerry W. Baxter.

California attorney Orly Taitz has brought a case, Lightfoot vs. Bowen, on behalf of Gail Lightfoot, the vice presidential candidate on the ballot with Ron Paul, four electors and two registered voters.
In addition, other cases cited on the RightSideofLife blog as raising questions about Obama's eligibility include:

In Texas, Darrel Hunter vs. Obama later was dismissed.


In Ohio, Gordon Stamper vs. U.S. later was dismissed.


In Texas, Brockhausen vs. Andrade.


In Washington, L. Charles Cohen vs. Obama.


In Hawaii, Keyes vs. Lingle, dismissed.

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DougMacG
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« Reply #41 on: March 11, 2009, 11:14:24 AM »

It seems to me a matter of timeliness that has elapsed.  The accusers needed to challenge this when he went on the ballot, not when he started winning or after he won and was sworn in.  This case was tried by the voters who knew he had a foreign father and spent overseas time as a child.

Let's say for sake of argument there is something fishy about the original birth certificate on file in Hawaii.  The accusers still would need more than a hunch and multiple theories to get a judge to force a look.  And what if they now find a sloppy or reconstituted document?  Then what? Put the document on trial.  Prove it's not original. And then what?  Even a right-wing congress or conservative court would still not remove him now from office IMO.  If the story of the sources in the WND piece are true, which is doubtful because Justices don't speak candidly on open matters to their spouses, much less at book signings, it sounds like you would have 3 votes maximum out of 9 at most AFTER proving the President ineligible to serve.  I think no Justice and no congress would reopen this under any circumstance

I watched the hysteria on liberal boards about non-stop Bush impeachment talk that made it all the way to the fringe members of congress.  The answer then was that the President will leave at the end of his term and in this case after being defeated or serving two terms. Trite but true: elections have consequences.  There is a way forward and this isn't it.
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G M
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« Reply #42 on: March 11, 2009, 12:11:14 PM »

What we know:

Obama has, and has had a US passport issued by the State Dept.

To be issued a US passport, one must give proof of US citizenship by birth or naturalization.

No one has come forward claiming Obama was naturalized as either a child or adult.

Therefore: It is reasonable to assume the US State Depertment accepted his birth cert as proof of his US citizenship.

How long are we going to keep flogging this horse? I'm seeing signs of rigor mortis.....  rolleyes
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Crafty_Dog
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« Reply #43 on: March 23, 2009, 07:09:10 AM »

When does a single policy blunder herald much larger economic damage? Sometimes it's hard to know ahead of time. Few in Congress thought the Smoot-Hawley tariff was a disaster in 1930, but it led to retaliation and a collapse of world trade. The question amid Washington's AIG bonus panic is whether Congress's war on private contracts and the financial system is a similarly destructive moment.

It is certainly one of the more amazing and senseless acts of political retribution in American history. In its bipartisan rage, the House saw fit last week not merely to punish the employees of AIG's Financial Products unit that the company still needs to safely unwind credit default swaps. The Members voted, 328-93, to slap a 90% tax on the bonuses of anyone at every bank receiving $5 billion in TARP money who earns more than $250,000 a year. A draft Senate version is even broader. Never mind if the bonus was earned last year or earlier, or under a legally binding employment contract. The confiscatory tax will apply ex post facto.

Never mind, too, that such punitive laws were expressly deplored by America's Founders. In Federalist 44, James Madison warned that "Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation."

In 1827 in Ogden v. Saunders, the U.S. Supreme Court issued a similar warning about legislative limits under Article I, Section 10 of the Constitution: "The states are forbidden to pass any bill of attainder or ex post facto law, by which a man shall be punished criminally or penally by loss of life of his liberty, property, or reputation for an act which, at the time of its commission, violated no existing law of the land," wrote Justice Bushrod Washington.

"Why did the authors of the Constitution turn their attention to this subject, which, at the first blush, would appear to be peculiarly fit to be left to the discretion of those who have the police and good government of the state under their management and control? The only answer to be given is because laws of this character are oppressive, unjust, and tyrannical, and as such are condemned by the universal sentence of civilized man."

Yes, Article I, Section 10 applies to the states, and this is a federal law. Congress may also figure it avoids the "bill of attainder" objection by applying the law to individuals at several companies receiving TARP money. But Congress's willingness to wreak such vengeance against a specific class of Americans is still as offensive as a matter of principle as Justice Washington and the Federalist Papers noted. The Founders feared the punitive whim of the legislative mob as much as they did the tyranny of a King.

The House legislation may also be unconstitutional on equal protection grounds given that it treats a homogeneous group of individuals differently depending on which companies they work for. It is one thing to treat the companies that receive federal funds differently from those that don't. But the individuals receiving bonuses may have nothing to do with the decision to receive TARP money. The House's 90% tax on some bankers but not others is only a step away from deciding to impose a higher tax rate on employees of any company out of political favor -- say, tobacco companies, or in the next Republican Congress, the New York Times Co.

Which brings us to the Smoot-Hawley analogy. With such a sweeping assault on contracts and punitive taxation, Congress is introducing an element of political risk to economic decisions that is typical of Argentina or Russia. The sanctity of U.S. contracts has long been one of America's competitive advantages in luring capital, a counterpoint to our lottery tort system and costly regulation. Meanwhile, the 90% tax rate marks a return to the pre-Reagan era when Congress and the political class behaved as if taxes didn't matter to growth or incentives. It is a revival of the philosophy of redistributionist "justice" of the 1930s, when capital went on strike for an entire decade.

The financial system will suffer in particular, just when the Obama Administration is desperately seeking more private capital to ride out future losses. Facing such limits on the ability to reward talent, every bank CEO will try to pay off the TARP as soon as possible, whether or not this leaves the bank with a weaker capital base. Hedge funds and other investors that Treasury needs for its new Public-Private Investment Program, or for the Federal Reserve's TALF, will also be warier, if they'll play at all. Treasury may promise nothing punitive for these programs, but that's also what it said about the TARP.

The other Smoot-Hawley comparison relates to our new President. Herbert Hoover sent mixed signals about the tariff until he finally bent to a panicked GOP Congress. President Obama has behaved in the past week as if he can appease and "channel" Congressional anger without being run over himself. So not only did he incite the Members last Monday, he welcomed the House bill on Thursday. By the weekend, cooler White House heads were whispering that the mob had gone too far, but it will take more than words to kill this terrible legislation. Mr. Obama will have to fire a gun in the air -- which means threatening a veto.

On Inauguration Day, we wrote that our young President has a first-class intellect and temperament. Our question was whether he is tough enough. So far the answer is no. He has failed to stand up to a Congress of his own party on anything difficult -- from stimulus priorities, to earmarks, to protectionism against Mexican trucks. Mr. Obama needs to face down the AIG mob, or his Presidency may be its next victim.
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DougMacG
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« Reply #44 on: March 24, 2009, 11:37:44 AM »

Thanks Crafty for raising the legal/constitutional issues of the targeted tax hike.  I clipped this from the pajama medias post from Obama on 60 minutes:

"...Kroft’s question about the constitutionality of the attempt to tax away the bonuses of the AIG executives and Obama’s answer:

Kroft: I mean, you’re a constitutional law professor. Do you think this bill is constitutional?

Obama: Well, I think that as a general proposition, you don’t want to be passing laws that are just targeting a handful of individuals."
---
So we don't want to be doing exactly what we are doing.  It was a VERY nonchalant response for a professor of constitutional law.  Reminds me that who picks nominees for the courts is one of the top reasons to stay involved in elections even when it feels like choosing the lesser of two evils.

I've called Kelo the worst decision of recent memory.  They took private property for private purposes - because they could.  One logical reaction was a proposal to 'take' the David Souter place in New Hampshire and build a hotel: "This is not a prank" said Clements, "The Towne of Weare has five people on the Board of Selectmen. If three of them vote to use the power of eminent domain to take this land from Mr. Souter we can begin our hotel development." http://www.freestarmedia.com/hotellostliberty2.html

Of course it was quickly pointed out that you can't pass laws that target or punish individuals.  Hmmm.....

It occurs to me that Obama is a worker under public subsidy who at 400k makes more than 250k at his day job.  Seems to me any constitutional interpretation of the 90% over 250k tax would apply it to him as well. 
« Last Edit: March 24, 2009, 11:50:10 AM by DougMacG » Logged
DougMacG
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« Reply #45 on: March 24, 2009, 12:15:04 PM »

If what powers are not granted to the feds are left to the states - by constitutional mandate, is there no legal issue regarding feds bailing states out of their budget errors? 

http://www.realclearpolitics.com/lists/biggest_state_deficits/introduction1.html?utm_source=rcp&utm_medium=link&utm_campaign=will

At least 7 of the top 10 bankrupt states are 'blue states' and are among the largest and richest states needing bailouts from working people across the fruited plain.  Besides the obvious legal issue of granted powers,  does not their own state constitution require a balanced budget?  Crying like a baby for a bailout is easier than spending, subsidizing and governing less, but is it constitutional for feds to pay for state powers?
« Last Edit: March 25, 2009, 12:13:56 PM by DougMacG » Logged
DougMacG
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« Reply #46 on: March 25, 2009, 12:11:29 PM »

Under what provision in the constitution does it grant authority to the Obama Administration or to Congress to give the Treasury Secretary the authority to take over non-bank financial companies, such as large insurers, investment firms and hedge funds?

Please watch conservative representative Michele Bachmann, a private tax attorney, ask about constitutional authority and watch Treasury Sec. Geithner dodge and squirm.  He is not familiar with the document.  Fed Chair Bernancke also receives tough questions and handles them better.  Committee chair Barney Frank cuts off the time without allowing an answer to the last question asked, how would taxpayers be paid back for their investment in the private companies.

http://www.youtube.com/watch?v=C69h5PEsDrE&feature=player_embedded
« Last Edit: March 25, 2009, 12:15:23 PM by DougMacG » Logged
Crafty_Dog
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« Reply #47 on: March 30, 2009, 10:00:08 PM »

http://www.nypost.com/seven/03302009/postopinion/opedcolumnists/oba...

JUDGES should interpret the Constitution according to other nations' legal "norms." Sharia law could apply to disputes in US courts. The United States constitutes an "axis of disobedience" along with North Korea and Saddam-era Iraq.

Those are the views of the man on track to become one of the US government's top lawyers: Harold Koh.

President Obama has nominated Koh -- until last week the dean of Yale Law School -- to be the State Department's legal adviser. In that job, Koh would forge a wide range of international agreements on issues from trade to arms control, and help represent our country in such places as the United Nations and the International Court of Justice.

It's a job where you want a strong defender of America's sovereignty. But that's not Koh. He's a fan of "transnational legal process," arguing that the distinctions between US and international law should vanish.

What would this look like in a practical sense? Well, California voters have overruled their courts, which had imposed same-sex marriage on the state. Koh would like to see such matters go up the chain through federal courts -- which, in turn, should look to the rest of the world. If Canada, the European Human Rights Commission and the United Nations all say gay marriage should be legal -- well, then, it should be legal in California too, regardless of what the state's voters and elected representatives might say.

He even believes judges should use this "logic" to strike down the death penalty, which is clearly permitted in the US Constitution.

The primacy of international legal "norms" applies even to treaties we reject. For example, Koh believes that the UN Convention on the Rights of the Child -- a problematic document that we haven't ratified -- should dictate the age at which individual US states can execute criminals. Got that? On issues ranging from affirmative action to the interrogation of terrorists, what the rest of the world says, goes.

Including, apparently, the world of radical imams. A New York lawyer, Steven Stein, says that, in addressing the Yale Club of Greenwich in 2007, Koh claimed that "in an appropriate case, he didn't see any reason why sharia law would not be applied to govern a case in the United States."

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Think about this: the State Dept. job might be a launching pad for a Supreme Court nomination. (He’s on many liberals’ short lists for the high court.) Since this job requires Senate confirmation, it’s certainly a useful trial run.

What happens to Koh in the Senate will send an important signal. If he sails through to State, he’s a far better bet to make it onto the Supreme Court. So Senate Republicans have a duty to expose and confront his radical views.

Even though he’s up for a State Department job, Koh is a key test case in the “judicial wars.” If he makes it through (which he will if he gets even a single GOP vote) the message to the Obama team will be: You can pick ‘em as radical as you like.
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ccp
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« Reply #48 on: April 02, 2009, 02:39:19 PM »

Bailing Out of the Constitution

By George Will

http://www.JewishWorldReview.com | It is high time Americans heard an argument that might turn a vague national uneasiness into a vivid awareness of something going very wrong. The argument is that the Emergency Economic Stabilization Act of 2008 (EESA) is unconstitutional.

By enacting it, Congress did not in any meaningful sense make a law. Rather, it made executive branch officials into legislators. Congress said to the executive branch, in effect: "Here is $700 billion. You say you will use some of it to buy up banks' 'troubled assets.' But if you prefer to do anything else with the money — even, say, subsidize automobile companies — well, whatever."

FreedomWorks, a Washington-based libertarian advocacy organization, argues that EESA violates "the nondelegation doctrine." Although the text does not spell it out, the Constitution's logic and structure — particularly the separation of powers — imply limits on the size and kind of discretion that Congress may confer on the executive branch.

The Vesting Clause of Article I says, "All legislative powers herein granted shall be vested in" Congress. All. Therefore, none shall be vested elsewhere. Gary Lawson of Boston University's School of Law suggests a thought experiment:

Suppose Congress passes the Goodness and Niceness Act. Section 1 outlaws all transactions involving, no matter how tangentially, interstate commerce that do not promote goodness and niceness. Section 2 says that the president shall define the statute's meaning with regulations that define and promote goodness and niceness and specify penalties for violations.

Surely this would be incompatible with the Vesting Clause. Where would the Goodness and Niceness Act really be written? In Congress? No, in the executive branch. Lawson says that nothing in the Constitution's enumeration of powers authorizes Congress to enact such a statute. The only power conferred on Congress by the commerce clause is to regulate. The Goodness and Niceness Act does not itself regulate, it just identifies a regulator.
 
The Constitution empowers Congress to make laws "necessary and proper" for carrying into execution federal purposes. But if gargantuan grants of discretion are necessary, are the purposes proper? Indeed, such designs should be considered presumptively improper. What, then, about the Goodness and Niceness Act, which, as Lawson says, delegates all practical decision-making power to the president? What about EESA?

Writing in the New Republic, Jeffrey Rosen of George Washington University Law School makes a prudential point: "The military-spending scandals during World War II, exposed by the Truman Committee, showed the risks for corruption and fraud when the executive branch is given a free hand to spend vast amounts of money." But even in the unlikely event that the executive branch exercises its excessive EESA discretion efficiently, the mere exercise would nevertheless subvert the principle of separation of powers, which, as Justice Louis Brandeis said, was adopted "not to promote efficiency but to preclude the exercise of arbitrary power."

As government grows, legislative power, and with it accountability, must shrink. The nation has had 535 national legislators for almost half a century. During that time the federal government's business — or, more precisely, its busy-ness — has probably grown at least twenty-fold. Vast grants of discretion to the executive branch by Congress, such as EESA, may be necessary — if America is going to have constant governmental hyperkinesis. If Washington is going to do the sort of things that EESA enables — erasing the distinction between public and private sectors; licensing uncircumscribed executive branch conscription of, and experimentation with, the nation's resources.

Since the New Deal era, few laws have been invalidated on the ground that they improperly delegated legislative powers. And Chief Justice John Marshall did say that the "precise boundary" of the power to "make" or the power to "execute" the law "is a subject of delicate and difficult inquiry." Still, surely sometimes the judiciary must adjudicate such boundary disputes.

The Supreme Court has said: "That Congress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution." And the court has said that properly delegated discretion must come with "an intelligible principle" and must "clearly delineate" a policy that limits the discretion. EESA flunks that test.

With EESA, Congress forces the country to ponder the paradox of sovereignty: If sovereign people freely choose to surrender their sovereignty, is this willed subordination really subordination?

It is. Congress has done that. A court should hear the argument that Congress cannot so divest itself of powers vested in it.

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Crafty_Dog
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« Reply #49 on: April 02, 2009, 03:21:50 PM »

This is a powerful point.

Concerning the allegation of the people's surrender of its sovereignty, I am prompted to inquire what the incumbency rate currently is for the US Congress.  I know that due to gerrymandering it is often in the high 90s!!! shocked
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